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.

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.

Parents Concerns Regarding Siblings Immune Deficiency did Not Require School to Provide Homebound Placement

In Stamps ex. rel. H.S.,S.S, and J.S v Gwinnett County Sch Dist., 112 LRP 28567 (11th Cir. 06/04/12 unpublished), the parents of three siblings with genetic conditions, neurological disorders, and an unspecified immune deficiency were unsuccessful in requiring the school district to provide a homebound program (in-home IDEA services) as opposed to a school-based placement.

The parents of the three siblings had concerns that the children were at a significant risk of infection if they attended an in-school program. Thus, they requested that the children’s IDEA services be provided in their home. The school district disagreed and the issue was heard by an administrative law judge (ALJ). At the hearing the ALJ heard testimony from the family’s pediatrician as well as an expert in pediatric infectious diseases.

The family’s pediatrician testified that the children’s immune deficiencies did not require preventive treatment, they would improve with age and, in fact, the children had not been sick in several years. The expert in pediatric infectious diseases (who reviewed the children’s medical records and spoke with their pediatrician) testified that the children would  have the same probability of getting sick as other children and they did not require any restrictions in their socialization activities, whether going to school or other community functions. The ALJ ruled for the school district and the decision was later affirmed in an unpublished opinion by the 11th Circuit Court of Appeals.

As is generally the case, this decision is based on the specific facts. Here, there was expert testimony that these three children did not have a greater risk of infection than other children and their medical condition did not require social restrictions. Moreover, the school district has an affirmative obligation to place children with disabilities in the least restrictive environment-meaning to the maximum extent appropriate students with disabilities should attend classes along side students without disabilities. The parents in this case had the best of intentions, but were seeking a very restrictive placement for their children. Thus, the court determined that the evidence presented at the due process hearing did not establish that the children needed homebound services in order to receive a free appropriate public education. If the medical evidence had established that attending school and other community activities exposed the children to a greater risk of infection, the school district may have been required to provide services in the home.

Texas School District Required to Provide Bus Monitors with Training Specific to Student’s Behaviors

 A state hearing officer ruled in Corpus Christi Independent School District, 57 IDELR 297 (Tex. SEA 2011) that the school district failed to provide appropriate personnel support so that a  student with an emotional disturbance and ADHD could be safely transported on the bus. The student had been suspended from the bus more than ten times during the 2010-2011 school year for aggressive behavior, failure to remain seated, and using profanity. The school district’s solution was to propose that the student’s grandparents provide his transportation and offered to pay their mileage. The grandparents rejected that proposal and requested a due process hearing to resolve a number of issues, including the school district’s failure to provide appropriately trained personnel on the bus.

In his decision, the hearing officer noted that transportation is a related service under the IDEA. Additionally, under the IDEA, supplementary aids and services are those aids, services, and supports that are provided in a variety of settings to enable a child with a disability to be  integrated with students without disabilities to the maximum extent appropriate. Here, the bus monitor who supervised children on the student’s school bus had only been provided general training on behavior management. The hearing officer determined that this student’s disruptive behaviors were significant and frequent and that the bus monitor had been ineffective in ensuring the safe transportation of the student and his peers. Thus, the hearing officer ordered the school district to provide a bus monitor with more specific training and skills to deal with the student’s unique behavioral issues.

Illinois School District Should Have Addressed Student’s Auditory Processing and Assistive Technology Needs

 In City of Chicago School District 299, 57 IDELR 29, (SEA  Il 2011) an 8th Grade boy  with specific learning disabilities exhibited problems with reading, writing, listening, and integrating sensory information. In fact, he had exhibited some of these problems as early as 1st Grade. Unfortunately, despite repeated red flags that the student needed additional support, the school district did not evaluate his auditory processing and assistive technology (AT) needs. Moreover, the district failed to write adequate, measurable goals on his IEP. Thus he was placed in general education classes without adequate support. Dissatisfied, the parent obtained  independent educational evaluations (IEEs) that indicated the student needed AT in order to read and write, occupational therapy, and intensive services related to reading, writing, listening, and auditory processing.  Since she believed the school district’s evaluations were inaccurate and inadequate, the parent had asked the school district to support paying for the IEEs, but her requests were ignored. Since the school district was not forthcoming in resolving these issues, the parent then requested a due process hearing to obtain appropriate services for her son.

The hearing officer found in the parent’s favor. Based on the IEEs and testimony, the hearing officer determined the district had not done adequate or frequent assessments of his auditory processing and AT needs and it had not reviewed all of the information the parent provided, including the information from the IEEs. Thus, the district’s IEP was based on inadequate evaluation information. This resulted in the continued use of an unsuccessful reading methodology and a deficient IEP, with goals that were (1) too few and (2) unmeasurable.

Finally, the Hearing Officer granted the parent’s request to place her son in a private therapeutic placement for students with significant learning disabilities. Additionally, the hearing officer ordered the school district to reimburse the parent for the cost of the IEEs and to provide her son with compensatory educational services.

OCR Rules School District Violated 504 by Isolating Special Needs Students in a Portable Classroom

The Office for Civil Rights found  that a Tennessee school district violated Section 504 when it placed 14 middle schoolers with severe disabilities in a self-contained classroom that was housed in two portable buildings outside the main school building. Marion County (TN) School District 11 LRP 59226 (OCR May 2011). The school district had created the Child Development Class (CDC) to serve students whose disabilities required intensive educational interventions and who the school thought required direct supervision in order to benefit from participation in the general education program. An individual complained to OCR. The complainant was not concerned that the classroom was self-contained, but was very concerned about placing the students in portable buildings outside the main building on the middle school campus. She felt that, as a result of the separate and segregated setting, the students were viewed differently and were ridiculed because they were taught in separate portable buildings. The complainant said that some non-disabled students referred to the CDC program as the “dumb house”. One CDC student, who wanted to fit in with other students, was allegedly asked to “dance” by students without disabilities and was laughed at when she did.

Accepting the complaint for investigation, the Office for Civil Rights  noted at the outset that Section 504 prohibits school districts from providing students with disabilities less opportunities to participate than their typical peers and from denying them comparable facilities. As a result of its investigation, OCR determined that the CDC Program’s location isolated the students. According to OCR, “They use a separate entrance, use separate restrooms, and do not have the equal interactive opportunities as their non-disabled peers in places such as the hallways and bathrooms.” The OCR also noted that the CDC classroom was not a comparable facility, because unlike the rest of the student population, CDC students had to walk outside, potentially in bad weather, to participate in main building activities. Thus, isolating these students with disabilities in separate portable buildings violated Section 504. To remedy the violation, the school district agreed to move the CDC program into two classrooms in the main middle school building and to locate the classrooms adjacent to restrooms.

Review of The Everyday Guide to Special Education Law in the US Review of Books

The Everyday Guide to Special Education Law
Second Edition

by Randy Chapman, Esq. The Legal Center for People with
Disabilities and Older People

reviewed by Judee L. Spargur

“I wrote this book primarily to help students, parents, advocates, and other professionals better understand the Individuals with Disabilities Act (IDEA). The book is meant to be an everyday guide to special education law to help parents, advocates, students with disabilities and educators to understand the basic requirements of the IDEA.”

Parents, teachers, and other professionals who work with children with disabilities will greatly appreciate this helpful resource. It isn’t easy to find a book that helps you navigate special education law. A wide range of topics are covered, including how to understand a free and appropriate public education, identify the least restrictive environment, evaluate the needs of students with disabilities and their individualized education programs, and resolve disputes under IDEA (the Individuals with Disability Education Act). Also covered is the difficult subject of discipline and disability, children in private schools, section 504 of the Rehabilitation Act of 1973, and The Americans with Disabilities Act. Another informative section is “Back to The Beginning: Part C Early Intervention Services.” Overall, this book is rich in information about “Special Education Law” delivered in a well-written narrative.

Since 1980, attorney Randy Chapman has had a passion for his work as Director of Legal Services in Colorado, working toward the development of disability law and implementing special education law and, thus, significantly improving the quality of life for the physically challenged. In this essential guide, Chapman makes the pages come alive with his knowledge and research, and his work is not finished: “While the Education for All Handicapped Children Act may not have fulfilled all our dreams, for most it ended the nightmare of days without school. While the IDEA may not have answered all our prayers, it delivered on many of its promises.”


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