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One of the core principles of special education law under the Individuals with Disabilities Education Act, or IDEA, is to provide free appropriate public education in the least restrictive environment, or LRE. But what does LRE mean? In Article 7, the Indiana regulations implementing IDEA, LRE requires that “to the maximum extent appropriate, students with disabilities, … are educated with nondisabled students.” 511 IAC 7-42-10(a). Removal from the general educational environment occurs “only if the nature and severity of the disability is such that education in general education classes using supplementary aids and services cannot be satisfactorily achieved.” 511 IAC 7-42-10(b). A school is responsible for providing a continuum of services to meet the needs of the student with disabilities, including providing a residential placement if necessary. However, preference is given to the LRE that is appropriate within that continuum.
A case conference made up of school personnel and parents meets to develop the student’s individualized education program, which determines the student’s placement based on the LRE requirements. It is often difficult for the case conference to determine what a student’s LRE is given the general nature of words such as “appropriate.” The 7th Circuit Court of Appeals has declined to create a test or factors to consider beyond what is already in the statutory language. “Each student’s educational situation is unique. We find it unnecessary at this point in time to adopt a formal test for district courts uniformly to apply when deciding LRE cases.” Beth B. v. Van Clay, 282 F.3d 493, 499 (7th Cir. 2002).
However, some court decisions do provide some assistance in determining a student’s least restrictive appropriate environment. In Beth B., a student was learning at a preschool level and was mainstreamed into a middle school classroom. Although she was physically in the general education classroom, her curriculum was extremely modified. When other students were learning middle school-level math, the student would learn numbers. The parents argued that because she received some educational benefit from the placement, the LRE standard required that she remain in the general education setting. The 7th Circuit found that the “appropriate” requirement did not merely mean “some.” In this, case the appropriate LRE was a life skills class.
In another 7th Circuit case, the school had attempted a general education placement for several school years. However, the student’s disability increasingly required that the student receive pullout instruction to continue to learn in the general education setting. The record indicated that the student would spend more time with general education students if placed in a self-contained classroom with “reverse mainstreaming” with general education students. Therefore, the self-contained setting was the student’s LRE. See Bd. of Educ. of Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d 267, 278 (7th Cir. 2007).
The case conference committee can look to whether a student’s behavior is preventing the student from obtaining a meaningful education benefit. See, e.g., Bd. of Educ. of Twp. High Sch. Dist. No. 211 v. Michael R., No. 02 C 6098, 2005 WL 2008919, at 20 (N.D. Ill. Aug. 15, 2005).
If a less restrictive environment is proposed, at a minimum, the placement must meet the requirements of the IEP. For example, in Tammy S. v. Reedsburg Sch. Dist., 302 F. Supp. 2d 959 (W.D. Wis. 2003), the parents proposed a placement that would be closer to the student’s home than the placement proposed by the school. However, they did not provide evidence that the student could “receive direct instruction in sign language and … engage in signing with peers of similar age and educational level” as was required by the student’s IEP. Id. at 979. Therefore, even if the placement was less restrictive, it would not have been appropriate.
Finally, while not directly on the issue of LRE, it is important to consider the requirements under the Supreme Court’s decision in Endrew F. In that case, the court held that “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399, (2017). So if a proposed placement does not meet Endrew F.’s substantive requirement, it is not a legitimate placement under the concept of free appropriate public education, regardless of how restrictive it is.
Both families and schools share the frustration that comes with not having appropriate regional choices on the LRE continuum. Day and residential treatment programs are often the LRE (at least in the short term), but even if there are programs within reasonable driving distance, it is a struggle to find any willing to take students with more significant behaviors. Thus, case conferences are often forced to implement a program at the student’s home even though “homebound” is the most restrictive placement on the LRE continuum. But there is only so much the case conference can do when access to behavioral health services for juveniles with challenging behaviors is extremely strained (if it exists at all). Thus, those in the field are hoping for the next round of the Indiana Behavioral Health Commission to take this problem head on so that students, families and schools have viable options to meet the needs of all students.•
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Séamus Boyce is a partner and Keith Butler is an associate at Kroger Gardis & Regas LLP. Opinions expressed are those of the authors.
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