1. 1 Making Inclusion Work: Relevant Federal Regulations and Policies Sharon Walsh Early Childhood Technical Assistance Center (ECTA) 2014

2. 2 The Timing Is So Right! Chief Justice Warren, announcing a unanimous decision declaring segregation in public schools unconstitutional - 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...“ "We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal...“ [May 14, 1954] [May 14, 1954]

3. 3 Expanded Federal Early Learning Opportunities “Strong Start” bills being considered by the Congress “Strong Start” bills being considered by the Congress Major Priority of the Administration Major Priority of the Administration 20 states have Race to the Top – EL grants 20 states have Race to the Top – EL grants New Preschool Development and Expansion Grants and Child Care/Head Start Grants to be Awarded in fall 2014 New Preschool Development and Expansion Grants and Child Care/Head Start Grants to be Awarded in fall 2014

4. 4 Relevant Federal Laws  Let’s Talk ADA, 504, Head Start and IDEA  But Remember –  Check your state laws and rules!  These may provide greater protection than ADA or Section 504

5. 5 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

6. 6 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

7. 7 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

8. 8 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

9. 9 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 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 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” Must provide aids and services for effective communication unless “undue burden”

10. 10 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

11. 11 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 www.access-board.gov

12. 12 Federal Settlement Agreements with Dept of Justice KinderCare and LaPetite – Glucose testing for children with diabetes KinderCare and LaPetite – Glucose testing for children with diabetes LaPetite – children with severe allergies and use of epinephrine LaPetite – children with severe allergies and use of epinephrine Sunshine Child Center – assistance with leg braces; diapering; age-appropriate placement Sunshine Child Center – assistance with leg braces; diapering; age-appropriate placement

13. 13 More Settlements Rainbow River Child Development Center – requires implementation of policies related to children with diabetes 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 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.” “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.”

14. 14 More Settlements Children’s House – agreement to modify “no medication” policy to assist children with asthma 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 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

15. 15 Department of Justice ADA Information Line – 800-514-0301 ADA Information Line – 800-514-0301 “Commonly Asked Questions about Child Care Centers and the ADA” “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 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 http://www.ada.gov/chcaflyr.htm http://www.ada.gov/chcaflyr.htm

16. 16 What Are Good Examples of Reasonable Modifications?  Changing schedule  Modifying no-medication policy  Modifying policy on toileting  Providing additional cues  Using assistive technology  …

17. 17 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

18. 18 504 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…”

19. 19 504 Regulations Subpart D of 34 CFR Part 104 Subpart D of 34 CFR Part 104 104.38 “Preschool and Adult Education: 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.” “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.”

20. 20 Head Start Performance Standards 45 CFR Part 1308 § 1308.1 Purpose. “…requirements for providing special services for 3- through 5-year-old children with disabilities enrolled in Head Start … are to be used in conjunction with the Head Start Program Performance Standards at 45 CFR part 1304. § 1308.1 Purpose. “…requirements for providing special services for 3- through 5-year-old children with disabilities enrolled in Head Start … are to be used in conjunction with the Head Start Program Performance Standards at 45 CFR part 1304. …to ensure that children with disabilities enrolled in Head Start programs receive all the services to which they are entitled under the Head Start Program Performance Standards at 45 CFR part 1304, as amended.” …to ensure that children with disabilities enrolled in Head Start programs receive all the services to which they are entitled under the Head Start Program Performance Standards at 45 CFR part 1304, as amended.”

21. 21 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. 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 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. 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.

22. 22 Required Assurances at 1304 Services for infants and toddlers with disabilities and their families support the attainment of the expected outcomes contained in the IFSP Services for infants and toddlers with disabilities and their families support the attainment of the expected outcomes contained in the IFSP Enrolled families with infants and toddlers suspected of having a disability are promptly referred to the local early intervention agency to coordinate any needed evaluations, determine eligibility for Part H services, and coordinate the development of an IFSP Enrolled families with infants and toddlers suspected of having a disability are promptly referred to the local early intervention agency to coordinate any needed evaluations, determine eligibility for Part H services, and coordinate the development of an IFSP Grantee and delegate agencies must support parent participation in the evaluation and IFSP development process for infants and toddlers enrolled in their program; Grantee and delegate agencies must support parent participation in the evaluation and IFSP development process for infants and toddlers enrolled in their program;

23. 23 Head Start at 1304 Participate in and support efforts for a smooth and effective transition for children who, at age three, will need to be considered for services for preschool age children with disabilities Participate in and support efforts for a smooth and effective transition for children who, at age three, will need to be considered for services for preschool age children with disabilities Participate in the development and implementation of the IEP for preschool age children with disabilities, consistent with the requirements of 45 CFR 1308.19. Participate in the development and implementation of the IEP for preschool age children with disabilities, consistent with the requirements of 45 CFR 1308.19. NOTE: Letter to Linda Brekken June 2, 2010 – Requirements to respond to referrals for evaluation for eligibility for special education and related services (RTI implications) NOTE: Letter to Linda Brekken June 2, 2010 – Requirements to respond to referrals for evaluation for eligibility for special education and related services (RTI implications)

24. 24 Individuals with Disabilities Education Act (IDEA) Part C (B-3) 34 CFR Part 303 Part C (B-3) 34 CFR Part 303 Part B (3-21) 34 CFR Part 300 Part B (3-21) 34 CFR Part 300 OSEP released LRE Guidance, February 2012 OSEP released LRE Guidance, February 2012 “IDEA’s strong preference for educating students with disabilities in regular classes with appropriate aids and supports.” “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” “regular class includes a preschool setting with typically developing peers”

25. 25 Part C - Natural Environment To the maximum extent appropriate, early intervention services are provided in natural environments; and 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.” 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 34 CFR 303.126

26. 26 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. 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.” “[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.”

27. 27 Individualized Family Services Plan (IFSP) Early Intervention Services: 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-- (1) Made by the IFSP Team (which includes the parent and other team members); (2) Consistent with the provisions in §§ 303.13(a)(8), 303.26, and 303.126; and (3) Based on the child‘s outcomes that are identified …”

28. 28 300.114 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 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. 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. 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; 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 The Department stated that “regular class” includes a preschool setting with typically developing peers

30. 30 300.115 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. 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.

31. 31 Continued… The continuum must: 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 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. Make provision for supplementary services such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

32. 32 300.116 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: 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 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; Is made in conformity with the LRE provisions;

33. 33 Continued… (b) The child’s placement: Is determined at least annually; Is determined at least annually; Is based on the child’s IEP; and Is based on the child’s IEP; and Is as close as possible to the child’s home; 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;

34. 34 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.

35. 35 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.” “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.”

36. 36 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. “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.

37. 37 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.” “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.”

38. 38 Small Group Discussion Now….based on the federal policies…. Now….based on the federal policies…. Discuss local scenarios and how these requirements and resources can assist you in your community to further inclusion… Discuss local scenarios and how these requirements and resources can assist you in your community to further inclusion…

39. 39 Resources http://www.ectacenter.org/ http://www.ectacenter.org/ http://www.ectacenter.org/ Under Topics select “LRE” and “natural environments” Under Topics select “LRE” and “natural environments” Child Care Law Center – 2012 Q and A Child Care Law Center – 2012 Q and A http://www.childcarelaw.org/ http://www.childcarelaw.org/ http://www.childcarelaw.org/ Foundations of Inclusion Training Curriculum, revised 2014 Foundations of Inclusion Training Curriculum, revised 2014 http://community.fpg.unc.edu http://community.fpg.unc.edu http://community.fpg.unc.edu National Child Care Information & TA Center – TA Memo – Checklist and Guide for Child Care National Child Care Information & TA Center – TA Memo – Checklist and Guide for Child Care Pacer Center – www.pacer.org Pacer Center – www.pacer.orgwww.pacer.org www.dec-sped.org Early Childhood Inclusion www.dec-sped.org Early Childhood Inclusion www.dec-sped.org (DEC and NAEYC) (DEC and NAEYC)