Attorney Andrew A. Feinstein of Mystic, Connecticut
Andrew A. Feinstein Attorney at Law, LLC
86 Denison Avenue Mystic, Connecticut 06355
(860) 572-8585

Materials on Inclusion

Attorney Andrew A. Feinstein of Mystic Connecticut

Section 1412(a)(5) of the IDEA mandates that students with disabilities be placed in the least restrictive environment (LRE). Specifically, the statute says:

(5) Least restrictive environment

(A) In general

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 not disabled, and 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 of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

(B) Additional requirement

(i) In general

A State funding mechanism shall not result in placements that violate the requirements of subparagraph (A), and a State shall 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 a free appropriate public education according to the unique needs of the child as described in the child’s IEP.

(ii) Assurance

If the State does not have policies and procedures to ensure compliance with clause (i), the State shall provide the Secretary an assurance that the State will revise the funding mechanism as soon as feasible to ensure that such mechanism does not result in such placements.

The regulations provide some elaboration on this requirement.

§ 300.550 General LRE requirements.

(a) Except as provided in § 300.311(b) and (c), a State shall demonstrate to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets the requirements of §§ 300.550-300.556.
(b) Each public agency shall ensure–
(1) 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
(2) That 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.

§ 300.551 Continuum of alternative placements.

(a) Each public agency shall 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 § 300.26 (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.

§ 300.550 General LRE requirements.

(a) Except as provided in § 300.311(b) and (c), a State shall demonstrate to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets the requirements of §§ 300.550-300.556.
(b) Each public agency shall ensure–
(1) 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
(2) That 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.


§ 300.551 Continuum of alternative placements.

(a) Each public agency shall 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 § 300.26 (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.


§ 300.552 Placements.

In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall ensure that–
(a) The placement decision–
(1) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and
(2) Is made in conformity with the LRE provisions of this subpart, including §§ 300.550-300.554;
(b) The child’s placement–
(1) Is determined at least annually;
(2) Is based on the child’s IEP; and
(3) Is as close as possible to the child’s home;
(c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled;
(d) In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and
(e) A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.


§ 300.553 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 § 300.306, each public agency shall ensure that each child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to the needs of that child.

§ 300.554 Children in public or private institutions.

Except as provided in § 300.600(d), an SEA must ensure that § 300.550 is effectively implemented, including, if necessary, making arrangements with public and private institutions (such as a memorandum of agreement or special implementation procedures).

§ 300.555 Technical assistance and training activities.

Each SEA shall carry out activities to ensure that teachers and administrators in all public agencies–
(a) Are fully informed about their responsibilities for implementing § 300.550; and
(b) Are provided with technical assistance and training necessary to assist them in this effort.

§ 300.556 Monitoring activities.

(a) The SEA shall carry out activities to ensure that § 300.550 is im are inconsistent with § 300.plemented by each public agency.
(b) If there is evidence that a public agency makes placements that550, the SEA shall–
(1) Review the public agency’s justification for its actions; and
(2) Assist in planning and implementing any necessary corrective action.

What this means is that school districts must evaluate whether a child with a disability can be educated in a regular classroom if provided with supplemental aids and services, and a full range of services must be considered.  Oberti v. Board of Education, 995 F.2d 1204, 1216  (3rd Cir. 1993); Daniel R.R. v. State Board, 874 F.2d 1036, 1048 (5th Cir. 1989).  The IDEA imposes affirmative obligations on school districts to consider placing children with disabilities in regular classroom settings with the use of supplementary aids and services before exploring other alternatives.  Oberti, 995 F.2d at 1217; Greer v. Rome City School District, 950 F.2d 688 (1st Cir. 1991).  In that regard, OSEP Publication 95-9, November 23, 1994 is particularly valuable:

OSEP Memorandum 95-9
U.S. Department of Education
November 23, 1994
Judith E. Heumann, Assistant Secretary Thomas Hehir, Director

The Department of Education issued a policy memorandum to chief state
school officers to provide them with guidance on the IDEA’s LRE
requirements.

(1) It explained that the LRE requirements of Part B refer
to the provision which states the IDEA’s strong preference for educating
students with disabilities in regular classes with appropriate aids and
supports, found in the statute at 20 USC 1412(5)(B) and implemented by
the Part B regulations at 34 CFR 300.550-300.556.

(2) The IDEA does not use the term “inclusion”, and thus, the Department of Education has not defined that term. What the IDEA does require is that districts place students in the LRE, which is defined in the sections cited.

(3) In order to ensure placement in the LRE, IEP teams must consider the extent that the student will be able to participate in regular education
programs, and what range of supplementary aids and services would
facilitate the student’s placement in that environment.

(4) The IDEA contains no definition of the term “supplementary aids and services”, but if the IEP team determines that such services are necessary, then they must be described in the student’s IEP and provided to the student.

(5) At a minimum, the IDEA requires that each disabled student’s
placement be determined annually. However, the student’s parent,
teacher, or other service provider can initiate a request for review of
the student’s IEP at any point in time.

(6) The lack of adequate personnel or resources cannot be used as an excuse by the district to relieve them of their obligations to make FAPE available to disabled students in the LRE. The public agency must ensure the supply of a
sufficient number of teachers who are qualified, with the needed aids
and supports to provide such services in regular education environments.

(7) If it is determined that a student with disabilities cannot be
educated satisfactorily in regular education even with supplementary
aids and services, then the student’s placement team must select the
option on the “continuum” of alternative placements which best meets the
student’s needs. The alternative placement chosen must maximize
opportunities for the student to interact with nondisabled peers to the
extent appropriate.

(8) Although the overriding consideration in determining an appropriate placement is the individual abilities and needs of the student, other relevant factors include a comparison of the educational benefits available in the regular classroom with supplemental aids to the educational benefits available in a special education classroom, the non-academic benefits of interaction with nondisabled students, and the degree of disruption to other students which results in the inability to meet the student’s needs. The Department instructed that districts cannot make placements based solely on the following factors: category of disability, severity of disability, configuration of delivery system, availability of educational or related services, availability of space, or administrative convenience.

(9) Concerning the impact that a disabled student’s placement can have on nondisabled students, the Department remarked that if a student is so disruptive in the regular classroom that the education of other students is significantly impaired, then the needs of the disabled student cannot be met in that environment.  Nonetheless, the district must ensure that consideration is given to the full range of supplementary aids and services that could accommodate the student in that setting prior to making such a determination.

(10) The Department supports a variety of professional development and training projects that address the needs of students in inclusive programs and has financed Statewide Systems Change projects which support changing the setting for delivery of educational services from separate settings to general education settings.

Introduction

The least restrictive environment (LRE) requirements of Part B of the Individuals with Disabilities Education Act (IDEA) have been included in the law in their present form since 1975. However, these requirements continue to generate complex and interesting questions from the field. In particular, questions have been raised about the relationship of IDEA’s LRE requirements to “inclusion.” Consistent with our attempt to provide you and your staff with as much current information as possible and to ensure that the applicable requirements of IDEA that govern the education of students with disabilities are accurately understood and properly implemented, guidance on IDEA’s LRE requirements is being
provided in a question and answer format. In most cases, this question
and answer document consolidates the prior policy guidance that the Department has provided in this area. We encourage you to disseminate this document to a wide range of individuals and organizations throughout your State. Any further questions should be directed to the contact person named at the beginning of this document or to Dr. JoLeta Reynolds at (202) 205-5507. We hope that the above questions and answers are of assistance to you and your staff as you carry out your responsibilities to ensure that disabled students are provided a free appropriate public education in the least restrictive environment.

Questions and Answers

1. What are the least restrictive Environment (LRE) requirements of Part B of IDEA?

ANSWER:

In order to be eligible to receive funds under Part B of IDEA (IDEA), States must, among other conditions, assure that a free appropriate public education (FAPE) is made available to all children with specified disabilities in mandated age ranges. The term “FAPE” is defined as including, among other elements, special education and related services, provided at no cost to parents, in conformity with an individualized education program (IEP). The IEP, which contains the statement of the special education and related services to meet each disabled student’s unique needs, forms the basis for the entitlement of each student with a disability to an individualized and appropriate education. IDEA further provides that States must have in place procedures assuring 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 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.” This provision, which states IDEA’s strong preference for educating students with disabilities in regular classes with appropriate aids and supports, is found in the statute at 20 U.S.C. § 1412(5)(B) and is implemented by the Department’s regulations at 34 CFR §§ 300.550-300.556.

2. Does IDEA define the term “inclusion?”

ANSWER:

IDEA does not use the term “inclusion”; consequently, the Department of Education has not defined that term. However, IDEA does require school districts to place students in the LRE. LRE means that, to the maximum extent appropriate, school districts must educate students with disabilities in the regular classroom with appropriate aids and supports, referred to as “supplementary aids and services,” along with their nondisabled peers in the school they would attend if not disabled, unless a student’s IEP requires some other arrangement. This requires an individualized inquiry into the unique educational needs of each disabled student in determining the possible range of aids and supports that are needed to facilitate the student’s placement in the regular educational environment before a more restrictive placement is considered.

In implementing IDEA’s LRE provisions, the regular classroom in the school the student would attend if not disabled is the first placement option considered for each disabled student before a more restrictive placement is considered. If the IEP of a student with a disability can be implemented satisfactorily with the provision of supplementary aids and services in the regular classroom in the school the student would attend if not disabled, that placement is the LRE placement for that student. However, if the student’s IEP cannot be implemented satisfactorily in that environment, even with the provision of supplementary aids and services, the regular classroom in the school the student would attend if not disabled is not the LRE placement for that student.

3. How can IDEA requirements be implemented to ensure that consideration is given to whether a student with a disability can be educated in the regular educational environment with the use of supplementary aids and services before a more restrictive placement is considered?

ANSWER:

The relationship of IDEA’s LRE requirements to the IEP process is key, since under IDEA, the student’s IEP forms the basis for the student’s placement decision. IDEA requires that the IEP of each disabled student must contain, among other components, a “statement of the specific special education and related services to be provided to the child and the extent that the child will be able to participate in regular educational programs.” 34 CFR § 300.346(a)(3). At the student’s IEP meeting, the extent that the student will be able to participate in regular educational programs is one of the matters to be addressed by all of the participants on the student’s IEP team before the student’s IEP is finalized. In addressing this issue, the team must consider the range of supplementary aids and services, in light of the student’s abilities and needs, that would facilitate the student’s placement in the regular educational environment. As discussed in question 4 below, these supplementary aids and services must be described in the student’s IEP. Appendix C to 34 CFR Part 300 (question 48).

4. Does IDEA define the term “supplementary aids and services?”

ANSWER:

No. However, in determining the educational placement for each disabled student, the first line of inquiry is whether the student’s IEP can be implemented satisfactorily in the regular educational environment with the provision of supplementary aids and services. This requirement has been in effect since 1975 when the Education of the Handicapped Act (EHA), the predecessor to the IDEA, originally became law. Consistent with this requirement, any modifications to the regular educational program, i.e., supplementary aids and services that the IEP
team determines that the student needs to facilitate the student’s placement in the regular educational environment must be described in the student’s IEP and must be provided to the student. Appendix C to 34 CFR Part 300 (question 48). While determinations of what supplementary aids and services are appropriate for a particular student must be made on an individual basis, some supplementary aids and services that educators have used successfully include modifications to the regular class curriculum, assistance of an itinerant teacher with special
education training, special education training for the regular teacher, use of computer-assisted devices, provision of notetakers, and use of a resource room, to mention a few.

5. How frequently must a disabled student’s placement be reviewed under IDEA?

ANSWER:

Under IDEA, each disabled student’s placement must be determined at least annually, must be based on the student’s IEP, and must be in the school or facility as close as possible to the student’s home. Under IDEA, each student’s placement decision must be made by a group of persons, including persons knowledgeable about the student, the meaning of evaluation data, and the placement options. While the student’s IEP forms the basis for the placement decision, a student’s IEP cannot be revised without holding another IEP meeting, which the school district is responsible for convening. If either the student’s parent or teacher or other service provider wishes to initiate review of the student’s IEP at a point during the school year that does not correspond with the annual IEP review, that individual an request the school district to hold another IEP meeting. If the IEP is revised, following the meeting, the placement team would need to review the student’s IEP to determine if a change in placement would be needed to reflect the revised IEP.

6. If a determination is made that a student with disability can be educated in regular classes with the provision of supplementary aids and services, can school districts refuse to implement the student’s IEP in a specific class because of the unwillingness of a particular teacher to educate that student in his or her classroom or the teacher’s assertion that he or she lacks adequate training to educate that student effectively?

ANSWER:

Under IDEA, lack of adequate personnel or resources does not relieve school districts of their obligations to make FAPE available to each disabled student in the least restrictive educational setting in which his or her IEP can be implemented. Exclusion of a student from an appropriate placement based solely on the student’s disability is prohibited by Section 504 of the Rehabilitation Act of 1973. However, placement in a particular regular class based on the qualifications of a particular teacher is permissible under both statutes. The public agency
has an affirmative responsibility to ensure the supply of sufficient numbers of teachers who are qualified, with needed aids and supports, to provide services to students with disabilities in regular educational environments, and to provide necessary training and support services to students with disabilities. The Department encourages States and school districts to develop innovative approaches to address issues surrounding resource availability. Factors that could be examined include cooperative learning, teaching styles, physical arrangements of the classroom, curriculum modifications, peer mediated supports, and equipment, to mention a few.

7. Once a determination is made that a disabled student cannot be educated satisfactorily in the regular educational environment, even with the provision of supplementary aids and services, what considerations govern placement?

ANSWER:

IDEA does not require that every student with a disability be placed in the regular classroom regardless of individual abilities and needs. This recognition that regular class placement may not be appropriate for every disabled student is reflected in the requirement that school districts make available a range of placement options, known as a continuum of alternative placements, to meet the unique educational needs of students with disabilities. This requirement for the continuum reinforces the importance of the individualized inquiry, not a “one size fits all” approach, in determining what placement is the LRE for each student with a disability. The options in this continuum must include “the alternative placements listed in the definition of special education under § 300.17 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions).” 34 CFR § 300.551(b)(1). These options must be available to the extent necessary to implement the IEP of each disabled student. The placement team must select the option on the continuum in which it determines that the student’s IEP can be implemented. Any alternative placement selected for the student outside of the regular educational environment must maximize opportunities for the student to interact with nondisabled peers, to the extent appropriate to the needs of the student. It also should be noted that under IDEA, parents must be given written prior notice that meets the requirements of § 300.505 a reasonable time before a public agency implements a proposal or refusal to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child. Consistent with this notice requirement, parents of disabled students must be informed that the public agency is required to have a full continuum of placement options, as well as about the placement options that were actually considered and the reasons why those options were rejected. 34 CFR §§ 300.504-300.505;

8. What are the permissible factors that must be considered in determining what placement is appropriate for a student with a disability? Which factors, if any, may not be considered?

ANSWER:

The overriding rule in placement is that each student’s placement must be individually-determined based on the individual student’s abilities and needs. As noted previously, it is the program of specialized instruction and related services contained in the student’s IEP that forms the basis for the placement decision. In determining if a placement is appropriate under IDEA, the following factors are relevant: the educational benefits available to the disabled student in a
traditional classroom, supplemented with appropriate aids and services, in comparison to the educational benefits to the disabled student from a special education classroom; the non-academic benefits to the disabled student from interacting with nondisabled students; and the degree of disruption of the education of other students, resulting in the inability to meet the unique needs of the disabled student.

However, school districts may not make placements based solely on factors such as the following: category of disability; severity of disability; configuration of delivery system; availability of educational or related services; availability of space; or administrative convenience.

9. To what extent is it permissible under IDEA for school districts to consider the impact of a regular classroom placement on those students in the classroom who do not have a disability?

ANSWER:

IDEA regulations provide that in selecting the LRE, consideration is given to any potential harmful effect on the student or on the quality of services that the student needs. If a student with a disability has behavioral problems that are so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the disabled student cannot be met in that environment. However, before making such a determination, school districts must ensure that consideration has been given to the full range of supplementary aids and services that could be provided to the student in the regular
educational environment to accommodate the unique needs of the disabled student. If the placement team determines that even with the provision of supplementary aids and services, that student’s IEP could not be implemented satisfactorily in the regular educational environment, that placement would not be the LRE placement for that student at that particular time, because her or his unique educational needs could not be met in that setting. While IDEA regulations permit consideration of the effect of the placement of a disabled student in a regular classroom on other students in that classroom, selected findings from Federally-funded research projects indicate that:

(1) achievement test performance among students who were classmates of students with significant disabilities were equivalent or better than a comparison group (Salisbury, 1993);

(2) students developed more positive attitudes towards peers with disabilities (CRI, 1992); and

(3) self concept, social skills, and problem solving skills improved for all students in inclusive settings (Peck, Donaldson, & Pezzoli, 1990, Salisbury & Palombaro, 1993).

10. Are there any resources that the Department is aware of that have proven helpful to educators and paraprofessionals in implementing inclusive educational programs?

ANSWER:

The Department has supported a variety of professional development and training projects (e.g., preservice, inservice, school restructuring projects) that address the needs of students with disabilities in inclusive educational programs. In addition, the Department has financed Statewide Systems Change projects which support changing the setting for delivery of educational services from separate settings to general education settings in the school that the student would attend if not
disabled. Numerous materials and products have been developed by these projects which have focused on strategies that support collaborative planning and problem solving, site based control, curriculum and technological adaptations and modifications, parent and family involvement, and the creative use of human and fiscal resources. These projects have underscored the importance of timely access to resources (e.g., people, materials, information, technology) when they are needed.

The Act’s preference for mainstreaming “rises to the level of a rebuttable presumption.”  Oberti, 995 F.2d at 1219.  See Daniel R.R., 874 F.2d at 1044-45.  School districts must evaluate whether a child with a disability can be educated in a regular classroom if provided with supplemental aids and services, and a full range of such services must be considered.  Oberti, 995 F.2d at 1216; Mavis v. Sobol, 839 F.Supp. 968, 985-86 (N.D.N.Y. 1993).

 The least restrictive environment language of 20 U.S.C. § 1412 (a)(5) thus raises both procedural and substantive requirements.  The procedural requirement is that the PPT must first consider, in drafting the student’s IEP, what modifications and accommodations can be instituted in the regular education setting to afford the disabled student with meaningful educational benefit.  Only if the PPT determines that no such modifications or accommodations are effective may the PPT consider placement in a more restrictive setting.  Oberti v. Board of Education, 995 F.2d 1204, 1216  (3rd Cir. 1993); Daniel R.R. v. State Board, 874 F.2d 1036, 1048 (5th Cir. 1989).

 The least restrictive environment language of 20 U.S.C. § 1412 (a)(5) thus raises both procedural and substantive requirements.  The procedural requirement is that the PPT must first consider, in drafting the student’s IEP, what modifications and accommodations can be instituted in the regular education setting to afford the disabled student with meaningful educational benefit.  Only if the PPT determines that no such modifications or accommodations are effective may the PPT consider placement in a more restrictive setting.  Oberti v. Board of Education, 995 F.2d 1204, 1216  (3rd Cir. 1993); Daniel R.R. v. State Board, 874 F.2d 1036, 1048 (5th Cir. 1989).
The substantive requirement states that School districts must carefully examine the educational benefits, academic and nonacademic, available to a child with a disability in a regular classroom.  Among the factors to be considered are the advantages derived from modeling the behavior and language of children without disabilities; the effects of such inclusion upon the other children in the class, both positive and negative; and the cost of necessary supplementary services.  See Oberti, 995 F.2d at 1216-1217; Sacramento Unified School District v. Rachel H., 14 F.3d 1398, 1401 (9th Cir. 1994); Greer, 950 F.2d at 697; Barnett v. Fairfax County School Board, 927 F.2d 146, 153-54 (4th Cir.), cert. denied, 112 S.Ct. 175 (1991); Daniel R.R., 874 F.2d at 1048-50; Roncker v. Walter, 700 F.2d 1058 (6th Cir.), cert. denied, 464 U.S. 864 (1983); Mavis, 839 F.Supp. at 983, 990.
Under both Warton v. New Fairfield Board of Education, 217 F.Supp. 2d 261 (D. Conn. 2002) and A.S. v. Norwalk Board of Education, 183 F.Supp. 2d 534 (D.Ct. 2002), the least restrictive environment analysis involves, on a substantive level, three questions: whether the Board made reasonable efforts to accommodate the student in the regular classroom, a comparison of the educational benefits available to the student in a regular class, with appropriate supplementary aids and services, to the benefits provided in a special education class, and the negative effects of inclusions on other students.
In Connecticut, inclusion issues revolve around the PJ consent decree, which resolved a class action brought on behalf of children with Intellectual Disabilities.  The text of the consent decree follows:

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

P.J., ET AL : CIVIL ACTION NO.:
Plaintiffs : 291CV00180 (RNC)
v. :
STATE OF CONNECTICUT, BOARD OF EDUCATION, ET AL :

SETTLEMENT AGREEMENT

INTRODUCTION

This case was filed in 1991 by five school-age children with mental retardation and their families against the Connecticut State Board of Education, the State Commissioner of Education and certain local school districts alleging violation of 20 U.S.C. § 1412(a)(5)(A). Later, four statewide associations of persons with disabilities were granted the status of intervening parties.

On December 13, 1993 this case was certified as a class action as to plaintiffs’ claims against state defendants. The court defined the class as: “All mentally retarded school-age children in Connecticut who have been identified as needing special education and who, on or after February 20, 1991, are not educated in regular classrooms.” C.A.R.C. v State of Connecticut Board of Education, 2:91CV00180 (JAC), Ruling on Motion to Reconsider Denial of Motion for Class Certification, slip op. at 6 (D. Conn. December 13, 1993).

The state defendants deny the allegations in the plaintiffs’ Amended Complaint in this case and admit no liability for the actions claimed therein. All parties to this litigation seek a resolution that is consistent with the requirements of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., its implementing regulations, and any other relevant federal law, and the provisions of state law and regulations.

The parties acknowledge and agree that each class member has an equal right to a free, appropriate public education. The defendants share with the LEAs the obligation to 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 not disabled, and 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 of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” (20 U.S.C. § 1412(a)(5)(A)) See also, C.F.R. § 300.550 through 300.552 regarding least restrictive environment. The parties agree to the following to implement these rights and obligations.

I. Class Membership

The parties agree that all school-age children labeled mentally retarded on or after February 20, 1991 who are not educated in regular classrooms will be class members as well as all students with the label “Intellectual Disability/Mental Retardation” who are not educated in the regular classroom. Students who either graduate or reach maximum age for eligibility for special education (“age out”) will no longer be considered class members. No student will lose his status as a class member due to the re-naming or re-labeling of his/her disability category from mental retardation to intellectual disability.

The defendants shall prepare and distribute to the parties and the court a list of public school students in Connecticut who on or after December 1, 1999 carry the label of either mental retardation or intellectual disability and who are eligible for special education; such list shall be updated periodically.

The plaintiffs shall have a right to collect data relating to the students identified in number 2. above and to challenge the adequacy of that list. CSDE shall cooperate with the plaintiffs to gain access to data and files relating to class members, to the extent allowed by state and federal statute, for all purposes relating to the enforcement and implementation of this Agreement. As with all other aspects of this Agreement, Plaintiffs’ right to this data and these files shall end should the court end its jurisdiction and dismiss this matter as provided under Section III below.

II. Goals and Outcomes

The parties agree that the desired outcomes for educational programs for students with mental retardation or intellectual disability consist of five main overall goals stated below.

1. An increase in the percent of students with mental retardation or intellectual disability who are placed in regular classes, as measured by the federal definition (eighty (80) percent or more of the school day with non-disabled students).

2. A reduction in the disparate identification of students with mental retardation or intellectual disability by LEA, by racial group, by ethnic group or by gender group.

3. An increase in the mean and median percent of the school day that students with mental retardation or intellectual disability spend with nondisabled students.

4. An increase in the percent of students with mental retardation or intellectual disability who attend the school they would attend if not disabled (home school).

5. An increase in the percent of students with mental retardation or intellectual disability who participate in school-sponsored extra curricular activities with non-disabled students.

Within sixty (60) days of the Court’s approval of this agreement, the defendants will establish statewide and individual LEA baseline data for the main goals stated above with the exception of the goal related to home school and the goal related to participation in extra-curricular activities. The baseline data for the goals related to participation in extra-curricular activities and home school will be established as a result of the December 2001 data collection. All baseline data and data relating to changes from baseline will be provided to the plaintiffs and members of the expert panel. The defendants commit to achieving meaningful continuous improvement annually with respect to goals #1 and #4 and continuous improvement with respect to goals #2, #3, and #5. Reporting will begin September 30, 2002 for goals #1 through #3. With respect to goals #4 and #5 reporting will begin as of June 30, 2003.

III. Continuing Jurisdiction

1. The jurisdiction of the Court for enforcement of this Agreement will end five (5) years from the empanelling of the Expert Advisory Panel (EAP) called for in section IX, except that the Court, for a period of eight (8) years from empanelling of the EAP, shall have jurisdiction to entertain Plaintiffs’ motions for substantial non-compliance with this Agreement. In no event shall the Court’s jurisdiction over this Agreement exceed eight (8) years beyond the empanelling of the EAP. The Defendants shall cooperate with the Plaintiffs’ reasonable requests to provide existing data to enable Plaintiffs to assess compliance during the five-to-eight year period.

For a period of four (4) years after the effective date of this agreement, the Defendants shall prepare an annual written report which:

a. identifies CSDE activities related to the five stated goals and implementation of this Agreement for the prior school year;

b. reports on all statewide and district-by-district data related to class members; and

c. reports on the documented progress on each stated goal. The report will also set forth CSDE’s proposed activities for the next school year to implement this agreement. The annual report will be submitted to the Court, the Expert Advisory Panel (EAP), and the Plaintiffs for review no later than June 30th of each year, except for the first report. The first report shall be submitted September 30, 2002; the final report will be submitted June 30, 2005. The parties will meet annually to discuss CSDE implementation and ways to effectively increase progress towards the achievement of each of the stated goals. See Section IX, Expert Advisory Panel for related information. The annual reporting requirements of this paragraph shall terminate in June of 2005 unless the Court issues further orders extending the reporting period.

2. The Defendants shall have the right at any time to move or petition the Court for an end to the Court’s jurisdiction and for dismissal of the matter based on the Defendants’ substantial compliance with the terms of this Agreement.

IV. Responsibility

1. The Connecticut State Board of Education has issued a position statement with regard to the education of children with disabilities. The Parties agree that this position statement (attached to this agreement) reflects the intent of IDEA.

2. The Defendants will issue a policy letter from the Commissioner of Education within ninety (90) days of the Court’s approval of this Agreement, which reiterates the Board position and which affirms the right of each child with mental retardation or another disability to be educated with non-disabled children to the maximum extent appropriate.

In addition, the Defendants will issue a policy memorandum from the Chief of the Bureau of Special Education and Pupil Services of the Connecticut State Department of Education(CSDE) that reiterates the individual student decision-making process that must be followed by the Planning and Placement Team (PPT) with regard to identification of the least restrictive educational environment for each child who has mental retardation and other disabilities, including the requirement that the PPT consider the placement of the student in regular classes with supplementary aids and services. The policy memorandum shall inform LEAs that the CSDE shall conduct oversight activities to ensure that class members, whenever appropriate, are placed in regular classes, in home schools, and in extracurricular activities with appropriate supplemental aids and services, that promising practices are used with regard to instruction in regular classes, and that, whenever appropriate, class members who are placed out of district will be returned to their home districts.

The policy memorandum shall inform LEAs of the joint state and local obligation to work towards the greater successful inclusion of students with mental retardation in all aspects of the school program through actions such as placement in home schools and regular classes, participation in extracurricular activities with appropriate supplementary aids and services, and use of promising practices with regard to instruction in regular classes.

The policy letter and policy memorandum will be forwarded together with a copy of this Settlement Agreement to each superintendent of schools, each member of the school board of each LEA, each IDEA hearing officer, and each teacher preparation program in Connecticut.

V. Program Compliance Review (Monitoring)

1. CSDE will establish a targeted, data-based monitoring system to facilitate continuous improvement in each of the stated goals of this Agreement. The monitoring system established by the defendants shall enable defendants to collect, analyze, and use quantitative and qualitative information and data to identify problems and provide consistent feedback to all LEAs on their performance in achieving the five stated goals of this Agreement.

2. In addition, state defendants will monitor the participation and progress of students with mental retardation or intellectual disability in the general curriculum, use of out-of-district placements, and use of, in CSDE’s judgement, promising practices with respect to the education of class members with non-disabled students. State defendants will also monitor the availability of supplementary aids and services to support the regular class placements of such students and the implementation of hearing officers’ final decisions related to LRE for such students.

3. The focus of monitoring activities will be continuous improvement. Districts that are not making satisfactory progress toward the stated goals established pursuant to this agreement, or found deficient as a result of monitoring established pursuant to paragraph #2, will receive a focused monitoring by the defendants designed to identify and provide solutions to the district’s failure to make progress.

4. As part of its Program Compliance Review (PCR) for 2002-2003, the CSDE will include those LEAs (approximately 8-12 in the first year of the implementation of this agreement) most in need, as determined by CSDE in its annual review of data related to the stated goals of this agreement. This focused monitoring activity in the eight to twelve LEAs in year one is not meant to exclude other LEAs from monitoring activities required by this agreement.

Activities for the identified districts will include the following:

a. Review of relevant data reflecting identification and placement of students with mental retardation or intellectual disability;

b. On-site visits;

c. Annual development by each district of an improvement plan related to the stated goals of this agreement;

d. Customized training of district staff in principles and strategies of effective and promising instruction in regular classes; and

e. Monitoring of districts’ efforts toward achieving continuous improvement on the five goals stated in this agreement consistent with Section II.

VI. Technical Assistance

To support full implementation of IDEA throughout Connecticut and to fully implement this Agreement, the Defendants shall:

1. design and implement a system of technical assistance to be made available to all LEAs to enable them to extend and improve education in regular classes for students with mental retardation or intellectual disability; and

2. utilize federal professional development funds to provide, as a component of the system of technical assistance, a sufficient number ofqualified specialists to assist LEAs in carrying out their training, supervision and support responsibilities specified in this Agreement. These specialists shall possess, in the CSDE’s judgment, knowledge and skill in teaching students with mental retardation or intellectual disability in regular classes, and in assisting teachers and other personnel to accommodate and to support students with mental retardation or intellectual disability in regular classes.

2. The State Commissioner of Education will designate a staff person, who in the Commissioner’s judgment possesses appropriate professional qualifications and experience, with responsibility to design, implement, and coordinate all efforts under this agreement, including technical assistance. The designated staff person shall be responsible for the progress in implementing the terms of this agreement and the good faith efforts of the CSDE in meeting the five stated goals set forth in Section II. State defendants shall provide the designated staff person with the administrative support, consultants and other resources necessary to perform the functions set forth. The designated staff person shall serve as the liaison to members of the Expert Advisory Panel.

3. The EAP, established under Section IX below, will advise the CSDE and make recommendations regarding the establishment of technical assistance, the identification of and qualifications of specialists as well as the effectiveness and adequacy of the technical assistance provided to advance the goals of this Agreement.

VII. Parent Involvement

The state defendants, with the advice and assistance of the Connecticut Parent Advocacy Center, shall allocate funds for training programs to enable parents of class members to effectively advocate for the education of their children in least restrictive environments. Such programs shall provide for the continuing training of parents in the development of IEPs, management and teaching activities and routines, and the development of active parent groups.

Continuing through June 30, 2005, the CSDE will allocate funds to the Connecticut Parent Advocacy Center (CPAC) to conduct parent training focused on implementation of this Agreement for class members and the implementation of 20 U.S.C. 1412(a)(5)(A). CPAC shall work closely with other parent-centered groups, such as the Connecticut Coalition for Inclusive Education, in the design and conduct of this training.

VIII. Complaint Resolution Process

CSDE will establish and maintain a complaint resolution process to resolve complaints pursuant to 34 C.F.R. § 300.660. The parties recognize that CSDE must seek to comply with all directive s of the U.S. Department of Education regarding what is required of the complaint resolution process.

IX. Expert Advisory Panel (EAP)
State defendants shall establish an Expert Advisory Panel to advise the parties and the Court regarding the implementation of this Agreement. This EAP will consist of four individuals agreed to by the parties, with each party nominating two members, but with both parties agreeing to all four individuals prior to agreement. The Expert Advisory Panel shall have the following responsibilities:

1. Advise and serve as a resource to CSDE with respect to implementation of all aspects of this agreement including the design and conduct of technical assistance, training and monitoring of LEAs. All advice and recommendations of the Expert Advisory Panel shall be made by consensus and represent the collective judgment of the Panel as a whole. The CSDE will not be bound by either the individual or collective advice of the EAP. Individual members of the Expert Advisory Panel may, at the request of the CSDE, participate in the design and conduct of training, technical assistance and monitoring described in this Settlement Agreement.

2. Facilitate the defendants’ compliance with this Agreement, identifying difficulties in compliance, facilitating resolution of compliance issues without court intervention, and referring to the court issues that cannot be resolved by discussion and negotiation.

3. receive the annual reports prepared pursuant to Section III (2) and will provide annual written comment to the Court, plaintiffs and defendants.

4. review annually and make recommendations relating to progress toward the goals stated in Section II, development of statewide technical assistance, targeted monitoring, complaint resolution, parent training, and next steps.

5. Collect and analyze data it deems necessary relating to class members and the implementation of this agreement. The parties shall jointly develop procedures and protocols that shall protect the confidentiality of client specific data and student records.

6. The State Commissioner shall convene the Expert Advisory Panel in Hartford within ninety (90) days of the effective date of this Agreement. Thereafter, the EAP will meet three (3) times per year and more often as necessary, with a schedule developed jointly by the EAP and the CSDE.

7. Members of the EAP shall be reimbursed by the state defendants for their reasonable expenses, subject to prior approval and regular state procedures.

8. Nothing in this agreement limits the EAP’s ability to bring issues related to the implementation of this Agreement to the attention of the Court.

X. Payment

The Defendants shall make to the Plaintiffs in P.J., et al v. State of Connecticut Board of Education, et al, a one-time payment of $675,000.00 in attorneys’ fees and costs, payable to Attorney David Shaw, attorney for the Plaintiffs, within ninety (90) days of the effective date of the approval of this agreement.

XI. Total Agreement
This agreement contains the complete and sole agreement of the parties.
Signatures:
_________________________________ __________________________________
Theodore S. Sergi Date                                   Ralph E. Urban Date
Commissioner                                                 Assistant Attorney General
CT State Department of Education                Office of the Attorney General

_________________________________ __________________________________
Frank Laski Date                                            David Shaw Date
Attorney for the Plaintiffs                              Attorney for the Plaintiffs

      Under the consent decree, an Expert Advisory Panel was established.  The final report of the EAP describes the state of inclusion in Connecticut.

FINAL REPORT
EXPERT ADVISORY PANEL REPORT TO THE UNITED STATES
DISTRICT COURT, DISTRICT OF CONNECTICUT
PJ ET AL V STATE OF CONNECTICUT, BOARD OF EDUCATION, ET ALRESPONSE TO THE STATE DEPARTMENT OF EDUCATION
ANNUAL REPORT OF JUNE 30, 2004

Submitted by the
Expert Advisory Panel
September 30, 2005

Leonard C.Burrello
W. Alan Coulter
Sharon Freagon
Wayne Sailor

OVERVIEW

The Settlement Agreement in PJ et al v. State of Connecticut, State Board of Education, et al (Hereafter referred to as PJ), contains five overarching goals:

1) increased percentages of “Class” students placed in general education,

2) reduce over identification of ethnic and other minorities,

3) increase school time with non-disabled students,

4) increase home school placements, and

5) increase time with non-disabled peers in extra-curricular activities.

The Expert Advisory Panel (EAP) was established to advise the Connecticut State Department of Education (CSDE) and make specific recommendations about,

1) the CSDE’s progress toward the goals of the Settlement Agreement,

2) development of statewide technical assistance,

3) targeted monitoring,

4) complaint resolution, and

5) parent training.

This written comment from the EAP is submitted in response to this requirement within the Settlement Agreement that the EAP submit an annual report.  In this report, we provide, 1) an introduction, 2) commendations, 3) findings, and  4) recommendations. The CSDE is not bound in the Settlement Agreement to follow either individual advice from EAP members or consensus recommendations. The EAP is to provide written comment to the court, as well as parties to the PJ case. This report  is the third of these since the first Annual Report was filed prior to substantive review and input from the EAP.

I. INTRODUCTION

In our First and Second Annual Reports (EAP1 and EAP2) on PJ, the EAP expressed concern that there has been little to no measurable progress on the five goals of the Settlement Agreement. In this, our third annual EAP report (hereafter referred to as EAP3), while we acknowledge some progress has been made, we are, however, concerned with the verifiability of that progress. We are especially concerned with the progress reported from March to June 2005 in selected districts from among the targeted 24, as we shall describe.With regard to the remainder of the state, CSDE made a concerted effort in the past two years to emphasize that these LEAs too must show progress on the five goals. Across all of the 145 districts that compose the remainder of the state’s total of 169 districts some local education agencies are making significant progress toward the five goals.

In EAP Report 1 and 2, we expressed grave concerns about “….resources being allocated with little return on the movement of students to desired ends.” Of the twenty-four targeted school districts some progress toward the five goals is evident in about twelve LEAs. The remaining 145 districts are as a group slightly better in the measured trend lines. As an EAP, we remain skeptical that the CSDE can reach the EAP targeted benchmarks that CSDE communicates to local districts through Connecticut in the two years remaining in the Settlement Agreement.

II. COMMENDATIONS

The EAP wants to commend both the CSDE and the Plaintiffs for forging a vision of the future for students with intellectual disabilities and their families and/or supporting school districts who have taken that vision to heart and built programs, developed personnel, and services to include those students in their classrooms, schools, and districts. All parties to the Agreement respectfully have learned to disagree as well as agree on different sets of conditions to support advances in home school placement, in schools, and in regular class placement, time with typical students, and participation in extra-curricular activities.
For the progress identified below, again we commend all the parties to the Settlement Agreement for putting together a package of incentives and sanctions to move hierarchical and bureaucratic systems to adapt to the reality of the Agreement that binds us together to find the best solutions for all the students in question.

2.1 Some progress toward Settlement Goals

(a) The CSDE has reported that eight of the original 24-targeted districts may reach the 2005 EAP goal of 40% by December 2005 for regular class placement (Goal 1) and fourteen of the 24-targeted districts may reach at least 81% home school placement before the December, 2005 target date (Goal 3). These data, if verified, will indicate that the state’s efforts in implementing PJ Settlement Agreement are having some limited impact.

(b) In the group of sixteen districts, some progress is indicated in Ansonia, Bristol, Meriden, Norwich, Wallingford, East Haven, Hartford (on three goals) and Windsor.

(c) The CSDE has begun to examine the membership of the PJ class as requested by both the EAP and the Plaintiffs. After Department review, 77.8% of 171 students whose classification changed were deemed appropriate reclassifications (about 18% clerical errors) with a range of 4-6% deemed inappropriate reclassifications. These findings as well as continued analysis of the membership information on the PJ Class will better inform all parties about the results and outcomes.

(d) The CSDE is examining the post-high school exit experience that some students with an intellectual disability at the 18-21-age level are making in the Class without diploma or transition to adult services. The CSDE study on this age group is continuing. The EAP is eager to examine the methodology and results.

2.2 Targeted Monitoring

The CSDE has been strategic in focused monitoring covering eight dimensions reported in the CSDE Fourth Annual Report. The data derived from monitoring reports keeps the districts focused on the EAP targets for the five goals of the Settlement Agreement. Data analysis is an integral part of focused monitoring and the CSDE tracks a variety of data from class membership to meaningful changes in LRE statistics and trends. The agency deserves a commendation for all of its work in this arena. Of the ten targeted districts, seven are moving downward and more intensive interventions will be required by CSDE. for Norwalk, Groton, and Windham.

2.3. The Technical Assistance and Training System including the addition of Qualified Specialists

The Technical Assistance and Training system of the CSDE grew in its scope with the addition of Educational Benefit Training (a key interest of the EAP), Coaches and Rapid Response Teams, and an even larger commitment to diversity training. The EAP commends the CSDE for its willingness to build a competitive granting process to increase the number of qualified specialists in district and throughout the state to support students, teachers, and their families. The EAP and the Plaintiffs asked for the Coaches Academy and Immediate Student Response Team in year two.

2.4. Parent Training and Information

The EAP commends the CSDE and its partners including Plaintiff parent affiliations for creating a monthly meeting to plan a comprehensive approach to reaching hard-to-get parents and guardians. Reaching out to organizations representing people of color is also encouraging. We noted innovative approaches to parents finding and connecting with key people and the right information. We also want to commend the CSDE for including parent forums for EAP information. We have included a summary of their responses as part of our findings.

2.5 Use of Data to Communicate Results

The CSDE has made a concerted effort to communicate data on PJ Goals in a manner that enhances comprehension and supports improvement. The use of color-coded performance measures and maps readily communicate LEA’s performance. Line graphs aid in the interpretation of progress or lack thereof by an LEA.

III. FINDINGS

Meaningful Progress Toward PJ Settlement Goals

As stated in the Introduction, the EAP continues to be concerned with the uneven progress of the 24-targeted districts on each of the five goals of the PJ Settlement Agreement. The remainder of the state is also moving too slowly in the desired direction.

Five districts account for the largest proportions of gains. Four of the original eight appear to have moved in a desired direction. They are: Enfield, Shelton, Windham, and New Haven in three goal areas. We are concerned, however, that some data reported for June 2005 may reflect intent, as expressed through the IEP process, rather than actual measured progress. Consider the following Table.

Reported District Changes in Regular Placement Between March/June 05

March June Percent Change
Bridgeport 13.2 46.4 +33.20%
East Hartford 55.0 68.0 +13.00%
East Haven 11.5 50.0 +38.50%
Hartford 10.6 41.0 +30.40%
Milford 16.7 36.0 +19.39%
New Haven 20.5 45.3 +24.20%
Norwalk 13.6 23.2 +9.40%
Stamford 15.2 25.0 +9.80%
Wallingford 9.7 63.0 +53.30%
Windsor 20.8 76.2 +55.40%
Windham 23.5 90.3 +66.50%

The table indicates that eleven school districts averaged a nearly one third increase in the percentage of regular class placement (Goal 1) in the data reported from March 2005 to June 2005. The EAP assumes that these data reflect IEP adjustments that occurred during that period. However, Dr. Jane Nell Luster of the National Center for Special Education Accountability Monitoring notes that in her experience in two states (to date) when comparing data versus actual physical setting of students what is reported in data do not consistently match what is actually occurring in schools (personal communication, September 17, 2005). Since these increases noted in the state’s report are very dramatic, verifiability of data as an accurate reflection of actual classroom practice becomes of paramount importance.

Of the group of districts with 20 or fewer students with intellectually disabilities: Cheshire, South Windsor, Middletown, Trumbull, Branford, Stratford, Fairfield, and Greenwich clearly show a lack of progress and in the case of Greenwich, a reversal occurred in their placement rate in-spite of their 3.9% plus average above the Connecticut state average. Naugatuck and South Winds also reflect reversals in three goal areas.

The CDSE reported the out of district placement for ID Class students in 2003-04 as N=413 and the preliminary data in 2004-05 as N=456. This represents a troubling 10% increase. The RESCs and the district’s they serve indicate that 34.9% in 2003-2004 and 27.2% in 2004-05 with the Class are outside of their home school and in essentially separate placements. This increase and the deliberately segregated nature of the settings raise an increasingly problematic situation for the CSDE in achieving compliance with the PJ Settlement Agreement. The CSDE also reports that DCF makes placements that are more restrictive and that school districts view these independent placements as problematic.

The CSDE has made an attempt to more carefully examine the issue of disproportionality related to Goal 2 of the Settlement Agreement. . After a more comprehensive assessment by the CSDE of LEA policies, procedures, and practices and their capacity to meet all the requirements of the Settlement Agreement, LEAs still not meeting the odds ratio target are: East Hartford, Manchester, Norwalk, and Windham. While CSDE’s has not set criteria for inappropriate identification of intellectual disabilities, the EAP will recommend a stricter benchmark in keeping with appropriate practices in nondiscriminatory
assessment and decision-making.

EAP Designated Barriers to Implementation of the Settlement Agreement

In the EAP2, the EAP found that there were “five significant barriers to successful realization of the five goals” of PJ. In that report, we identified:

1) lack of general education’s ownership and direction of the process;

2) lack of published expectations of meaningful, measured progress;

3) lack of competitive use of discretionary funds;

4) exodus from the identified class; and

5) lack of an over-all program evaluation strategy with which to estimate progress as a function of specific interventions.

These same barriers continue to impede progress, so we organize our findings for EAP3 within this same framework.

General Education Ownership

The CSDE appears to agree with the EAP assessment in their own analysis of impact and challenges that remain. This acknowledgement is needed to re-start a process of engagement. Yet as we stated in EAP2, the “ specifics of general education direction of the process at the level of the local district” still has not been delineated. Again from EAP2, we stated “ the realization of PJ goals must be made the responsibility of superintendents first and foremost, then directors of curriculum and instruction, and principals, with support from special educators, to get meaningful, measurable progress, in our view.”

Focused monitoring has resulted in on-site visits to targeted LEAs leading to written reports of compliance. This selective attention is intended to communicate the intent of the Settlement Agreement to the least compliant districts. These activities should continue and CSDE should communication that the state average does not represent a desirable goal for achieving a satisfactory implementation of the PJ Settlement Agreement.

Progress Expectations Communicated by CSDE to Districts

As recommended in EAP2, the EAP benchmarks need to be part of the evaluation process and need to be made explicit in reporting of State and district progress.

Parent Perceptions of Districts and Schools

The EAP has examined data gathered from parent input sessions that reveal their perceptions of district-parent-student relationships. The summary below reflects their collective voice and perception of what is working and not working in support of the goals of PJ.

Parents, teachers, and administrators provided testimony at the May 05 meeting of the EAP. Most parents speaking acknowledged little cooperation from the district special education bureaucracy in helping them shape their child’s educational program. The IEP process for most of them was contentious and two recommended that an attorney was needed to assist them in dealing with the district. A sample of Latino parents indicated a lack of parent training by the district as well as a lack of interpreters being available to assist them in accessing the information they needed to participate in the IEP process. Principal leadership, a disposition toward inclusive practices, high expectations for student learning, and the provision of supplementary aids and services were all identified as needed and valuable for their child’s success in school. Most of these were found to often be lacking, and special education was cited as a formidable obstacle to overcome and work through.

Competitive Use of Funds

The CSDE appears to be moving closer to being able to justify the allocation of discretionary funds more aligned with the purposes and goals of PJ. The EAP has consistently recommended an outright competitive grant program to get breakout solutions that could be emulated by others, however this recommendation continues to be rejected by CSDE.

Reductions in the membership of the Class

Exodus from the Class was a primary concern of the EAP in EAP2. For emphasis, we repeat two sentences from EAP2 we consider important to note: “the lack of progress for systematically accounting for each member of the original Class and determining his or her status until exit from school subtly encourages LEAs to change classification as a convenient method of reducing liability for compliance with PJ Settlement Agreement.“ At minimum, we repeat “the CSDE must account for every member of the original class, carefully investigate each instance of a change in classification, require corrective actions or compensatory education when appropriate, and report the results of these investigations.” (p.8)

The EAP agrees with a statement in the Plaintiffs response to AR4 that best describes our attitude toward class erosion, “ Every problem we are told, whether it is inadequate consideration of placement in regular classes or racial gender bias in labeling and placement, can be solved by reclassifying and removing children from the class, without examining what has happened to the children affected by longstanding discriminatory and illegal practices.” (pp.2-3)

The Class count of students in two districts, Bridgeport and New Haven, has decreased dramatically from 1998 to 2005, from 523 to 153 in Bridgeport, and in New Haven from 543 to 170. West Haven has reduced in ID count from 108 to 38 students over the same time span. This large reduction in ID Class count is of concern to the EAP, as we shall describe.

Given the data and the EAP questions about the mobility and erosion of the class (questionable reductions in Class membership), we believe CSDE needs to include a special effort to more closely examine class membership within LEAs from inception of the PJ agreement. The burden of proof lies with the local districts in ensuring that Class members receive a free and appropriate public education in the least restrictive environment but it does demand a consensus definition from CSDE of what constitutes regular class placement and time with typical students.

The EAP believes the issue of exodus from the Class was never resolved in the Settlement Agreement between the Plaintiffs and Defendants and continues to cause conflicts between the two affecting resolution of the Agreement. The Court may wish to consider bringing the parties together again to find a means of resolution.

Program Evaluation

CSDE did contract for a program evaluation study and involved the EAP in the contract specifications. What became clear to us then and now is that the agency is still reluctant to articulate its own theory of change and put into place a comprehensive, longitudinal impact evaluation study that will enable it to assess the relative impact of interventions geared to the theory in the accomplishment of measurable outcomes referenced to each of the five goals. The EAP continues to advocate for an impact study.

III. RECOMMENDATIONS

With two years left, the EAP thinks it is time to consider practicing a form of educational triage. It is time to press intransigent districts monthly (including the collection of accurate monthly data), continue to monitor advancing districts, and give those districts in between a last ditch effort to make the progress we all envisioned through this Settlement Agreement along with quarterly reviews of their progress. With this in mind, the EAP recommendations are outlined below regarding progress toward goals1, 3a, 3b, 4, and five. Keeping in mind the five barriers indicated in EAP2, we have also organized our recommendations in this report in terms of those same themes.

A. State and Local General Education Ownership

A.1. EAP recommends that CSDE re-constitute its targeted group of 8 and 16 into a new group of 14 districts for monthly group focused technical assistance, training, consultation, and monitoring – they are: Bridgeport – New Haven – Waterbury- West Haven – Milford – Danbury – East Hartford- Hamden – Manchester – Hartford – Stamford – Norwalk – New London – and New Britain.

For this group of districts our concern is their progress particularly on Goal 1, or a major discrepancy in any one goal, and in some cases the movement of large numbers out of the class.

A.2. EAP recommends that the CSDE integrate and merge functions directed to providing training and technical assistance to the fourteen districts. They require more awareness of total district transformation and reorganization of support for a more comprehensive response to ID Class students in light of their districts as a whole system.

A.3. EAP recommending targeted monthly group training at the district level first, and then individual school team development of appropriate monitored plans of action in line with what we provided again here below.

We recommended in EAP2 that CSDE needed to merge its state resources into a total district and whole school transformation plan. We are aware of no such major educational transformation of K-12. Special education on its own cannot carry whole school or district transformation or reform. We suggest that the state convene a district consortium of the fifteen Superintendents, Directors of Curriculum and Instruction, and Directors of Special Education, and begin to engage a consensus plan of benchmark achievement on all goals in 2 years. Working with them alone has not been productive by itself.

A.4 The EAP believes the required elements needed to be include at the district level are:

a) a district statement developed by the superintendent and approved by the local board of education should stipulate the purpose and principles that will guide the district response to PJ. This statement should guide general education planning and practices;

b) community education should be an explicit requirement of the district office including leading district level training of all parents in the district;

c) district resources committed to the plan; and

d) a district assessment process that uses the EAP targets should round out the plan. This district statement, or action plan, should include at least the following elements:

implementation of community (off campus) instruction, particularly for ID students age 14 and over, that is tied to general education course offerings and credits;

commitment of district resources to ID Class parent training; and

specific assessment procedures reflecting how the district will achieve EAP benchmark targets in all five goal areas.

A.5. The EAP believes the required elements needed to be include at the individual school level are:

A second action plan for each school should include the following dimensions:

a) the level of responsibility assumed by general education staff and a disposition to serve all students as measured by teacher knowledge, skills, and attitudes toward ID students;

b) allocation and merger of resources to serve all students well year by year in the school to reduce time in transition and inconsistencies in programming from grade to grade or level to level between schools;

c) level and type of principal support to be provided;

d) quality of special education in support provided in the general education classroom;

e) the level and type of intervention used to support students with ID and their parents;

f) parent satisfaction and engagement;

g) special classes for separate categories of students replaced with school wide student support services;

h) use of instructional coaches who use data to form and reform groups of students for more intense services, and

i) nature and type of supports needed from special education.

A.6. The EAP recommends that CSDE convene a meeting of the EAP with Commissioner Sternberg and her Associate Commissioners, along with the PJ Settlement Agreement implementers (Anne Louise Thompson, et al.) to consider these recommendations as well as several from EAP3

A.7. The EAP recommends that after the above meeting, the Commissioner convene the superintendents of districts making substantive progress to produce a white paper on PJ, its status and need for change, including a description of the policy and practices that have led to their district successes.

B. Examine the Role of RESCs

EAP recommends that the RESCs, who account for 124 class members, be brought together to examine their policies, practices, and relationships to each local district in their cooperative. It is particularly troubling in light of federal requirements for least restrictive environment and the terms of the Settlement Agreement that a significant number of students with ID continue to be served RESCs. The CSDE needs to facilitate a thoughtful examination of how and when each student with an intellectual disability served by a RESC might better be supported in his or her home school. It is doubtful that the PJ Settlement Agreement can ever be fully implemented when RESCs continue to serve such a significant proportion of the PJ Class. In fact, there is consensus within the EAP that the RESCs, should with their LEA counterparts, be required to produce a similar two year plan to return the majority of the ID Class students to their local schools. In addition, the EAP recommends that the complicated and layered direct service structures, including but not limited to the RESCs, be examined as potential barrier that is costly and not consistent with the goals of the Settlement Agreement.

C. Examine Role of DCF in Placements

EAP recommends that appropriate DCF officials meet with the EAP and the CSDE to discuss the issues and concerns of local school districts with this ID population. If other state agencies such as DOC/USD #1 place ID students, they should also be included.

While small in number, the students identified as ID and who are placed by DCF and any other agency as opposed to the local school district should be studied to determine how placement decisions are made and the challenges these students present to the local district (pgs. 34-35 & 65 of the Fourth Annual Report).

As the Table 14 on pages 34/35 shows, 74% of students are placed out of district by LEAs while DCF placed about 19.4% of this
total population of students.

D. Impact Study of New Technical Assistance

The EAP recommends a Quantitative Study of Results across the five year effort, including the results of the Coaches Academy and Student Response Team.

The EAP is particularly interested in district acceptance and rejection of intervention recommendations and whether or not those recommendations have been incorporated into each student’s IEP.

E. Reduction in membership of the ID Class

E.1. The EAP recommends that CSDE consider hiring an independent auditing firm to determine where and what has happened to class members.

The EAP is requesting that the audit firm be viewed as an extension of the Settlement Agreement and the EAP. The audit firm would work directly with the EAP to develop the verification routines and reporting formats of the data provided by the group of fifteen districts.

E.2. The CSDE reports in their analysis of erosion of Class membership that 52.1% of those examined had resulted in “appropriate reclassification.” The EAP is concerned that these children may be in need of compensatory education or other services to best meet their needs. The EAP recommends that the CSDE require LEAs to examine the needs of these students and document their findings. These findings should be randomly audited by the CSDE to ensure that the rights and needs of the previously inappropriately identified students are addressed.

E.3. Given the results of the CSDE’s audit of Class erosion, the EAP believes that the CSDE should develop a procedure for systematically reviewing any reclassification of a student currently identified as having an intellectual disability. The CSDE would implement this procedure and include the results in its subsequent annual reports as part of a more careful examination of PJ Class membership.

F. Data Accuracy

F.1 The EAP recommends CSDE develop “verification routines” together with the EAP to determine what constitutes accurate identification of ID, regular class placement, and monitoring student placement by their individual daily schedules to determine their time with typical peers and the actual match between their IEPs and what is happening instructionally in the classroom. These verification routines will eventually become the standard of practice for what constitutes regular education class placement and time with typical peers.

G. Over-representation Benchmark

G.1 The EAP recommends as part of the analysis of significant disproportionality a risk ratio of 1.5 or less be established. Currently, the CSDE appears to be using a risk ratio of 2.0 and the EAP believes this sets too lax a standard for LEAs.

G.2. The EAP acknowledges that the CSDE uses multiple methods to determine disproportionality in the identification of intellectual disabilities.

G.3. The CSDE is developing Guidelines for Identifying Intellectual Disabilities and plans to issue the guidelines in the fall, 2005. The EAP would like to review and comment on the Guidelines prior to final issuance.

G.4. The CSDE should prepare and implement a comprehensive plan of professional development for school psychologists and PPTs regarding use of the new Guidelines that ensures rapid and full implementation. This professional development plan should include measures of implementation integrity that can be used by LEAs to determine the fidelity of implementation of the Guidelines. These measures should be made available to the CSDE as part of monitoring when it occurs.

G.5. Data entry errors documented by the CSDE in the audits of LEA data practices are a concern to the EAP. Identification data are at present not sufficiently accurate to ensure confidence by EAP.

H. Extra-curricular Definition

The EAP recommends that a definition of what constitutes appropriate access and breadth of extra-curricular activities be developed with a focus group of district administrators whose data reflect strong progress on this goal in order to set a standard of practice.

The following is an excerpt from a memorandum dated December 18, 2002 from George P. Dowaliby, Chief, Bureau of Special Education and Pupil Services, Connecticut State Department of Education, to Directors of Special Education and Pupil Services across Connecticut. The intent of this memorandum is to provide clarification on how districts should count hours as “TWNDP” as it relates to the participation of students with disabilities in job placements/community-based settings and regular education classes.

JOB TRAINING/COMMUNITY-BASED SETTINGS
The federal definition of “regular education” includes the following:
“… age-appropriate community-based settings that include individuals with and without disabilities, such as college campuses or vocational sites” (OSEP, IDEA, Part B Data Dictionary – October 2002).

  • When determining if such community-based job placements or skills training programs should count as TWNDP, all of the following apply:
  • The job placement occurs in an inclusive setting where individuals with and without disabilities are present. Think about the “look around” rule – when you are in the setting in which the student is being educated, “look around” to see if there are individuals without disabilities present;
  • The job experience is one at which any student could potentially work;
  • It is not a job placement that has been designed just for students with disabilities; and
  • The community-based job placement and/or skills training program is part of the student’s educational program (i.e., not just an after-school job).

Examples of age-appropriate community-based job placements that would meet the criteria to be counted as TWNDP, based on the above criteria, would include the following:

  • Individual job sites, on a regular and consistent basis, with or without a job coach, that include individuals without disabilities;
  • In-school job sites, on a regular and consistent basis, with or without a job coach, that include individuals without disabilities; and/or
  • A work crew or enclave where a group of students may go to one job site, but each student works in different jobs within that one site (i.e., the job site may be at a grocery store, four students go at one time, supervised by a job coach, but each student is working in a different part of the store, with individuals without disabilities).

Examples of community-based experiences that would not meet the criteria to be counted as TWNDP would include the following:

  • Sheltered employment of any kind;
  • Periodic “field trips” for the purpose of one-time job shadowing or visits to businesses;
  • Work crews or enclaves where a group of students complete work in a separate room or setting and there is no meaningful presence of individuals without disabilities;
  • Work crews or enclaves where students participate in jobs, such as maintenance/grounds-keeping etc., but the work occurs after business/company hours and there is no meaningful presence of individuals without disabilities; and/or
  • Periodic “field trips” to the community to conduct independent living activities.

REGULAR EDUCATION CLASSES
For the purposes of determining a student’s “Time with Non-Disabled Peers” in schools, one would also apply the “look-around” rule – when you are in the setting in which the student is being educated, “look around” to see if there are students with disabilities (that is, students who are requiring specially designed instruction in that setting) being educated with individuals without disabilities.
A “regular education classroom”: z is taught by a general education teacher; z is identified in a course catalogue as a general education class; and z contains a substantial number of non-disabled students.
Please note that “Time with Non-Disabled Peers” is different than “Hours of Special Education Instruction”. For example, it is possible that a student can spend 100% of his/her time receiving special education instruction, and can simultaneously be in a regular classroom whereby the same 100% of his/her time is with non-disabled peers. Examples of a “regular education classroom” would include the following:

  • A general education 3rd grade class;
  • A co-taught class with a substantial number of non-disabled peers on the classroom roster; and/or
  • Lunch, recess and other non-academic time during the school day where students with disabilities are included with other age appropriate classes.

Examples of a “regular education classroom” would not include the following:

  • An art class taught by the art teacher, where the students in the class are all students with disabilities from the school’s self-contained class;
  • A special education resource room; or
  • A special education classroom where non-disabled peers visit and/or “peer-tutor” students with disabilities on a regular basis.

 

              Although the Second Circuit has never explicitly adopted the Oberti test, at least seven district courts have done so.  See, Warton v. New Fairfield Board of Education, Civ. Act. No. 3:00CV1235 (WWE), ruling on Cross Motions for Summary Judgment, July 18, 2002, A.S. v. Norwalk Board of Education, 183 F.Supp. 2d 534 (D.Ct. 2002)(affirming hearing officer’s application of Oberti test in determining whether requirements of 20 U.S.C. §1412(a)(5)(A) met); Mavis v. Sobol, 839 F.Supp. 968 (N.D.N.Y. 1993) (“This court fully agrees with the Third Circuit’s analysis and conclusion in Oberti.”  839 F.Supp. at 984); Ray M. v. Bd. of Educ., 884 F.Supp. 669 (E.D.N.Y. 1995); Wall v. Mattituck-Cutchogue Sch. Dist., 945 F.Supp. 501 (E.D.N.Y. 1996); Briere v. Fair Haven Sch. Dist., 948 F.Supp. 1242 (D.VT 1998); St. Johnsbury Academy v. D.H., 20 F.Supp. 2d 675 (D.VT 1998).