INCLUSION: LEGAL RESPONSIBILITIES UNDER THE INDIVIDUALS WITH ...

1. INCLUSION:LEGAL RESPONSIBILITIES UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AND THE NO CHILD LEFT BEHIND ACT Rodney C. Lewis Attorney at Law Lanier Ford Shaver & Payne P.C. 200 West Side Square, Suite 5000 Huntsville, Alabama 35801 256-535-1100 rcl@lfsp.com

3. I. Introduction Inclusion refers to the mandate that, when appropriate, students with disabilities receive their education in the regular classroom with their non-disabled peers and are provided access to the general education curriculum. The word “inclusion” is nowhere in the IDEA or its implementing regulations or NCLB. IDEA addresses the concept of inclusion through the term “least restrictive environment” (LRE).

4. LRE is the legal standard by which inclusion decisions are made. Full inclusion is not always the LRE for every disabled student.

5. Concept of inclusion traces its roots to the passage of the Education for All Handicapped Children Act in 1975. (Pre-IDEA) Critics of inclusion question its value in situations when it results in student’s isolation in regular classroom or unfairly takes away from the educational resources of regular education students in the classroom. “Inclusion does not meet the individual needs of all students.” “ Many students’ needs cannot be addressed in an inclusive setting.”

6. Advocates of inclusion argue that the socialization and stigma reducing impact of inclusion outweigh any drawbacks of inclusion. “Everyone (disabled and non-disabled) must learn to function together in society.” “Inclusion increases the understanding of disabilities among the non-disabled.”

7. Educating students in an inclusive setting costs a school 25% to 60% less than educating them in a special education setting. Percentage of disabled students educated in public schools. 1970 = 20% 1998 = 96% Percentage of disabled students spending more than 80% of school day in regular education classroom. 1988 = 31% 1977 = 46% 2006 = 80% (?)

8. Prior to NCLB and IDEA (2004), question for inclusion determination used to be whether a disabled student could succeed in general education. Question for inclusion determination now is not whether, but, how can a disabled student succeed in general education.

9. Present Issues for Public School Systems Are: (1) How to legally comply with the inclusion responsibilities of IDEA and NCLB? and (2) How to successfully implement the inclusion mandate of IDEA and NCLB?

10. LRE DETERMINATIONS UNDER IDEA

11. With implementation of NCLB, it is even more important that school districts make wise and legally proper LRE decisions.

12. What is the IDEA Legal Definition or Requirement of LRE? To the maximum extent appropriate,

13. What is the IDEA Legal Definition or Requirement of LRE? 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 not disabled

14. What is the IDEA Legal Definition or Requirement of LRE? 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 not disabled and special classes, separate schooling, and other removal of children with disabilities from the regular education environment, occurs only when the nature of or severity of the disability of the child is such that education in regular classes

15. What is the IDEA Legal Definition or Requirement of LRE? 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 not disabled and special classes, separate schooling, and other removal of children with disabilities from the regular education environment, occurs only when the nature of or severity of the disability of the 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)(A) (IDEA ‘04)

16. LRE Mandate Does Not Mean That: Every child with a disability is entitled to be placed in general education classes full time. The needs and rights of other children in the general education class must be ignored. The safety of the other children and teachers in the general education class must be ignored. A child must fail before being placed in a more restrictive environment.

17. LRE is Legally Comprised of a Continuum of Services or Placement From Least Restrictive to More Restrictive General education curriculum/classroom with no supplementary aids or services General education curriculum/classroom with accommodations. General education curriculum/classroom with supplementary aids and services. General education curriculum/classroom with part day resource classroom. Self-contained/partial day Full day self-contained. Special school/Special facility. Homebound/Hospital.

18. LRE decision is made by the IEP team after the team decides what services a student needs. IEP team must start at least restrictive placement and then move through the continuum of placements. Each child’s LRE is different, based on that child’s unique needs and abilities, rather than the child’s disability label or category.

19. Factors Courts Consider in Reviewing a Challenge to a School System’s Proposed LRE Placement: Academic benefit of proposed placement. (Only potential for “some” academic progress required) Non-academic benefit of proposed placement. (Modeling, socialization, etc.) Disruption to other students or to classroom teaching. (Supplementary aids and services must be exhausted) Cost.

20. Tips for Determining Legally Appropriate LRE Determination of LRE is one of the last decisions for team. Focus on “what can child learn” as opposed to “what is child’s disability”. More restrictive setting for behaviorally challenged students only appropriate when District has been unsuccessful with supplementary aids and services (FBA, BIP, full-time aide).

21. FAPE outweighs LRE. Placement in neighborhood school not always required (centrally located specialized program). Preschool children entitled to education in LRE.

22. Impact of NCLB Upon IDEALRE Determinations

23. What Has Been the Impact of NCLB Upon IDEA LRE Determinations? Impact of NCLB and IDEA (2004) is the placement of the majority of disabled students in the general education classroom.

24. Focus is now not upon “access” for special education students but “accountability.” Special education students are considered general education students first. Prior to the NCLB, the LRE mandate of pre-2004 IDEA already required that special needs children “access’ the “general curriculum” to the greatest extent possible. Yet, IDEA had never precisely defined the term general curriculum. NCLB in 2002 redefined “general curriculum” in relation to rigid academic content and achievement standards.

25. NCLB and IDEA(2004) require that disabled students participate in same general curriculum as general education students. The result if more special needs students placed in general classroom. NCLB mandated highly qualified teachers of core academic subjects for all students. School Districts forced to place even more special needs students in general education classroom to provide access to the highly qualified teacher.

26. Under NCLB and IDEA (2004), there is a legal assumption that students with disabilities should participate in the same general education curriculum as non-disabled children absent extreme circumstances. Under NCLB and IDEA (2004), all students, including disabled, are expected to participate to some degree in the general education curriculum and to work towards proficiency in reading, math and science.

27. Under NCLB Schools forced to meet academic achievement and content standards defined by the State. Schools must align their curriculum and instructional materials to State academic achievement and content standards. Schools must make adequate yearly progress as determined by reporting data including testing designed to evaluate student proficiency against academic content standards. Students with disabilities generally cannot be excluded from state accountability provisions, although some disabled students may be accommodated or provided alternative assessments.

28. IV. Tips for Implementing Effective and Legal Compliant Inclusion Settings Remember, disabled students are one of the subgroups that must demonstrate progress for the school as a whole to meet AYP requirements of NCLB. Everyone has the responsibility and vested interest in ensuring that disabled students progress in the general curriculum. “It takes a village.” General and special education teacher both play pivotal and necessary roles. General education teacher provides knowledge about the curriculum. Special education teacher provides knowledge as to strategies and methodologies that can be used to reach all students in classroom.

29. IEP should be a roadmap as to how student will access the general curriculum. Draft IEP’s to not simply reiterate State curriculum standards, but rather reflect the accommodations, services, modifications, necessary to achieve that standard. Specify in IEP the role of special education teacher. Specify time spent with student and location of services.

30. Once a placement is made and IEP team commits to it on behalf of school district, all teachers have a legal responsibility to make a good faith effort to implement the IEP in the setting determined by the IEP team. If any particular inclusion situation IEP is not working, you have the right/obligation to request an IEP meeting if other resolution means have not been successful. END

31. INCLUSION:LEGAL RESPONSIBILITIES UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AND THE NO CHILD LEFT BEHIND ACT Rodney C. Lewis Attorney at Law Lanier Ford Shaver & Payne P.C. 200 West Side Square, Suite 5000 Huntsville, Alabama 35801 256-535-1100 rcl@lfsp.com