SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES
Chapter 11

Information on Preschool Education Services

From a 12-Chapter Manual

Available by Chapter and in Manual Form

Seventh Edition

Written by: Community Alliance for Special Education (CASE)

and Protection and Advocacy, Inc. (PAI)

Copyright © 1992 by CASE and PAI - Revised January 1998

Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.

Click here to go directly to the Table of Contents.


 Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:

CASE

  • 1031 Franklin Street, Suite B5, San Francisco, CA 94109, Tel. - (415) 928-2273, FAX - (415) 928-2289
  • 680 W. Tennyson Road, Room 1, Hayward, CA 94544, Tel. - (510) 783-5333, FAX - (510) 783-8822
  • CASE-South Bay Legal Aid Society of Santa Clara County, 480 North First Street, San Jose, CA 95103, Tel. - (408) 283-1535

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:

PAI

Toll Free/TTY: (800) 776-5746 - 8:30 AM to 5:00 PM - Monday through Friday

  • Central Office, 100 Howe Ave., Suite 185-N, Sacramento, CA 95828, Legal Unit - (916) 488-9950 / Administrative - (916) 488-9955
  • Southern California Area Office, 3580 Wilshire Blvd., Suite 902, Los Angeles CA 90010, Tel. - (213) 427-8747
  • San Francisco Bay Area Office, 449 - 15th Street, Suite 401, Oakland, CA 94612, Tel. - (510) 839-0811

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.


On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR) manual.

Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.

New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.

It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998. Since IEPs written for the 1998099 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.

For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS

Chapter 1 Information on Basic Rights and Responsibilities

Chapter 2 Information on Evaluations/Assessments

Chapter 3 Information on Eligibility Criteria

Chapter 4 Information on IEP Process

Chapter 5 Information on Related Services

Chapter 6 Information on Due Process Hearings/Compliance Complaints

Chapter 7 Information on Least Restrictive Environment

Chapter 8 Information on Discipline of Students with Disabilities

Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)

Chapter 10 Information on Vocational Education

Chapter 11 Information on Preschool Education Services

Chapter 12 Information on Early Intervention Services

NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 11

Information on Preschool Education Services

TABLE OF CONTENTS

Question

1. What is the federal law that requires preschool education services?

2. What is the purpose of preschool education services?

3. Are all school districts responsible for full implementation of services for three- to five-year-old children?

4. What are the eligibility criteria for children with disabilities who are three to five years old?

5. If I think my three- to five-year-old child needs services, who should I contact?

6. What instructional services are available to my preschool-aged child?

7. Is my three- to five-year-old child entitled to related services?

8. If my child is eligible for special education services, where will she receive them?

9. How do the least restrictive environment provisions of federal law relate to preschool children with disabilities?

10. How many hours a day may my child receive group services?

11. I want my disabled child to attend preschool with nondisabled peers. Do school districts even pay tuition at private preschools?

12. What if I am told there is a "waiting list" for services for my three- to five-year-old?


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 11

Information on Preschool Education Services

1. What is the federal law that requires preschool education services?

Public Law (PL) 99-457, passed in October 1986, is a federal law that expands services for children from birth to five years old who need special education. PL 99-457 amends and becomes a part of PL 94-142 -- the Individuals with Disabilities Education Act (IDEA). Title II of PL 99-457 makes grants available to states to extend the protections and services of PL 94-142 to all three- to five-year-old children who need special education. [20 United States Code (U.S.C.) Secs. 1400, 1411-1420 and 1471-1485.]

2. What is the purpose of preschool education services?

Congress defined the purpose of PL 99-457 as follows:

(1) To enhance the development of infants and toddlers with disabilities and to minimize their potential for delay;

(2) To reduce educational costs by minimizing the need for special education and related services after handicapped infants and toddlers reach school age;

(3) To minimize the likelihood of institutionalization of handicapped individuals; and

(4) To enhance the capacity of families to meet the special needs of infants and toddlers. [20 U.S.C. Sec. 1471.]

3. Are all school districts responsible for full implementation of services for three- to five-year-old children?

Yes. Under current California law, all school districts have a mandate to provide special education and services for all eligible children with exceptional needs between the ages of three and five years, inclusive. [Cal. Ed. Code Secs. 56001(b) and 56440(c).]

4. What are the eligibility criteria for children with disabilities who are three to five years old?

Assembly Bill (AB) 369, passed in 1993, amended Section 56441.11 of the California Education Code so that eligibility criteria for preschool children are linked to the criteria for school-age children. AB 369 adds one new category called "Established Medical Disability." To be eligible for special education, a child must have one of the following disabling conditions:

(1) Autism;

(2) Deaf-blindness;

(3) Deafness;

(4) Hearing impairment;

(5) Mental retardation;

(6) Multiple disabilities;

(7) Orthopedic impairment;

(8) Other health impairment;

(9) Serious emotional disturbance;

(10) Specific learning disability;

(11) Speech or language impairment in one or more of voice, fluency, language, and articulation;

(12) Traumatic brain injury;

(13) Visual impairment; or

(14) Established medical disability.

All of these conditions except (14) are defined in 34 Code of Federal Regulations (C.F.R.) Section 300.7, and discussed in 5 California Code of Regulations (Cal. Code Regs.) Section 3030.

An "established medical disability" is defined in California Education Code (Cal. Ed. Code) Section 46441.11(c) as a disabling medical condition or congenital syndrome that the individual education program (IEP) team determines has a high predictability of requiring special education and services.

The Special Education Division has clarified this definition of "established medical disability" to include (but it is not limited to) the following:

(1) Chromosomal abnormalities;

(2) Environmentally caused skeletal and muscular system malformations;

(3) Neurological disorders;

(4) Metabolic disorders; and

(5) Postnatal handicapping conditions such as anoxic deprivation, poisoning, cerebral palsy, physical trauma and limb deficiency.

To qualify for special education, a child must need specially designed instruction or services as defined in Sections 56441.2 and 56441.3 of the California Education Code. The child must also have needs that cannot be met with modification of a regular environment in the home or school, or both, without ongoing monitoring or support as determined by an IEP team pursuant to Section 56431.

A child is not eligible for special education and services if she does not otherwise meet the eligibility criteria and her educational needs are due primarily to:

(1) Unfamiliarity with the English language;

(2) Temporary physical disabilities;

(3) Social maladjustment; or

(4) Environmental, cultural, or economic factors.

5. If I think my three- to five-year-old child needs services, who should I contact?

You should write a letter to your local school administrator (for example, the principal or special education program consultant) to request an assessment for your child. Your district must assess your child. [Cal. Ed. Code Secs. 56029, 56300-56329; Cal. Code Regs. Sec. 3021.] By state law, your school district must give you an assessment plan within 15 days of receipt of your written request for special education services. You then have 15 days to respond to or approve the assessment plan. During that time, you can request assessment in additional areas. No one can assess your child unless you give consent for the assessment in writing. See Chapter 2, Information on Evaluations and Assessments.

When standardized tests are considered invalid for children between the ages of three and five years, assessors should use alternative testing methods. Alternatives might include, for example, scales, instruments, observations, and interviews, as specified in the assessment plan. [Cal. Ed. Code Sec. 46441.11(d).]

An IEP must be developed as a result of the assessment within 50 days from the date the district receives your written consent for assessment (not counting days between school sessions or terms). If the request was made 20 days or less before the end of the regular school year, the assessments and IEP must be completed within 30 days after the next school year begins.

6. What instructional services are available to my preschool-aged child?

Services available to three- to five-year-old children must meet the unique needs of your child in accordance with PL 94-142. The child's IEP must include these services and a statement of areas of need. See Chapter 4, Information on IEP Process. The rights and services for three- to five-year-old children under PL 94-142 and PL 99-457 are the same as those for children aged five to 21. Under California law, services for three- to five-year-old children may be provided individually or in small groups. Services may include:

(1) Observation and monitoring of the child;

(2) Activities developed to conform with the child's IEP and to enhance the child's development;

(3) Consultation with family, preschool teachers and other service providers;

(4) Assistance to parents in coordinating services;

(5) Opportunities for the child to develop play and pre-academic skills; and

(6) Access to developmentally appropriate equipment and specialized materials. [Cal. Ed. Code Sec. 56441.3(a)(1)-(6).]

7. Is my three- to five-year-old child entitled to related services?

Yes. Your child is entitled to all the related services provided by PL 94-142. Related services include parent counseling and training to help you understand your child's special needs and development. [Cal. Ed. Code Sec. 56441.3(a)(7). See Chapter 5, Information on Related Services.

8. If my child is eligible for special education services, where will she receive them?

Your child, if eligible, may receive services at a public or private non-sectarian preschool, a child development center, family day care home, your own home, or a special preschool where both children with disabilities and children without disabilities attend. In California, the state can contract with Head Start programs to provide special education services to children between three and five years old. [Cal. Ed. Code Secs. 56441.4(a)-(f) and 56443(a).]

9. How do the least restrictive environment provisions of federal law relate to preschool children with disabilities?

The federal Office of Special Education Programs (OSEP) has stated that the IDEA (PL 94-142) requirements regarding the education of children in the least restrictive environment (LRE) apply to preschool children with disabilities who have an IEP and are receiving a free appropriate public education under the provisions of the IDEA. [34 C.F.R. Secs. 300.550-300.556.] However, if the local education agency (LEA) has no preschool program for children without disabilities, there is no federal requirement to establish programs for children without disabilities for the sole purpose of implementing the IDEA's LRE requirements. Similarly, there is no federal requirement for an LEA to establish extensive contract programs with private schools which serve both children with disabilities and children without disabilities solely to implement the LRE requirements.

Placement decisions must be made on an individual basis in accordance with each child's IEP. Generally, the use of facilities which are separate or otherwise solely devoted to children with disabilities is permissible only when necessary to meet an individual preschool child's specific needs. [OSEP Programs Memorandum, 1987.]

In jurisdictions where there are no LEA programs for preschoolers without disabilities, the LRE requirement must be met by an alternative means. Several alternatives are possible: preschool programs serving children without disabilities (Head Start, for example) to which the program for children with disabilities may be linked on even a part-time basis; special needs preschool program may be located on a regular school site serving school-aged children without disabilities; or LEA may pay for placement in a private preschool and provide supplemental site.

In order for a school district to be reimbursed by State Special Education funding for sending a child with a disability to a private preschool program, the program must be certified by the state as a non-public school. Although this provision has always existed, two new pieces of legislation (AB 2355 and AB 3783) make certification requirements more stringent. Any private preschool applying for certification as a non-public school must have at least one full-time staff member with a special education credential. In addition, anyone who provides related services must hold a credential for the service being provided. However, current law does not prohibit the LEA from paying for private preschool placement out of its general funds if there is no appropriate preschool program available.

Your child's need for an integrated preschool program or full-inclusion in a regular preschool must be established in his IEP. See Chapter 7, Information on Least Restrictive Environment.

10. How many hours a day may my child receive group services?

The IEP team determines the number of hours per day of group services. State law limits group-service time to four hours per day, unless the IEP team determines otherwise. As part of the IEP team, you may request group services in excess of four hours per day if you feel your child requires it. The IEP must be designed to meet the unique needs of the child. This includes group services in excess of four hours per day if the child needs those additional hours in order to receive a free, appropriate public education. [Cal. Ed. Code Sec. 56441.3(b).]

11. I want my disabled child to attend preschool with nondisabled peers. Do school districts even pay tuition at private preschools?

Generally not, because most preschools are not certified as nonpublic schools. It may be necessary to use the fair hearing process to show that a private preschool is the appropriate, least-restrictive educational program for your child. If you prevailed at hearing, the district would have to pay for the noncertified preschool program out of its general fund rather than use special education funds.

12. What if I am told there is a "waiting list" for services for my three- to five-year-old?

Under federal and state law, waiting lists are not allowed. The IEP must be implemented as soon as possible following the IEP meeting. This means immediately following except when IEP meetings occur during a vacation period or if circumstances require a short delay (to work out transportation, for example). While there can be no undue delay in providing special education and related services, the IEP may specify projected dates to begin services. [34 C.F.R. Sec. 300.342 and comment, and Sec. 300.346(d), and Part 300, App. C, No. 4; 5 Cal. Code Regs. Sec. 3040.]


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