Inclusion 101: The Power of Federal Regulations and Policies for Successful Inclusion

1. Inclusion 101: The Power of Federal Regulations and Policies for Successful Inclusion Sharon Walsh and Debbie Cate Early Childhood Technical Assistance Center (ECTA) 2016

2. Value Based Policy • Echoed in the 25th Anniversary Celebrations of the 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.”

3. Relevant Federal Laws Let’s Talk ADA, 504, and IDEA and upcoming New Federal Head Start Performance Standards and CCBDG Regulations and ESSA • But Remember – • Check your state laws and rules! • These may provide greater protection than ADA or Section 504

4. Discussion • Lets discuss the policy (laws, regulations) that supports our inclusion work…. • What policy challenges are you facing? • How these requirements can assist your community as you ensure inclusive opportunities…

5. State Performance Plan Annual Performance Report Indicator 6 Measurement: • Percent of children aged 3 - 5 with IEPs attending a regular early childhood program and receiving the majority of special education and related services in the regular early childhood program. • Percent of children aged 3 - 5 with IEPs attending a separate special education class, separate school or residential facility.

6. SPP/APR Indicator Results 2014-2015 2014-15 Ed.gov static tables

7. Indicator Results 2014-2015 Compared to 13-14 and 12-13 44% 13-14 42% 12-13 26% 12-13

8. State Performance SPP/APR Indicator 6A: Percent of children with IEPs attending a (RECP) and receiving the majority of services in the program 100% 44% 20% Each bar represents a state or territory, 2014-15 data

9. State Performance SPP/APR Indicator 6B: Percent of children with IEPsattending a special education program 100% 56% 26% 5 states 0% Each bar represents a state or territory, 2014-15 data

10. 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.

11. 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

12. Who Is Eligible? An individual who: • Has 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

13. What Are Major Life Activities? Major life activities include, but are not limited to: • Walking • Seeing • Hearing • Sleeping • Standing • Thinking • Communicating • Learning • Taking care of self

14. 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

15. 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”

16. 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 concern about insurance increases

17. 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

18. Federal Settlement Agreements with Department 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

19. 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.”

20. 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

21. 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

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

23. 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

24. 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…”

25. 504 Regulations • Subpart D of 34 CFR Part 104 • 104.38 “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.”

26. Draft Head Start Standards • §1302.62 Additional services for parents. (a) Parents of all children with disabilities. (1) A program must collaborate with parents of children with disabilities, including but not limited to children eligible for IDEA, to ensure the needs of their children are being met, including support to help parents become advocates for services that meet their children’s needs and information and skills to help parents understand their child’s disability and how to best support the child’s development;

27. Other Tools To Use • Regulations and State Plans implementing Child Care Development Block Grant • Every Student Succeeds Act (ESSA) • Title 1 funds can be spent down to birth • State Plans • Local Plans • New competitive state grant • Race To the Top –EL • Preschool Development Grants

28. Individuals with Disabilities Education Act (IDEA) • Part C (B-3) 34 CFR Part 303 • Part B (3-21) 34 CFR Part 300 • OSEP 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” • New OSEP 16-07 Dear Colleague Letter on RTI and Referrals to IDEA

29. 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 303.126

30. 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.” 

31. 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 …”

32. 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.

33. 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

34. 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.

35. Continued… The continuum must: • Include the alternative placements listed in the definition of special education under §300.38 (instruction in regular classes, special classes,special schools, home instruction, and instruction 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.

36. 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;

37. 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;

38. 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.

39. 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.”

40. 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.

41. 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.”

42. Discussion • How can these policies (laws, regulations) supports our inclusion work? • What policy challenges are you facing? • How these requirements assist your community to further inclusion?

43. 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) • Federal Policy Papers from ED/HHS