Sheila
Moderator
http://www.ed.gov/policy/speced/guid/idea/letters/2003-4/gantwerk110403lre4q2003.pdf
Dated November 4, 2003
Mrs. Barbara Gantwerk
Director
Office of Special Education Programs
New Jersey Department of Education
P.O. Box 500
Trenton, New Jersey 08625-0500
Dear Mrs. Gantwerk:
This letter is in response to your electronic correspondence with questions and concerns regarding parental choice and the least restrictive environment (LRE) provisions of the Individuals with Disabilities Education Act (IDEA). In your letter, you note that children are sometimes placed in segregated schools for children with disabilities based on an agreement between parents and the other participants in the group of persons making the placement decision that a free appropriate public education can best be provided in a private school. You ask whether this type of parent agreed-to placement will be viewed favorably by the Department as an example of parent choice and whether the Department will continue to look at data on rates of placements in segregated settings (whether parent agreed-to or not) as a State factor warranting further monitoring inquiry by the Department.
The Department of Education fully supports the IDEA and the LRE provisions in the statute and its implementing regulations (20 U.S.C. 1412(a)(5); 34 C.F.R. §300.550-300.556). The LRE provisions provide that to the maximum extent appropriate, children with disabilities are to be educated with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The placement decision must be based on the child's individual needs as identified in the child's individualized education program (IEP), and unless the IEP requires some other arrangement, the child must be educated in the school that he or she would attend if not disabled (34 C.F.R. §300.552). However, the IDEA also requires that each public agency have available a continuum of alternative placements to meet the individual needs of children with disabilities. Thus, under the IDEA, for those children with disabilities who need such a placement, segregated private schools are the least restrictive environment appropriate to their needs. Public agencies can only offer parents choice about the type of placement consistent with the LRE requirements.[emphasis added]
The Office of Special Education Programs (OSEP) is currently targeting its monitoring efforts on those performance issues most closely related to improving results for children with disabilities and on those States most in need of improvement on those performance issues. One of the performance issues that we are looking at is educational environments and current monitoring activities include identifying those States with high percentages of children in more segregated settings. We believe that examining this issue can be an important tool for targeting sites for further investigation, especially given limited resources for monitoring and enforcement activities. However, we recognize that it is important to ensure that while focusing on performance data, the individual rights of children with disabilities are protected.
OSEP has found that a high percentage of children in separate programs is frequently an indicator of a lack of supports and services available in less restrictive placements and/or inappropriate procedures in making placement determinations for children with disabilities. Therefore, in States with a high percentage of children with disabilities in restrictive placements, OSEP works with the State to further examine the data to determine if appropriate supplementary aids and services to support children with disabilities in less restrictive placements are available and that appropriate procedures are being followed in making placement determinations. For example, is the regular classroom in the school the student would attend if not disabled the first placement option considered before a more restrictive option is considered? Can the childs IEP be satisfactorily implemented with the provision of supplementary aids and services in a regular classroom or in a less restrictive setting? Are such supports and services available in the less restrictive setting? Are the school district and parent in agreement that a more restrictive setting is needed by the child? In addition, OSEP will work with the State to analyze the data to determine if children from certain racial/ethnic groups or certain disability categories are more likely to be placed in separate placements leading to disproportionate representation of certain groups in restrictive placements.
I hope this letter answers your questions. If you have any further questions, please do not hesitate to contact me.
Sincerely,
/s/
Robert H. Pasternack, Ph.D.
Also, http://www.ed.gov/policy/speced/guid/idea/letters/2003-2/margolis062303lre2q2003.pdf
Dated June 26, 2003
Leslie S. Margolis, Esq.
Managing Attorney
Maryland Disability Law Center
1800 North Charles Street, Suite 4000
Baltimore, Maryland 21201
Dear Ms. Margolis:
This is in response to your letter dated March 27, 2003 regarding the Maryland Disability Law Centers concern about the Maryland State Department of Educations (MSDE) decision to support the construction of a separate, single-use facility to replace Cedar Lane School. Specifically, you are asking that the Office of Special Education Programs (OSEP) determine if MSDE has taken the necessary steps to conclude that there is no viable alternative to construction of a new separate facility.
As you noted in your letter, while OSEP requires the State to develop corrective actions in response to findings of noncompliance, OSEP does not intervene in State decisions regarding construction of new schools. Further, there are no statutory or regulatory provisions that require a State to take certain steps before concluding that there is no viable alternative to construction of a new separate facility.
The Individuals with Disabilities Education Act (IDEA) requires each public agency to ensure that, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are non-disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 USC §1412(a)(5)(A); 34 CFR §300.550(b)(1)-(2). Therefore, before a child with a disability can be placed outside the regular educational environment, the group of persons making the placement decision, which includes the parents and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, must consider whether supplementary aids and services could be provided that would enable education of the student in the regular classroom setting to be achieved. 34 CFR §300.550, 552(a)(1). If a determination is made that a particular student with a disability cannot be educated satisfactorily in the regular educational environment, even with the provision of appropriate supplementary aids and services, then that student could be placed in a setting other than the regular classroom. In all cases, placement decisions must be individually determined on the basis of each childs abilities and needs, and not solely on factors such as category of disability, severity of disability, configuration of service delivery system, availability of space, or administrative convenience. Rather, each students Individualized Education Program (IEP) forms the basis for the placement decision. 34 CFR §300.552(b)(2).
Further, the regulations implementing the IDEA require that public agencies have available a continuum of alternative placements to meet the needs of children with disabilities for special education and related services. 34 CFR §300.551. This continuum of alternative placements must include instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions).
OSEP takes its responsibility very seriously in assessing States compliance in the implementation of the IDEA and assisting States in developing strategies to improve results for children with disabilities. OSEP conducted a review in Maryland in 1999 to assess the States compliance with the IDEA. OSEPs Monitoring Report was issued to MSDE on July 26, 2001. One area that OSEP identified as an area of noncompliance was Marylands failure to ensure that students with disabilities are placed in the Least Restrictive Environment. MSDE has developed an Improvement Plan that identifies strategies for implementing correction of this, and other areas of noncompliance, sources of technical assistance, timelines for completing strategies, and methods for evaluating the effectiveness of the Improvement Plan. OSEP continues to collaborate with MSDE and review the States progress in ensuring that students with disabilities are placed in the least restrictive environment.
I hope the above information has been helpful. If we can be of further assistance, please contact Dale King at (202) 260-1156.
Sincerely,
/s/
Stephanie S. Lee
Director
Office of Special Education Programs
cc: Dr. Carol Ann Baglin
Assistant State Superintendent
Maryland Department of Education
Dated November 4, 2003
Mrs. Barbara Gantwerk
Director
Office of Special Education Programs
New Jersey Department of Education
P.O. Box 500
Trenton, New Jersey 08625-0500
Dear Mrs. Gantwerk:
This letter is in response to your electronic correspondence with questions and concerns regarding parental choice and the least restrictive environment (LRE) provisions of the Individuals with Disabilities Education Act (IDEA). In your letter, you note that children are sometimes placed in segregated schools for children with disabilities based on an agreement between parents and the other participants in the group of persons making the placement decision that a free appropriate public education can best be provided in a private school. You ask whether this type of parent agreed-to placement will be viewed favorably by the Department as an example of parent choice and whether the Department will continue to look at data on rates of placements in segregated settings (whether parent agreed-to or not) as a State factor warranting further monitoring inquiry by the Department.
The Department of Education fully supports the IDEA and the LRE provisions in the statute and its implementing regulations (20 U.S.C. 1412(a)(5); 34 C.F.R. §300.550-300.556). The LRE provisions provide that to the maximum extent appropriate, children with disabilities are to be educated with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The placement decision must be based on the child's individual needs as identified in the child's individualized education program (IEP), and unless the IEP requires some other arrangement, the child must be educated in the school that he or she would attend if not disabled (34 C.F.R. §300.552). However, the IDEA also requires that each public agency have available a continuum of alternative placements to meet the individual needs of children with disabilities. Thus, under the IDEA, for those children with disabilities who need such a placement, segregated private schools are the least restrictive environment appropriate to their needs. Public agencies can only offer parents choice about the type of placement consistent with the LRE requirements.[emphasis added]
The Office of Special Education Programs (OSEP) is currently targeting its monitoring efforts on those performance issues most closely related to improving results for children with disabilities and on those States most in need of improvement on those performance issues. One of the performance issues that we are looking at is educational environments and current monitoring activities include identifying those States with high percentages of children in more segregated settings. We believe that examining this issue can be an important tool for targeting sites for further investigation, especially given limited resources for monitoring and enforcement activities. However, we recognize that it is important to ensure that while focusing on performance data, the individual rights of children with disabilities are protected.
OSEP has found that a high percentage of children in separate programs is frequently an indicator of a lack of supports and services available in less restrictive placements and/or inappropriate procedures in making placement determinations for children with disabilities. Therefore, in States with a high percentage of children with disabilities in restrictive placements, OSEP works with the State to further examine the data to determine if appropriate supplementary aids and services to support children with disabilities in less restrictive placements are available and that appropriate procedures are being followed in making placement determinations. For example, is the regular classroom in the school the student would attend if not disabled the first placement option considered before a more restrictive option is considered? Can the childs IEP be satisfactorily implemented with the provision of supplementary aids and services in a regular classroom or in a less restrictive setting? Are such supports and services available in the less restrictive setting? Are the school district and parent in agreement that a more restrictive setting is needed by the child? In addition, OSEP will work with the State to analyze the data to determine if children from certain racial/ethnic groups or certain disability categories are more likely to be placed in separate placements leading to disproportionate representation of certain groups in restrictive placements.
I hope this letter answers your questions. If you have any further questions, please do not hesitate to contact me.
Sincerely,
/s/
Robert H. Pasternack, Ph.D.
Also, http://www.ed.gov/policy/speced/guid/idea/letters/2003-2/margolis062303lre2q2003.pdf
Dated June 26, 2003
Leslie S. Margolis, Esq.
Managing Attorney
Maryland Disability Law Center
1800 North Charles Street, Suite 4000
Baltimore, Maryland 21201
Dear Ms. Margolis:
This is in response to your letter dated March 27, 2003 regarding the Maryland Disability Law Centers concern about the Maryland State Department of Educations (MSDE) decision to support the construction of a separate, single-use facility to replace Cedar Lane School. Specifically, you are asking that the Office of Special Education Programs (OSEP) determine if MSDE has taken the necessary steps to conclude that there is no viable alternative to construction of a new separate facility.
As you noted in your letter, while OSEP requires the State to develop corrective actions in response to findings of noncompliance, OSEP does not intervene in State decisions regarding construction of new schools. Further, there are no statutory or regulatory provisions that require a State to take certain steps before concluding that there is no viable alternative to construction of a new separate facility.
The Individuals with Disabilities Education Act (IDEA) requires each public agency to ensure that, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are non-disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 USC §1412(a)(5)(A); 34 CFR §300.550(b)(1)-(2). Therefore, before a child with a disability can be placed outside the regular educational environment, the group of persons making the placement decision, which includes the parents and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, must consider whether supplementary aids and services could be provided that would enable education of the student in the regular classroom setting to be achieved. 34 CFR §300.550, 552(a)(1). If a determination is made that a particular student with a disability cannot be educated satisfactorily in the regular educational environment, even with the provision of appropriate supplementary aids and services, then that student could be placed in a setting other than the regular classroom. In all cases, placement decisions must be individually determined on the basis of each childs abilities and needs, and not solely on factors such as category of disability, severity of disability, configuration of service delivery system, availability of space, or administrative convenience. Rather, each students Individualized Education Program (IEP) forms the basis for the placement decision. 34 CFR §300.552(b)(2).
Further, the regulations implementing the IDEA require that public agencies have available a continuum of alternative placements to meet the needs of children with disabilities for special education and related services. 34 CFR §300.551. This continuum of alternative placements must include instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions).
OSEP takes its responsibility very seriously in assessing States compliance in the implementation of the IDEA and assisting States in developing strategies to improve results for children with disabilities. OSEP conducted a review in Maryland in 1999 to assess the States compliance with the IDEA. OSEPs Monitoring Report was issued to MSDE on July 26, 2001. One area that OSEP identified as an area of noncompliance was Marylands failure to ensure that students with disabilities are placed in the Least Restrictive Environment. MSDE has developed an Improvement Plan that identifies strategies for implementing correction of this, and other areas of noncompliance, sources of technical assistance, timelines for completing strategies, and methods for evaluating the effectiveness of the Improvement Plan. OSEP continues to collaborate with MSDE and review the States progress in ensuring that students with disabilities are placed in the least restrictive environment.
I hope the above information has been helpful. If we can be of further assistance, please contact Dale King at (202) 260-1156.
Sincerely,
/s/
Stephanie S. Lee
Director
Office of Special Education Programs
cc: Dr. Carol Ann Baglin
Assistant State Superintendent
Maryland Department of Education
