Chapter 1: Introduction

    1.1 Overview

    1.2 Free Appropriate Public Education (FAPE)

    1.3 Least Restrictive Environment (LRE)

    1.1 Overview

    The State Performance Plan (SPP) and Annual Performance Report (APR)

    In accordance with the Individuals with Disabilities Education Improvement Act (IDEA) of 2004, each state is required to have in place a State Performance Plan (SPP) that is used to evaluate the state’s efforts to implement the requirements of IDEA. The SPP must include measurable, rigorous targets for 20 indicators that address the monitoring priority areas established by the U.S. Department of Education, Office of Special Education Programs (OSEP).

    The SPP outlines Ohio's targets and activities through school year 2010-2011 for the 20 compliance and results indicators. Compliance indicators have required annual targets of 100 percent, as established by OSEP. Results indicators have targets established by the state based on input from stakeholders.

    Accountability

    States must report annually on their performance on the targets identified in the SPP through an annual performance report (APR). The APR provides the actual target data, explanation of progress or slippage, and discussion of improvement activities completed by the state for each indicator during the reporting year.

    The IDEA accountability process is significant for local education agencies (LEA) in three major ways:

    • The APR is the mechanism through which states annually report to OSEP on the state's performance in relation to the SPP targets. Subsequently, the Ohio Department of Education's (ODE) Office for Exceptional Children (OEC) uses the data reported by each LEA for each indicator to analyze individual LEAs' progress toward meeting SPP targets and to evaluate Ohio's progress as a whole.
    • IDEA requires public reporting of the state's progress toward meeting the SPP targets for each of the 20 indicators and each LEA's progress toward meeting the targets for a subset of SPP indicators.
    • Based on the data reported in the APR, OSEP annually places each state's implementation of IDEA requirements into one of four categories. States must use these same four categories annually when determining each LEA's implementation of IDEA requirements, based on the data reported for a subset of SPP indicators.

    States are required to take appropriate enforcement actions or sanctions in response to an LEA's performance status. The determination categories and enforcement actions, as specified in section 616(e) of IDEA:

    1. Meets Requirements
    2. Needs Assistance
      When the state determines that an LEA needs assistance for two consecutive years, the state must:
      a. Advise the LEA of available sources of technical assistance to address deficient areas in which the LEA needs assistance; or
      b. Identify the LEA as a high-risk grantee and impose conditions on use of funds.
    3. Needs Intervention
      When the state determines that an LEA needs intervention for three or more consecutive years, the state must:
      a. Require the LEA to prepare or implement an action plan to correct the identified area(s); or
      b. Withhold, in whole or in part, further payments to the LEA.
    4. Needs Substantial Intervention.
      When the state determines that an LEA needs substantial intervention at any time, the state must withhold, in whole or in part, further payments to the LEA.

    Although the specific enforcement actions required by IDEA are based on the length of time the LEA has been in a given category, in order for Ohio to receive a "Meets Requirements" determination on state-level compliance indicators performance, OEC must identify noncompliance among LEAs each year and ensure correction within timelines.

    LEAs should become familiar with the targets for the compliance and results indicators outlined in Ohio's SPP and make efforts to ensure they are reporting accurate data on the indicators in a timely manner.

    Reports of LEA performance data are available online at http://education.ohio.gov; keyword search district-level performance data. Stakeholders can review the progress of their local school districts or community schools on a subset of SPP indicators.

    Monitoring Priority: FAPE in the LRE

    LEAs' compliance regarding free, appropriate public education and least restrictive environment (LRE) are judged on these monitoring priorities:

    1. Graduation:
    Percent of youth with IEPs graduating from high school with a regular high school diploma compared to percent of all youth in the state graduating with a regular diploma. (20 U.S.C. 1416 (a)(3)(A))
    2. Dropout:
    Percent of youth with IEPs dropping out of high school compared to the percent of all youth in the state dropping out of high school. (20 U.S.C. 1416 (a)(3)(A))
    3. Participation and performance of children with disabilities on statewide assessments:
    A. Percent of districts that have a disability subgroup that meets the state's minimum "n" size and also meets the state's "adequate yearly progress" (AYP) objectives for progress for a disability subgroup. [In other words, of the districts that have a disability subgroup large enough to require evaluation, the percent that meet the state's AYP objectives for subgroup progress.]
    B. Participation rate for children with IEPs in a regular assessment with no accommodations; regular assessment with accommodations; alternate assessment against grade-level standards; and alternate assessment against alternate achievement standards.
    C. Proficiency rate for children with IEPs against grade-level standards and alternate achievement standards. (20 U.S.C. 1416 (a)(3)(A))
    4. Rates of suspension/expulsion:
    A. Percent of districts identified by the state as having a significant discrepancy in the rates of suspensions and expulsions of children with disabilities as compared to children without disabilities for greater than 10 days in a school year; and
    B. Percent of districts identified by the state as having a significant discrepancy in the rates of suspensions and expulsions of greater than 10 days in a school year of children with disabilities by race and ethnicity. (20 U.S.C. 1416 (a)(3)(A); 1412(a)(22))
    5. Least restrictive environment - school-age: Percent of children with IEPs aged 6 through 21:
    A. Removed from regular class less than 21 % of the day;
    B. Removed from regular class greater than 60 % of the day; or
    C. Served in public or private separate schools, residential placements, or homebound or hospital placements. (20 U.S.C. 1416 (a)(3)(A))
    6. Least restrictive environment - preschool:
    Percent of preschool children with IEPs who received special education and related services in settings with typically developing peers (i.e., early childhood settings, home, and part-time early childhood special education settings). (20 U.S.C. 1416 (a)(3)(A))
    7. Preschool outcomes: Percent of preschool children with IEPs who demonstrate improved:
    A. Positive social-emotional skills (including social relationships);
    B. Acquisition and use of knowledge and skills (including early language/communication and early literacy); and
    C. Use of appropriate behaviors to meet their needs. (20 U.S.C. 1416 (a)(3)(A))
    8. Parent involvement:
    Percent of parents with a child receiving special education services who report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. (20 U.S.C. 1416 (a)(3)(A)

    Monitoring Priority: Disproportionality

    9. Disproportionality in special education by race/ethnicity:
    Percent of districts with disproportionate representation of racial and ethnic groups in special education and related services that is the result of inappropriate identification. (20 U.S.C. 1416 (a)(3)(C))
    10. Disproportionality in specific disability categories by race/ethnicity:
    Percent of districts with disproportionate representation of racial and ethnic groups in specific disability categories that is the result of inappropriate identification. (20 U.S.C. 1416 (a)(3)(C))

    Monitoring Priority: Effective General Supervision Part B

    11. Child find:
    Percent of children with parental consent to evaluate, who were evaluated within 60 days (or state established timeline). (20 U.S.C. 1416 (a)(3)(B))
    12. Early childhood transition:
    Percent of children referred by Part C prior to age 3, who are found eligible for Part B, and who have an IEP developed and implemented by their third birthdays. (20 U.S.C. 1416 (a)(3)(B))
    13. Secondary transition:
    Percent of youth age 16 and above with an IEP that includes coordinated, measurable, annual IEP goals and transition services that will reasonably enable the child to meet the post-secondary goals. (20 U.S.C. 1416 (a)(3)(B))
    14. Postsecondary outcomes:
    Percent of youth who had IEPs, are no longer in secondary school and who have been competitively employed, enrolled in some type of postsecondary school or both, within one year of leaving high school. (20 U.S.C. 1416 (a)(3)(B))
    15. General supervision:
    General supervision system (including monitoring, complaints, hearings) identifies and corrects noncompliance as soon as possible but in no case later than one year from identification. (20 U.S.C. 1416 (a)(3)(B))
    16. Complaint timelines:
    Percent of signed written complaints with reports issued that were resolved within the 60-day timeline or a timeline extended for exceptional circumstances with respect to a particular complaint. (20 U.S.C. 1416 (a)(3)(B))
    17. Due process timelines:
    Percent of due process hearing requests that were fully adjudicated within the 45-day timeline or a timeline that is properly extended by the hearing officer at the request of either party. (20 U.S.C. 1416 (a)(3)(B))
    18. Resolution sessions:
    Percent of hearing requests that went to resolution sessions that were resolved through resolution session settlement agreements. (20 U.S.C. 1416 (a)(3)(B))
    19. Mediations:
    Percent of mediations held that resulted in mediation agreements. (20 U.S.C. 1416 (a)(3)(B))
    20. State reported data:
    State reported data (618 and State Performance Plan and Annual Performance Report) are timely and accurate. (20 U.S.C. 1416 (a)(3)(B))

     

    1.2 Free Appropriate Public Education (FAPE)

    Defining FAPE

    The acronym FAPE stands for "free appropriate public education." FAPE has been part of the federal special education law from its inception in 1975. The law requires states to make FAPE available states to make FAPE available to children whose disabilities qualify them for special education and related servies. The definition of FAPE has changed little over 30 years and did not change at all in the most recent reauthorization of the Individuals with Disabilities Education Act (IDEA 2004).

    IDEA's definition of FAPE is found in the implementing regulations at §300.17.

    • §300.17 Free appropriate public education.
      Free appropriate public education or FAPE means special education and related services that—
      (a) Are provided at public expense, under public supervision and direction, and without charge;
      (b) Meet the standards of the SEA [state education agency], including the requirements of this part;
      (c) Include an appropriate preschool, elementary school or secondary school education in the State involved; and
      (d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of §300.320 through 300.324.

    This definition has been adopted by Ohio in rule 301-51-01(B)(23) of the Administrative Code.

    Breaking the definition down, there are six components to FAPE:

    • Special education and related services;
    • Free to families, provided at public expense;
    • Supervised and directed by a public agency (via state and local educational agencies, e.g., public schools);
    • Based on the standards of the SEA (e.g., the state’s general and special education standards and regulations);
    • Provided in an appropriate preschool, elementary school, or secondary school in the State; and
    • Provided in accordance with an appropriately developed IEP.

    There are some exceptions to FAPE. Those that apply to Ohio are addressed in rule 3301-51-02(C) of the Administrative Code.

    (C) Limitation: exception to FAPE for certain ages
    The obligation of the school district of residence to make FAPE available to all children with disabilities does not apply with respect to the following:

    1. Children with disabilities who have graduated from high school with a regular high school diploma;
    2. The exception in paragraph (C)(1) of this rule does not apply to children who have graduated from high school but have not been awarded a regular high school diploma;
    3. Graduation from high school with a regular high school diploma constitutes a change in placement, requiring written prior notice in accordance with rule 3301-51-05 of the Administrative Code;
    4. As used in paragraphs (C)(1) to (C)(3) of this rule, the term regular high school diploma does not include an alternative degree that is not fully aligned with Ohio’s academic content standards, such as a certificate or a general educational development credential. A child with a disability who has been awarded a certificate or a general development credential may, at a later date but before the child's 22nd birthday, re-enroll in the school district tuition free and receive FAPE while the child continues to work on a regualar high school diploma up to the child's 22nd birthday; and
    5. Children with disabilities who are eligible under Subpart H of Part B of the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004, December 2004 (IDEA), but who receive early intervention services under Part C of the IDEA.

    Frame of Reference for FAPE

    FAPE is the fundamental core of the IDEA and the IEP. Conceptually, FAPE is both the goal and the path to reaching the goal. FAPE—a free appropriate public education—is an entitlement of a child with a disability, as IDEA defines that term, with the IEP serving as a means by which this entitlement is mapped out.

    What is not immediately clear about FAPE, but what is true nonetheless, is that for each child with a disability, FAPE is different. While each child’s education must be free and while a public agency provides and pays for that education, what is “appropriate” for one child will not necessarily be appropriate for another. Determining what is appropriate for a specific child requires an individualized evaluation in which the child’s strengths and weaknesses are identified in detail. It also requires gathering information about the child’s participation in the general curriculum and other matters. Information gathered through this type of evaluation then illuminates the dimensions of an “appropriate” education for a given child.

    State's Obligation to Make FAPE Available

    To receive federal funding under IDEA, each state must assure the U.S. Department of Education that it has in effect policies and procedures to meet all the requirements of the law. One of these requirements is that each state make FAPE available to its children with disabilities that qualify for special education and related services. The IDEA specifies the scope of this obligation at §§300.101 and 300.102 by describing both the age range of children for whom FAPE must be made available and any exceptions to the state’s FAPE obligation.

    The opening paragraph at §300.101 illustrates the state’s obligation to make FAPE available to eligible children with disabilities.

    • §300.101 Free appropriate public education (FAPE).
      • (a) General. A free appropriate public education must be available to all children residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school, as provided for in §300.530(d).

    F for “free. Being free of cost is a vital part of the law’s requirement. The education of each child with a disability must be “provided at public expense…and without charge” to the child or the child’s parents. See the Residency and Custody chart to determine the school district that is responsible for providing a child with a free appropriate public education.

    A for “appropriate. "Appropriate is a highly important term in IDEA. It is used frequently in different contexts, but it generally means the same thing: whatever is suitable, fitting or right for a specific child, given that child’s specific needs and strengths, established goals, and the supports and services that will be provided to help the child reach those goals.

    The law specifies in detail how the public agency and parents are to plan each child's education so that it is appropriate, meaning it is responsive to the child’s needs. (See Section IEP - 7 General.)

    P for “public. Public generally refers to public school systems and the use of public funds to pay for education in those schools. Children with disabilities have the right to attend public school just as other children do, regardless of the nature or severity of their disabilities. The public school system must serve children with disabilities, respond to their individual needs and help them plan for their futures.

    The use of the word "public" in FAPE also implies that there are differences for children with disabilities who are placed by their parents in private schools. See Parentally Placed Nonpublic School Children - 9 Guidelines for Providing Services.

    E for “education. IDEA is an education act. It guarantees that FAPE is available to eligible children with disabilities. Here, “education” means “special education and related services…provided in conformity with an IEP,” that meets requirements specified within the law and are based on the child’s individual needs.

    Summary

    FAPE is an important principle of the law. While in practice, FAPE differs for each child, in principle it is the same for each child - a guarantee of access to a free appropriate public education that opens the doors to opportunity and learning.

    References

    Kupper, L. (2007, July). The Top 10 Basics of Special Education (Module 1). Building the legacy: IDEA 2004 Training curriculum. Washington, DC: National Dissemination Center for Children with Disabilities. Available online at: http://www.nichcy.org/training/contents.asp

     

    1.3 Least Restrictive Environment (LRE)

    Defining LRE

    Since the Education for All Handicapped Children Act was passed in 1975, schools have been required to provide children with disabilities a free appropriate public education (FAPE) in the least restrictive environment (LRE). LRE is another key principle of the Individuals with Disabilities Education Act (IDEA) and an integral part of the IDEA's FAPE guarantee.

    The conceptual core of IDEA’s LRE provisions is located at §300.114(a) (2), which appears below. Additional provisions continue through §300.120.

    • LRE Provisions: §300.114(a)(2).

      (2) Each public agency must ensure that -

      (i) 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
      (ii) 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.

    This provision is included in rule 3301-51-09(B)(2) of the Administrative Code.

    As IDEA has been reauthorized, its LRE principles have been further bolstered and supported. The 1997 amendments to IDEA made progressive changes by helping to ensure children with disabilities access to the general education curriculum. That reauthorization first introduced IEP requirements with direct connections to regular education, such as including a regular education teacher on the IEP team and requiring an explanation in the IEP of the extent, if any, to which a child will not participate in the regular education class and nonacademic activities with children who do not have disabilities.

    Defining Regular Education Class and General Education Curriculum

    “Regular Education Class” refers to the educational environments where children without disabilities receive instruction and participate in activities throughout the school day. It includes instruction that occurs outside of the actual classroom such as within the school or community where interaction occurs with persons without disabilities (e.g.,assemblies, field trips and community transition services).

    “General education curriculum” refers to the content of the instruction that is to be taught to children in each grade and subject area. In Ohio, the general education curriculum consists of the Ohio Academic Content Standards or the Early Learning Content Standards. The general education curriculum may be used in many different settings, including classrooms where only children with disabilities are taught.

    The term “regular education class” is used instead of “general education class” in this document and other Ohio Department of Education, Office for Exceptional Children (ODE/OEC) documents. Using the term “regular education class” separates the setting from the “general education curriculum” that may be provided in various types of settings including classrooms where only children with disabilities receive instruction.

    Determining a Child’s LRE

    IDEA’s LRE provisions clearly state a strong preference for educating children with disabilities in regular education environments. In fact, a child’s placement in the regular education classroom is the first option the IEP team must consider when determining where a child with a disability will receive his or her special education and related services.

    To decide that question, however, the IEP team must make an individualized inquiry into the possible range of supplementary aids and services that are needed to satisfactorily educate the child in the regular education environment. If the IEP team determines that the child can be adequately educated in that environment, then a regular education placement is the LRE for that child.

    However, the IEP team may determine that the child cannot be educated satisfactorily in the regular education classroom, even when supplementary aids and services are provided. An alternative placement must then be considered. Accordingly, IDEA requires school systems to ensure that a "continuum of alternative placements" is available to meet the needs of children with disabilities for special education and related services.

    Although a school district is not responsible for ensuring that every school building in the district can provide all the special education and related services necessary for all types and severities of disabilities (August 14, 2006, pg. 46588), the school district is responsible for having the full continuum of options available. If an option is not available in the district and the LRE of a child with disability indicates that placement, the school district must either create the placement, alter an existing one or send the child to another public or private placement that meets the child’s needs. If the school district puts a child in another public or private placement, the cost of that placement is paid by the school district.

    (See IEP - 7.4 Development of IEP.)

    A Continuum for Children’s Varying Needs

    In IDEA, the provisions at §300.115 contain the public agency’s obligation to make available a range of alternative placements for children. Those provisions are:

    • §300.115 Continuum of alternative placements.

    (a) Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.
    (b) The continuum required in paragraph (a) of this section must—
    (1) Include the alternative placements listed in the definition of special education under §300.38 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and
    (2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

    Ohio's rules include this requirement in rule 3301-51-09(C) of the Administrative Code.

    The continuum of alternative placements reinforces the importance of the individualized evaluation instead of a one-size-fits-all approach in determining which placement is the LRE for each child with a disability.

    Nonacademic Environments

    The IDEA also addresses nonacademic settings in §300.117. Ohio’s rules have adopted this same requirement at rule 3301-51-09(E) of the Administrative Code.

    • §300.117 Nonacademic settings.

      In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in §300.107, each public agency must ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child. The public agency must ensure that each child with a disability has the supplementary aids and services determined by the child’s IEP Team to be appropriate and necessary for the child to participate in nonacademic settings.

    This provision again invokes the LRE language in the requirement that a public agency “must ensure that each child with a disability participates with nondisabled children to the maximum extent appropriate to the needs of the child.” Additionally, this provision reinforces the required use of supplementary aids and services to ensure the participation of children with disabilities in nonacademic and extracurricular services and activities.

    (See IEP - 7.4 Development of IEP.)

    Placement-Neutral Funding

    LRE provisions were substantially revised in IDEA 1997. That reauthorization of IDEA introduced what’s called placement-neutral funding, a requirement of law that is maintained in IDEA 2004. Included within the provisions, at §300.114, where the conceptual core of LRE also is found, is an additional requirement that prohibits states from using a funding mechanism that results in placements violating LRE requirements. States also may not use any funding mechanism that distributes funds based on the type of setting in which a child is served.

    (b) Additional requirement—State funding mechanism
    (1)General.
    (i) A State funding mechanism must not result in placements that violate the requirements of paragraph (a) of this section; and
    (ii) A State must not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a child with a disability FAPE according to the unique needs of the child, as described in the child’s IEP.
    (2) Assurance. If the State does not have policies and procedures to ensure compliance with paragraph (b)(1) of this section, the State must provide the Secretary an assurance that the State will revise the funding mechanism as soon as feasible to ensure that the mechanism does not result in placements that violate that paragraph. [§300.114(b)]

    Summary

    Basically, LRE refers to the setting in which a child with a disability can receive an appropriate education designed to meet his or her educational needs, alongside peers without disabilities, to the maximum extent appropriate. LRE is one of several vital components in the development of a child’s IEP and plays a critical role, influencing where a child spends his or her time at school, how services are provided and the relationships the child develops within the school and community.

    References

    Kupper, L. (2007, July). The Top 10 Basics of Special Education (Module 1). Building the legacy: IDEA 2004 Training curriculum. Washington, DC: National Dissemination Center for Children with Disabilities. Available online at: http://www.nichcy.org/training/contents.asp

    Rebhorn, T., & Smith, A. (2008, April). LRE decision making (Module 15). Building the legacy: IDEA 2004 training curriculum. Washington, DC: National Dissemination Center for Children with Disabilities. Available online at: www.nichcy.org/training/contents.asp

     

Last Modified: 7/10/2013 11:13:20 AM