The placement of students with disabilities ages three through 21 in appropriate settings has been an integral part of the Individuals with Disabilities Education Act (IDEA) since its enactment. Three basic principles are included in the federal mandates. These are:

Placement is based on the student 's individualized education program;

Placement is in the least restrictive environment; and

A continuum of alternative placement options is available to all students with disabilities.

Of these principles, the requirement to place students in the least restrictive environment has raised the most questions and generated the most discussion. Although this requirement has been included in Part B of the IDEA since 1975, consistent understanding and direction have emerged more recently through federal court decisions, the amendments of IDEA ’97 and the final federal regulations that were published on March 12, 1999. In the Oberti decision of May 1993, the United States Court of Appeals for the Third Circuit established a three prong test for determining placement in the regular classroom. Because New Jersey is part of the Third Circuit, the Oberti decision with its three prong test is the standard for the state. The special education code was amended by the State Board of Education on April 5, 1995 to incorporate fully the three prong test of the Oberti decision. On July 6, 1998, the special education code was readopted as N.J.A.C. 6A:14. The section on least restrictive environment at N.J.A.C. 6:28-2.10 was amended to conform to the requirements of IDEA ’97 and was recodified at N.J.A.C. 6A:14-4.2.

In light of the new federal and state requirements and in response to questions from the field, this memorandum is an effort to provide guidance on the issue of placement in the least restrictive environment. This memo will inform you of the current placement requirements, outline a decision-making process to assist in the determination of least restrictive environment and clarify the school district's responsibility in the placement process.

The IDEA requirement for placing students with disabilities in the least restrictive environment has three components:

To the maximum extent appropriate, students with disabilities are educated with students who are non-disabled;

Special classes, separate schooling or other removal of children with disabilities from the regular classroom occurs only when the nature or severity of the educational disability is such that education in the regular class cannot be achieved satisfactorily with the use of supplementary aids and services; and

To the maximum extent appropriate, each child with a disability participates with non-disabled children in nonacademic and extracurricular services and activities.

These requirements demonstrate clearly the preference for educating students with disabilities in the regular classroom. However, the IDEA also requires that a full continuum of services be available to meet the needs of students with disabilities who cannot be educated in the regular classroom for part or all of the school day. Additional rules regarding placement require that each student with disabilities be educated as close to home as possible, and that each student be educated in the same school he or she would attend if not disabled, unless the individualized education program (IEP) specifies some other arrangement. Lastly, placement must be based on the IEP.

Furthermore, the Oberti decision and its codification in the special education code, require that consideration be given to the following factors, when making decisions regarding regular class placement:

Whether the student can be educated satisfactorily in a regular classroom with supplementary aids and services;

A comparison of the benefits provided in a regular class and the benefits provided in a special education class; and

The potentially beneficial or harmful effects which a placement may have on the student with educational disabilities or the other students in the class.

From these requirements, a sequential process can be constructed to assist districts in making placement decisions.

Before describing such a process, however, it should be noted that federal policy and the courts have identified a number of factors which are impermissible when making placement decisions. School districts may not make placement decisions based solely on factors such as blanket rules regarding the category of disability, severity of disability, and availability of educational or related services. For example, if all students of a particular classification must go to a particular building or class, it is likely to be impermissible. If students who need a particular related service go to where that service is traditionally provided, it is likely to be impermissible.

An appropriate decision-making sequence begins with the question of what are the student 's educational needs. In other words, the determination of what constitutes an appropriate program for a student comes before the question of where it will be provided. In accordance with N.J.A.C. 6A:14-4.2(a)5, placement is based on the student's IEP. An inadequate IEP will make it difficult to consider any child's placement in an organized way. To assist schools and parents, the department has developed and widely distributed a model form that addresses all the required IEP components.

Next, each placement option is examined not only as it currently exists, but also as it might be modified. Then, each educational placement option is examined in sequence from least restrictive to most restrictive. Regular class placement is examined as the first option. In New Jersey, the decision-making process must include the three factors of the Oberti decision now incorporated into code and begins with consideration of placement in the regular classroom. Does this mean that each child must be placed in the regular classroom before other placement options are considered? The answer is no. The requirement for a continuum of placement options reinforces the importance of an individualized inquiry, not a "one size fits all" approach, in determining what placement is the least restrictive environment for each student with disabilities. If the school has given no serious consideration to placing the child in the regular classroom with supplementary aids and services and modifying the regular program to accommodate the child, then the least restrictive environment provision of the IDEA has most likely been violated. Therefore, at the very least, a serious and thoughtful discussion must be initiated. At issue is whether the student's IEP can be implemented satisfactorily in the regular classroom with supplementary aids and services. Although IDEA does not define the term "supplementary aids and services," the United States Department of Education suggests several possibilities including, but not limited to, modification of the regular class curriculum, behavior management techniques, assistance of an itinerant teacher with special education training, special education training for the regular class teacher, use of assistive technology, provision of note-takers, use of a resource center or a combination of these.

The second factor requires that consideration be given to a comparison of the benefits in the regular class and the benefits in the special class. In Daniel R. v. El Paso Independent School District, the United States Court of Appeals for the Fifth Circuit determined that the appropriateness of placement in the regular classroom is not dependent on the student's ability to learn the same things that other students learn in the regular classroom. The benefit from social interaction of the student with non-disabled peers is a legitimate benefit that can be derived from placement in the regular classroom.

The third factor requires that consideration be given to the potentially beneficial or harmful effects that placement in the regular classroom may have on the student with educational disabilities and the other children in the class. Two examples of the many beneficial social and academic effects that may accrue to a student with disabilities include positive peer models and high expectations for achievement. The potentially beneficial effects on the other children in the class are fostered as they learn to understand and accept the individual differences of their peers. Harmful effects may include the disruptive behavior of a student with disabilities if the disruptiveness is severe enough to significantly impair the education of other students. The school district must demonstrate that full consideration has been given to the complete range of supplementary aids and services that could be provided to the student to deal with the problem behaviors.

It should be noted that each of the three factors of the Oberti decision must be considered equally. One factor does not take precedence over any other factor.

Lastly, if the IEP team agrees that the student should receive all or part of the special education program outside the regular classroom, opportunities for participation in programs with non-disabled peers in academic or nonacademic activities must be considered and included in the IEP as appropriate.

The requirements for placement in the least restrictive environment and the same decision-making process also apply when considering placement for a preschool age child with disabilities. However, many school districts do not operate preschool programs for non-disabled children and special education law does not require school districts to establish such preschool programs to meet the requirements for placing a preschooler with disabilities in the least restrictive environment. This perceived inconsistency has raised many questions regarding a practical approach to addressing this issue.

As with any student with a disability, the determination of whether a placement is more or less restrictive is based on the opportunity to be educated and interact with non-disabled peers. For school age students with disabilities, this placement is in the regular education class operated by the district of residence. In the case of a preschooler with disabilities, there may be no comparable option because the district does not operate a preschool program for non-disabled children. Therefore, it is important to note that for preschoolers with disabilities, placement in a regular preschool program in another district or in a privately operated program in the local community is a less restrictive placement option than the district’s self-contained preschool disabled classroom.

To promote preschool placement in the least restrictive environment, a provision was added to the special education code. According to N.J.A.C. 6A:14-4.3(c), preschoolers with disabilities may be placed in a private early childhood program, if appropriate, to provide the opportunity for education and interaction with non-disabled preschoolers. The program must be licensed or approved by a governmental agency; the program must be nonsectarian. The district must assure that the student’s IEP can be implemented and any special education or related services must be provided by appropriately certified and/or licensed professionals. Paraprofessionals may be used to provide services, when appropriate, in accordance with N.J.A.C. 6A:14-3.9(a)4 or N.J.A.C. 6A:14-4.1(e).

The discussion regarding placement for all preschool age students with disabilities must begin with consideration of a regular classroom program with supplementary aids and services. When the IEP team determines that a regular class placement is needed to provide a free, appropriate public education, all efforts must be taken to locate appropriate regular classroom settings where the student’s IEP can be implemented. The department recognizes that barriers exist across the state that prevent districts and parents from placing preschoolers with disabilities in regular classroom settings when that is the agreed upon placement. The department is working with other state agencies, parents, school districts and early childhood providers to assure that the barriers to appropriate regular class placements for preschoolers are eliminated.

To summarize, school districts must ensure to the maximum extent appropriate that students with disabilities ages three through 21 are educated with non-disabled children and participate in nonacademic and extracurricular activities with non-disabled children.