Least Restrictive Environment Coalition

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The Law On Special Education Services In The Least Restrictive Environment For New York City Students

Overview

Applicable Laws and Regulations

I. Federal Law

A. The Individuals with Disabilities Education Act (IDEA)

B. The Rehabilitation Act of 1973, Section 504

C. Americans with Disabilities Act of 1990 (ADA)

II. New York State Law And Regulations

III. New York City Policy

Time for LRE in New York City!

Overview

     By law New York City students with disabilities have a right to be educated in the least restrictive environment (LRE). Before a child may be removed from the general education classroom and educated in a self-contained classroom filled only with children receiving special education services, the district must show that the child cannot be educated appropriately in a general education setting. The district must explain and justify a restrictive or separate placement, demonstrating that the child will not benefit in general education with supports and services.
     Where and when a child receives services must be decided on a case-by-case basis, determined by the individual needs of each child. For most children the LRE means the delivery of special education services in a classroom where children with special needs learn side-be-side with their general education peers. Other children may require smaller settings with more adult attention. Although there are a number of settings where special education services can, in fact, be delivered, they must be delivered in the least restrictive setting appropriate for each individual child.
     Parents believing their childs LRE rights have been violated, and unable to reach an agreement with their Committee on Special Education (CSE) have a few options. They may:

Seek special education mediation with an independent and trained facilitator who will work to help reach an agreement between parents and school districts about special education services, or
File for an impartial hearing, a legal process where disagreements between parents and Committees on Special Education are presented to and decided by a hearing officer not connected to either side of the disagreement. Either parents or the district may appeal an impartial hearing officers decision to a State Review Officer (SRO). Similarly, either side may appeal an SRO decision to State or Federal Court where a judge will hear or review evidence and decide the matter.

Some parents, believing their childs case illustrates a system-wide problem, may choose to seek help from the state and federal education departments. In such cases, parents may file a complaint first with the New York State Education Department (SED), and then, if they disagree with the findings of SED, appeal to the United States Department of Education, Office for Special Education Rehabilitative Services (OS ERS).

Applicable Laws and Regulations

NOTE: Special education litigation is complex. It requires knowledge of the law as well as understanding of court decisions in cases that have already been litigated. It also requires interpreting the laws. The following summary of law is intended only to give parents a general understanding of the laws affecting LRE and not to take the place of seeking assistance if you believe your childs rights have been violated and want to pursue the matter further.

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	I. FEDERAL LAW

		A. The Individuals with Disabilities Education Act (IDEA) (P.L. 101-476, reauthorized in 1997- P.L. 105-17; 20 U.S.C. 1400 et seq.) see: www.ed.gov/offices/OSERS/IDEA/ and see: www.ideapractices.org The IDEA is the federal law governing the education of children with disabilities. Every school district is required to identify and evaluate children with disabilities. A child is eligible for programs and services under IDEA if the evaluation shows the child to have one or more of the following conditions which adversely affect his/her educational performance and causes the child to need special education and related services (20 U.S.C. sec. 1401(3)(26); 34 C.F.R. sec. 300.7): Mental retardation Hearing impairment (including deafness) Speech or language impairment Visual impairment (including blindness) Serious emotional disturbance Orthopedic impairment Autism Traumatic brain injury Other health impairment Specific learning disability Deaf-blindness Multiple disabilities The IDEA guarantees children with disabilities a "free appropriate public education" (FAPE) in the LRE. This education must be specifically tailored to meet the needs of each individual child between 3 and 21 requiring specialized instruction and related services in school. LRE provisions of the IDEA require that to the maximum extent appropriate for each child, children with disabilities must be educated with children without disabilities, and that removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that satisfactory education in regular classes with the use of supplementary aids and services is not possible. In 1997, with the reauthorization of the IDEA, the federal government strengthened the requirements for determining the LRE in each childs individualized education program (IEP). The law now gives parents greater legal backing to demand special education services for their children in the LRE when they meet their CSE or take their case to an impartial hearing. The New York State regulations implementing the changes in the federal law were released in the spring of 2000, and follow the federal requirements. Examples of supports and services which may be available under the IDEA include: assigning various teaching personnel and other service providers, such as paraprofessionals, to work directly with students or indirectly with their general education teachers use of assistive technology devices development of behavior intervention and support plans modification of the general education curriculum adaptation of physical education toilet training and travel training programs counseling services hearing education services occupational therapy orientation and mobility instruction physical therapy school health services speech and language therapy, and vision education services. Back to top


		B. The Rehabilitation Act of 1973, Section 504 (P.L. 93-112; 29 U.S.C. 794) Section 504 prohibits discrimination against students with physical and mental disabilities who attend public school. It is intended to eliminate barriers that exclude students with disabilities from attending school and from participating in the same activities as their peers without special needs. The statute protects young people whose physical or mental impairments substantially limit one or more major life activities, such as caring for themselves, seeing, breathing, walking and learning. Like the ADA below, this statute protects both children with physical and mental disabilities who are not and need not be receiving special education services as well as children receiving special education services under the IDEA. Examples of children who are protected by Section 504 include students with Attention Deficit Disorder (ADD), diabetes, cerebral palsy, cancer, allergies or asthma, communicable diseases, and children who use wheelchairs. In order to assure that individual children protected by Section 504 are educated in the LRE, the U.S. Department of Education, Office of Civil Rights (OCR) has determined that a wide variety of services and accommodations may be required. Examples of such services include: repeating and simplifying instructions about in-class and homework assignments supplementing verbal instructions with visual instructions using behavioral management techniques modifying test delivery by providing, for example, extended time using tape recorders or other audio-visual equipment in class computer-aided instruction arranging for reduced class sizes classroom aides and consultant teachers scheduling accommodations administering medication, and providing accessible facilities. Back to top


		C. Americans with Disabilities Act of 1990 (ADA) (P.L. 101-336; 42 U.S.C. 12101 et seq.) The Americans with Disabilities Act of 1990 extends the requirements of Section 504 to institutions that do not receive federal funds. This is the federal statute that prohibits discrimination against people with physical or mental disabilities in all programs of state and local government, including public and private, non-parochial schools. The ADA requires the removal from school buildings of physical barriers which make it difficult or impossible for students, parents, and staff with physical disabilities to get into and travel around those buildings. Back to top

	II. NEW YORK STATE LAW AND REGULATIONS New York has also passed state laws and regulations to implement the requirements of the IDEA. These laws provide more details in some respects than those found in federal law. Article 89 of the New York State Education Law (Sec. 4401 et seq.) requires that children with disabilities in New York State be provided with special education services. Part 200 of the Regulations of the Commissioner of Education expands upon both the IDEA and Article 89 and requires that services be provided as needed by the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities. The State regulations go further than the federal regulations in requiring that services be provided as close as possible to the students home. They also explicitly state that a student with a disability must not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.

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	III. NEW YORK CITY POLICY In general, Chancellor's Regulations govern the operation of schools in New York City. However, the policy for the delivery of special education services in the Board of Education for the City of New Yorks revised Continuum of Services for Students with Disabilities (the Continuum): This newly created document is not a law, but a menu of services available to meet the needs of children with disabilities in New York Citys public schools. As required by federal law and the New York State regulations discussed above, the Continuum of services embraces the LRE mandate and holds out as its vision the seamless and unified service delivery system for all students [which] embraces the firm legal mandate to educate students with disabilities alongside their non-disabled peers to the maximum extent appropriate. This document was adopted by the Board of Education in June of 2000; implementation is on-going.

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Time for LRE in New York City!

     New York City has had one of the worst records in the country in implementing LRE, but a number of actions on the federal, state and city levels make this an ideal time to enforce the LRE mandate and to benefit children both with and without disabilities:
     In 1997 the federal Department of Educations Office of Civil Rights (OCR) found that New York City places too many minority students in segregated special education classrooms, and that it disproportionately labels Black and Latino students as learning disabled or emotionally disturbed. Once OCR made this finding, the NYC Board of Education signed an agreement with OCR stating it would take serious steps to change this situation. OCR is currently monitoring whether the Board is successfully following through with this agreement.
     In 1999 the federal government withheld $335 million earmarked for special education services from New York State because the States formula for distributing special education funds to local boards of education actually encouraged segregated placements counter to federal law.
     The Board of Regents for the State of New York has recently created educational standards that all of New Yorks school children must meet in order to advance from grade to grade. For the first time, all but the most severely disabled students will be held to essentially the same standards and requirements. Children receiving special education services will, when appropriate, get individually tailored testing accommodations and curriculum modifications in order to make this possible. This means that local schools and local school districts will be held accountable for the test scores of children with disabilities and will have a far greater interest in guaranteeing that those children have access to the same educational curriculum as their students without disabilities.
     Two class action law suits continue to affect and encourage service in the LRE for children with disabilities in New York City. They are Jose P. v. Mills and Ray M. v. NYC Board of Education and NYS Department of Education, et al.:
     Jose P. was filed by a group of New York City school children with disabilities in 1979 to force the Board of Education to obey federal and state laws regarding referral, evaluation and provision of services for all students with disabilities. The case was won by those representing the school children, and the original decision, along with later agreements, protects the rights of New York City children with disabilities between 6 and 21 years of age, including the right to be educated in the LRE.
     The Ray M. suit was brought in 1994 by the parents of preschool children with disabilities. The suit claimed that preschoolers with disabilities in New York City were denied their rights to appropriate educational services under state and federal law. In 1999 the parties agreed to a settlement under which three-to-five-year-old preschool children with disabilities in New York City should now receive more timely and appropriate referral and evaluations for special education services, and special education services in the LRE.
     In short, the NYC Board of Education has greater incentives than ever before to provide appropriate services to children in the LRE. Its revised Continuum of Services for Students with Disabilities (discussed above), is evidence of a new commitment to this principle.