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Public Funding of Private Pre-School is a Mandated Early Intervention Service Required Under IDEA

Birth to age five, the time of early intervention services, is a critical time full of exploration, socialization and skill acquisition. For most children of this age in today’s society, the bulk of their experiences take place in day care or pre-school settings. For children identified with autism and other developmental delays and who are eligible for early intervention (EI) services however, administrators often do not offer preschool as the environment of choice. Furthermore, notwithstanding the mandate of the federal law requiring the provision of preschool settings as a component of a free and appropriate public education (FAPE), many states continue to have policies “prohibiting” funding the cost of attendance at private pre-schools.

Part C of IDEA requires, “to the maximum extent appropriate to the needs of the child, early intervention services must be provided in natural environments, including the home and community settings in which children without disabilities participate” (34 CFR §303.12(b)). By definition, natural environments mean, “settings that are natural or normal for the child’s age peers who have no disabilities.” (34 CFR §303.18). In today’s culture, “settings that are natural or normal for the child’s age peers who have no disabilities” means preschool (for children 0 – 5 years of age). The era of June Cleaver and the stay at home mom who kept her child close to the apron strings until kindergarten are long gone. Staying at home until school age is no longer the norm; however, many states cling to that provision of the law referring to home based services to interpret “settings that are normal” as the home for very young children. Additional justification for the denial of a pre-school setting is made because no public preschool program exists. Parents should not accept a denial of a preschool setting for their toddler on any basis, as the law protects the provision of a preschool setting even if it is necessary to pay for a private preschool at public expense In re: the Educational Assignment of Jonathan .S., Special Education Opinion No.1181 (2001), rev’d on other ground sub nom. Delaware County Intermediate Unit v. Jonathan S., 809 A. 2d 1051 (Pa. Commonw. Ct 2002). Early intervention services in natural environments, including preschool, is not just a guiding principle or suggestion, it is a legal requirement Bd. of Education of LaGrange Sch. Dist. V Illinois State Bd. of Educ., 29 IDELR 369 (N.D. III. 1998) (a private pre-school is the LRE where no *10 aspects of the disability of a four old with Downs Syndrome required the “at-risk” program offered by the district which prescreened children for academic or language difficulties); and Office of Special Education Programs ruling 16 EHLR 739 (to meet LRE requirement, each preschooler’s placement must be consistent with determination of the child’s ability to be educated in regular education programs. In the instant case the student’s ability to be educated in a typical pre-school program was specific finding of the team).

A vast body of research demonstrates that the behavioral, social and communication needs of the student as identified by the evaluations and the team and the interventions and supports engineered to address them are inextricably interwoven with and dependent upon the stimuli, naturally occurring cues, and naturalistic teaching opportunities occurring within the environment where services are delivered (e.g., Hart & Risley, 1975; Ingersoll & Schreibman, 2006; Pierce & Schreibman, 1995). Particularly with respect to the pervasive nature of the core deficits common to the diagnosis of autism, and most importantly with respect to the social skills interventions necessary to the future success of young children with this diagnosis, it is not possible to parse the “service” from the framework in which they are provided. The provision of supportive services, particularly during the critical window of opportunity during early intervention, should not be viewed in a vacuum1.

One way to determine that a preschool setting is the appropriate framework within which to deliver early intervention services is to analyze the purpose of each goal decided upon by the early intervention team in the IFSP. If the fundamental core of each goal promulgated by the team requires, as a necessary component, the availability of peers and activities promoting interaction with those peers, an inclusive preschool environment is necessary. The need for adult supervision and facilitation (teachers) and a “place” to conduct these activities (classroom) is obvious. Taken together, these core components equate to a pre-school setting. If the county does not operate a public preschool2, the county must fund the tuition for a private school. See, e.g., Office of Special Education Programs ruling 22 IDELR 630, 663 (1995) (if placement team determines, based on child’s IEP, that preschooler needs interaction with non-disabled peers, public agency is responsible for making available appropriate program in the least restrict environment at no cost to parents); The dilemma is that public policy has not kept pace with our cultural norms. Publically funded pre-school is not widely embraced3. In the Commonwealth of Pennsylvania, for example, provision of publically funded pre-school services are available in connection with Head Start services only and there exists a perceived confusion regarding placement vs. services. Preschool placements are often seen as requests for social skills and “social skills” is not a service. In fact, the Pennsylvania Department of Education has explicitly stated “that there is currently no universal preschool in the Commonwealth of Pennsylvania” (BEC Early Intervention and Private Schools 11 P.S. 875-304 (Jul. 1, 2003; also see Allyson B. v. Montgomery County Intermediate Unit, U.S. Dist. LEXIS 32159, *41-*42 (E.D. Pa 2010)). However, there is no Federal mandate forcing the creation of publically funded pre-schools. Public agencies (such as a School District or Departments of Mental Health and Intellectual Disabilities) are not required, under the law, to create public pre-schools to satisfy the requirements regarding placement (Board of Educ. of LaGrange Sch. Dist. No. 105 v. Illinois State Board of Educ., 30 IDELR 891, 184 F.3d 912 (7th Cir. 1999)). For public agencies without publically funded preschool opportunities, some alternative methods for meeting the requirements include: (1) providing opportunities for participation (even part time) of preschool children with disabilities in other preschool programs operated by public agencies (such as Head Start); (2) placing children with disabilities in private school programs for nondisabled preschool children or private preschool programs that integrate children with disabilities and nondisabled children; and (3) locating classes for preschool children with disabilities in regular elementary schools (See also Letter to Anonymous, 50 IDELR 229 (OSEP 2008); see also Letter to Neveldine, 22 IDELR 630 (OSEP 1995)).

It is expected that with the advent of and concentration on early intervention services and the continued development of these programs as well as the increasing the wealth of positive outcome research now available regarding the indicia of success preschool experiences have for young children, the debate regarding pre-school as a part of public responsibility vs. parent responsibility should diminish and publically available options for pre-school services increase. In the meantime, failure to provide a pre-school setting, where determined necessary by a team, is a failure of FAPE.

 

Gloria M. Satriale, Esq, BCABA is Executive Director of Preparing Adolescents and Adults for Life (PAAL). Thomas L. Zane, PhD, BCBA-D is Interim Clinical Director of PAAL, and is Professor of Education and Director of the Applied Behavior Analysis Online Program at Endicott College. For more information about PAAL, please visit www.mecaautism.org/paal.html.

 

Footnotes

 

  1. It is reasonable and, in fact, quite common for certain services for a child to be clinic based only and delivered in segregated “pull out” settings such as physical therapy, however for most supportive services (e.g. speech and language, occupational therapy), best practice is for the delivery of services in an integrated, consultative manner (e.g. Schopler & Mesibov, 1984).

 

  1. Some states do offer publically funded preschool programs for disadvantaged children identified “at risk” (e.g. Head Start Preschool Programs).

 

  1. The fact that “pre-school” is currently offered in many forms (c.f. Montessori systems) rather than a uniform system which would adhere to the usually envisioned structure of what constitutes public education complicates this issue – particularly as it may relate to an analysis of appropriateness.

 

References

 

Hart, B., & Risley, T. R. (1975). Incidental teaching of language in the preschool. Journal of Applied Behavior Analysis, 8, 411-420.

 

Ingersoll, B., & Schreibman, L. (2006). Teaching reciprocal imitation skills Young Children
with Autism Using a Naturalistic Behavioral Approach: Effects on Language, Pretend Play, and Joint Attention. Journal of Autism and Developmental Disorders, 34(4), 487-505.

 

Pierce, K., & Schreibman, L. (1995). Increasing complex social behaviors in children with autism via peer-implemented pivotal response training. Journal of Applied Behavior Analysis, 28, 285-295.

 

Schopler, E., & Mesibov, G. B. (1984). Social behavior in autism. New York: Plenum Press.

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