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Making Inclusion Work: Relevant Federal Regulations

and Policies

Sharon WalshEarly Childhood Technical Assistance Center (ECTA)

2015

The Time Is Now 25th Anniversary of Americans with Disabilities

Act (ADA) 40th Anniversary of the IDEA

“Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”

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The Timing Is So Right 61 Years Ago….. Chief Justice Warren, announcing

a unanimous decision declaring segregation in public schools unconstitutional -"We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. . .“

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Expanded Federal Efforts

Dedicated funding streams being considered by the Congress

Major Priority of the Administration20 states- Race to the Top – EL grantsPreschool Development and Expansion

Grants and Child Care/Head Start GrantsDraft Inclusion Policy Statement

being released for comment this week!

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Policy Statement on Expulsion and Suspension Policies in Early Childhood Settings

Issued December 2014 by U.S. Secretaries of ED and HHS

Provides recommendations for preventing & severely limiting expulsion & suspension practices in early childhood settings.

www2.ed.gov/policy/gen/guid/school-discipline/policy-statement-ece-expulsions-suspensions.pdf

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OCR Data

http://ocrdata.ed.gov/“In preschool, black children

are being suspended at a disproportionately high rate.”

Preschool children who are black represent 18% of children enrolled but 42% of children who are expelled once.

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Discussion

Now….lets discuss the policy (laws, regulations) that supports our inclusion work….

What policy challenges are you facing?

How these requirements assist your community to further inclusion…

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Relevant Federal Laws Let’s Talk ADA, 504,

and IDEA But Remember –

Check your state laws and rules!

These may provide greater protection than ADA or Section 504

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Americans With Disabilities Act Enacted in 1990 and amended in

2008 Civil Rights law – no funding

provided Prohibits discrimination on basis of

disability in: Employment State and local governments Public accommodations Public transportation Telecommunications

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Who Is Eligible?

An individual whoHas a physical or mental

impairment that substantially limits one or more major life activities;

Or has a record of having a disability; or

Who is regarded as having a disability

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What Are Major Life Activities?

Major life activities include (but not limited to):

Walking Seeing Hearing Sleeping Standing Thinking Communicating Learning Taking care of self

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ADA Protections Guarantees reasonable

modifications in policies, practices, and procedures to allow full participation in programs

Programs operated by religious organizations are exempt

Preschool programs, child care centers and family child care homes are covered

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ADA Says… Can’t exclude children unless they

pose a “direct threat” to health or safety of others or require “fundamental alteration” of the program

Must make reasonable accommodations to policies and practices unless doing so would result in “fundamental alteration”

Must provide aids and services for effective communication unless “undue burden”

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ADA Says… Must eliminate eligibility criteria that explicitly exclude children with disabilities Must eliminate admissions criteria such as “toilet trained,” that would result in discrimination of children with disabilities May impose legitimate safety requirements if necessary for safe operation Can’t charge more for children with disabilities Can’t refuse a child because concernabout insurance increases

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Accessibility Buildings built or renovated

before 1993 must make “readily achievable” architectural modifications

This means easily accomplishable and able to be carried out without much difficulty or expense

Extensive information about access guidelines is available at www.access-board.gov

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Federal Settlement Agreements with Dept of Justice KinderCare and LaPetite –

Glucose testing for children with diabetes

LaPetite – children with severe allergies and use of epinephrine

Sunshine Child Center – assistance with leg braces; diapering; age-appropriate placement

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More Settlements Rainbow River Child

Development Center – requires implementation of policies related to children with diabetes

Apple Tree Children’s Center – Implementation of nondiscrimination policy related to children with disabilities, particularly a child with Down Syndrome who had been refused admission

“Ensuring that children with disabilities have a full and equal opportunity to participate in and benefit from private school programs is an issue of public importance.”

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More Settlements Children’s House – agreement

to modify “no medication” policy to assist children with asthma

Beginning Montessori Academy – Implementation of policies to make reasonable modifications in polices, practices or procedures to provide equal opportunity for participation of children with disabilities, specifically related a child with autism 18

Department of Justice ADA Information Line – 800-

514-0301 “Commonly Asked Questions

about Child Care Centers and the ADA”

A 13-page publication that provides answers to commonly asked questions about how the ADA applies to Child Care

http://www.ada.gov/chcaflyr.htm

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What Are Good Examples of Reasonable Modifications? Changing schedule Modifying no-medication policy Modifying policy on toileting Providing additional cues Using assistive technology … …

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Section 504 of the Rehabilitation Act of 1973

Applies to entities receiving Federal funds

Civil Rights protections against discrimination

Provides no funding Same eligibility of “disability” as ADA Similar protections to Title II of ADA No religious exemption

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504 Statute

“No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…”

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504 RegulationsSubpart D of 34 CFR Part

104104.38 “Preschool and

Adult Education: “A recipient to which this subpart applies that

provides preschool education or day care or adult education may not, on the basis of handicap, exclude qualified handicapped persons and shall take into account the needs of such persons in determining the aid, benefits, or services to be provided.”

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Head Start Standards at 1308

Head Start grantee, or delegate agency, if appropriate, must develop a disabilities service plan providing strategies to meet special needs of children with disabilities and their parents.

The plan must be updated annually. The plan must include provisions for

children with disabilities to be included in the full range of activities and services normally provided to all Head Start children and provisions for any modifications necessary to meet their special needs. 24

Individuals with Disabilities Education Act (IDEA)

Part C (B-3) 34 CFR Part 303 Part B (3-21) 34 CFR Part 300 OSEP released LRE Guidance, February

2012 “IDEA’s strong preference for educating

students with disabilities in regular classes with appropriate aids and supports.”

“regular class includes a preschool setting with typically developing peers”

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Part C - Natural Environment To the maximum extent appropriate, early intervention services are provided in natural environments; and

The provision of early intervention services for any infant or toddler with a disability occurs in a setting other than a natural environment that is most appropriate, as determined by the parent and the individualized family service plan team, only when early intervention cannot be achieved satisfactorily for the infant or toddler in a natural environment.”

34 CFR 303.126t 26

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Natural Environments Natural environments means settings that

are natural or typical for a same-aged infant or toddler without a disability, may include the home or community settings, and must be consistent with the provisions of §303.126.

“[the Department] does not believe that a clinic, hospital or service provider’s office is a natural environment for an infant or toddler without a disability; therefore, such a setting would not be natural for an infant or toddler with a disability.” 

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Individualized Family Services Plan (IFSP) Early Intervention Services:

“The determination of the appropriate setting for

providing early intervention services to an infant

or toddler with a disability, including any justification

for not providing a particular early intervention service

in the natural environment for that infant or toddler with a

disability and service, must be—

Made by the IFSP Team (which includes the parent and other

team members);

Consistent with the provisions in §§ 303.13(a)(8), 303.26, and 303.126; and

Based on the child‘s outcomes that are identified …”

300.114 LRE requirements

Each public agency must ensure that: To the maximum extent appropriate,

children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and

Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 29

300.320(a)(5) Content of IEP An explanation of the

extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described;

The Department stated that “regular class” includes a preschool setting with typically developing peers

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300.115 Continuum of alternative placements

Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.

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Continued… The continuum must:

Include the alternative placements listed in the definition of specialeducation under §300.38 (instruction

in regular classes, special classes,special schools, home instruction, andinstruction in hospitals and institutions); and

Make provision for supplementary services such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

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300.116 Placements

In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency must ensure that:

The placement decision: Is made by a group of persons, including

the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and

Is made in conformity with the LRE provisions;

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Continued…

(b) The child’s placement: Is determined at least annually; Is based on the child’s IEP; and Is as close as possible to the

child’s home;(c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled;

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Continued…

(d) In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and(e) A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.

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Supplementary Comments “Section 300.116 clearly states

that the requirements for determining the educational placement of a child with a disability include preschool children with disabilities and that such decisions must be made in conformity with the LRE provisions in §§300.114 through 300.118. This includes ensuring that a continuum of services is available to meet the needs of children with disabilities for special education and related services.”

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Continued… “The LRE requirements in §§300.114

through 300.118 apply to all children with disabilities, including preschool children who are entitled to FAPE. Public agencies that do not operate programs for preschool children without disabilities are not required to initiate those programs solely to satisfy the LRE requirements of the Act. Public agencies that do not have an inclusive public preschool that can provide all the appropriate services and supports must explore alternative methods to ensure that the LRE requirements are met. Examples of such alternative methods might include placement options in private preschool programs or other community-based settings.

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Continued…

“Paying for the placement of qualified preschool children with disabilities in a private preschool with children without disabilities is one, but not the only, option available to public agencies to meet the LRE requirements. We believe the regulations should allow public agencies to choose an appropriate option to meet the LRE requirements. However, if a public agency determines that placement in a private preschool program is necessary as a means of providing special education and related services to a child with a disability, the program must be at no cost to the parent of the child.”

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Discussion

Now….lets discuss the policy (laws, regulations) that supports our inclusion work….

What policy challenges are you facing?

How these requirements assist your community to further inclusion…

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Resources http://www.ectacenter.org/

Under Topics select “LRE” and “natural environments”

Child Care Law Center – 2012 Q and A http://www.childcarelaw.org/

Foundations of Inclusion Training Curriculum, revised 2014 http://community.fpg.unc.edu

National Child Care Information & TA Center – TA Memo – Checklist and Guide for Child Care

Pacer Center – www.pacer.org www.dec-sped.org Early Childhood

Inclusion (DEC and NAEYC)

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