Special Education

School Districts’ Responsibilities to Provide Students with Disabilities with Specially-Designed Instruction and Related Services in the Least Restrictive Environment

December 2015

SPECIAL EDUCATION FIELD ADVISORY

From: James P. DeLorenzo
Subject: Least Restrictive Environment-School District Responsibilities   PDF of Special Education Field Advisory   PDF document  (877KB)

Students with disabilities have a fundamental right to receive their special education supports in a classroom and setting that, to the maximum extent appropriate, includes students without disabilities.  Under federal law, the presumption is that students with disabilities will attend the same schools they would have attended if they did not have disabilities and that removal or restriction from their regular schools and classrooms can only occur for reasons related to the student’s disability when the student’s individualized education program (IEP) cannot be satisfactorily implemented in that setting, even with the use of supplementary aids and services.

Yet, in New York State (NYS), data shows that far too many students with disabilities are removed from their general education classes and schools, disparate with the data from other states.  Over the past two decades, the State has promoted reform in this area through law, regulations, policy, monitoring, partnerships, professional development and technical assistance.  While the statewide data shows significant improvements, there continue to be individual school districts where high percentages of students with disabilities are in separate classes or programs and removed from their general education classes. 

At their November 2015 meeting, the Board of Regents discussed federal law and policy relating to placements of students in the least restrictive environment (LRE); research findings that support inclusion of students with disabilities; historical initiatives of the New York State Education Department (NYSED) to ensure students with disabilities are in the LRE; data results at the federal, State, regional and school district level relating to LRE, for both preschool and school age students with disabilities; and a proposed policy to improve LRE placements and results for students with disabilities.  A copy of the written report to the Board of Regents and supplemental PowerPoint presentation can be accessed at http://www.regents.nysed.gov/meetings/2015/2015-11/p-12-education.

The purpose of this memorandum is to seek the immediate attention of parents, school districts and communities to maximize participation of students with disabilities in general education programs and to ensure that students with disabilities are being provided with opportunities to receive high-quality instruction in the LRE.  Specifically, the Department recommends that each school district:

  1. engage in a district and school data review and analysis relating to LRE;
  2. ensure that full continuum of special education programs and services are available for all students with disabilities; and
  3. assess and address the extent to which each of their schools provides “high-quality inclusive settings” as defined in this memorandum.

 Continuum of Special Education Programs and Services

Federal law requires that each public agency ensure that a continuum of alternative placements is available to meet the needs of students with disabilities for special education and related services.  The continuum must include instruction in general education classrooms, special classes, special schools, home instruction and instruction in hospitals and institutions; and must make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with the student’s regular class placement1

In order for school districts to ensure that their students with disabilities are receiving their special education services in the LRE, the district must first ensure that each student with a disability has access to the full continuum of special education programs and services, as required by federal and State law and regulation.

LRE Federal and State Requirements   

LRE means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that, even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the LRE must:

  1. provide the special education needed by the student;
  2. provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and
  3. be as close as possible to the student's home.

The individualized education programs (IEPs) of students with disabilities must be developed in conformity with the LRE requirements as follows:

  • placement must be based on the student’s IEP and determined at least annually;
  • placement must be as close as possible to the student’s home, and unless the student’s IEP requires some other arrangement, the student must be educated in the school he or she would have attended if not disabled;
  • in selecting the LRE, consideration must be given to any potential harmful effect on the student or on the quality of services that he or she needs; and
  • a student with a disability must not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.

Each student’s placement must be determined by the Committee on Preschool Special Education (CPSE) or Committee on Special Education (CSE) at least annually.  The placement recommendation should be the last recommendation made at the meeting based on the student’s needs, goals, and recommended services and in consideration of the LRE factors identified above. 

Each school district must ensure that the Committees on Preschool Special Education (CPSE) and Committees on Special Education (CSE), including parents, understand their responsibilities for LRE determinations and that each annual review include consideration of special education services and supplementary supports and services that would support the student to receive education services in the student’s regular school and in age appropriate general education classrooms.

High-Quality Programs and Services

The LRE Implementation Policy of the Board of Regents established that all students with disabilities must have equal access to a high-quality program based on their individual needs and abilities and designed to enable them to achieve the desired learning results established for all students.  This policy applies to the full continuum of placements where students with disabilities may receive their special education supports and services.

Each school district should assess and address the extent to which each of their schools provides a high-quality inclusive setting2.  High-quality inclusive setting means:
  • Instruction and configuration of classrooms and activities include both students with and without disabilities;
  • Students with disabilities are held to high expectations for achievement;
  • Special education and general education teachers intentionally plan teaching lessons to promote the participation and progress of students with disabilities in learning and social activities;
  • Individualized accommodations, supports and specially-designed instruction are provided to students with disabilities to participate and progress in regular education classes and activities; and
  • Evidence-based services and supports are used to foster the cognitive, communication, physical, behavioral and social-emotional development of students with disabilities.

New York State LRE Data Results

LRE Placements of Preschool Students with Disabilities

Statewide data from 2014-15 shows 31.4 percent of NYS’ preschool students with disabilities were placed in a separate class, separate school or residential school.  When the 2014-15 preschool only data (i.e., removing the 5 year olds from the statistical analysis) is disaggregated by Board of Cooperative Educational Services (BOCES) regions and New York City (NYC), there are significant regional variations. 

  • NYC placed 46.6 percent of their preschool children in separate schools and settings; 
  • School districts representing seven BOCES regions placed between 38 and 22 percent of their preschool children in separate schools and settings;
  • School districts representing 13 regions placed between 13.1 and 22 percent of preschool students in separate schools and settings;
  • School districts representing seven BOCES regions placed between four and 13.1 percent of preschool students in separate schools and settings; and
  • School districts representing 10 BOCES regions placed less than four percent of their preschool students in separate schools and settings.

A map showing these regional variations is provided in Attachment 1.

Each school district should review its LRE data for preschool students.  Individual district data can be found at http://data.nysed.gov/lists.php?type=district  (click on 2013-14 special education data report)

When 2014-15 preschool (ages 3 and 4) LRE data is further disaggregated by race/ethnicity, data shows disproportionality by race/ethnicity in placements of preschool students with disabilities:

  • 36.8 percent of preschool students who are Hispanic/Latino and 38.8 percent of preschool students who are Black/African American receive the majority of their special education services in regular early childhood programs, compared to 45.4 percent of preschool students who are White.
  • 46.5 percent of preschool students who are Hispanic/Latino and 47 percent of preschool students who are Black/African American are placed in separate schools compared to 21.1 percent of students who are White.

LRE Placements of School Age Students with Disabilities (ages 6-21)

When compared to 2013-14 national data, NYS serves a lower percentage of its students, ages 6-21, in regular education classes for 80 percent or more of the school day and significantly higher percentages in regular classes for less than 40 percent of the day and in separate schools. 

For students with disabilities, ages 6-21, statewide data shows that:

  • 57.8 percent of students with disabilities are served inside regular classrooms 80 percent or more of the school day;
  • 11.7 percent are served inside regular classrooms for between 40 and 79 percent of the school day;
  • 19.8 percent are served inside regular classrooms for less than 40 percent of the school day; and
  • 6.1 percent are served in separate schools, residential placements or homebound or hospital placements.

2014-15 statewide LRE data disaggregated by race/ethnicity shows:

  • Comparable percentages of students across all race/ethnic groups are placed in general education classes for 80 percent or more of the school day.
  • Disproportionately higher combined rates of separate class and separate setting placements for students who are Black, American Indian or Alaska Native, Native Hawaiian/Other Pacific Islanders and Asian, compared to students who are White, multi-racial or Hispanic/Latino.Disaggregated by disability category, data shows the highest combined rates of placement in separate classes and separate settings for students with emotional disturbance, autism, deafness, intellectual disability, multiple disabilities and deaf-blindness.

Disaggregated by disability category, data shows the highest combined rates of placement in separate classes and separate settings for students with emotional disturbance, autism, deafness, intellectual disability, multiple disabilities and deaf-blindness.

2014-15 data disaggregated by age shows that the percentages of students placed in separate classes and separate settings increases by age. 

  • Ages 6-11:  4.1 percent
  • Ages 12-13: 5.0 percent
  • Ages 14-17: 7.2 percent
  • Ages 18-21: 21.6 percent

Analysis of the State’s data on LRE shows that there is significant variation in LRE placements by region of the State and by school district.  Attachment 2 displays the regional variations in LRE results.  Attachment 3 provides a list of all school districts and their LRE data results for school age students.

Each school district should review, discuss and develop plans to address their data, by district and schools and disaggregated by disability category, race/ethnicity, gender and age.

Data on LRE is publicly reported each year at http://data.nysed.gov/lists.php?type=district (special education data report)

Proposed Policy and Next Steps

As noted above, the State has made improvements in LRE practices.  However, the data demonstrates that current policy action needs to focus individual school district attention to policies, procedures and instructional practices to ensure that each school district offers high-quality inclusive programs for both preschool and school age students with disabilities.  The Board of Regents has discussed new proposed policy that would promote data analysis and planning at the local level.  This proposed policy is premised on the principles that systemic change at the district, school and classroom levels will require that:

  • The community, through the board of education, guide the planning and the vision.
  • There is consistent terminology and understanding as to the elements of a high-quality inclusive school.
  • School leadership provide staff with the time, resources, training and vision necessary to implement inclusive practices.
  • Teachers recognize individual differences and implement learning strategies for all.
  • There is a focus on communication, interaction, and relationship building as well as on curriculum modifications and accommodations to promote high- quality inclusive settings.
  • School practices demonstrate intentional planning, teamwork and team planning time, interactive and hands-on ways of exploring subject content, a truly flexible curriculum and commitment.

Under the proposed policy, each school district would be required to annually review and report to their boards of education at a public meeting on the extent to which students with disabilities participate in general education classrooms and programs, as well as the quality of inclusive programs, services and extracurricular activities for students with disabilities within the schools of the district; and to develop and implement, as appropriate, a plan to enhance inclusive opportunities, through such means as resource allocation, professional development, partnering with families, and ensuring access to assistive technology and specialized supports for students to participate in inclusive programs and activities.  Additional planning and reporting would be required for those school districts whose data shows low percentages of placements in inclusive settings and/or high rates of separate class/separate school placements, as defined by the Commissioner, for preschool and/or school-age students with disabilities.  Attachment 4 provides a summary of the draft proposed policy. 

For next steps, the Department will seek stakeholder comment on the proposed policy prior to proposing regulations to the Board of Regents.  Written comments on the proposed policy can be submitted to spedpubliccomment@nysed.gov - Attention: Draft LRE Policy.  In addition, Department staff will seek comment through other forums and stakeholder groups.           

Web Resources for Technical Assistance

Lesson Planning Guide

http://www.p12.nysed.gov/specialed/commoncore/guidance-commoncore-template.htm

Continuum of Services for School Age Students with Disabilities

http://www.p12.nysed.gov/specialed/publications/policy/schoolagecontinuum.html

Universal Prekindergarten Program: An Ideal Setting for the Integration of Preschool Students with Disabilities

http://www.p12.nysed.gov/specialed/publications/preschool/upk.htm

LRE Communities of Practice

http://www.tacommunities.org/community/view/id/1027

Guide to Quality IEP Development

http://www.p12.nysed.gov/specialed/publications/iepguidance.htm

Professional Development and Technical Assistance

Regional Special Education Technical Assistance Support Centers (RSE-TASC)

http://www.p12.nysed.gov/specialed/techassist/rsetasc/home.html

Special Education Parent Centers

 http://www.p12.nysed.gov/specialed/techassist/parentcenters.htm

Early Childhood Direction Centers

http://www.p12.nysed.gov/specialed/techassist/ecdc/home.html

Special Education Quality Assurance Offices

http://www.p12.nysed.gov/specialed/quality/home.html

Questions regarding this memorandum may be directed to the Office of Special Education’s Policy Unit at (518) 473-2878.  Comments may be submitted to spedpubliccomment@nysed.gov.

Attachments: See PDF of Special Education Field Advisory  PDF document  (877KB)

Footnotes:

134 CFR §300.115

2 U.S. Department of Education policy statement on Inclusion of Children with Disabilities in Early Childhood Programs http://www2.ed.gov/policy/speced/guid/earlylearning/joint-statement-full-text.pdf.External link

 

Last Updated: December 28, 2015