OSEP Policy Letter-Least Restrictive Environment

21 IDELR 1152
2 ECLPR  81
OSEP Memorandum 95-9
U.S. Department of Education
November 23">

OSEP Policy Letter-Least Restrictive Environment

21 IDELR 1152
2 ECLPR  81
OSEP Memorandum 95-9
U.S. Department of Education
November 23, 1994
Judith E. Heumann, Assistant Secretary Thomas Hehir, Director
• U.S. Department of Education, Office of Special Education Programs
(OSEP)
• Least Restrictive Environment (LRE), Intent/Scope of LRE Requirement
• Least Restrictive Environment (LRE), Inclusion
Summary
The Department of Education issued a policy memorandum to chief state
school officers to provide them with guidance on the IDEA's LRE
requirements.

• (1) It explained that the LRE requirements of Part B refer
  to the provision which states the IDEA's strong preference for educating
  students with disabilities in regular classes with appropriate aids and
  supports, found in the statute at 20 USC 1412(5)(B) and implemented by
  the Part B regulations at 34 CFR 300.550-300.556.
• (2) The IDEA does not use the term "inclusion", and thus, the Department of Education has not defined that term. What the IDEA does require is that districts place students in the LRE, which is defined in the sections cited.
• (3) In order to ensure placement in the LRE, IEP teams must consider the extent that the student will be able to participate in regular education
  programs, and what range of supplementary aids and services would
  facilitate the student's placement in that environment.
• (4) The IDEA contains no definition of the term "supplementary aids and services", but if the IEP team determines that such services are necessary, then they must be described in the student's IEP and provided to the student.
• (5) At a minimum, the IDEA requires that each disabled student's
  placement be determined annually. However, the student's parent,
  teacher, or other service provider can initiate a request for review of
  the student's IEP at any point in time.
• (6) The lack of adequate personnel or resources cannot be used as an excuse by the district to relieve them of their obligations to make FAPE available to disabled students in the LRE. The public agency must ensure the supply of a
  sufficient number of teachers who are qualified, with the needed aids
  and supports to provide such services in regular education environments.
• (7) If it is determined that a student with disabilities cannot be
  educated satisfactorily in regular education even with supplementary
  aids and services, then the student's placement team must select the
  option on the "continuum" of alternative placements which best meets the
  student's needs. The alternative placement chosen must maximize
  opportunities for the student to interact with nondisabled peers to the
  extent appropriate.
• (8) Although the overriding consideration in determining an appropriate placement is the individual abilities and needs of the student, other relevant factors include a comparison of the educational benefits available in the regular classroom with supplemental aids to the educational benefits available in a special education classroom, the non-academic benefits of interaction with nondisabled students, and the degree of disruption to other students which results in the inability to meet the student's needs. The
  Department instructed that districts cannot make placements based solely
  on the following factors: category of disability, severity of disability, configuration of delivery system, availability of educational or related services, availability of space, or administrative convenience.
• (9) Concerning the impact that a disabled student's placement can have on nondisabled students, the Department remarked that if a student is so disruptive in the regular classroom that the education of other students is significantly impaired, then the needs of the disabled student cannot be met in that environment.  Nonetheless, the district must ensure that consideration is given to the full range of supplementary aids and services that could accommodate the student in that setting prior to making such a determination.
• (10) The Department supports a variety of professional development and training projects that address the needs of students in inclusive programs and has financed Statewide Systems Change projects which support changing
  the setting for delivery of educational services from separate settings
  to general education settings.

Introduction

The least restrictive environment (LRE) requirements of Part B of the
Individuals with Disabilities Education Act (IDEA) have been included in
the law in their present form since 1975. However, these requirements
continue to generate complex and interesting questions from the field.
In particular, questions have been raised about the relationship of
IDEA's LRE requirements to "inclusion." Consistent with our attempt to
provide you and your staff with as much current information as possible
and to ensure that the applicable requirements of IDEA that govern the
education of students with disabilities are accurately understood and
properly implemented, guidance on IDEA's LRE requirements is being
provided in a question and answer format. In most cases, this question
and answer document consolidates the prior policy guidance that the
Department has provided in this area. We encourage you to disseminate
this document to a wide range of individuals and organizations
throughout your State. Any further questions should be directed to the
contact person named at the beginning of this document or to Dr. JoLeta
Reynolds at (202) 205-5507.
We hope that the above questions and answers are of assistance to you
and your staff as you carry out your responsibilities to ensure that
disabled students are provided a free appropriate public education in
the least restrictive environment.

Questions and Answers

• 1. What are the least restrictive Environment (LRE) requirements of Part
  B of IDEA?

ANSWER:

• In order to be eligible to receive funds under Part B of IDEA (IDEA),
  States must, among other conditions, assure that a free appropriate
  public education (FAPE) is made available to all children with specified
  disabilities in mandated age ranges. The term "FAPE" is defined as
  including, among other elements, special education and related services,
  provided at no cost to parents, in conformity with an individualized
  education program (IEP). The IEP, which contains the statement of the
  special education and related services to meet each disabled student's
  unique needs, forms the basis for the entitlement of each student with a
  disability to an individualized and appropriate education. IDEA further
  provides that States must have in place procedures assuring 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 not disabled, and that special classes,
  separate schooling, or other removal of children with disabilities from
  the regular educational environment occurs only when 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." This provision, which states IDEA's strong preference
  for educating students with disabilities in regular classes with
  appropriate aids and supports, is found in the statute at 20 U.S.C. §
  1412(5)(B) and is implemented by the Department's regulations at 34 CFR
  §§ 300.550-300.556. Copies of the relevant statutory and regulatory
  provisions are attached to this question and answer document. [OMITTED]
  

• 2. Does IDEA define the term "inclusion?"

ANSWER:

• IDEA does not use the term "inclusion"; consequently, the Department of
  Education has not defined that term. However, IDEA does require school
  districts to place students in the LRE. LRE means that, to the maximum
  extent appropriate, school districts must educate students with
  disabilities in the regular classroom with appropriate aids and
  supports, referred to as "supplementary aids and services," along with
  their nondisabled peers in the school they would attend if not disabled,
  unless a student's IEP requires some other arrangement. This requires an
  individualized inquiry into the unique educational needs of each
  disabled student in determining the possible range of aids and supports
  that are needed to facilitate the student's placement in the regular
  educational environment before a more restrictive placement is
  considered.
  In implementing IDEA's LRE provisions, the regular classroom in the
  school the student would attend if not disabled is the first placement
  option considered for each disabled student before a more restrictive
  placement is considered. If the IEP of a student with a disability can
  be implemented satisfactorily with the provision of supplementary aids
  and services in the regular classroom in the school the student would
  attend if not disabled, that placement is the LRE placement for that
  student. However, if the student's IEP cannot be implemented
  satisfactorily in that environment, even with the provision of
  supplementary aids and services, the regular classroom in the school the
  student would attend if not disabled is not the LRE placement for that
  student.
  
• 3. How can IDEA requirements be implemented to ensure that consideration
  is given to whether a student with a disability can be educated in the
  regular educational environment with the use of supplementary aids and
  services before a more restrictive placement is considered?

ANSWER:

• The relationship of IDEA's LRE requirements to the IEP process is key,
  since under IDEA, the student's IEP forms the basis for the student's
  placement decision. IDEA requires that the IEP of each disabled student
  must contain, among other components, a "statement of the specific
  special education and related services to be provided to the child and
  the extent that the child will be able to participate in regular
  educational programs." 34 CFR § 300.346(a)(3). At the student's IEP
  meeting, the extent that the student will be able to participate in
  regular educational programs is one of the matters to be addressed by
  all of the participants on the student's IEP team before the student's
  IEP is finalized. In addressing this issue, the team must consider the
  range of supplementary aids and services, in light of the student's
  abilities and needs, that would facilitate the student's placement in
  the regular educational environment. As discussed in question 4 below,
  these supplementary aids and services must be described in the student's
  IEP. Appendix C to 34 CFR Part 300 (question 48).
  
• 4. Does IDEA define the term "supplementary aids and services?"

ANSWER:

• No. However, in determining the educational placement for each disabled
  student, the first line of inquiry is whether the student's IEP can be
  implemented satisfactorily in the regular educational environment with
  the provision of supplementary aids and services. This requirement has
  been in effect since 1975 when the Education of the Handicapped Act
  (EHA), the predecessor to the IDEA, originally became law.
  Consistent with this requirement, any modifications to the regular
  educational program, i.e., supplementary aids and services that the IEP
  team determines that the student needs to facilitate the student's
  placement in the regular educational environment must be described in
  the student's IEP and must be provided to the student. Appendix C to 34
  CFR Part 300 (question 48). While determinations of what supplementary
  aids and services are appropriate for a particular student must be made
  on an individual basis, some supplementary aids and services that
  educators have used successfully include modifications to the regular
  class curriculum, assistance of an itinerant teacher with special
  education training, special education training for the regular teacher,
  use of computer-assisted devices, provision of notetakers, and use of a
  resource room, to mention a few.
  
• 5. How frequently must a disabled student's placement be reviewed under
  IDEA?

ANSWER:

• Under IDEA, each disabled student's placement must be determined at
  least annually, must be based on the student's IEP, and must be in the
  school or facility as close as possible to the student's home. Under
  IDEA, each student's placement decision must be made by a group of
  persons, including persons knowledgeable about the student, the meaning
  of evaluation data, and the placement options. While the student's IEP
  forms the basis for the placement decision, a student's IEP cannot be
  revised without holding another IEP meeting, which the school district
  is responsible for convening. If either the student's parent or teacher
  or other service provider wishes to initiate review of the student's IEP
  at a point during the school year that does not correspond with the
  annual IEP review, that individual can request the school district to
  hold another IEP meeting. If the IEP is revised, following the meeting,
  the placement team would need to review the student's IEP to determine
  if a change in placement would be needed to reflect the revised IEP.
  
• 6. If a determination is made that a student with disability can be
  educated in regular classes with the provision of supplementary aids and
  services, can school districts refuse to implement the student's IEP in
  a specific class because of the unwillingness of a particular teacher to
  educate that student in his or her classroom or the teacher's assertion
  that he or she lacks adequate training to educate that student
  effectively?

ANSWER:

• Under IDEA, lack of adequate personnel or resources does not relieve
  school districts of their obligations to make FAPE available to each
  disabled student in the least restrictive educational setting in which
  his or her IEP can be implemented. Exclusion of a student from an
  appropriate placement based solely on the student's disability is
  prohibited by Section 504 of the Rehabilitation Act of 1973. However,
  placement in a particular regular class based on the qualifications of a
  particular teacher is permissible under both statutes. The public agency
  has an affirmative responsibility to ensure the supply of sufficient
  numbers of teachers who are qualified, with needed aids and supports, to
  provide services to students with disabilities in regular educational
  environments, and to provide necessary training and support services to
  students with disabilities. The Department encourages States and school
  districts to develop innovative approaches to address issues surrounding
  resource availability. Factors that could be examined include
  cooperative learning, teaching styles, physical arrangements of the
  classroom, curriculum modifications, peer mediated supports, and
  equipment, to mention a few.
  
• 7. Once a determination is made that a disabled student cannot be
  educated satisfactorily in the regular educational environment, even
  with the provision of supplementary aids and services, what
  considerations govern placement?

ANSWER:

• IDEA does not require that every student with a disability be placed in
  the regular classroom regardless of individual abilities and needs. This
  recognition that regular class placement may not be appropriate for
  every disabled student is reflected in the requirement that school
  districts make available a range of placement options, known as a
  continuum of alternative placements, to meet the unique educational
  needs of students with disabilities. This requirement for the continuum
  reinforces the importance of the individualized inquiry, not a "one size
  fits all" approach, in determining what placement is the LRE for each
  student with a disability. The options an this continuum must include
  "the alternative placements listed in the definition of special
  education under § 300.17 (instruction in regular classes, special
  classes, special schools, home instruction, and instruction in hospitals
  and institutions)." 34 CFR § 300.551(b)(1). These options must be
  available to the extent necessary to implement the IEP of each disabled
  student. The placement team must select the option on the continuum in
  which it determines that the student's IEP can be implemented. Any
  alternative placement selected for the student outside of the regular
  educational environment must maximize opportunities for the student to
  interact with nondisabled peers, to the extent appropriate to the needs
  of the student.
  It also should be noted that under IDEA, parents must be given written
  prior notice that meets the requirements of § 300.505 a reasonable time
  before a public agency implements a proposal or refusal to initiate or
  change the identification, evaluation, or educational placement of the
  child, or the provision of FAPE to the child. Consistent with this
  notice requirement, parents of disabled students must be informed that
  the public agency is required to have a full continuum of placement
  options, as well as about the placement options that were actually
  considered and the reasons why those options were rejected. 34 CFR §§
  300.504-300.505; Notice of Policy Guidance on Deaf Students Education
  Services, published at 57 Fed. Reg. 49274 (Oct. 30, 1992).
  
• 8. What are the permissible factors that must be considered in
  determining what placement is appropriate for a student with a
  disability? Which factors, if any, may not be considered?

ANSWER:

• The overriding rule in placement is that each student's placement must
  be individually-determined based on the individual student's abilities
  and needs. As noted previously, it is the program of specialized
  instruction and related services contained in the student's IEP that
  forms the basis for the placement decision. In determining if a
  placement is appropriate under IDEA, the following factors are relevant:
  • the educational benefits available to the disabled student in a
    traditional classroom, supplemented with appropriate aids and services,
    in comparison to the educational benefits to the disabled student from a special education classroom; the non-academic benefits to the disabled student from interacting with nondisabled students; and
    the degree of disruption of the education of other students, resulting
    in the inability to meet the unique needs of the disabled student.
  • However, school districts may not make placements based solely on
    factors such as the following:
    • category of disability;
    • severity of disability;
    • configuration of delivery system;
    • availability of educational or related services;
      availability of space;
    • or administrative convenience.
      
• 9. To what extent is it permissible under IDEA for school districts to
  consider the impact of a regular classroom placement on those students
  in the classroom who do not have a disability?

ANSWER:

• IDEA regulations provide that in selecting the LRE, consideration is
  given to any potential harmful effect on the student or on the quality
  of services that the student needs. If a student with a disability has
  behavioral problems that are so disruptive in a regular classroom that
  the education of other students is significantly impaired, the needs of
  the disabled student cannot be met in that environment. However, before
  making such a determination, school districts must ensure that
  consideration has been given to the full range of supplementary aids and
  services that could be provided to the student in the regular
  educational environment to accommodate the unique needs of the disabled
  student. If the placement team determines that even with the provision
  of supplementary aids and services, that student's IEP could not be
  implemented satisfactorily in the regular educational environment, that
  placement would not be the LRE placement for that student at that
  particular time, because her or his unique educational needs could not
  be met in that setting.
  While IDEA regulations permit consideration of the effect of the
  placement of a disabled student in a regular classroom on other students
  in that classroom, selected findings from Federally-funded research
  projects indicate that:
  • (1) achievement test performance among students
    who were classmates of students with significant disabilities were
    equivalent or better than a comparison group (Salisbury, 1993);
  • (2) students developed more positive attitudes towards peers with
    disabilities (CRI, 1992); and
  • (3) self concept, social skills, and problem solving skills improved for all students in inclusive settings (Peck, Donaldson, & Pezzoli, 1990, Salisbury & Palombaro, 1993).1
• 10. Are there any resources that the Department is aware of that have
  proven helpful to educators and paraprofessionals in implementing
  inclusive educational programs?

ANSWER:

• The Department has supported a variety of professional development and
  training projects (e.g., preservice, inservice, school restructuring
  projects) that address the needs of students with disabilities in
  inclusive educational programs. In addition, the Department has financed
  Statewide Systems Change projects which support changing the setting for
  delivery of educational services from separate settings to general
  education settings in the school that the student would attend if not
  disabled. Numerous materials and products have been developed by these
  projects which have focused on strategies that support collaborative
  planning and problem solving, site based control, curriculum and
  technological adaptations and modifications, parent and family
  involvement, and the creative use of human and fiscal resources. These
  projects have underscored the importance of timely access to resources
  (e.g., people, materials, information, technology) when they are needed.

Educators can obtain further information regarding these programs by
contacting:
National Information Center for
Children and Youth with Disabilities
P.O. Box 1492
Washington, D.C. 20013-1492
Telephone: 1-800-695-0285
(Deaf and hearing-impaired individuals may
also call this number for TDD services)
Consortium on Inclusive Schooling Practices
Allegheny Singer Research Institute
320 E. North Avenue
Pittsburgh, PA. 15212
Telephone: (412) 359-1600
(Deaf and hearing-impaired individuals may also
call the Pennsylvania Relay Service number at
1-(800)-654-5984)
California Research Institute
on the Integration of Students with Severe Disabilities
San Francisco State University
1415 Tapia Drive
San Francisco, California 94132
Telephone: (415) 338-7847-48
(Deaf and hearing-impaired individuals may also
call the California Relay Service number at
1-(800)-735-2922

• 1 California Research Institute. (1992). Educational practices in
  integrated settings associated with positive student outcomes.
  Strategies on the Inclusion on the Integration of Students with Severe
  Disabilities, 3, (3), 7,10. San Francisco State University. San
  Francisco, California.
  Peck C. A., Donaldson, J., & Pezzoli, M. (1990). Some benefits
  non-handicapped adolescents perceive for themselves from their social
  relationships with peers who have severe disabilities. Journal of the
  Association for Persons with Severe Handicaps, 15(4), 241-249.
  Salisbury, C. L. (1993, November). Effects of inclusive schooling
  practices: Costs to kids and organizations. Presentation at the 1993
  Conference of the Association for Persons with Severe Handicaps,
  Chicago, Illinois.
  Salisbury, C. L., a Palombaro, M. M. (Eds.) (1993). "No problem."
  Working things out our way. State University of New York-Binghamton,
  Binghamton, New York.

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