FAPE IN THE LRE

THE NEW BLOODBORNE PATHOGENS

Kelly Rogers, Psy.S., BCBA

Stephanie Dyer, Ed. S.
WARNING
• I heard that….
• I was told….

PRACTICE IS NOT NECESSARILY

LAW, POLICY, or RULE
IMPLEMENTING IDEA =
HEARDING CATS
ALL DECISIONS INFORMED BY

• LAW

• RESEARCH

• DATA
Individuals with Disabilities Education
Act (IDEA)
https://sites.ed.gov/idea/

•FAPE
•LRE
FAPE Is an Equitable Education
 What is FAPE?
https://sites.ed.gov/idea/

Individualized Educational Program (IEP)

OFFER OF FAPE
Special Education & Related Services
Specially Designed Instruction
(Adapting the content, methodology or delivery of instruction)
oTo address unique needs resulting from the disability
oTo ensure access to the general curriculum to meet the
STATE educational standards that apply to all children (i.e.
state standards) 11-16-15 Dear Colleague Letter
 What is FAPE?
• U.S. Supreme Court Interpretations
• BOE of Hendrick-Hudson Central v. Rowley, (1982):
• “Reasonably calculated to achieve EDUCATIONAL BENEFITS.”
• Endrew F. v. Douglas County (2017):
• “Reasonably calculated to make progress appropriate in light of
circumstances…. to meet challenging objectives.” Appropriately
Ambitious
• 12-7-17 Q&A on Endrew

• 6th Circuit Hamilton Co DOE (August, 2018)

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0176p-06.pdf
 “The process of providing
special education and related
services… is not guaranteed to
produce any particular
outcome… therefore…
educational benefits are best
measured under the paradigm
of appropriate progress based
on the unique circumstances of
the child.”

Meaningful Ed Benefit
 What is FAPE?
IDEA 2004

To provide FAPE, schools must provide

students with an education that
prepares the child for further
education, employment, and
independent living. 20 U.S.C. §1400(c)
(5)(A)(i)
 Predictors / Outcomes Education Employment Indep. Living
Career Awareness P (Potential) P ---------------
Community Experience --------------- P ---------------
Exit Exam Requirements / High --------------- P ---------------
School Diploma Status
Inclusion in M (Moderate) M M
General Education
Interagency Collaboration P P ---------------
Occupational Courses P P ---------------
Paid Employment / M M P
Work Experience
Parental Involvement --------------- P ---------------
Program of Study --------------- P ---------------
Self Advocacy / Self Determination P P ---------------
Self Care / Independent Living P P M
Social Skills P P ---------------
Student Support P P P
Transition Program M P ---------------
Vocational Education M M ---------------
Work Study --------------- M ---------------

National Secondary Transition Technical Assistance Center (NSTTAC)

LEAST RESTRICTIVE
ENVIRONMENT
“To the maximum extent appropriate, children with
disabilities…. are educated in the general education
classroom with children who are not disabled…”
….and that special classes, separate schooling, or other removal of
children with disabilities from regular education environment
occurs only if the nature or severity of the disability is such that
education  in regular classes with the use of supplementary aides
and services cannot be achieved satisfactorily.”

ADA Implications

34 C.F.R.
IDEA ‘04
“Almost 30 years of research and experience has
demonstrated that the education of students
with disabilities can be made more effective by
having high expectations for such children and
ensuring their access to the general education
curriculum in the regular classroom, to the
maximum extent possible”

The Universally Designed Classroom (2005)

 ensuring their access to the
general education curriculum
in the regular classroom, to
the maximum extent possible

Are there exceptions?

The Law Does Not Say Unless the…
• Student is in 8th Grade and reading at a 3rd Grade Level

• Student does not understand basic math facts

• Student does not answer open ended questions

• Student continuously talks about “Baby Einstein”

• Student is preoccupied with “Door Handles”

• Student does not actively participate in Group Work

• Student can not take his/her own notes

There Are No Exceptions!
5 Primary Areas
Addressed in the IEP
• PLAAFP
• Transition
• Supplementary Aides and Services
• Goals and Objectives
• Programs & Services
Supplementary Aides and
Services
Federal Definition
The purpose of providing supplementary aids and services is to
support students with disabilities as active participants with
nondisabled peers as well as to enable their access to the general
curriculum. To that end, supplementary aids and services include
modification to the general curriculum and [a child with a
disability is not removed from education in age-appropriate
regular classrooms solely because of needed modification in the
general curriculum]. (34 CFR 300.116 (e))

To that end, supplementary aids and services include modification to

the general curriculum and [a child with a disability is not removed
from education in age-appropriate regular classrooms solely because of
needed modification in the general curriculum]. (34 CFR 300.116 (e))
Instructional Strategies
for Curriculum
Engagement

Summer Institute
 6th Circuit Hamilton
• The LRE is a non-academic restriction on the IEP… separate and
different from the measure of educational benefits… that facilitates
the IDEA’s strong preference for ‘mainstreaming’ (inclusion).

• Preference is not absolute -- EXCEPTION (Ronker (1983))

• Prove student would have NO benefit in gen ed
• Special education would far outweigh benefits of special ed
• Student would be disruptive force to general education

“a placement which might be considered better for

academic reasons might not be appropriate because of
the failure to provide for mainstreaming (inclusion)”
 “What the IDEA implies, the case law makes explicit: a
child need not master the general education curriculum for
inclusion to remain a viable option…. the appropriate
yardstick is whether the child, with appropriate
supplemental aids and services, can make progress toward
the IEP goals in the regular education setting.”

Argument: Student wasn’t making progress on grade-level academic

goals:

•Whether student meets IEP goals is a separate question from whether

student is “making appropriate progress” or “receiving a meaningful
benefit”

•“this only establishes that goals…were not appropriately calibrated”

Argument = student isolated in gen ed due to academic
differences so not really LRE
•“Teachers reject inclusion because they do not understand it, do
not believe in it, and need extensive training on why it is valuable
and how to do it.”
•Staff were unwilling or unable to properly engage in the process
of inclusion as they deemed it futile or useless in light of his
disability

“This is the type of approach that

the IDEA was designed to
remedy….”
 OODDEEP e
P en t t
m en
Staat tem
0 t
8800/8/80 S
Continuum of Services
MI Thresholds for Restriction

SPP Indicator 5: Educational Environments

Current Targets
General Education General Education
General Education Separate Facility
Classroom 80%+ Classroom <40%
Classroom 40-79% Target 5.32%
Target 63.5% Target 11.7%

<< Less More >>

Restrictive

https://training.catamaran.partners/b-5-educational-environments/
 Making LRE Placement Decisions (SPP 5: Educational Environments)

General Education 80% or more

General Education 40-79% General Education <40% Separate Facility
Special Education pull out <20%

 This should be the FIRST
consideration for placement.
 In addition to supplementary
aids and services, the IEP team
should consider push-in special
education services FIRST.
 Should the student not be able
to make adequate progress on
IEP goals and objectives WITH
supplementary aids and services
AND push-in special education
services, the IEP team will need
consider what amount of time
the student must be pulled out
in order to make adequate
progress. This will determine the
LRE.
 When determining which
program is best suited for
placement (irrespective of the
amount of time the student will
spend in the program), the
following steps may be helpful:
o Develop a list of needs, from
the PLAAFP, supplementary
aids & services, and goals &
objectives;
o Develop a list of available
programs (e.g. resource room,
Emotionally Impaired, Autism,
etc.)
o Identify for each program what
needs and supplementary aids
& services can or cannot be
provided.
 This is the most restrictive
placement in a building that also
educates students without
disabilities.
 Evidence must exist that WITH
supplementary aids and services
the student cannot make
adequate progress on IEP goals
and objectives in a less
restrictive setting prior to
considering this placement.
 Programs near the student’s
home school should be
considered first if the program
can meet the student’s needs.
 This is the most restrictive
placement and should be
considered last.
 Evidence must exist that WITH
supplementary aids and services
the student cannot make
adequate progress on IEP goals
and objectives in a less
restrictive setting prior to
considering this placement.
 Programs near the student’s
home school should be
considered first if the program
can meet the student’s needs.

o Of the programs, which ones

are best suited to allow the
student to make adequate
progress on goals and
objectives.

o This comparison may assist the

IEP team in determining which
program is best for placement.

o Consideration should be given

to programs near the student’s
home school if the program can
meet the student’s needs.
“INCLUSION CONFUSION”
Geography is a necessary
but insufficient variable for
providing an inclusive education.
Content of Instruction
Instructional Strategies
Intensity of Instruction
Opportunity to Respond
Culture of Belonging
Environmental Supports
Quirk, C., Ryndak, D.L., Taub, D. (2017) Research and Evidence-based Practices to Promote Membership and
Learning in General Education for Students with Extensive Support Needs. Inclusion, 5 (2), 94-109.
 INCLUSIVE SUPPORTS
FBA: Behavior, Academic, Social
Implementation Scripts
Implementation Fidelity Support (BST)

CETA-R
Visuals
Modifications
Peer to Peer
Supplemental A & S

UNIVERSAL
FOUNDATIONAL
Tier 1
PBIS / 5:1 Acknowledgements
Quality Instruction & Curriculum
Engagement Techniques
Established Routines & Structure
CURRENT THEME IN INCLUSIVE
EDUCATION OUTCOME
RESEARCH

Students with
Extensive Support Needs

Intellectual Disabilities
Autism Spectrum Disorder
Multiple Disabilities
 KURTH & MASTERGEORGE,
2010
• 15 Ss w/ ASD (not AS) – 12 males
• 7-9th grade; 12-15 years old
• 7 spent >80% day in GenEd; math and reading
instruction in GenEd
• 8 self-contained spent >50% in SpEd; math and
reading instruction in SpEd
• Measures:
• Cognitive GenEd mean 64.9; SpEd mean 60.0
• Adaptive GenEd mean 44.4; SpEd mean 42.3
• Academic—WJ 3
• Broad Reading: GenEd mean 67.6; SpEd mean 13.1
• Broad Writing: GenEd mean 83.6; SpEd mean 14.1
• Broad Math: GenEd mean 77.4; SpEd mean 8.5
Academic and Cognitive Profiles of Student with Autism: Implications for Classroom Practice and
Placement. International Journal of Special Education, 25 (2), 8-14.
“There is clear and convincing evidence that inclusive educational
settings can confer substantial short and long-term benefits to
students with and without disabilities.”

Students with Disabilities Students without Disabilities

• Increased academic • Same level of teacher
achievement & graduation attention
• Increased independence • Neutral or Positive Effects
• Increased engagement • Academic Achievement
• Increased attendance • Social Competence
• Increased communication • Additional Benefits:
skills • Reduced fear of human
differences
• Increased social competence • Increase friendly
& quality of relationships relationship
• Decreased behavior / • Less prejudice
disciplinary referrals • Less patronizing / pitying
behavior
Quirk, C., Ryndak, D.L., Taub, D. (2017) Research and Evidence-based Practices to Promote Membership and
Learning in General Education for Students with Extensive Support Needs. Inclusion, 5 (2), 94-109.
 There is STRONG Evidence that
Student with “Extensive Support Needs”

• Acquire skills and content knowledge in general education

with rigorous instruction and UDL-based adaptations (e.g.
differentiated instruction; universal supports, literacy supports
(Kluth))

• Are BEST served by educational teams that approach their

education with the intent of finding solutions to access and
learning barriers rather than alternative placements.
Involvement and Progress in the General Education Curriculum for Students With Extensive Support
Needs: K-12 Inclusive-Education Research and Implications for the Future. Ryndak, Lewis & White,
(2013).
ADDRESSING BEHAVIOR
REMOVALS
Dear Colleague Aug 2016
http://bit.ly/2UGDmBf
ADDRESSING BEHAVIOR REMOVALS
Dear Colleague Aug 2016
http://bit.ly/2UGDmBf
 POTENTIAL PATTERNS OF
REMOVAL
• Suspensions
• Extended / # “time away/out”
• Number of “days off”
• Sent home early
• Parent agreed to pick up early
• Conditions to return to school
• Reduced day IEP
 MANIFESTATION
DETERMINATION
• Manifestation Determination Review required within
ten school days of any decision to change the
placement of the student with a disability because of a
violation of code of student conduct [H.R. 1350 §615(k)
(1)(E)(i)].
• A single removal exceeding ten consecutive school days [34
CFR §300.519(a)].
• A pattern of removals cumulative to more than ten school
days in a school year [34 CFR §300.519(b)].

• School day means any day, including a partial day, that

students are in attendance at school for instructional
purposes.
 WHY IS A
REDUCED DAY
RISKY BUSINESS?
• Compulsory Education (age 6+)

• FAPE Requirements: Is a reduced day an

equitable education?

• IEP teams make FAPE / LRE decisions not

the prescription pad
MICHIGAN PUPIL ACCOUNTING
MANUAL
http://bit.ly/2WYV7t8
• Special education pupils are to attend the same number of days
and hours as is required of any pupil to be counted for a full FTE.
• The IEP team may shorten the school day on an individual basis for
medical / emotional reasons with documentation by a licensed
physician (individual licensed to practice medicine) to still be
counted for a full FTE).
• Prior to placing a pupil on a reduced day, the district must consider
it’s obligations under FAPE including the use of positive behavioral
interventions and supports, as well as other strategies when
developing the IEP when behavioral issues impede learning or that
of others.
Doctor’s statement is NECESSARY but not SUFFICIENT
• Pupils who are being disciplined for behavior (suspended /
expelled) do NOT qualify for an IEP reduced schedule (FTE must be
prorated)
APPLICATION