LRE: Considerations for a More Restrictive Environment

Earlier this year the Fifth Circuit Court of Appeals issued an important decision in H.W. v. Comal Independent School District, 21-50838 (5th Cir. April 27, 2022). The decision offers helpful insight on the Least Restrictive Environment Mandate and on the appropriate considerations in making a removal to a more restrictive environment.   

In H.W., the District proposed a change in placement to a more restrictive setting because the student was not making sufficient progress in the current setting. However, the parents disagreed, asserting that there was progress being made in that setting, and pointing to progress on 11 of the 17 IEP goals. The court framed the disagreement as follows:  

This leads to the critical question in this case: how should we measure H.W.’s “progress”?  Put another way, should we primarily rely on H.W.’s progress toward her IEP goals or instead look to her overall academic record when determining whether she is making appropriate progress? 

The court rejected the idea that only progress on IEP goals mattered for placement purposes, instead electing to take a “fact-intensive, individualized, holistic” approach taking into account “test scores, percentile rankings, IEP progress reports, testimony from qualified professionals, and the like.”  In this way, the court reviewed the program to determine whether it was possible for the student to receive FAPE in the current setting.  

The court concluded: 

While H.W. undoubtedly mastered many of her IEP goals, she was still unable to make consistent and/or appropriate progress toward several of those goals in a general education setting.  The ARDC frequently reconvened to try and help her to meet her goals. It gradually increased the assistance offered to her. And it even lowered the mastery criteria with her parent’s consent—an implicit acknowledgement from H.W.’s parents that she was making inadequate progress.  Yet H.W. still struggled in many regards. 

In sum, don’t let one metric be the driving force behind placement decisions. Placement teams should consider all the available metrics, and the student’s overall ability to receive a FAPE in a setting when determining a student’s LRE.