Category: Education

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Misconceptions about the Least Restrictive Environment

Here’s a refrain we hear all too often in special education:

“Johnny’s LRE is the Autism Program. This program is 30 minutes away from his home school and is separate from the general education classroom, but Johnny has Autism so this really is the best program in the least restrictive environment for him.”

This statement can be heard in IEP meetings, found in blog posts, even written in scholarly articles. But the Individuals with Disabilities Education Act (IDEA) and case law dispels the myth that the Least Restrictive Environment (LRE) is individualized or unique for each child. It is not. I repeat, the LRE is not individualized. Yes, the Individualized Education Plan (IEP) is individualized. Yes, the decision of a Free and Appropriate Education (FAPE) is individualized, but the LRE is a place…and it’s only one place: A REGULAR CLASSROOM.

The misuse of the LRE has led to the systematic segregation of kids with disabilities. It has led to kids who never get a chance to even try the LRE with appropriate supports as the law intended them to. They essentially lose their civil right to the Least Restrictive Environment. It has caused schools to fail to follow more than 40 years of research on how to best educated children with disabilities.

Read Related Post: 7 New Research Studies to Win the Fight for Inclusion

Now some of you may be thinking “Wow, that word segregation seems kinda harsh,” but I would implore you to look at this from a civil rights lens. When we speak of students of color being separated from white students we call it what it is: segregation. Why wouldn’t we do the same for students with disabilities, especially when Congress makes clear that their intent of IDEA is to ensure students with disabilities are educated alongside non-disabled students and to have access to the general education curriculum in a regular classroom with supports. Here’s the actual language from IDEA:

§300.114 LRE Requirements. 

Each public agency must ensure 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 nondisabled; and special classes, separate schooling, or other removal of children with disabilities from the Regular educational environment occurs only if 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. 

The fact is IDEA demands that any move to a more restrictive placement be an issue of FAPE. A discussion of whether or not the child can satisfactorily receive a FAPE in a regular classroom must be discussed and tried first before moving to a more restrictive environment. The problem is: this too often doesn’t happen. Instead, students with certain disabilities are automatically labeled as too disabled to even try the regular classroom. Or the district puts them in the regular classroom without maximizing appropriate supports, and moves them as soon as trouble arises.

Read Related Post: Endrew F. In Action

Case law reiterates Congress’ strong preference to have students with disabilities learning alongside their non-disabled peers in a regular classroom with supports.

  • Roncker Portability Test, 1983

–Can services provided in segregated setting be transported to the general education classroom?

–If so, then they must be provided in the regular classroom first. Special education is not a place. Services must be portable, and preferably brought into the regular classroom.

  • Daniel Two-Part Test, 1989

–Can meaningful education be provided in general education classroom with supplementary services and aids?

–If not the the student still must be integrated in regular education to the maximum extent possible.

The U.S. Supreme Court recently made it clear that children with  disability must make “meaningful progress” on general education curriculum in light of their disability. This means school districts must ensure IEPs are “appropriately ambitious,” and follow IDEA’s statutory intent to serve those students in the LRE. 

It is a red herring to say that a more restrictive placement is somehow a student’s Least Restrictive Environment. It distracts from the fact that placement is an issue of FAPE. If the school district determines a child must be placed in a more restrictive setting they must give a cogent, responsive reason why they have determined the child’s disability is so severe that the child cannot receive a Free and Appropriate Education in the regular classroom even with the use of supplementary aids and services. 

We need to start saying what we mean and meaning what we say. Or in this case, we need to start saying what Congress meant by the LRE. By using the LRE in the wrong context we’ve creating a system where too many children never have a chance to be education in the place that Congress wants the child to start and where all the research proves is most beneficial: the regular classroom. 

Learn More about the Misconceptions of LRE here:

Busting-Myths-About-LREDownload

Let’s start today by changing our language around the Least Restrictive Environment. Have you or your child with a disability faced systematic segregation because of the misuse of the LRE? Tell me your story in the comments below.

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“I Have A Dream…”

“I have a dream. It’s a dream deeply rooted in the American dream…”-Martin Luther King

I have a dream one day our sons and daughters with disabilities will be valued as equal members of their community. I have a dream teachers and principals will set high expectations for our children, realizing the value of inclusion with their typical peers.

I have a dream those non-disabled peers will one day become employers and community leaders who provide adults with intellectual and developmental disabilities (I/DD) the opportunities they deserve to fulfill their true potential. That those typical peers will become caregivers, researchers, therapists, and medical professionals who look at people with disabilities, not as a problem to be fixed or eliminated, but as a beautiful expression of humanity to be shared with the world.

Rev. Dr. Martin Luther King Jr. speaking. (Photo by Julian Wasser//Time Life Pictures/Getty Images)

On Monday, January 18, 2021, we celebrate Martin Luther King’s birthday and are reminded of how interlinked the disability community’s struggle is with the African American community. Without downplaying the abhorrent past of slavery, there’s still a lot of connections to be made. Both movements are struggles for basic human rights: freedom, equality, and justice.

Read Related Post Here: Advocates Urge Congress to Increase Funding for Down Syndrome Research

The Civil Rights Act of 1964 woke up parents of children with disabilities. The public and their representatives in Congress began to understand how segregation and unequal educational opportunities were the anti-thesis to the American dream. Before the 1970s, many children with disabilities were not given the opportunity to attend school at all. As Congress was formulating the Individuals with Disabilities Education Act (IDEA) of 1975, there were 36 pending court cases over the rights of students with disabilities.

More than 30 years after the civil rights movements began, great progress has been made for both black Americans and people with disabilities. The most abusive and neglectful institutions have closed their doors. Courts have expanded their interpretation of the 14th Amendment’s “equal protection clause” to include minorities and those with disabilities. Segregation has legally ended for both groups (including the Americans with Disabilities Act (ADA), Rehabilitation Act–including section 504, and IDEA for people with disabilities).

Read Related Post Here: How School Boards are Using Endrew F. Supreme Court Case Against Students with Down Syndrome

But we know, even though both groups have made great gains legally, they still face prejudice and exclusion. Only 16.35% of students with I/DD are included in a regular education classroom with supports for most of their school day. Black students are overrepresented in special education and are more likely to be identified as having an intellectual disability than their white peers. The intersectionality between race and disability is ever apparent.

The Supreme Court recently ruled in Endrew F. that schools must provide a “more meaningful benefit” to students with disabilities, but some school districts and national organizations are interpreting this to mean students with the most significant disabilities must be segregated to earn this benefit. (Read more about this here).

In this highly partisan time it often seems like one step forward and one step back. For example, last year the Department of Justice scrapped ADA guidance that promotes integrated work for people with disabilities. With unemployment for people with I/DD at 75%, this is a step backwards. We need more guidance, not less. (Read more about the rescinded ADA guidance here). Fortunately, the U.S. House of Representatives recently passed the Raise the Wage Act, which will phase out sub-minimum wages. Click here to email your Senator to support this bill.

Let’s make the year 2021 about fully realizing the rights and humanity of people with disabilities of every race. There’s so much more we can do for and alongside our brothers and sisters with disabilities.

Progress will continue! It will take tireless action from self-advocates and allies. When our government and institutions waver in indecision about full inclusion for our loved ones, we must forge forward. So what can you do this Martin Luther King Day to advocate for someone with Down syndrome?

Call to Action

  1. Advocate: learn about your student with a disabilities rights and how to advocate at the IEP table by signing up for a FREE webinar here, read online resources or order an advocacy book here, joining the Council of Parent Attorney’s and Advocates here, or the National Down Syndrome Advocacy Coalition (NDAC) here.
  2. Think College: make it your child’s long-term IEP goal to go to college. There’s more than 260 college options for students with I/DD. Check it out here.
  3. Donate: give to your local Down syndrome affiliate, or to a specific cause. Global Down Syndrome Foundation has been raising money this year to create updated, evidence-based medical guidelines for adults with Down syndrome. Click here to find out more.
  4. Legislate: support national legislation to end organ transplant discrimination of people with disabilities. You can read about the state legislation I helped advocate for in Ohio here. Read about the federal bill here.

How do you feel about the state of disability rights? What do we need to do right now to continue moving forward? Comment below.

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Back-to-School Checklist during a Pandemic

Whether your child with a disability is going back to in-person learning, a hybrid model, homeschooling with itinerant services at home, or completely virtual our back-to-school checklist will be the same. It won’t include the typical 3-ring binder and box of crayons. Instead, it will require vigilance and continued advocacy on the part of parents and students.

Below the checklist you will find a list of resources specific to learning during the pandemic from numerous disability rights organizations.

Back-to-School Checklist during the Pandemic:

  1. Take the First Step: Don’t wait for your child’s IEP team case manager or special education teacher to contact you. Call or email before school begins, request an IEP meeting, and ask how your child will receive all needed services and supports even during the pandemic. Many students with disabilities did not receive the services outlined in their IEP this past spring. Many parents became solely responsible for their child’s specialized instruction, therapies, related services, etc. This is not legal under the Individuals with Disabilities Education Act (IDEA) even during the pandemic, and cannot happen again this fall. Our children cannot afford to lose out on needed services again this new school year. Ask for a Prior Written Notice detailing, in writing, how the school intends on delivering these services virtually, in the home, or in-person during alternative school scheduling.
  2. It’s All About the Data: Your iPhone isn’t just for adorable pictures of your child. It can be a great tool for monitoring your child’s progress at home. With a majority of students around the country doing at least some learning virtually in the home or in day cares, parents and caregivers are now the experts in progress monitoring. You can use short video clips to prove that your child is not accessing the grade-level curriculum through synchronous (live) online instruction. You can use your iPhone notes to write real-time details about behaviors, task avoidance, successes in math, struggles in reading, etc. You can also request frequent data from private providers like tutors, therapists, etc. These experts can lend credibility to your own data. Write down what works and what doesn’t work. Track regression and progress. It’s important to videotape or write these incidents as they happen, because as the old adage says: “if it’s not in writing, it didn’t happen.” This parent-led progress monitoring can be used to make the argument for compensatory education.
  3. Know Your Child’s Rights: Do not sign any document that waives your child’s right to a Free and Appropriate Education (FAPE) now or ever! The Department of Education and U.S. Congress have not waived any rights under the Individuals with Disabilities Education Act (IDEA) during the COVID-19 school closures and alternative learning models. Many advocates and attorneys recommend the child’s IEP remain untouched during this time. Many states have created temporary COVID-19 learning plans to supplement, but not supplant a child’s IEP. I would argue that your child should receive all the services and supports outlined in their pre-COVID IEP even during this time. In practice this will likely take creativity on the part of school districts and courage on the part of parents to push school districts to uphold their legal responsibility.

Resources Related to Educating Children with Disabilities during the COVID-19 Pandemic:

I will add to this resource page as I learn of new resources for learning during the pandemic.

Remote Learning Strategies This google doc has a list of apps and website and platforms that teachers can use to make virtual learning more inclusive and interactive.

Educating all Learners Alliance a National Network of Educational Experts created this resource library to help teach all learners during the pandemic.

TIES Center The National Technical Assistance Center on Inclusive Practices for students with the most significant disabilities includes blog posts on the left hand side of the website. The latest blog posts include specific strategies for including students with disabilities in virtual learning during the pandemic. Here’s my favorite blog post to prepare for learning during the pandemic: The 5C Process

The 12th Annual Summer Leadership Institute has gone virtual, and this year’s speakers talk a lot about inclusion during the pandemic. The tickets are discounted at $150. I’ve enjoyed a lot of the webinars.

Council of Parent Attorneys and Advocates is making their annual conference virtual and has created weekly webinars related to learning for children with disabilities during the pandemic. The webinars are recorded and free to COPAA members.

The Department of Education has released a Q-and-A outlining the school districts’ responsibilities to children with disabilities during the pandemic.

Reopening Washington State Schools 2020: Special Education Guidance Check your state department of education website for more specific information for your state

A Day In Our Shoes has a great selection of COVID school closure related topics.

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Call to Action: Tell Your Congressmen No IDEA Waivers During COVID-19 Pandemic

More than 54 million American school children are learning at home right now. Seven million of those students have disabilities. Since the outbreak of the Coronavirus in March, 45 states have ordered schools closed, and 15 states are keeping schools closed until the end of the school year. That list will surely grow as the virus peaks (find an updated list here).

In two weeks, Department of Education Secretary, Betsy DeVos, is set to offer guidance to Congress on whether or not to issue waivers that could postpone or eliminate school districts’ responsibility to provide a free and appropriate education to school children. It’s important to note, DeVos cannot waive educational disability rights; only Congress can do that. DeVos does have the power to waive rights and responsibilities under general education laws though and already has. Read more here.

Parents of children with disabilities have 2 very important tasks during school closures:

  1. Write and/or call your Congressperson THIS WEEK. We don’t have much time. Share your child’s personal story with distance learning during the pandemic, and tell them educational waivers are not needed. The law already provides amendments and timeline extensions when there are exceptional family circumstances. School districts and parents need to work collaboratively to decide if extensions should happen on an INDIVIDUAL basis. We need to urge Congressmen to let the law do its job- NO WAIVERS! Read why and how below.
  2. Document, Document, Document! You know the old adage: if it’s not in writing or on video, it doesn’t exist. You should be taking data of your child’s progress, or lack of progress during this time. Take baseline data now (a video of them reading, writing, doing math, anything related to their Individual Education Plan (IEP)). Keep that documentation up as school closures continue. If your school won’t do teletheraphy, and you decide to pay out of pocket for private teletheraphy make sure you document it. Read why and how below.

The Department of Education released guidance on March 21, 2020, stating that school districts should provide distance learning to all kids during school closures and shouldn’t use federal disability law, like the Individuals with Disabilities Education Act (IDEA) or Section 504, as an excuse not to. School districts will need to be equitable and innovated in their plans to do distance learning while Americans are social distancing. Read more here.

This is good news for disability advocates. That means virtual IEPs, evaluations, and teletherapies should be happening. School district should be lending out computers and providing wifi to those who need it. Most importantly, these distance learning opportunities should be individualized for your child with a disability. A lot of school districts across the country are already providing these learning opportunities. Why would we stop these collaborative and innovative efforts? All children deserve these rights and access to distance learning. Learn more about how school districts are providing access and best practices for distance learning here.

Read Related Post: What To Do When Your School Doesn’t Believe or Understand or Believe in The Least Restrictive Environment

The COVID-19 pandemic highlights issues of equity unlike any other crisis we’ve seen. The students who are likely to fall behind during school closures are those who are poor or have disabilities. Parents should be reasonable, but school districts should also be working diligently to provide equitable access to distance learning. Don’t be afraid to ask for services and accommodations, when all students are expected to learn online. This is why advocating against educational waivers is so important.

Some organizations, like the National Association of State Directors of Special Education (NASDSE) and the Council of Administrators of Special Education (CASE), are asking DeVos to provide a 45 day extension, once schools are back in session, for all IDEA timelines. NASDSE and CASE are also asking for flexibility in school districts’ documentation of FAPE, data collection, and corrective action plans. This would impact preschool programs, state complaint and due process, initial and reevaluations, as well as the development, review and revision of IEPs. Read their March 31, 2020 letter here.

Special Education advocates are strongly against this. On April 3, 2020, the Council of Parent Attorneys and Advocates (COPAA) sent a letter to DeVos reminding her that the Department of Education on March 21st already appropriately responded to the crisis, and should “fully uphold all tenets and requirements of IDEA and 504.” The letter goes on to state that IDEA already provides flexibility for individualization and collaboration between districts and parents, and “students with disabilities cannot afford the lengthened delay that would result from a blanket pause in timelines.”

NASDE did write a joint statement with COPAA on March 23, 2020, that all rights and responsibilities under federal disability law should remain. Now that organization wants flexibility in the law. But COPAA and other special education advocates are arguing that IDEA already provides needed flexibility and collaboration between parents and school districts to provide a free and appropriate education at this time.

So, here’s where you come in. Please write to your Congressperson TODAY! Find your representatives and their contact information here.

Tell them your child’s story regarding COVID-19 and school closures. Please share good examples of how your school district is already providing a Free and Appropriate Education through distance learning. Urge your Congressperson to issue NO WAIVERS during or after school closures. Remind them that federal law under IDEA already provides flexibility in timelines and services under exceptional family circumstances. Send your email soon. DeVos is set to issue her recommendations in two weeks. Read an example of a good letter here and here. Make sure you personalize your email.

Lastly, start collecting data on your child’s progress and/or regression during this time. The IEP document allows for parent training. If you don’t know how to take data, request that your school teach you simple ways to take data. And easy way to do this is to take video of your child now and and throughout the school closure time. Make sure you timestamp any data entries. Also, if you’re paying for teletheraphy or other private distance learning make sure you receive invoices and data from those private providers. You may be able to advocate for compensatory education upon return to school to make up for any lost learning.

If you’re busy with homeschooling now, use this simple email format:

Dear (Enter your Congressperson’s name):

IF YOUR CHILD IS RECEIVING APPROPRIATE SERVICES DURING THIS TIME: I’m writing to you today to tell you about my child with a disability’s experience with distance learning during the COVID-19 school closure, and urge you to uphold all of the tenets and responsibilities of the Individuals with Disabilities Act (IDEA) even during this time. My child is receiving needed accommodations and services during distance learning. I’m working with my child’s IEP team virtually, and we hope that our collaborative will ensure my child continues to make meaningful progress. Many school districts around the nation are providing innovative and equitable ways to meet the needs of students with disabilities. My child and other children across the nation cannot afford more delays that would come from federal timeline waivers. Soon, Department of Education Secretary Betsy DeVos will issue guidance regarding waivers under IDEA and other educational laws. I urge you to resist any call for waivers. IDEA already provides this flexibility. Thank you for your time and consideration!

IF YOUR CHILD IS NOT RECEIVING APPROPRIATE SERVICES DURING THIS TIME: I’m writing you today to tell you about my child with a disability’s experience with distance learning during the COVID-19 school closures, and urge you to uphold all of the tenets and responsibilities of the Individuals with Disabilities Education Act (IDEA) even during this time of crisis. Although my child with a disability is not receiving all of the needed accommodations and services during this time, I’m convinced from other examples of success in distance learning across the nation that I can work collaboratively with my child’s school district to ensure meaningful progress is made. My child and other children across the nation cannot afford more delays that would come from federal timeline waivers. Soon, Department of Education Secretary Betsy DeVos will issue guidance regarding waivers under IDEA and other educational laws. I urge you to resist any call for waivers. IDEA already provides this flexibility. Thank you for your time and consideration!

Is your child’s school district providing equitable distance learning opportunities? Comment below with your experience during COVID-19 school closures.

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How to Advocate Now for Extended School Year Services

Extended School Year (ESY) is an under-used and misunderstood part of special education. I’ve struggled to get my own son with Down syndrome meaningful ESY services. I was told that ESY was just for students who have fallen behind. At the time, my son was in his first year of preschool and the school district argued that he hadn’t yet fallen behind. After reading the law myself I realized my son was eligible for ESY services in order to received a Free and Appropriate Education (FAPE). I learned that I didn’t have to wait for my son to regress to get ESY services.

Extended School Year is any special education or related service provided to a student with a disability outside of the regular school year. The service must be tailored to the child’s Individual Education Plan (IEP) and at no cost to the parent. Summer school instantly comes to mind when we think of ESY, but don’t limit yourself to this idea alone. It can be ANY time school is not in session (before or after school, and winter or spring break included). ESY services can also be for a particular related service like speech, OT, or PT. It can go beyond academics and must be customized for your child. For instance, any social-emotional, functional, or behavior needs your child may have. Schools can conduct ESY services themselves or pay for your child to receive the services from a private provider.

Just remember this key question: Is ESY services needed to ensure your child receives a Free and Appropriate Education?

Read Related Post Here: Extended School Year: A Necessary Part of inclusion?

In my son’s case I argued that he was at a pivotal moment in emerging speech skills. The district had initially argued that ESY was only for regression and recoupment. I found that my state’s ESY eligibility policy also included maintaining skill level or work on emerging skills.

It’s important to start gathering data now to advocate for ESY. You don’t want to wait until the end of the school year to ask for ESY for your child. The school should be collecting data during and after winter break, spring break, after school, etc. The more specific the data you and the school gather the more likely you can successfully make your case for ESY for your child. You can use IEP progress reports, test scores, evaluations, behavior charts, pre and post tests, and school work before and after breaks.

Advocacy Tips to get ESY: 

  1. Make sure you look for your state requirements for ESY: The federal regulations give states discretion as to how to approach ESY. Services can vary from state to state, but must comply with the federal basic guidelines that you read above. For example, states cannot limit the type, amount or duration of ESY. ESY must also be customized for the student. A quick google search will help you find these regulations. I usually type in “Washington State Special Education Regulations” into google, and when I get into the document I scroll down to the table of contents and look for Extended School Year.
  2. Watch out for the “Regression and Recoupment” limit: Regression and Recoupment looks at how much information the student will lose over break and how long it will take them to relearn the information. Most states look at more than just regression and recoupment. Courts have said states CAN use only regression and recoupment to determine ESY, but they don’t have to limit their eligibility to just this determination. In my son’s case I argued that he was at a pivotal moment in emerging speech skills. The district had initially argued that ESY was only for regression and recoupment. I found that my state’s law included emerging skills, and was successful in getting his ESY by using this factor.
  3. Using other factors to advocate for ESY: Some states have expanded what factors can make a student eligible for ESY. Some of these factors can include working on emerging skills, the degree of impairment, the child’s rate of progress, critical point of instruction where the school must continue provide services so the student doesn’t fall behind. Interfering behaviors that may prevent a student from receiving FAPE during the school year can also be a factor. Also, special circumstances like Least Restrictive Environment (LRE) concerns. This is a big one in the Down syndrome community. For example, a state may decide that a student must be included in a summer school environment so the student can remain in the least restrictive environment during the break and work with typical peers.
  4. Use Case Law to make your case: Courts have interpreted ESY differently across the country. But some often cited cases include Cordrey v. Eukert (1990), which found that ESY is required to prevent serious skill loss. This case has also limited eligibility for ESY. This case reminds us that you really need to have specific data to get ESY for your child. Kenton County School Board v. Hunt (6th Circuit 2004) the regression must be more than normal regression that all students see over break, and will take longer to recoup than typical students. M.M. v. School District of Greenville County (4th Circuit 2002) asks if the child’s progress made during the school year will be significantly jeopardized if he doesn’t receive ESY.

Read Related Post Here: 3 Words That Will Transform Your Next IEP Meeting

We recently moved to a new state and my son is now in kindergarten. At our first IEP meeting I asked for the district’s ESY policy. His IEP automatically included a “no” check mark under the question “does this child require ESY services?” I specifically had to ask for a Prior Written Notice (PWN) stating that although he is not eligible for ESY yet, that the school would begin taking data to determine eligibility.

It may be up to you to initiate the ESY eligibility process. The federal law doesn’t give a timeline as to when ESY has to be considered; another reason to check your state regulations. Some districts are not going to broadcast that ESY is a viable option to ensure your child receives FAPE, and the quality of those ESY services will have to be reserved for a whole separate blog post.

Has your child received ESY services? What did you have to do to get him or her services? What type of services did he/she receive and was it worth it? Comment below.