1. 1 Inclusion of Students with Intellectual Disabilities: A Legal Overview ACSA Every Child Counts Symposium January 14, 2015 Presented by: Jan E. Tomsky

2. 2 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

3. 3 Legal Elements of LRE To 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))

4. 4 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.

5. 5 Legal Elements of LRE Nature or Severity Placement not based on category of disability LRE varies depending on unique needs of child

6. 6 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

7. 7 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

8. 8 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)

9. 9 Continuum of Placements Federal law requires a “continuum” of placement options

10. 10 Continuum of Placements  A continuum of alternative placements is the range of potential placements in which a district can implement a student's IEP

11. 11 Continuum of Placements Instruction in regular classes Special classes Special schools Home instruction Instruction in hospitals and institutions

12. 12 Continuum of Placements “Full Inclusion” and “Mainstreaming” - The law does not mention either term!!

13. 13 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

14. 14 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

15. 15 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

16. 16 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. (9 th Cir.1994) Now called Rachel H., once called Holland

17. 17 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

18. 18 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

19. 19 The Rachel H. Balancing Test Four factors: 1. Academic benefit 2. Non-Academic benefit 3. Effect on teacher/students 4. Cost Sacramento City USD v. Rachel H. (9th Cir.1994)

20. 20 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)

21. 21 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

22. 22 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

23. 23 4. Cost Associated with Placement  Generally, cost is not identified as a factor in placement decisions and is seldom litigated

24. 24 How does OAH apply the Rachel H. test in the context of students with intellectual disabilities? Let’s look at some recent cases!

25. 25 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

26. 26 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)

27. 27 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

28. 28 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)

29. 29 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

30. 30 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)

31. 31 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

32. 32 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)

33. 33 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

34. 34 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)

35. 35 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

36. 36 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)

37. 37 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?

38. 38 Rachel H. and OAH Case Law Lessons: Questions to Ask Effect on Teacher and Students Disruptive in general education class? Behavior able to be controlled? Parallel curriculum?

39. 39 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 )

40. 40 Rachel H. and OAH Case Law Lessons: The Bottom Line Disruptive behavior may be the most significant factor—AFTER trying supplementary aides and services!

41. 41 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

42. 42 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

43. 43 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 make available a continuum of placement options

44. 44 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

45. 45 Placement, the LRE and Inclusion Summary and Take-Aways Even though a student with an intellectual disability may have limited potential for academic achievement in the general classroom, it does not necessarily mean that the student cannot receive an educational benefit in that setting

46. 46 Placement, the LRE and Inclusion Summary and Take-Aways A more restrictive special education placement cannot be justified merely because a student might make greater academic progress away from the general education classroom

47. 47 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

48. 48 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.

49. 49 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.

50. 50 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.

51. 51 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.