Preschool Children with Disabilities Have Right to Least Restrictive Environment

There is frequently confusion regarding how least restrictive environment (LRE) applies to preschool children with disabilities. Preschool-aged children with disabilities are children with disabilities aged three to five and, at a state’s discretion, two-year old children who will turn three during the school year. In a Dear Colleague Letter 58 IDELR 290 (OSEP Feb. 29, 2012), Melody Musgrove, Director of the Office of Special Education Programs (OSEP), reiterates  that the least restrictive environment (LRE) requirements of the IDEA apply to all children with disabilities under Part B of the IDEA, including preschool aged children. Ms. Musgrove notes that the LRE requirements of the IDEA  state that “to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, must be educated with children who are not disabled. Further, special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occur 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.” These long-standing IDEA requirements do not distinguish between school-aged and preschool-aged children. The U.S. Department of Education, however, continues to receive questions regarding LRE and preschool children. Thus, Ms. Musgrove issued this letter reminding school districts that LRE applies to preschool children with disabilities.

The letter reviews the  process for placing students with disabilities, including preschool-aged students, in the least restrictive environment. The placement is based on the child’s IEP and the IEP must include an explanation of the extent to which the child, if any, will not participate with children without disabilities in a regular class. Moreover, before a preschool child with a disability can be placed outside the regular education environment, the group making the placement decision must consider whether supplementary aids and services could be provided that would enable the child to be educated satisfactorily in the regular education environment .

Ms. Musgrove clarifies that school districts must ensure that preschool children with disabilities are educated in the least restrictive environment, regardless whether the district operates public preschool programs for children without disabilities. To that end, a school district may provide services to a preschool child with a disability in a variety of settings, including a regular kindergarten class, public or private preschool program, community-based child care facility, or in the child’s home. Districts that offer a public preschool program may serve a preschool child with a disability in that program. But, districts that do not have a public preschool program must explore alternative methods to ensure preschool children with disabilities are placed in the least restrictive environment. Those methods include (1) providing services in preschool programs offered by other public agencies (such as Head Start or community-based child care); (2) enrolling children in private preschool programs for children without disabilities; (3) locating classes for preschool children with disabilities in regular elementary schools; or (4) providing home-based services.

Hopefully, this letter will help clear up the confusion regarding LRE and preschool children with disabilities. The LRE requirements of the IDEA’s PART B apply to preschool aged children that same as they apply to children aged three and older. But it may take some planning and creativity to implement these requirements.

District’s Indifference to Bullying and Harassment of Student with Asperger Syndrome States a 504/ADA Claim

The school district in Preston ex rel. A.P. v. Hilton Cent. Sch. Dist., 112 LRP 36253 (W.D.N.Y. 07/11/12), claimed that because its staff’s failure to investigate the bullying and harassment of a student was not based on the student’s disability, the parents could not pursue a claim for disability harassment in violation of Section 504 and the Americans with Disabilities Act (ADA). The District Court, however, ruled that the reasons why the staff failed to investigate reports of peer harassment against the high school student with Asperger Syndrome had no bearing on the parent’s 504/ADA claims. This is not surprising when we look at the alleged sordid facts of this case. Please be advised that this article includes offensive language allegedly directed at this student with a disability. I feel it is important to include some of this language in order to accurately relate the bullying the student endured.

The student, A.P., was seventeen and attended Hilton Central High School during the 2009-2010 school year. He has Asperger Syndrome. During that school year he was routinely bullied by students in a Basic Electronics Class, who mocked him daily, including calling him “f*&#ing retard”, “a*#hole”, fag*#t, and “bitch”. They also made comments disparaging  his cognitive abilities, such as “F*#* you, you autistic piece of s*#t.” Despite  numerous complaints of this bullying behavior in this class and a meeting with the principal, the school did not take meaningful action to get the harassment to stop. Later in the year the student enrolled in a Construction class. In that class he was called “gay,”(and similar slurs) “retard,” “a#*hole,”bitch,” and “loser” during every class. Students also threw pencils and pieces of wood at him. A.P. complained to the classroom teacher, but no action was taken to discipline his tormentors. Eventually, A.P. found it difficult to attend school and his grades dropped by 40% in two of his classes. His parents alleged that A.P. tried to return to his classes, but the bullying and insults continued to the point that he was unable to function emotionally or academically. The parents filed suit for disability harassment under Section 504 and the ADA.

The school district’s attorneys moved to dismiss the case arguing that the school staff did not act solely “by reason of [A.P.’s] disability.” The district court, however, ruled that “liability for discrimination may be imputed to teachers and administrators for students’ peer-to-peer harassment where those defendants displayed ‘deliberate indifference’ to the underlying harassment, where the harassment is itself motivated by discriminatory animus.” The court noted that A.P.’s parents “allege that the cumulative effect of the harassment was that A.P. discontinued attending school, became profoundly disturbed, and was so emotionally crippled that he was unable to return to complete final exams.” Moreover, the parents stated that they notified district employees on multiple occasions of the ongoing harassment, through telephone conversations, e-mail correspondence and sit down meetings. Those individuals, however, “failed to act, acquiesced in the harassment of A.P. by his peers because of his disability, and that the defendants’ alleged conduct had the effect of denying A.P. access to educational opportunities.” Thus, the court denied the school district’s motion to dismiss and the lawsuit and the case, if not settled, will proceed.

Decisions Regarding Students Using Service Animals at School Must be Made by a Group and Consider Individual Circumstances

Section 504 requires that school districts consider a student’s request to bring a service animal to school individually and, like most issues involving students with disabilities, the decision must be made by a group of persons and based upon information from a variety of sources. In Colorado Springs CO School District #11, 56 IDELR 52 (OCR 2010) the Office for Civil Rights determined that the school district’s failure to formally consider whether a service animal was an appropriate accommodation for a high school student with spastic quadriplegia violated Section 504. In this case the student, a freshman in high school, had been accompanied by his dog at school since second grade. In 2009 the school principal banned the dog from the high school because a teacher had significant allergic reactions to the dog’s presence in school. The student’s mother requested an IEP meeting to consider adding the dog to her son’s IEP. While there was not an IEP meeting, there was  a meeting of several school staff with the parent. At the meeting the Special Education Facilitator informed the mother that the presence of the dog was not an academic matter and could not be included in her son’s IEP. The mother then filed a complaint with the Office for Civil Rights (OCR).

The Office for Civil Rights determined that the district violated Section 504 because it did not consider the student’s individual needs when it unilaterally decided not to include the dog on the student’s IEP. The school district was mistaken in its view that service dogs are outside the scope of the IEP process. In order to resolve the complaint, the school district agreed to convene a multidisciplinary team to make an individual determination whether the student’s use of the dog was necessary for him to receive a free appropriate public education. Moreover, the district was required to provide training to district staff that service dogs may be included on a student’s IEP or 504 Plan if the multidisciplinary so determines. Additionally, the training must address that multidisciplinary teams will consider information from a variety of sources, including the student’s need for a service dog.

The Office for Civil Rights made a similar determination in Trinity Area (PA) Sch Dist., 56 IDELR 143 (OCR 2010) and pointed out that holding the meeting was not sufficient if the team discussion focused only on the parent’s ability to prove the student’s need for a service animal. In that case the IEP team met but it did not give appropriate consideration to the student’s need for the animal. The student’s parents were the only members of the IEP team who were knowledgable about the use of service animals  and the team did not discuss how the dog’s presence might affect the student’s behaviors. Instead, the team focused solely on the effect the dog might have on students and staff with allergies. To be sure, OCR noted, the effect of the dog’s presence on staff and students should be considered, but the team needed to consider the particular student’s needs as well. In another service dog case Bakersfield (CA) City Sch. Dist., 50 IDELR 169 (OCR 2008), OCR discussed that school districts may offer a student alternatives to the use of a service animal, but those alternatives must address all of the functions the service animal performs for the student. Finally, and importantly, all decisions  regarding whether to allow a service animal on a school campus must be made on a case-by-case basis, and must be specific to the student and his or her service animal.

Thus, as is generally the case, decisions regarding services for students with disabilities are made by a multidisciplinary team, on a case-by-case basis, and specific to the student and the student’s individual needs.

LRE Applies to Work Placements

In a letter to Jeff Spitzer-Resnick, one of my Protection and Advocacy colleagues with Disability Rights Wisconsin, the Office of Special Education Programs (OSEP)(Letter to Spitzer-Resnick 112 LRP 32664 (OSEP June 22, 2012), acknowledged that school districts must consider the least restrictive environment when making work placements. Mr. Spitzer-Resnick’s letter asked several questions regarding the IEP process and LRE as they relate to transition-age students and work placements. Melody Musgrave, the Director of OSEP, notes that a “Work placement can be an appropriate transition service, depending on the individual needs of a student, but is not a required component of all IEP’s that address transition services. If an IEP team determines that work placement is an appropriate transition service for a child it must be included in the child’s IEP.” (emphasis added)

As with other services described in the IEP, if the school district (public agency)  is “proposing or refusing to initiate or change a work placement that is part of a child’s transition services, the public agency would be required to provide the parent with written notice…a reasonable time before the proposed placement is initiated or changed.”

The OSEP letter specifically affirms that LRE principles apply to placement decisions, including those related to transition services and including work placements. Thus, the school district must provide supplementary aids and services, if needed, to “enable the student to participate with other students with disabilities and nondisabled students in the work placement described in the IEP.”

The fact, however, that the LRE principles apply to transition services and work placements does not mean that  children can never be placed in a segregated employment program. “Under the IDEA, a segregated employment program may an appropriate work placement for a particular student if determined appropriate by that student’s IEP team based on the LRE requirements and the specific individualized needs of that student.” But, OSEP re-emphasizes that state education agencies (SEA) must ensure that the LRE requirements of the IDEA are implemented by school districts. If there is evidence that a school district makes placements, including work placements, that are not consistent with the principles of LRE, the SEA must review the school districts justification for its actions and assist in planning and implementing any necessary corrective action. In short, parents and advocates can complain to the SEA that the school district is not considering LRE in providing transition services and making work placements.


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