Learn Your Special Education Laws, Special Education Rights, and Share IEP Goal Ideas

Jul 28
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by Doug Goldberg

“Dear Colleague” might be my two favorite words in the English language when they are being spoken by Melody Musgrove, Director of the Office of Special Education Programs (“OSEP”) for the United States.  Anytime I see a letter from OSEP starting with Dear Colleague, I know I’m about to get a smile on my face.  OSEP doesn’t send these types of letters out unless they feel the School Districts are seriously misrepresenting the intention of the Individuals with Disabilities Education Act (IDEA) and need a little prodding to get them back on track (this is my opinion anyway).   In the most recent example of the Dear Colleague letter, we get guidance on whether Least Restrictive Environment applies to preschool placement; guess what, it does and I have a grin from ear to ear.  If Jerry had Dorothy at hello in the movie Jerry McGuire, this letter had me at the first sentence:

The purpose of this letter is to reiterate that the least restrictive environment (LRE) requirements in section 612(a)(5) of the Individuals with Disabilities Education Act (IDEA) apply to the placement of preschool children with disabilities.

As a quick reminder the LRE requirements in section 612(a)(5) state:

In General. 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 not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs 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.

LRE is a much simpler concept for school aged children since most, if not all, school districts will already have a continuum of placement options to offer.  When we are discussing preschool aged children many school districts only have one or two placement options and may not even have a regular education preschool program.

For data collections purposes, the Department defines a Regular Education Childhood Program as a program that includes a majority (at least 50 percent) of nondisabled children (i.e., children who do not have IEPs) and that may include, but is not limited to:

    • Head Start;
    • Kindergartens;
    • Preschool classes offered to an eligible pre-kindergarten population by the public school system;
    • Private kindergartens or preschools; and
    • Group child development centers or child care.

Since many school districts do not even have a regular education preschool program, they are usually inclined to just offer the placement options they have available and bypass the discussion on whether that is really the appropriate placement for the individual child in question.  According to OSEP:

LEAs that do not have a public preschool program that can provide all the appropriate services and supports for a particular child with a disability must explore alternative methods to ensure that the LRE requirements are met for that child.  These methods may include: (1) providing opportunities for the participation of preschool children with disabilities in preschool programs operated by public agencies other that LEAs (such as Head Start or community based childcare); (2) enrolling preschool children with disabilities in private preschool programs for nondisabled preschool children; (3) locating classes for preschool children with disabilities in regular elementary schools; or (4) providing home-based services.  If a public agency determines that placement in a private preschool program is necessary for a child to receive FAPE, the public agency must make that program available at no cost to the parent.

The bottom line is placement decisions, even for preschool aged children, need to be determined based on the child’s individual needs not by what the school district has available.  This is an invaluable letter to assist those families in the process of negotiating placement for their preschool aged children.  Of course this letter, and all of the other letters issued by OSEP, can only be helpful to parents if they are aware of it.  Please help get the word out and get this letter into the hands of EVERY parent or advocate that you can think of.

Side Bar: My favorite OSEP letter was issued in 2011 and reminded School Districts that Response to Intervention cannot be used to delay-deny an evaluation for eligibility under the Individuals with Disabilities Education Act.   You can download that memo here.

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