IN THE
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
___________________________________
LYDIA REBECCA GASKIN et al.,
)
)
Plaintiffs,
)
)
v. ) No.
94-CV-4048
) (JUDGE ROBRENO)
COMMONWEALTH OF PENNSYLVANIA, )
PENNSYLVANIA DEPARTMENT OF
)
EDUCATION, et al., )
)
Defendants. )
_____________________________________)
SETTLEMENT
AGREEMENT AND GENERAL RELEASE
I. INTRODUCTION
(A) This Settlement Agreement is
entered into for the purpose of finally and completely resolving
Gaskin v. Pennsylvania Department of Education, No. 94-CV-4048 (E.D.
Pa.), a civil action filed by the plaintiffs on June 30, 1994, against
the Pennsylvania Department of Education, various of its officers, and
members of the State Board of Education. Gaskin was certified as
a class action lawsuit pursuant to Rule 23(b)(2) of the Federal Rules of
Civil Procedure.
(B) The Settlement
Agreement is entered into by and between the following parties:
(1)
Plaintiffs Lydia Rebecca Gaskin; Anne Corr;
John Forte; Brett Michael Koneski; Samuel Luckenbill; Lisa McCann; Sarah
Noe; the estate of Merrin Rainey; Elizabeth Moser Royer; Hassan Sabree;
Michael Wintering; and Tiffany Zimenoff (hereinafter referred to,
collectively, as “the individual plaintiffs”);
(2)
Plaintiffs The Arc, Pennsylvania; Autism
Support and Advocacy in Pennsylvania; Disabled in Action; the Learning
Disabilities Association of Pennsylvania; Parents’ Union for Public
Schools; Pennsylvania Protection & Advocacy Association; and
Pennsylvania TASH (hereinafter referred to, collectively, as “the
organizational plaintiffs”); and
(3)
Defendants Commonwealth of Pennsylvania;
Pennsylvania Department of Education; the Secretary of Education; the
Commissioner of Basic Education; the Director of the Bureau of Special
Education; and the members of the State Board of Education.
(C) The individual
plaintiffs are representatives of a certified class consisting of all
school-age students with disabilities in Pennsylvania who have been
denied a free appropriate education in regular education classrooms with
individualized supportive services, or have been placed in regular
education classrooms without the supportive services, individualized
instruction, and accommodations they need to succeed in the regular
education classroom.
(D) All of the plaintiffs,
seeking system relief, allege in the complaint, among other things, that
the defendants failed to assure that members of the class are educated
with students who do not have disabilities to the maximum extent
appropriate and that those included in the regular education classroom
are not provided with the supplementary aids and services needed to
benefit from participation in the regular education classroom. The
defendants deny the allegations in the complaint. Both the plaintiffs
and the defendants conducted extensive discovery and filed dispositive
motions.
(E) In
lieu of litigating this case to its conclusion, the parties, by entering
into this Settlement Agreement, agree to the following terms and
conditions fully and comprehensively to settle and resolve all
outstanding claims asserted in or relating to the Gaskin lawsuit.
II. DEFINITIONS OF TERMS USED
IN THIS SETTLEMENT AGREEMENT
(Preamble) As used in
this Settlement Agreement, the following terms shall have the meanings
indicated. (Defined terms are indicated throughout by the use of
bold-faced text.)
(A) “Settlement
Agreement” shall mean this Settlement Agreement entered into in
Gaskin v. Pennsylvania Department of Education, No. 94-CV-4048 (E.D.
Pa.).
(B) “Effective date
of the Settlement Agreement” shall mean the date on which the Court
formally enters an order dismissing and ending the Gaskin case.
(C) “Life of the
Settlement Agreement” shall mean the five-year period of time
commencing on the effective date of the Settlement Agreement and
ending exactly five years later as described in Section IV.10(B) of the
Settlement Agreement.
(D) “IDEA” shall
mean the Individuals with Disabilities Education Act, as amended, 20
U.S.C. § 1400 et seq.
(E) “USDOE”
shall mean the United States Department of Education.
(F) “PDE” shall
mean the Pennsylvania Department of Education.
(G) “Bureau”
shall mean PDE’s Bureau of Special Education.
(H) “Bureau Director”
shall mean the Director of the Bureau.
(I) “LRE,” “FAPE,”
and “IEP” are abbreviations borrowed from IDEA.
(1)
“LRE” stands for “least restrictive
environment.” LRE is statutorily defined as follows: “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
education classes with the use of supplementary aids and services cannot
be achieved satisfactorily.” See 34 C.F.R. §300.550.
(2)
“FAPE” stands for “free appropriate
public education.” FAPE is statutorily defined in part as
“special education and related services that (A) have been provided at
public expense, under public supervision and direction, and without
charge; (B) meet the standards of the State educational agency; (C)
include an appropriate preschool, elementary, or secondary school
education in the State involved; and (D) are provided in conformity with
the individualized education program required under” section 614(d) of
the IDEA. See 34 C.F.R. §300.13.
(3)
“IEP” stands for “individualized
education program” or “individualized education plan.” IEP is
statutorily defined as “a written statement for each child with a
disability that is developed, reviewed, and revised in accordance with
[20 U.S.C. §] 1414(d).” See 20 U.S.C. § 1401(11); 34 C.F.R. §§
300.340-300.350.
(J) “Advisory Panel”
shall mean the “Bureau Director’s Advisory Panel on Least Restrictive
Environment Practices” established in accordance with Section IV.2 of
the Settlement Agreement.
(K) “Chapter 14”
and “Chapter 15” refer, respectively, to Chapters 14 and 15 in
the State Board of Education’s codified regulations (Volume 22 of the
Pennsylvania Code).
(L) “CAP” shall
mean a corrective action plan ordered by PDE as the consequence
of deficiencies identified during compliance monitoring conducted under
Section IV.4 of the Settlement Agreement.
(M) “Organizational
plaintiffs” shall mean the organizational plaintiffs identified in
Section I(B)(2) of the Settlement Agreement.
III.
RECITALS
(A) As
an integral part of the Settlement Agreement, all parties affirm,
as mutual goals and as principles for interpreting the provisions in the
Settlement Agreement, the following understandings.
(1)
The IDEA and related case law,
including Oberti v. Board of Education, 995 F.2d 1204 (3d Cir.
1993), require special education students to be educated with students
who do not have disabilities to the maximum extent appropriate.
(2)
It is desirable that school districts
increase their capacity to provide appropriate specially designed
instruction, related services, supplementary aids and services and
support to special education students placed in regular education
classrooms.
(3)
When the law requires that special
education students receive supplementary aids and services in order to
be educated with students who do not have disabilities to the maximum
extent appropriate, such supplementary aids and services should be: (a)
available to all students in need of them; (b) designed to provide
meaningful educational benefits; and (c) provided in a manner sensitive
to the need to avoid stigmatizing special education students who receive
them.
(4)
Pennsylvania school districts educate all
children and welcome children with special needs.
IV. SETTLEMENT TERMS,
CONDITIONS, AND UNDERTAKINGS
(Preamble) The parties to the Settlement Agreement hereby agree
to the following terms, conditions, and undertakings in full and final
settlement of all claims as between them.
IV.1.
Policy Development and Implementation
(A)
PDE will require school districts to adhere to the requirements of
the IDEA and case law, including Oberti v. Board of Education,
995 F.2d 1204 (3d Cir. 1993), when making placement decisions, including
the following:
(1)
Students may not be removed from regular
education classrooms merely because of the severity of their
disabilities.
(2)
When students with disabilities, including
students with significant cognitive disabilities, need specially
designed instruction or other supplementary aids and services to benefit
from participating in regular education classrooms, school districts
have an obligation to ensure that those services are provided.
(3)
Students’ IEP teams must determine
whether the goals in the student’s IEP can be implemented in
regular education classrooms with supplementary aids and services before
considering removal from the regular education classroom environment.
(4)
School districts will consider the full
range of supplementary aids and services in regular education
classrooms, based on peer-reviewed research to the extent practicable,
including modification of curriculum content, before contemplating
removal.
(B) Where services from other Commonwealth or private
agencies are required in order to provide a free, appropriate public
education in the least restrictive environment, the services will be
provided, coordinated, and paid in accordance with the interagency
coordination Memorandum of Understanding entered into among
PDE, the Pennsylvania Department of Public Welfare, the Pennsylvania
Department of Labor and Industry, and the Pennsylvania Department of
Health.
(C) Special education students who are entitled to
gifted support or Chapter 15 accommodations will have a
single individualized education plan (“single plan”) incorporating all
specially designed instruction, accommodations or other support
identified by the IEP team. The Advisory Panel may review
PDE policy and make recommendations to the Bureau Director
for changes that clarify PDE policy related to the use of a
single plan.
(D) PDE, with input from the Advisory Panel,
will design and make available to parents of children with significant
disabilities information about supplementary aids and services that
children with disabilities can receive in regular education classrooms
and information about how to seek assistance in obtaining such
supplementary aids and services. The information will be supplied to
parents via mechanisms such as distribution by school districts,
PennLink, or the PDE website.
(E) PDE, with input from the Advisory Panel,
will design and distribute to school districts materials for display in
school buildings that make it clear that all children, including those
with disabilities, are welcome.
IV.2.
Advisory Panel
(A) PDE will establish the “Bureau Director’s
Advisory Panel on Least Restrictive Environment Practices” (the
Advisory Panel), a special advisory group to the Bureau Director.
The purpose of the Advisory Panel will be to review system-wide
progress in the delivery of individualized specially designed
instruction in regular education classrooms to students with
disabilities in Pennsylvania, to analyze and report periodically on the
status of implementation of this agreement, and to advise PDE on
implementation.
(B) The Advisory Panel will consist of
fifteen members, at least nine of whom will be parents of children with
disabilities who are not employed by PDE or by any school
district or other local educational agency in Pennsylvania. During the
life of the Settlement Agreement, the members will be selected
annually as follows:
(1)
Twelve members will be selected by the
organizational plaintiffs, as provided in Section IV.2(B)(5) of the
Settlement Agreement.
(2)
Three members will be selected by the
Bureau Director.
(3)
All members will serve for terms of one
year, and will be eligible for reappointment to additional terms up to a
maximum of five terms in succession.
(4)
The membership of the Advisory Panel
will be representative of the population of children served in special
education in Pennsylvania with respect to race, ethnicity, cultural
characteristics, geography, and age.
(5)
The organizational plaintiffs will
be responsible jointly for selecting twelve members of the Advisory
Panel. These members will include persons with recognized expertise
in research and practices related to the provision of a free appropriate
public education to children with disabilities in the least restrictive
environment. The names of the organizational plaintiffs’ initial
representatives will be forwarded to the Bureau Director by no
later than the sixtieth day following the effective date of the
Settlement Agreement, and by no later than March 31 of succeeding
calendar years during the life of the Settlement Agreement.
(6)
In the event of a vacancy, the party or
parties who selected the member will designate a replacement.
(C) Advisory Panel
members will receive reimbursement at Commonwealth rates for their
travel costs to participate in the work of the Advisory Panel.
(D) The initial meeting
of the Advisory Panel will be held no later than ninety days
following receipt by PDE of the names of the organizational
plaintiffs’ twelve initial nominees.
(E) The Advisory
Panel will meet quarterly to review and evaluate all relevant data
on system-wide progress in implementation of all components of the
Settlement Agreement and to make recommendations for continued
progress.
(F) The Advisory
Panel will develop a committee structure to facilitate the effective
performance of its work.
(G) The Advisory
Panel will select from among its members a Chair and a Vice Chair.
The Advisory Panel will develop its own operating rules and
procedures (which will be consistent with state law and PDE
policies applicable to the deliberations of advisory panels), designate
the committees it considers necessary to its effective operation, and
appoint Advisory Panel members to committees.
(H) PDE will make
data available to assist the Advisory Panel in assessing the
efforts of school districts and other programs in assuring a free
appropriate public education in the least restrictive environment for
schoolchildren with disabilities. The Advisory Panel will review
samples of student IEPs to determine whether school district
staff understand and are following the policies on compliance monitoring
set forth in Section IV.4 of the Settlement Agreement.
(I) Data made available
to the Advisory Panel will include the number of special
education students in each school district who begin first grade outside
the regular education classroom in their neighborhood schools.
(J) Data provided to the
Advisory Panel will be in a form that complies with the Health
Insurance Portability and Accountability Act of 1996, Pub. L. No.
104-191, 110 Stat. 1936 (1996); the Family Educational Rights and
Privacy Act, 20 U.S.C. § 1232g; IDEA; and other applicable
federal and state privacy laws.
(K) The Bureau
will provide a reasonable level of support, including staff support, to
the Advisory Panel consistent with PDE’s budgetary
resources and as determined by the Bureau Director.
(L) The Advisory
Panel will assist in the design of an assessment of the needs of
school district and intermediate unit personnel in research-based
practices and the provision of supplementary aids and services in
regular education classes. The needs assessment will evaluate actual
practice in districts against standards for good practice in the field.
(M) The Advisory
Panel will assist the Bureau Director in identifying school
districts in Pennsylvania that have developed exemplary programs and
practices in the area of education in the least restrictive environment,
recognize these districts through awards, and assist them in developing
materials for dissemination that will assist other districts in
replication of their work.
IV. 3. IEP Format
(A) PDE will
continue to provide an Annotated IEP Format to guide school
districts in developing IEPs.
(B) By no later than
December 31, 2005, PDE will modify the LRE portion of the
Annotated IEP Format as agreed to by the parties. A copy of the
modified text is attached to the Settlement Agreement and
incorporated herein by reference as Exhibit A. The same modification
will be incorporated into the IEP Format at the same time.
(C) For a period of
three years commencing on the effective date of the Settlement
Agreement, PDE will not make other modifications to the
LRE portion of the Annotated IEP Format or IEP except
with the consent of the plaintiffs; except that, should modification be
required by changes in applicable federal statutory or case law or by
the USDOE, PDE will be entitled to make appropriate
modification following notification to the plaintiffs’ counsel. By no
later than the sixtieth day following the effective date of the
Settlement Agreement, PDE will notify school districts that
it is likely that the current IEP Format will have to be modified
to address changes in the law due to the reauthorization and amendment
of the IDEA in late 2004.
(D) The Advisory
Panel may suggest other modifications to the LRE portion of
the IEP format for consideration and approval of the Bureau
Director.
(E) By no later than the
sixtieth day following the effective date of the Settlement Agreement,
PDE will provide written guidance to all school districts related to
completing the LRE portion of the IEP. The guidance will
explain the phrases “LRE percentages” and “time in a special education
class” and explain how to calculate the “LRE percentages” and “time in a
special education class.” A copy of the guidance is attached to the
Settlement Agreement and incorporated herein by reference as Exhibit
B.
IV.4. Compliance Monitoring
(A)
“Compliance monitoring”
refers to a range of activities undertaken by PDE to assure that
local educational agencies are complying with the requirements of the
IDEA and other federal and state laws protecting the rights of
schoolchildren with disabilities. Compliance monitoring will include
three forms:
(1)
“Regular cyclical monitoring” is required
by the USDOE and is performed in accordance with a time frame
negotiated with the USDOE so as to encompass all local
educational agencies in Pennsylvania over an agreed-upon period of time.
Commencing no later than January 1, 2006, regular cyclical monitoring
will include the additional steps described in Section IV.4(H)(4) of the
Settlement Agreement.
(2)
“Targeted monitoring”
is performed by Bureau personnel in response to specific
deficiencies or shortcomings identified through the regular cyclical
monitoring process because of complaints from family members or advocacy
organizations or through other means.
(3)
“LRE monitoring”
is new. LRE monitoring focuses on half of Pennsylvania’s 501 school
districts every year, and will be conducted at various levels of
intensity depending on a particular district’s relative place on a list
developed by reference to an LRE index. LRE
monitoring, in contrast to other forms of monitoring, will, to the
maximum extent feasible, be based on the following principles:
(a)
LRE monitoring will be based on a limited
number of priorities (goal statements) identified by PDE
following input from a diverse group of stakeholders through the
Advisory Panel. Priorities will include: (1) increasing the number
of students with disabilities included in regular education classes and
neighborhood schools with needed supplementary aids, services and
support; and (2) developing IEPs capable of providing students
with disabilities a meaningful benefit from education.
(b)
LRE monitoring will be based on a limited
number of indicators (objective measures of the goal) identified by
PDE within each priority area.
(c)
LRE monitoring will be based on comparisons
to state averages identified by PDE. Monitoring standards will be
clearly communicated to school districts.
(d)
Triggers (levels of
performance at which PDE will intervene and require corrective
action) will be clearly communicated to school districts.
(B) Overview.
(1)
All categories of
compliance monitoring serve the purpose of assessing the educational
progress of children with disabilities, as measured by several outcomes.
All categories of compliance monitoring will be conducted in accordance
with the following general rules:
(a)
Compliance monitoring will be data- and
information-based and verifiable.
(b)
To the extent practicable, PDE will
allocate its monitoring resources so as to address areas of greatest
need. PDE will use data-based information to make judgments about
the allocation of its resources.
(c)
As permitted by its resources, PDE
will provide support, including focused, customized technical
assistance, to school districts in need of such support.
(d)
PDE
will exercise its authority to levy sanctions for failure to take
actions required under the terms of a CAP.
(e)
Families of children with
disabilities will have avenues of communication to provide information
to PDE on a continuous basis.
(2)
PDE’s
monitoring staff will be appropriately trained and will engage in
regular professional development. Compliance monitoring will be done in
accordance with a five-tier process, with initial triggers for each
level of intervention as set forth below:
(a)
Tier One LRE Monitoring
of 20 school districts (excluding any school district implementing a
Tier One CAP) identified via data analysis as most in need of
systemic LRE-related changes.
(b)
Tier Two LRE Monitoring
based on a warning designation for school districts
identified in the bottom ten percent (approximately) of data analysis
(excluding any school district implementing a Tier One or Tier Two
CAP).
(c)
Tier Three LRE Monitoring
based on an alert designation for school districts identified in the
remaining bottom half (approximately) of data analysis.
(d)
Targeted monitoring
based on referral by a Bureau staff member due to extenuating
circumstances within the school district.
(e)
Regular cyclical monitoring
of all Pennsylvania school districts coordinated to the district
strategic plan process, currently on a six-year cycle as approved in the
Pennsylvania state plan approved by the USDOE.
(C)
Identification of school districts via data analysis. On an annual
basis, PDE will review statewide data on all 501 Pennsylvania
school districts to identify districts having data factors indicating a
need to improve in the area of LRE. School districts will be
identified for LRE improvement by assigning to each district an
“LRE index score.” The LRE index score will be determined by weighting
data factors as agreed to by the parties.
The data will be reviewed annually and school districts will be
identified annually under the following categories:
(1)
The twenty school districts at the bottom
of the list will be identified for “Tier One LRE Monitoring.”
(2)
School districts in the bottom ten percent
of all Pennsylvania districts but not identified for Tier One LRE
Monitoring will be placed on a “warning list” and identified for “Tier
Two LRE Monitoring.”
(3)
School districts in the bottom fifty
percent but not identified for Tier One LRE Monitoring or Tier Two LRE
Monitoring will be placed on an “alert list” and identified for “Tier
Three LRE Monitoring.”
Districts’ LRE index scores will be
made public as part of school and district report cards under the No
Child Left Behind Act and the IDEA.
(D)
Tier One LRE Monitoring.
(1)
By no later than December 31, 2005, and by
no later than December 31 of each subsequent year, school districts will
be identified for Tier One LRE Monitoring on the basis of the data
analysis described in Section IV.4(C) of the Settlement
Agreement. With respect to the initial identification of school
districts in calendar year 2005, however, the parties may, by mutual
agreement, identify and substitute particular school districts for Tier
One LRE Monitoring in lieu of districts that would otherwise be
identified on the basis of the data analysis described in Section
IV.4(C) of the Settlement Agreement.
(2)
Monitoring visits will be conducted by a
team consisting of a minimum of three members, with larger teams for
larger school districts as appropriate. Team members will be appointed
by the Bureau Director. Parents and advocates will be included as
team members.
(3)
The process will involve an analysis of
information similar to that used in regular cyclical monitoring with the
following additional elements:
(a)
Analysis of data to determine if there is a
legitimate basis for identification of the school district for Tier One
LRE Monitoring;
(b)
A determination of whether the school
district is identified for Tier One LRE Monitoring due to a refusal to
comply with IDEA;
(c)
A determination of factors resulting in the
school district’s identification;
(d)
Selection of appropriate intervention(s) to
remedy deficiencies;
(e)
Continued oversight by PDE to
determine whether intervention is effective; and
(f)
Other additions recommended by the
Advisory Panel and approved by the Bureau Director.
(4)
Visits will last a minimum of two days
on-site, with adequate pre-visit preparation and post-visit follow-up.
The process will start with facilitated self-assessment and validation
of data. There will be on-site review of student files; interviews; and
review of outcome data.
(5)
The team will conduct an exit conference
with school district representatives. Team members will use the exit
conference to discuss the elements of a CAP to remedy any
deficiencies found to exist.
(6)
If deficiencies are found to exist, then
the Bureau will follow up by submitting a written CAP no
later than six weeks following the on-site visit. The school district
will be required to complete the CAP. The CAP may require
one, two, or more years to complete, with interim reporting and
monitoring obligations. Required training will be identified to address
specific areas in the CAP.
(E)
Tier Two LRE Monitoring—the “Warning List.” School
districts on the warning list will receive a written communication from
the Bureau. The communication will warn the district that it is
close to the point of being subject to Tier One LRE Monitoring; identify
the factors indicating a need for LRE improvement, including an
explanation why the data indicated a need for LRE improvement;
and state (in words to this effect), “The Department expects you to take
the following steps….” Among the steps that will be delineated are the
following:
(1)
Attendance at PDE-sponsored training
and technical assistance programs;
(2)
Acceptance of technical assistance by
PDE personnel; and
(3)
Submission by the school district of a
CAP addressing areas identified for improvement.
(F) Tier Three LRE
Monitoring—the “Alert List.” School districts on the alert
list will receive a written communication from the Bureau. The
communication will inform the district that it is in the bottom half of
all districts in terms of the LRE data analysis described in
Section IV.4(C) of the Settlement Agreement; identify areas in
need of improvement; and describe resources available to the district to
assist in improvement.
(G)
Targeted Monitoring. Targeted monitoring is a selective process used
by Bureau personnel to identify a school district based on
extenuating circumstances in that particular school year. School
districts subject to targeted monitoring are selected based on a
referral by a Bureau staff member. Monitoring is confined to a
discrete area identified by the staff member.
(H) Regular Cyclical Monitoring.
(1)
Consistent with federal law and
implementing regulations, the Bureau’s regular cyclical
monitoring will continue to be conducted as part of PDE’s general
supervisory responsibility in accordance with its monitoring obligations
to the USDOE. Currently, each school district in Pennsylvania is
monitored once every six years to ensure that the district is in
compliance with state and federal special education laws and
regulations.
(2)
Regular cyclical monitoring is aligned with
existing strategic planning and special education planning at the school
district level. Each district completes a strategic plan every six years
to address all programs within the district. As described in Section
IV.6 of the Settlement Agreement, regular cyclical monitoring is
completed the year before the strategic plan is due so that any
corrective actions or improvement strategies can be incorporated into
the special education and strategic plans. Over the next two years, the
strategic and special education plans will be made part of the same
process and document.
(3)
Regular cyclical monitoring focuses on
systemic problems within a school district using data analysis, onsite
review, and procedural and performance indicators. Following a regular
cyclical monitoring visit, data are compiled and a report is sent to the
district detailing the results. If deficiencies are identified, the
Bureau prepares a CAP and the district is obligated to
correct the deficiencies. The Bureau’s compliance division
monitors and verifies the district’s implementation of the CAP on
an ongoing basis.
(4)
When a school district in Tier One LRE
Monitoring or Tier Two LRE Monitoring is identified for regular cyclical
monitoring, PDE will take the following additional steps as part
of the regular cyclical monitoring process:
(a)
PDE will
require the district to provide and analyze data specifically related to
LRE, including data on the percentage of students with
disabilities educated in regular education classrooms for 80 percent or
more of the school day, disaggregated by disability;
the percentage of students with disabilities removed from the
regular education classroom for 60 percent or more of the school day;
the percentage of students with disabilities educated in separate school
buildings; and the percentage of students with disabilities educated
outside their home district or in programs operated by another
educational agency.
(b)
PDE will
examine a representative sample of individualized education plans for
the purpose of determining whether the district is satisfying its
FAPE and LRE obligations under federal law.
(c)
PDE will
examine district policies and procedures to ensure that a full array of
services are available.
(d)
PDE will
require specific staff training for district personnel, designed to
target the particular LRE deficiencies identified in compliance
monitoring, to assure that the district possesses the skills necessary
to meet the needs of diverse learners, including students with
significant disabilities, in the regular education classroom.
(I)
Sanctions for Noncompliance. A school district that fails to honor
the commitments and obligations contained in a CAP (whether the
plan be to rectify deficiencies identified through LRE
monitoring, targeted monitoring, or regular cyclical monitoring) will be
subject to the following sanctions and enforcement powers:
(1)
A mandatory meeting with PDE in
Harrisburg in which the superintendent and chair of the school board
will be obligated to participate.
(2)
Appropriate sanctions as set forth in
PDE’s “Basic Education Circular” on enforcement, including the
withholding of funds from the school district and redirecting those
funds to the appropriate body to support specific expenditures (e.g.,
hiring personnel) to implement the action required.
(3)
If appropriate, the initiation of
professional disciplinary action against the superintendent or others
whose conduct is found to have resulted in the school district’s failure
to meet its obligations under the CAP.
IV.5.
Complaint Resolution.
(Preamble)
PDE
will build upon and modify its present system of complaint investigation
and resolution in the following respects:
(A)
Whenever a parent or student submits a complaint to the Bureau,
PDE will, without exception, investigate the complaint. If PDE
determines that the complaint was timely filed and that it has
jurisdiction to investigate the complaint (see 34 C.F.R.
§300.662), then PDE will not resolve the complaint without using
its best efforts (i) to interview the parent or student, and (ii), if
the complainant identifies persons alleged to have actual knowledge of
the facts, to interview a reasonable number of such persons.
(B) When the complaint resolution process results in a
finding by PDE that a school district has violated an individual
student’s right to receive supplementary aids and services in a regular
education class, or where such a violation has been established after a
due process hearing, PDE will investigate during the district’s
next compliance monitoring whether the district has corrected the
violation, not only for the student who was the subject of the complaint
but for similarly situated students.
IV.6. Plan
Approval
(Preamble)
PDE
will build upon and refine its present system of review and approval or
disapproval of special education plans submitted by the 501 school
districts in Pennsylvania as follows:
(A) Where results of compliance monitoring demonstrate
failure to provide special education students with meaningful
educational benefit or with supplementary aids and services in regular
education classes and neighborhood schools to the maximum extent
appropriate, PDE will require school districts’ special education
plans to include appropriate corrective action, which may include
development of appropriate training and customized technical assistance
plans.
(B) By no later than one year following the effective
date of the Settlement Agreement, PDE’s special
education planning cycle will be synchronized with the compliance
monitoring cycle in at least 50 percent of Pennsylvania school districts
so that planning follows monitoring and the district’s special education
plan addresses the findings of compliance monitoring; and by no later
than two years following the effective date of the Settlement
Agreement, PDE’s special education planning cycle will be
synchronized with the compliance monitoring cycle in at least 90 percent
of Pennsylvania districts so that planning follows monitoring and the
district’s special education plan addresses the findings of compliance
monitoring. It is PDE’s goal to achieve, by no later than three
years following the effective date of the Settlement Agreement,
synchronization of the planning and monitoring cycle in 100 percent of
Pennsylvania districts.
IV.7.
Training
(A) In
furtherance of the mutual goals described in Section III of this
Agreement, the Bureau will provide on-site training,
technical assistance and professional development to school districts
for the purpose of building local capacity in providing individualized
supplementary aids and services in regular education classrooms to
students with disabilities to enable them to be educated in regular
education classrooms to the maximum extent appropriate. Services
provided by the Bureau will be based on the needs of school
district and intermediate unit personnel, on research-based practices,
and on the assessment referenced in Section IV.2(L) of the Agreement.
The Advisory Panel will review and recommend specific
content, delivery systems, and evaluation processes and will assist in
developing a plan for delivering technical assistance and training to
respond to the needs identified in the objective assessment referenced
in Section IV.2.(L) of the Settlement Agreement, which the
Bureau will implement. The following components will become part of
the delivery plan for training, technical assistance and professional
development:
(1)
Training school district staff to provide
supplementary aids and services in regular education class to students
with significant disabilities, including those with significant learning
disabilities, retardation, autism, emotional disabilities, physical
disabilities and multiple disabilities.
(2)
Training and technical assistance in
research-based practices and specialized interventions for students with
significant learning disabilities, retardation, autism, emotional
disabilities, physical disabilities and multiple disabilities.
(3)
Assistance in the development and delivery
of customized, sustained technical assistance plans.
(4)
Joint training of school district staff and
families in the use of supplementary aids and services in regular
education class for students with significant disabilities, including
significant learning disabilities, retardation, autism, emotional
disabilities, physical disabilities and multiple disabilities.
(5)
Assistance in developing collaborative
teamwork in the provision of supplementary aids and services in regular
education class to students with significant disabilities.
(6)
On-site technical assistance and
consultation in response to requests from parents.
(7)
Resources on inclusive and research based
practices available to families via a website along with other resource
materials.
(8)
A minigrant program under which PDE
would set aside money to make discretionary grants to fund school
district initiatives that use training and technical assistance to
overcome gaps in knowledge and skills identified by the assessment
referred to in Section IV.2(L) of the Agreement. A school
district would not be eligible to apply for or receive a minigrant until
the district completed the assessment to identify gaps in knowledge and
skills, thereby recognizing school district and parent commitment in
exchange for additional resources.
(9)
Collaboration with higher education to
address student teaching, induction and mentoring processes that build
capacity of each school or local educational agency and begins the
development of a master teacher network to address ongoing needs for
maintaining inclusion related programs.
(10)
Training in effective advocacy services for
children with disabilities and their families.
IV.8. Advocacy
(A) As part of their
effort to promote the goal of providing trained, informed and effective
advocacy support to parents on issues relating to the provision of
specially designed instruction to students with disabilities in the
least restrictive environment including the laws and regulations that
govern the provision of special education services in the least
restrictive environment, the plaintiffs have informed PDE of
their intention to prepare a grant proposal and seek funding for a
program or programs serving that purpose. If, during the life of the
Settlement Agreement, plaintiffs’ counsel presents such a grant
proposal to PDE for consideration in accordance with this
paragraph, then PDE agrees to review the grant proposal. If
PDE determines that the grant proposal is consistent with PDE
obligations, priorities, and goals and does not jeopardize the
likelihood of funding for or compete with PDE’s own grant
proposals, then PDE will prepare a letter or other written
communication supporting such grant proposal and will take such other
reasonable steps to assist plaintiffs’ counsel in obtaining such grant
as plaintiffs’ counsel will request. If, after review, PDE
determines in good faith that the grant proposal is inconsistent with
PDE obligations, priorities, and goals or would jeopardize the
likelihood of funding for or compete with its own grant proposals, and
that therefore it cannot support the grant proposal, then PDE
will inform plaintiffs’ counsel in writing of its determination and the
reasons therefor.
IV.9.
Financial Terms
(A)
The defendants will pay to the plaintiffs’ counsel, on behalf of the
plaintiffs, the lump sum of three hundred fifty thousand dollars exactly
($350,000) in full, final, and complete settlement of all claims by the
plaintiffs for compensatory damages. It will be the sole obligation of
the plaintiffs to allocate and apportion that sum among themselves as
they see fit. Except for the payment of the sum indicated in the first
sentence of this paragraph, no plaintiff (individual or otherwise) will
be entitled to any payment or other form of damages, whether legal or
equitable. No plaintiff will have any claim whatsoever against the
defendants individually or collectively arising out of the manner in
which the lump-sum payment described in the first sentence of this
paragraph is allocated or apportioned.
(B) The
defendants will pay to the plaintiffs’ counsel the lump sum of one
million, eight hundred twenty-five thousand dollars exactly ($1,825,000)
in full, final, and complete settlement of all claims by the plaintiffs
or their attorneys for attorneys’ fees and litigation costs. It will be
the sole obligation of the plaintiffs and their counsel to allocate and
apportion that sum between attorneys’ fees and litigation costs as they
see fit. No plaintiff will have any claim whatsoever against the
defendants individually or collectively arising out of the manner in
which the lump-sum payment described in the first sentence of this
paragraph is allocated or apportioned. The amount paid under this
paragraph and denominated by the plaintiffs and their counsel as
attorneys’ fees will be the only attorneys’ fees payment the defendants
will ever be required to make in connection with the Gaskin case,
and the plaintiffs and their counsel by accepting that payment
specifically and categorically waive forever their right to seek
additional attorneys’ fees payments by any means, including (by way of
illustration only and not by way of limitation) a fee petition to the
Court or an action to recover fees already incurred or incurred in the
future. The amount paid under this paragraph and denominated by the
plaintiffs and their counsel as litigation costs will be the only
payment for litigation costs that the defendants will ever be required
to make in connection with the Gaskin case, and the plaintiffs
and their counsel by accepting that payment specifically and
categorically waive forever their right to seek additional payments for
litigation costs by any means, including (by way of illustration only
and not by way of limitation) an application to the Court for payment of
a bill of costs or an action to recover costs now or in the future.
(C) The
payments specified in Sections IV.9(A) and IV.9(B) of the Settlement
Agreement will be due and owing to the plaintiffs and their
counsel by no later than 120 days following the later of the following
events: (1) the date upon which the Settlement Agreement is
formally approved by the Court; (2) the date upon which the case is
dismissed or otherwise ended by order of the Court as provided in
Section IV.10 of the Settlement Agreement.
(D) It
is expressly understood by the parties and their counsel that the
payments specified in Sections IV.9(A) and IV.9(B) of the Settlement
Agreement are the only payments to which the plaintiffs or the
plaintiffs’ counsel will be entitled either under the Settlement
Agreement or from any other source. The plaintiffs and their counsel
specifically release the defendants, individually and collectively, and
hold the defendants harmless from and against any claim for pecuniary
relief in any form except for the payments specified in Sections IV.9(A)
and IV.9(B) of the Settlement Agreement.
(E) The
payments specified in Sections IV.9(A) and IV.9(B) of the Settlement
Agreement are intended by the parties to constitute, and will be
construed by the parties to constitute, consideration exchanged by the
defendants for a full, final, and complete release of all claims that
the plaintiffs asserted or could have asserted against any and all of
the defendants arising out of or relating directly or indirectly to the
causes of action asserted in Gaskin v. Commonwealth of Pennsylvania,
No. 94-CV-4048 (E. D. Pa.).
IV.10. Enforcement and Other Terms
(A) All
parties will jointly move the Court for approval of the Settlement
Agreement pursuant to Fed. R. Civ. P. 23(e) and will advocate in
good faith for approval of the Settlement Agreement by the Court.
Following the approval of the Settlement Agreement by the Court,
it is the expectation of the parties that the Court will enter an order
formally dismissing Gaskin. As of the date of that order, the
Court shall relinquish jurisdiction over the case and the parties except
as provided in Section IV.10(B) of the Settlement Agreement.
(B) For a period commencing on the effective date of
the Settlement Agreement and ending exactly five years later (that
period to be referred to in the Settlement Agreement as the “life
of the Settlement Agreement”), the Court shall retain
jurisdiction for the sole purpose of enforcing the following covenants
and undertakings agreed to by the parties:
(1)
In accordance with the schedule set forth
in Section IV.10(B)(2) of the Settlement Agreement, PDE
will send the plaintiffs’ counsel written certifications stating either
(a) that PDE is in compliance with all obligations and
undertakings to which the defendants have committed by entering into the
Settlement Agreement, or (b), if such is the case, that PDE
is materially not in compliance with one or more specified obligations
or undertakings. If the certification states that PDE is
materially not in compliance with the Settlement Agreement in any
respect, then the certification will provide specific details about each
provision not materially complied with; the reason for noncompliance;
PDE’s plan for coming into compliance; and PDE’s anticipated
timetable for coming into compliance.
(2)
PDE’s
certifications will be due in accordance with the following timetable:
(a)
The first certification will be due on the
later of the following dates: (i) December 31, 2005, or (ii) six months
following the date on which the Court formally enters an order
dismissing the Gaskin case.
(b)
The second certification will be due on the
later of the following dates: (i) June 30, 2006, or (ii) twelve months
following the date on which the Court formally enters an order
dismissing the Gaskin case.
(c)
The third certification will be due on the
later of the following dates: (i) December 31, 2006, or (ii) eighteen
months following the date on which the Court formally enters an order
dismissing the Gaskin case.
(d)
The fourth certification will be due on the
later of the following dates: (i) June 30, 2007, or (ii) twenty-four
months following the date on which the Court formally enters an order
dismissing the Gaskin case.
(e)
The fifth certification will be due on the
later of the following dates: (i) December 31, 2007, or (ii) thirty
months following the date on which the Court formally enters an order
dismissing the Gaskin case.
(f)
The sixth certification will be due on the
later of the following dates: (i) June 30, 2008, or (ii) thirty-six
months following the date on which the Court formally enters an order
dismissing the Gaskin case.
(g)
The seventh certification will be due on
the later of the following dates: (i) June 30, 2009, or (ii) forty-eight
months following the date on which the Court formally enters an order
dismissing the Gaskin case.
(h)
The eighth and final certification will be
due on the later of the following dates: (i) the date upon which the
Settlement Agreement expires, or (ii) fifty-nine months following
the date on which the Court formally enters an order dismissing the
Gaskin case.
(3)
Following receipt of certification,
plaintiffs’ counsel will have thirty days to respond in writing. Should
plaintiffs’ counsel not respond in writing within the thirty-day period,
then plaintiffs’ counsel shall be estopped thereafter from seeking
relief for any alleged material breach of the Settlement Agreement
not identified as such in PDE’s certification. In its written
response, plaintiffs’ counsel will identify any material breach not
identified by PDE in the certification. Plaintiffs’ counsel’s
failure to identify a material breach will thereafter estop plaintiffs’
counsel from seeking relief for such alleged material breach.
(4)
Should either PDE or plaintiffs’
counsel identify a material breach in the certification or the written
response to the certification, then the parties will endeavor informally
to agree on a course of action to remedy the breach.
(5)
Should the parties fail to reach resolution
through informal means, then plaintiffs’ counsel will have the right to
seek the appointment of a mediator to resolve the dispute. Plaintiffs’
counsel will seek in the first instance to engage the Honorable Louis
Bechtle as mediator. If Judge Bechtle is unable or unwilling to mediate,
then either (a) the parties will agree on an alternative mediator, or
(b) each of the two sides (plaintiffs and defendants) will submit the
name of one mediator-candidate to the Court, who shall select one. The
costs of mediation will be split on a fifty-percent-each basis by the
parties, except that, should plaintiffs’ counsel seek mediation more
than twice in any twelve-month period, then for that twelve-month period
the costs of the third and subsequent mediations will be borne 75
percent by plaintiffs’ counsel and 25 percent by PDE.
(6)
If a dispute is not successfully mediated,
then either party will have the right to petition the Court to hear and
resolve the dispute. The Court shall not entertain such a petition
unless the parties have tried and failed to resolve the dispute through
mediation as provided in Section IV.10(B)(5) of the Settlement
Agreement. The parties agree not to apply to the Court for and not
to seek by any other means reimbursement of attorneys’ fees or
litigation costs associated with the resolution of disputes under
Section IV.10(B) of the Settlement Agreement.
(C) During the life of the Settlement Agreement, the
parties agree that the dispute resolution mechanism provided in Section
IV.10(B) of the Settlement Agreement shall be the exclusive and
sole mechanism available to the parties for resolving any dispute
whatsoever related to the terms of the Settlement Agreement or
the obligations of the parties thereunder. Specifically but not by way
of limitation, neither party shall file a separate action for breach of
the Settlement Agreement nor seek through any other means not
mutually acceptable to all parties to resolve disputes through the
intercession of a court, arbitrator, or other third party.
(D) It is agreed and understood by the parties that the
Settlement Agreement is not a consent decree, nor is it intended to
be construed as such; nor will the Court’s approval of the Settlement
Agreement convert the Settlement Agreement into an
enforceable court order or consent decree. The Settlement Agreement
does not operate and shall not be construed as an adjudication on
the merits of the plaintiffs’ claims in Gaskin. The Settlement
Agreement has no precedential value and may not be cited or relied
upon by any person in any proceeding for any purpose. The Settlement
Agreement represents the compromise of disputed claims, and nothing
contained in the Settlement Agreement shall be construed as an
admission of liability or wrongdoing by any party, any such liability or
wrongdoing being hereby expressly denied.
(E) In
consideration of the performance of PDE’s obligations under the
Settlement Agreement, the plaintiffs, individually and
collectively, hereby remise, release, and forever discharge each of the
defendants and each defendant’s predecessors, successors, agents,
employees, administrators, heirs, and assigns from all actions and
causes of action, suits, grievances, debts, dues, ********, bonds,
covenants, contracts, agreements, judgments, claims and demands
whatsoever in law or equity, known or unknown, foreseen or unforeseen,
particularly those which were or could have been set forth in Gaskin
v. Pennsylvania Department of Education, No. 94-CV-4048 (E.D. Pa.),
or which any of the plaintiffs ever had or now has, or which that
plaintiff’s heirs, executors, administrators, successors, attorneys, or
assigns, or any of them hereafter can, shall, or may have, for or by
reason of any cause, matter, or thing whatsoever arising out of or
related to the claims brought by the plaintiffs against the defendants
in the Gaskin case from the beginning of the world to the
effective date of the Settlement Agreement; except that
claims against a local school district in which that school district is
not acting as PDE’s employee, assign or agent shall not be
barred.
(F) The
plaintiffs hereby warrant and represent that none of them has filed
other charges, complaints, appeals, or other actions against any of the
defendants or any PDE official, administrator, or staff,
including but not limited to any charges filed with the USDOE,
the Equal Employment Opportunity Commission and/or the Pennsylvania
Human Relations Commission, related to the actions complained of in the
Gaskin case; and that, if it is subsequently discovered that such
charges, complaints, appeals, or other actions have in fact been filed
or are pending, plaintiffs shall promptly dismiss, withdraw, or
discontinue any and all such past or pending charges, complaints,
appeals, or other actions.
(G) The
Settlement Agreement contains the entire agreement between the
plaintiffs and the defendants with regard to the matters set forth
herein and shall be binding upon and inure to the benefit of the
executors, administrators, personal representatives, heirs, successors,
attorneys, and assigns of all of them.
(H) In
entering into the Settlement Agreement, the parties hereto
represent that they have relied upon the legal advice of their
attorneys; that the terms of the Settlement Agreement have been
completely explained to them by their attorneys; and that those terms
are fully understood and voluntarily accepted by them. Each party hereby
represents that his, her or its attorney is authorized to execute the
Settlement Agreement on the party’s behalf and in the party’s name.
(I) The
Settlement Agreement shall be construed and interpreted in
accordance with the laws of the Commonwealth of Pennsylvania.
(J) When
used in the Settlement Agreement, the term “plaintiffs’ counsel”
refers to the counsel who represent the plaintiffs and plaintiff class
members as of the effective date of the Settlement Agreement.
Should new counsel replace plaintiffs’ counsel at any time subsequent to
that date, it will be the plaintiffs’ obligation to notify PDE
promptly by sending notice in accordance with Section IV.10(K) of the
Settlement Agreement. The notice will include the name, mailing
address, telephone number, and facsimile number of new counsel. Should
the persons who serve currently as plaintiffs’ counsel ever be replaced
by counsel who work at more than one law firm, organization, or address,
then notice to one of plaintiffs’ counsel shall be deemed effective
notice to all of plaintiffs’ counsel.
(K) All certifications,
notices, and other written correspondence required by the Settlement
Agreement to be sent by the plaintiffs or the plaintiffs’ counsel
will be mailed by first-class mail, postage prepaid, to PDE at
the following address:
Office of
Chief Counsel
Pennsylvania Department of Education
333 Market
Street, 9th Floor
Harrisburg,
PA 17126-0333
The certifications required by
Section IV.10(B)(1) of the Settlement Agreement to be sent by the
defendants or the defendants’ counsel will be mailed by first-class
mail, postage prepaid, to the plaintiffs’ counsel at the
following address:
Judith A.
Gran
Public
Interest Law Center of Philadelphia
125 South 9th Street, Suite 700
Philadelphia, PA 19107
(L) The
Settlement Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signed signature
pages may be transmitted by facsimile, and any such signature shall have
the same legal effect as an original.
(M) The
effective date of the Settlement Agreement will be the date on
which the Court formally enters an order dismissing and ending the
Gaskin case. The Settlement Agreement will remain in effect
until the fifth anniversary of the effective date of the Settlement
Agreement, after which date it shall expire and shall no longer be
enforceable by either party; except that, should any dispute subject to
the dispute resolution mechanism established under Section IV.10(B) of
the Settlement Agreement be pending and unresolved on the date on
which the Settlement Agreement expires, the Court shall retain
jurisdiction for the sole purpose of resolving that dispute.
For the Plaintiffs:
_________________________________ Date:
_______________________
JUDITH A. GRAN
___________________________________ Date:
________________________
BARBARA E. RANSOM
Public Interest Law Center of
Philadelphia
125
South 9th St., Suite 700
Philadelphia, PA 19107
(215)
627-7100 ext. 225
(215) 627-3183 (FAX)
_________________________________ Date:
____________________________
JOSEPH J. GASKIN
426 Arch Street
Carlisle, PA 17013
(717) 249-3776
For the Defendants:
_________________________________ Date:
____________________________
MARY PATRICIA FULLERTON
Assistant Counsel
Pennsylvania Department of Education
333 Market Street, 9th Floor
Harrisburg, PA 17126-0333
(717) 787-5500
(717) 783-0347 (FAX)
EXHIBIT A
TO: Pennsylvania School
Administrators
FROM: Linda Rhen, D.Ed.
DATE: November 1, 2004
RE: Least Restrictive Environment
The purpose of this memo is to clarify the difference
between the least restrictive environment (LRE) requirement under
the Individuals with Disabilities Education Act (IDEA) and educational
placement and caseload under Chapter 14 Special Education
Regulations. This memorandum will provide guidance to local education
agencies (LEAs) on the use of the LRE percentage reporting under
IDEA versus the type of service (itinerant, resource, part time, full
time) as listed under Chapter 14. They are not the same
and there is no one to one correspondence between type of service and
LRE.
Educational Placement (Type of Service)
The type of service refers to the service options and the
amount of special education instruction received by the student,
regardless of location. In addition, this section of the IEP
requires IEP teams to specify the number of
hours per week that the student receives special education
services.
Examples:
Educational Placement:
Resource Room, Learning Support
Number of hours per week the student receives special
education services:
5 hours/week and speech ¾ hour/week
Educational Placement:
Part-Time, Life-Skills Support
Number of hours per week the student receives special
education services:
28 hours/week, speech 1 hour/week, PT 30 minutes/week.
Penn Data Information (LRE Percentages)
LRE percentages refer to the
amount of time the student receives special education outside of
the regular education classroom. It is literally the percentage of time
the student is physically outside the general education classroom, not
the amount of special education services and supports that the student
receives as determined by the IEP team.
·
How do I calculate LRE percentages?
Take the total number of hours per week the student
receives special education services outside of the regular education
classroom, and you divide this number by the total number of hours per
week the student is in school.
Examples:
5 hours of special education per week are outside of the
general education classroom/ 40 hours per week = 12%.
Mark on the IEP:
_____ "Less than 21% outside of
the regular education classroom"
25 hours of special education services per week, of which
20 hours of supplementary support and services are in the regular
education classroom. 5 hours of special education per week are outside
of the general education classroom/ 40 hours per week = 12%.
Mark on
the IEP:
_____ "Less than 21% outside of the regular
education classroom"
25 hours
of special education services per week, of which 5 are in the general
education classroom and 20 are outside of the general education
classroom. 20 hours of special education per week are outside of the
general education classroom/40 hours per week = 50%.
Mark on
the IEP:
_____
" 21% to 60% outside of the regular education
classroom"
·
When do I use the LRE percentages?
LRE percentages are only to be
used for students being educated in regular education buildings with
non-disabled students. Statewide, this group represents approximately
96% of all students with IEPs.
Indicate on the IEP:
(1) the amount of time in the percentages section, and
(2) write the name of the school under Location.
·
How do I report students not
being educated in regular education buildings with non-disabled
students?
If the student is receiving special education in a
location outside of a regular education building: (1) Write "N/A" in the
percentages section, and (2) indicate the name of the "facility,"
"hospital" or write "instruction conducted in the student's home." See
Annotated IEP for additional clarification (www.pattan.k12.pa.us)
·
Is it appropriate to mark Resource Room
if the LRE is equal to 21-60%?
No. Once again, there is no correlation between Type of
Service and LRE percentages. Make sure that all IEP teams in your
LEA are not automatically and incorrectly assigning LRE based on
Type of Service.
What about full time and >61%?
No. A student may be receiving 100% of special education
services in an inclusion setting, thus the LRE percentage is <21%
outside general education (i.e., the student is not removed from the
general education classroom).
It is very important for LEAs to appropriately determine,
document, and report LRE percentages. Pennsylvania is selecting
LEAs for monitoring based on LRE data which the LEA reports.
Please take the time to ensure that what you report is accurate.
I hope this memorandum helps clarify the difference
between LRE percentages and Type of Service. For addition
information, please contact your BSE Point of Contact.
EXHIBIT B
VI.
LEAST RESTRICTIVE ENVIRONMENT (LRE)
EDUCATIONAL PLACEMENT (Type of Service, Type of
Support, ex: Full-time learning support)
|
Annotation: VI. LEAST
RESTRICTIVE ENVIRONMENT
Educational Placement: (Type of Service and
Type of Support ex: Itinerant)
Type of Service:
The type of service refers to the amount of special education
instruction received by the student.
The number of hours per week that the student receives special
education services must be specified.
The continuum of placements are described below. Wherever
possible, special education services must be delivered and
provided in the regular education environment:
1. Itinerant
Regular education classroom instruction for
most of the school day with special education services and
programs provided by special education personnel inside or
outside of the regular education class for part of the school
day.
2. Resource
Regular education classroom instruction for most of the school
day, with special education services and programs provided by
special education personnel in a resource classroom for part of
the school day.
3. Part-time special
education class in the regular school
Special education services and
programs are provided outside of the regular education
classroom, but in a regular school for most of the school day,
with some instruction provided in the regular education
classroom for part of the school day.
·
Full-time special education
class
Special education classes are provided for the entire school
day, with opportunity for participation in non-academic and
extra curricular activities to the maximum extent appropriate,
which may be located in or outside of a regular school.
Type of Support:
Students are assigned to type of support according to their
learning needs and age. This support may differ from the
disability category used for determination of eligibility. There
are nine possible types of support:
·
Autistic Support
·
Blind or Visually Impaired Support
·
Deaf or Hard of Hearing Impaired
Support
·
Emotional Support
·
Learning Support
·
Life Skills Support
·
Multiple Disabilities Support
·
Physical Support
- Speech and Language Support
The chronological age ranges of the students
in each class must not exceed three years for grades K-6 and
four years in grades 7-12. Exceptions may be made by the IEP
team for an individual student based upon the student’s
needs and must be justified in the IEP.
Examples:
EDUCATIONAL PLACEMENT (Type of Service,
Type of Support, e.g., Full time learning support)
Part time emotional support
Resource learning
support
Itinerant speech and language
support
|
Explanation of the extent, if any, the student will
not participate with non-disabled children in the regular education
class and in the general education curriculum:
|
Annotation: EXPLANATION OF THE EXTENT, IF ANY,
THE STUDENT WILL NOT PARTICIPATE WITH NON-DISABLED CHILDREN IN
THE REGULAR EDUCATION CLASS AND IN THE GENERAL EDUCATION
CLASSROOM
The IEP must include an explanation and a
description of those activities, if any, in which the student
will not participate with non-disabled children within
the regular education class and school activities. These
required IEP statements should be based on current assessments
and evaluations performed with full consideration of the least
restrictive environment (LRE) intent, including the
provision of the full range of supplemental aids and services
within the regular education curriculum.
It is the responsibility of each public agency
to ensure that to the maximum extent appropriate,
students with disabilities, including those in public or private
institutions or other care facilities, are educated with
children who are not disabled. 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
education classes even with the use of supplementary aids
and services cannot be achieved satisfactorily.
QUESTIONS FOR IEP TEAM:
-What supplementary
aids and services were considered? What supplementary aids and
services were rejected? Explain why the supplementary aids and
services will or will not enable the student to make progress on
the goals and objectives (if applicable) in this IEP in the
general education class.
-What benefits are
provided in the regular education class with supplementary aids
and services versus the benefits provided in the special
education class?
-What potentially
beneficial effects and/or harmful effects might be expected on
the student with disabilities or the other students in the
class, even with supplementary aids and services?
-To what extent, if
any, will the student participate with nondisabled peers in
extracurricular activities or other nonacademic activities?
|
Number of hours per week the
student receives special education services outside of regular education
classroom: _________________
Number of hours per week the
student receives special education services in regular education
classroom: _________________
|
Annotation: Number of
hours per week the student receives special education services.
The school district is
required to list the number of hours per week of special
education services.
Examples:
Resource room learning support 5 hours/week
and speech ¾ hour/week
Multiple disabilities support 35 hours/week,
PT 1 hour/week, OT ½ hour/week, speech ½ hour/week, Itinerant
learning support 5 hours/week |
PENN DATA INFORMATION
Percentage of time the student receives special education outside
of the regular education classroom (Example: If the number of hours
student receives special education outside of regular education
classroom per week = 5 hours and the total number of hours of education
per week = 40 hours, then calculate 5/40=12%. Check less than 21%
outside of the regular education classroom):
_____ Less than 21% outside of the regular education
classroom
_____ 21-60% outside of the regular education classroom
_____ 61% or more outside of the regular education
classroom
Location:
___________________________________________________
Annotation: Percentage of time the student
receives special education outside the regular education
classroom
This section applies to
students with disabilities receiving special education outside
their regular education classroom in regular schools with
non-disabled students.
The IEP team calculates the
percentage of time the student receives special education
outside the regular education classroom and indicates one of the
following:
_____ Less than 21% outside of the regular
education classroom
_____ 21-60% outside of the regular education
classroom
_____ 61% or more outside of the regular education classroom
Examples:
If the number of hours a
student receives special education outside of regular education
classroom per week = 5 hours and the total number of hours of
education per week = 40 hours, then calculate 5/40=12%. Check
less than 21% outside of the regular education classroom.
25 hours of special education services per week, of which 20
hours of supplementary support and services are in the regular
education classroom. 5 hours of special education per week are
outside of the general education classroom/ 40 hours per week =
12%.
Mark on the IEP:
_____
"Less than 21% outside of the regular education classroom"
25 hours of special
education services per week, of which 5 are in the general
education classroom and 20 are outside the general education
classroom. 20 hours of special education per week are outside of
the general education classroom/40 hours per week = 50%.
Mark on the IEP:
_____ " 21% to 60% outside of the
regular education classroom"
The information on
percentage of time the student receives special education
outside of the regular education classroom should be listed on
PennData.
Annotation: Location
The information on
location should be listed on PennData.
If the student is receiving
special education in a regular building with non-disabled peers
(1) indicate the percentage of time in the previous section, and
(2) write the name of the school here.
If the student is receiving special education in
one of the locations below: (1) Write "N/A" in the previous
section (percentages), and (2) indicate the name of the
"facility," "hospital" or write "instruction conducted in the
student's home.”
-Approved Private School (Non Residential)
-Approved Private School (Residential)
-Public Separate Facility (Non Residential), e.g., Special
education center
-Private Separate Facility (Non Residential), e.g., Day student
in an APS
-Public Residential Facility, e.g., State operated residential
facility
-Private Residential Facility, e.g., Residential student in an
APS
-Hospital/Home Bound, e.g., Long-term admissions
-Correctional Facility, e.g., Students receiving services while
incarcerated
-Out of State Facility
-Instruction
in the Home, e.g., IEP team placements
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