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Inclusion of Students with Intellectual Disabilities:

A Legal Overview

ACSA Every Child Counts Symposium

January 14, 2015Presented by: Jan E. Tomsky

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What We’ll Cover Today . . .

Overview of Legal Principles of Inclusion and LRE

The Rachel H. Inclusion Factors Recent OAH Decisions Applying Rachel

H. to Students with Intellectual Disabilities

Case Law Lessons Summary and Take-Aways

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Legal Elements of LRETo the maximum extent appropriate, children with disabilities are educated with children who are not disabled

Removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily

(20 U.S.C §1412(a)(5))

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Legal Elements of LRE

Maximum Extent Appropriate

• Even if not fully included, the child must be educated with nondisabled peers to the maximum extent appropriate.

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Legal Elements of LRE

Nature or Severity

• Placement not based on category of disability

• LRE varies depending on unique needs of child

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Legal Elements of LRE

Supplementary Aids and Services

• Supplementary services to be provided in conjunction with regular class placement

• No removal from general education classroom UNLESS, even with supplementary aids and services, student cannot be educated satisfactorily

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Legal Elements of LRE

Satisfactorily

Satisfactorily = FAPE

If FAPE cannot be achieved in general education classroom, with supplementary aids and services, other placement is necessary

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Remember

Placement decisions cannot be made solely on factors such as category of disability, severity of the disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience

(71 Fed. Reg. 46588, Aug. 14, 2006)

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Continuum of Placements

• Federal law requires a “continuum” of placement options

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Continuum of Placements

A continuum of alternative placements is the range of potential placements in which a district can implement a student's IEP

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Continuum of PlacementsInstruction in regular classes

Special classes

Special schools

Home instruction

Instruction in hospitals and institutions

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Continuum of Placements

“Full Inclusion” and “Mainstreaming” -

The law does not mention either term!!

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Continuum of Placement“Full Inclusion”

Common understanding of the term:

Placement full-time in a general education classroom with supplementary aids and services, often including a 1-to-1 paraprofessional

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Continuum of Placement“Mainstreaming”

Common understanding of the term:

• Primary placement in a more specialized setting

• Part-time in general education classroom

• Academic and/or non-academic services provided to support the general education curriculum

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TAKE NOTE!

IEP must include a statement explaining why full participation in the general education setting is not possible

Practice Pointer: Document, on the IEP, supplementary aids and services previously provided and their success or lack thereof

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The Courts, OAH and LRE

Applying the Rachel H. Factors

When looking at LRE and full inclusion,OAH applies Sacramento City USD v. Rachel H. (9th Cir.1994)

Now called Rachel H., once called Holland

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Facts in Rachel H.

11-year-old with intellectual disability (44 I.Q.)

Parent wanted general education setting District proposed SDC with

mainstreaming Parent withdrew student and placed her

in a general education private school classroom

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Ruling in Rachel H.

Court found: Student received substantial educational

benefit in general education setting Student’s goals could be implemented

with aide Student built self-confidence and formed

friendships with peers Student was not a distraction and did not

interfere with teacher’s ability to teach others

District did not offer persuasive evidence regarding supposed higher cost of full inclusion

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The Rachel H. Balancing Test

Four factors:1. Academic

benefit2. Non-Academic

benefit3. Effect on

teacher/students4. Cost

Sacramento City USD v. Rachel H. (9th Cir.1994)

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1. Academic Benefit

Notwithstanding the presumption in favor of inclusion, districts generally are not required to place a student with a disability in a regular classroom if he or she will not receive a sufficient educational benefit in a regular classroom, even with the provision of supplementary aids and services

(Poolaw v. Bishop (9th Cir. 1995) 67 F.3d 830)

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2. Non-Academic Benefit

Behavioral models Communication models Increased self-esteem Socialization skills Language model Benefit is more than simply sitting in a

classroom with nondisabled children

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3. Student’s Effect on Teacher and Other Students

Distracting to other students in class Threatens the safety of other students or poses a

danger to himself/herself if placed in the regular classroom

Engages in significantly disruptive behavior, even with the use of behavioral intervention, which interferes with the education of classmates

Requires so much of the teacher’s time and attention that student interferes with the learning of others in the classroom

Requires a high level of adult support to perform tasks

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4. Cost Associated with Placement

Generally, cost is not identified as a factor in placement decisions and is seldom litigated

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How does OAH apply the Rachel H. test in the context of students with intellectual disabilities?

Let’s look at some recent cases!

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Student v. El Centro ESD (OAH 2013)

Facts: 7-year-old boy with intellectual disability (Down

syndrome) Also speech/language impairment Parents preferred general education kindergarten

placement District offered mild-to-moderate disability SDC Parents claimed District should only have offered

the SDC when (or if) Student failed to make progress

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Student v. El Centro ESD (OAH 2013)

Decision: SDC placement was appropriate Behaviors interfered with ability to make

progress, interfered with teacher and other students

Student needed constant support from his aide to stay on task

Expert: “Even if [Student] receives a 1:1 aide and extensive pull-out support, it seems unlikely that he can maintain the pace and meet the demands of a regular education classroom”

(Student v. El Centro Elem. School Dist. (OAH 2013) No. 2012100380, 113 LRP 23857)

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Student v. Julian Union ESD (OAH 2013) Facts:

10-year-old boy with intellectual disability (Down syndrome)

Attended general education charter school where he received pull-out instruction from aide and some in-class support

District proposed moving Student to SDC District believed Student could best learn to read

in a small, structured classroom with children who were on the same level academically

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Student v. Julian Union ESD (OAH 2013) Decision:

General education placement was appropriate

Student made progress in full-inclusion setting and it was reasonable to believe such progress would continue

Argument that the student needed to be in a class with peers with intellectual disabilities was contrary to IDEA’s LRE obligation; Congress did not intend IDEA to maximize students’ potential at expense of inclusion

(Student v. Julian Union Elem. School Dist. (OAH 2013) No. 2012100933, 113 LRP 13667)

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Student v. Oakdale Joint USD (OAH 2012) Facts:

5-year-old girl with intellectual disability and speech/language impairment

Family moved from Texas and sought to enroll Student in kindergarten

District placed Student in SDC for 95 percent of school day, despite knowledge that she had previously attended general education preschool class

Parents alleged denial of FAPE in LRE

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Student v. Oakdale Joint USD (OAH 2012) Decision:

General education placement was appropriate

District knew Student succeeded in general education preschool and participated in extracurricular activities with nondisabled students

No evidence that Student was disruptive to teacher or classmates; no behavioral issues – she even helped other students stay on task during extracurriculars

Although Student needed support from aide, ALJ found insufficient evidence that she required more restrictive setting to access her education

(Student v. Oakdale Joint Unified School Dist. (OAH 2012) No. 2011120409, 112 LRP 24573)

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Student v. Hollister SD (OAH 2013)

Facts: 5-year-old girl with Down syndrome with I.Q. of

62 Parents requested full inclusion placement with

full-time aide and independent inclusion specialist

District proposed kindergarten placement in moderate-to-severe SDC

ALJ found District denied FAPE by failing to include general education teacher at IEP meeting

Did not need to determine LRE issue, but engaged in LRE analysis nonetheless

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Student v. Hollister SD (OAH 2013) Decision:

SDC placement would have been appropriate

District could not modify general education curriculum to level of where Student could obtain benefit

Pace was just too fast Curriculum would need to be modified to such

extent that Student “would no longer be part of the class” and would have to work separately from peers

However, Student would receive some benefit from interacting part of day (social skills and extracurriculars) with nondisabled students

(Student v. Hollister School Dist. (OAH 2013) No. 2012080366, 113 LRP 3720)

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Student v. San Lorenzo USD (OAH 2013) Facts:

13-year-old boy with intellectual disability and autism

Student was placed in SDC classes during seventh and eighth grade (56 percent) for math, ELA, social studies and science

Parents claimed placement in SDC for science and social studies was too restrictive; argued that Student had received educational benefit from general education science and social studies when he was in that setting during sixth grade

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Student v. San Lorenzo USD (OAH 2013) Decision:

SDC placement appropriate (for science and social studies classes)

Student exhibited behavioral problems when in general education classes during sixth grade (yelling, running out the door when overwhelmed) and could not engage with classmates or teacher

Behavior was controlled in SDC and Student made progress in those classes during seventh grade

Eighth-grade science and social studies in general education would provide only trivial benefit

(Student v. San Lorenzo Unified School Dist. (OAH 2013) No. 2013040589, 113 LRP 40302)

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Student v. Spencer Valley ESD (OAH 2014) Facts:

12-year-old boy with intellectual disability (I.Q. of 67)

Previously in full-time general education setting For fifth grade, District offered placement of one-

half day in specialized academic instruction classroom and one-half day in general education

Parents contended that LRE was full inclusion placement in fifth grade classroom with appropriate supports, modifications and accommodations

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Student v. Spencer Valley ESD (OAH 2014) Decision:

General education placement appropriate ALJ: Facts “remarkably similar” to Rachel H. ALJ refuted District’s witness who believed it was

too difficult to modify general education curriculum to implement Student’s IEP goals

Cited Student’s previous progress toward goals and improved behavior in general education setting

District proposed placement arose from difficulty in finding and retaining staff to support Student's IEP and lack of support for general education teacher

Neither reason was suitable basis for LRE decision(Student v. San Lorenzo Unified School Dist. (OAH 2013) No. 2013040589, 113 LRP 40302)

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Rachel H. and OAH Case Law Lessons: Questions to Ask

Academic Benefit Satisfactory academic benefit? Progress on IEP goals?

Non–academic benefit Develop social and

communication skills from general education peers?

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Rachel H. and OAH Case Law Lessons: Questions to Ask

Effect on Teacher and StudentsDisruptive in general education class?

Behavior able to be controlled?Parallel curriculum?

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Rachel H. and OAH Case Law Lessons: Questions to Ask

Cost Remember: Cost cannot be a

factor in the determination of FAPE.

However, cost must be considered by the ALJ when looking at placement.(Ed. Code § 56505)

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Rachel H. and OAH Case Law Lessons: The Bottom Line

Disruptive behavior may be the most significant factor—AFTER trying supplementary aides and services!

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Finally . . . A Few Words About a Placement’s Location

Federal law and regulations

• A child is to be educated in the school he would otherwise attend if not disabled unless the IEP requires some other placement

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OSEP Letter to Trigg

School administrators have the flexibility to determine location so long as placement is consistent with IEP

If IEP services are not available at neighborhood school, student may be placed in another school that can offer services

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Placement, the LRE and Inclusion Summary and Take-Aways IDEA’s LRE principle

expresses strong preference, not a mandate, for educating every child with a disability in the general education environment

Each public agency must makeavailable a continuum of placement options

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Placement, the LRE and Inclusion Summary and Take-Aways Students must not be

removed from general education programs solely because of needed modifications in general education curriculum

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Placement, the LRE and Inclusion Summary and Take-Aways

Even though a student with anintellectual disability may havelimited potential for academicachievement in the generalclassroom, it does not necessarily mean that the student cannot receive an educational benefit inthat setting

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Placement, the LRE and Inclusion Summary and Take-Aways

A more restrictive specialeducation placement cannotbe justified merely becausea student might make greater academic progress away from the generaleducation classroom

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Placement, the LRE and Inclusion Summary and Take-Aways

Review of the data becomes foundation for future IEP placement discussion

Placement recommendation is a reflection of thorough review of student’s history, needs, and abilities

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Thank you for attending!And thank you for all you do for

students!!

Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information

may apply to your specific facts and circumstances.

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .