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U.S. Department of Education: Promoting Educational Excellence for all Americans

LRE requirements (Sec. 300.114)

Comment: One commenter recommended including language in the regulations that respects and safeguards parental involvement and protects the rights of children with disabilities to be educated in the least restrictive environment (LRE).

Discussion: We believe that the LRE requirements in Sec. Sec. 300.114 through 300.120 address the rights of children with disabilities to be educated in the LRE, as well as safeguard parental rights. Section 300.114, consistent with section 612(a)(5) of the Act, requires each public agency to ensure that, to the maximum extent appropriate, children with disabilities are educated with children who are not disabled. Further, Sec. 300.116 ensures that a child's parent is included in the group of persons making the decision about the child's placement.

Changes: None.

Comment: A number of comments were received regarding Sec. 300.114(a)(2)(ii), which requires each public agency to ensure that the removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that the education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Many commenters recommended replacing "regular educational environment" with "regular classroom" because "regular classroom" is less likely to be misinterpreted to mean any kind of contact with children without disabilities. A few commenters expressed concern that using the phrase "regular educational environment" weakens the LRE protections. Another commenter recommended the regulations clarify that the "regular educational environment" means the participation of children with disabilities with their nondisabled peers in regular classrooms and other educational settings including nonacademic settings.

Discussion: Section 300.114(a)(2)(ii) follows the specific language in section 612(a)(5)(A) of the Act and reflects previous regulatory language. This requirement is longstanding. We do not believe the language should be revised, as recommended by the commenters, because "regular educational environment" encompasses regular classrooms and other settings in schools such as lunchrooms and playgrounds in which children without disabilities participate.

Changes: None.

Comment: One commenter requested revising Sec. 300.114(a)(2) to require a public agency to document and justify placements of children with disabilities in environments outside the general education classroom.

Discussion: The additional language requested by the commenter is not necessary and would impose unwarranted paperwork burdens on schools. Section 300.320(a)(5), consistent with section 614(d)(1)(A)(i)(V) of the Act, already requires a child's IEP to include an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class. As noted previously, parents are a part of the group making placement decisions. We believe these provisions provide sufficient safeguards on the placement process.

Changes: None.

Comment: One commenter stated that the LRE requirements are often misinterpreted to be a mandate to include all children who are deaf or hard of hearing in their local schools. The commenter stated that the placement decision for a child who is deaf or hard of hearing should be based on the child's communication needs and must be the environment that presents the fewest language and communication barriers to the child's cognitive, social, and emotional development. Some commenters cautioned that inclusive settings might be inappropriate for a child who is deaf and who requires communication support and stated that the LRE should be the place where a child can be educated successfully. A few commenters requested the regulations clarify that all placement options must remain available for children who are deaf.

One commenter recommended strengthening the requirement for a continuum of alternative placements and stated that a full range of placement options is necessary to meet the needs of all children with visual impairments. Another commenter urged the Department to ensure that children with low-incidence disabilities (including children who are deaf, hard of hearing, or deaf-blind) have access to appropriate educational programming and services at all times, including center-based schools, which may be the most appropriate setting for children with low-incidence disabilities.

Discussion: The LRE requirements in Sec. Sec. 300.114 through 300.117 express a strong preference, not a mandate, for educating children with disabilities in regular classes alongside their peers without disabilities. Section 300.114(a)(2), consistent with section 612(a)(5)(A) of the Act, requires that, to the maximum extent appropriate, children with disabilities 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.

With respect to the recommendation that the placement for children who are deaf or hard of hearing be based on the child's communication needs, Sec. 300.324(a)(2)(iv), consistent with section 614(d)(3)(B)(iv) of the Act, clarifies that the IEP Team, in developing the IEP for a child who is deaf or hard of hearing, must consider the child's language and communication needs, opportunities for direct communication with peers and professional personnel in the child's language and communication mode, and the child's academic level and full range of needs, including opportunities for direct instruction in the child's language and communication mode.

With respect to strengthening the continuum of alternative placement requirements, nothing in the LRE requirements would prevent an IEP Team from making a determination that placement in the local school is not appropriate for a particular child. Section 300.115 already requires each public agency to ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. We believe this adequately addresses the commenter's concern.

The process for determining the educational placement for children with low-incidence disabilities (including children who are deaf, hard of hearing, or deaf-blind) is the same process used for determining the educational placement for all children with disabilities. That is, each child's educational placement must be determined on an individual case-by-case basis depending on each child's unique educational needs and circumstances, rather than by the child's category of disability, and must be based on the child's IEP. We believe the LRE provisions are sufficient to ensure that public agencies provide low-incidence children with disabilities access to appropriate educational programming and services in the educational setting appropriate to meet the needs of the child in the LRE.

Changes: None.

Comment: One commenter requested that the regulations clarify that children with disabilities who are suspended or expelled from school are entitled to be educated with children who are not disabled. The commenter stated that this clarification is necessary to reduce the use of home instruction as a placement option for these children.

Discussion: The Act does not require that children with disabilities suspended or expelled for disciplinary reasons continue to be educated with children who are not disabled during the period of their removal. We believe it is important to ensure that children with disabilities who are suspended or expelled from school receive appropriate services, while preserving the flexibility of school personnel to remove a child from school, when necessary, and to determine how best to address the child's needs during periods of removal and where services are to be provided to the child during such periods of removals, including, if appropriate, home instruction. Sections 300.530 through 300.536 address the options available to school authorities in disciplining children with disabilities and set forth procedures that must be followed when taking disciplinary actions and in making decisions regarding the educational services that a child will receive and the location in which services will be provided. We believe including the language recommended by the commenter would adversely restrict the options available to school personnel for disciplining children with disabilities and inadvertently tie the hands of school personnel in responding quickly and effectively to serious child behaviors and in creating safe classrooms for all children.

Changes: None.