The Power of Federal Regulations and Policies for Successful Inclusion

1. The Power of Federal Regulations and Policies for Successful Inclusion Amanda Bryans, ACF/HHS Sharon Walsh, ECTA May 9, 2018

2. Discussion Share with a partner challenges you face in providing opportunities for active participation for all young children in inclusive early care and learning settings?

3. Relevant Federal Laws Let’s Talk ADA, 504, IDEA and Head Start Performance Standards But Remember – • Check your state laws and rules! • These may provide greater protections than federal rules

4. Reminders: Other Federal Laws Support Inclusive Efforts Child Care and Development Block Grant Every Student Succeeds Act (ESSA) Home Visiting - Maternal, Infant, and Early Childhood Home Visiting Programs New Federal Early Learning Bill Under Consideration

5. Inclusion is Value Based 25th Anniversary Celebrations of the Americans with Disabilities Act (ADA) and 40th Anniversary of 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.”

6. Federal Policy Statement on Inclusion of Children with Disabilities in EC Programs It is the Departments’ position that all young children with disabilities should have access to inclusive high-quality early childhood programs where they are provided with appropriate support in meeting high expectations

7. 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

8. 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

9. Major life activities include, but are not limited to: What Are Major Life Activities? Caring for oneself, Performing manual tasks, Seeing, Hearing, Eating, Sleeping Walking, Standing, Sitting, Reaching, Lifting, Bending, Speaking, Breathing, Learning, Reading, Concentrating, Thinking. Writing, Communicating, Interacting with others, and Working;

10. 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, Head Start, child care centers and family child care homes are covered

11. 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”

12. 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

13. 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

14. Federal DOJ Settlement Agreements Have Addressed • Glucose testing for children with diabetes • Children with severe allergies and use of epinephrine • Assistance with leg braces; diapering; age-appropriate placement • Child with Down Syndrome refused admission • Nondiscrimination policy 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.”

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

16. 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

17. 504 Statute – Civil Rights “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…”

18. 504 Regulations • 34 CFR 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.” Also – same as at 45 CFR 84.38 – HHS Regulations

19. Individuals with Disabilities Education Act (IDEA) • Part C (B-3) 34 CFR Part 303 • Part B (3-21) 34 CFR Part 300 • “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”

20. IDEA Infants and Toddlers - 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

21. 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.” 

22. 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 …”

23. IDEA Preschool 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.

24. 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

25. HEAD START 102,374 Children with IEPs Diagnosed- Prior to enrollment 59,253 During enrollment year 43,121 The number who have not received services 1,261 30,438 with IFSPs Diagnosed- Prior to enrollment into the program for this enrollment year 19,281 During enrollment year 11,083 The number who have not received services 213

26. What is happening since the 2016 Performance Standards Revision? • Inclusion Challenges • Child with delay, not eligible under IDEA • Bussing to alternate site for services

27. What is happening for children and Families? • Substance Misuse Crisis • Trauma • Classroom Management Issues How Do Programs Help?

28. Transition to Kindergarten OHS Priority- Building relationships between Head Start centers and receiving elementary schools Sharing information Maintaining and increasing gains

29. HEAD START RESOURCES Available Here https://eclkc.ohs.acf.hhs.gov/children-disabilities

30. Child Care Block Grant Federal Law • The CCDBG Act of 2014 requires that States: • Develop strategies for increasing the supply and quality of child care services for children with disabilities; • Provide information about the availability of the full diversity of child care services that will promote informed child care choices and that concerns programs carried out under Part B section 619 and part C of the IDEA; • Provide information on developmental screenings including Part B section 619 and part C of the IDEA; and

31. Child Care Block Grant Federal Law • Provide training and professional development appropriate for a population of children that includes children with disabilities • Promote and expand child care providers’ ability to provide developmentally appropriate services for infants and toddlers through training and professional development; coaching and technical assistance and improved coordination with early intervention specialists who provide services for infants and toddlers with disabilities

32. Home Visiting • The Maternal, Infant, and Early Childhood Home Visiting Program • Gives pregnant women and families, particularly those considered at-risk, necessary resources and skills to raise children who are physically, socially, and emotionally healthy and ready to learn. • Goals for every program are to: • improve maternal and child health, • prevent child abuse and neglect, • encourage positive parenting, and • promote child development and school readiness. • https://mchb.hrsa.gov/maternal-child-health-initiatives/home-visiting-overview

33. Title 1 State Plans • How SEA will provide: • Assistance to LEAs and schools using Title I funds to support early childhood education • Information on family engagement and child development to early childhood and K-12 teachers and principals. • State report cards include number and percentage of children enrolled in preschool programs.

34. Title I LEA Requirements • Using Title I funds for preschool is a local decision. • LEAs, and schools who opt to provide early childhood programming in their schoolwide model, are required to create interagency agreements to coordinate services with Head Start agencies. • If the LEA is providing early childhood education services with Title I funds, these services must meet, at a minimum, the education performance standards of the Head Start Program Performance Standards that are aligned with the Head Start Child Early Learning Outcomes Framework Ages Birth to Five (2016).

35. ESSA and Early Learning • Authorized the first B-5 Preschool Development Grant program jointly administered by HHS and DOE • State and local planning requirements • Early learning coordination within communities • Collaboration with families • Literacy • Greater alignment with early elementary grades • Early childhood education focused capacity building among teachers, leaders, and staff serving young children

36. Child Care for Working Families Act • Senator Patty Murray (WA-D) introduced S.568 that has 31 cosponsors • Representative Bobby Scott (VA-D) introduced H.R. 1364 that has 122 cosponsors

37. Outline of the Bill – A Vision for the Future • Title I – Child Care and Development Assistance • Title II – High Quality Preschool • Title III – Head Start Expanded Duration • Title IV – Appropriations for Supports and Services for Inclusive Child Care for Infants, Toddlers, and Children with Disabilities – Part C and Preschool 619 • Title V - Maternal, Infant, and Early Childhood Home Visiting Program

38. Discussion Can you give us an example of a success you’ve had and the strategies that led to that success?

39. OSEP Dear Colleague Letter on Preschool LRE • Reaffirms ED’s position that all young children with disabilities should have access to inclusive high-quality early childhood programs where they are provided with individualized and appropriate supports to enable them to meet high expectations. • https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/preschool-lre-dcl-1-10-17.pdf

40. Dear Colleague Letter on RTI and Referrals to IDEA • States and LEAs have an obligation to ensure that evaluations of all children suspected of having a disability, including evaluation of 3-, 4-, or 5- year-old children enrolled in preschool programs, are not delayed or denied because of implementation of an RTI strategy. • Once an LEA receives a referral from a preschool program, the LEA must initiate the evaluation process to determine if the child is a child with a disability. 34 CFR §300.301(b). An LEA may not decline a child find referral from a preschool program until the program monitors the child's developmental progress using RTI procedures. http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/oseprtipreschoolmemo4-29-16.pdf

41. 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

42. ESSA and Early Childhood • Early Learning in the ESSA Act U.S. Department of Education, Office of Early Learning, 2016 • What Early Learning in ESSA Can Look Like for States and Districts First Five Fund 2017 • Unlocking ESSA's Potential to Support EL • CEELO ESSA Center on Enhancing Early Learning Outcomes (CEELO) webpage on ESSA implementation • https://ffyf.org/resources/early-learning-state-essa-plans-states-using-law/ First Five Years – ESSA Plan Reviews - 2018

43. ED-HHS Joint Policy Statement Inclusion of Children with Disabilities in Early Childhood Programs www.ed.gov/early-learning/inclusion www.acf.hhs.gov/ecd/inclusive-high-quality-early-childhood-programs

44. Resources: Early Childhood TA Center • http://www.ectacenter.org/ • Under Topics select “LRE” and “natural environments”

45. Resources: DEC Recommended Practices • http://www.dec-sped.org/recommendedpractices

46. Resources • OSEP Dear Colleague Letter (DCL) related to Preschool Least Restrictive Environment (LRE): https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/preschool-lre-dcl-1-10-17.pdf • Head Start Early Learning Framework: https://eclkc.ohs.acf.hhs.gov/hslc/hs/sr/approach/elof • Head Start Program Performance Standards: http://eclkc.ohs.acf.hhs.gov/hslc/hs/docs/hspss-final.pdf

47. Resources (Continued) • ACF IM: Developmental & Behavioral Screenings in CCDBG • DEC/NAEYC: Position on Early Childhood Inclusion • ECLKC web resources: https://eclkc.ohs.acf.hhs.gov/hslc/tta-system/teaching/Disabilities • ED Web page: www.ed.gov/early-learning/inclusion • HHS Web page: www.acf.hhs.gov/ecd/inclusive-high-quality-early-childhood-programs • Child Care Law Center – 2012 Q and A: http://www.childcarelaw.org/ • Foundations of Inclusion Training Curriculum, revised 2014: http://community.fpg.unc.edu

48. Thank You