Least Restrictive Environment Violation

The Tenth Circuit, in L.B. v. Nebo School District, has adopted the two-part test for ascertaining whether the least restrictive environment mandate in IDEA has been violated stated in Daniel R.R. v. Board of Education. Daniel R.R. holds that a court, in making such a conclusion, must (1) determine whether education in a regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily, and (2) if not, determine if the school district has mainstreamed the child to the maximum extent appropriate. Factors used in making such determinations include (1) steps the school district has taken to accommodate the child in the regular classroom, including the consideration of a continuum of placement and support services, (2) comparison of the academic benefits the child will receive in the regular classroom with those she will receive in the special education classroom, (3) the child's overall educational experience in regular education, including non-academic benefits and (4) the effect on the regular classroom of the disabled child's presence in that classroom. Some courts have also considered the cost of supplementary aides and services, but, in that the school district claimed that cost was not a factor in this case, the Tenth Circuit did not consider that factor.

The parents in L.B. wanted their daughter, who had autism spectrum disorder, to be able to continue in a private school with a supplementary aide (who was being phased out) and 40 hours per week of Applied Behavior Analysis (ABA). She had been making substantial progress in that setting. The school district wanted to put the child in a school populated mainly by disabled students, but includes 30-50% typically developing children who interact with the disabled students. The school district was willing to provide the child with a few hours per week of speech and occupational therapy and eight to fifteen hours per week of ABA.

At a due process proceeding, the hearing officer found the the school district's plan constituted a free appropriate public education. The District Court agreed.

On appeal, the Tenth Circuit found that, under the Daniel R.R. test, the school district had not provided the least restrictive environment for the child. The Court found that the evidence showed that the academic and non-academic benefits in the mainstream school far outweighed those offered by the school that the school district had chosen for her. The Court further held that the parents were entitled to reimbursement for the reasonable cost of the services provided to the child in her mainstream preschool education and for their reasonable attorneys' fees and litigation costs.

The decision can be found here. Congratulation to Gary S. Mayerson, who represented the parents in this action.