Recent OAH Decision Imposes Procedural Requirement to Make an Individualized Determination as to Whether Preschool-Age Children Require Placement in a General Education Setting to Receive FAPE (K-12)
This legal update is to inform you of a recent decision of the Office of Administrative Hearings, Special Education Division, (“OAH”) regarding the responsibility of Individualized Education Plan (“IEP”) teams to consider and discuss a general education preschool setting when discussing placement options on the continuum for preschool-aged children
September 11, 2015
To: Superintendents, Member School Districts (K-12)
From: Monica D. Batanero, Associate General Counsel
Subject: Recent OAH Decision Imposes Procedural Requirement to Make an Individualized Determination as to Whether Preschool-Age Children Require Placement in a General Education Setting to Receive FAPE
Memo No. 22-2015
This legal update is to inform you of a recent decision of the Office of Administrative Hearings, Special Education Division, (“OAH”) regarding the responsibility of Individualized Education Plan (“IEP”) teams to consider and discuss a general education preschool setting when discussing placement options on the continuum for preschool-aged children.
In Student vs. Rincon Valley Union School District and Redwood Consortium for Student Services, OAH Case No. 2015030342, Administrative Law Judge (“ALJ”) Charles Marson held that Rincon Valley Union School District (“District”) committed a procedural violation of the Individual with Disabilities Education Act (“IDEA”) when it failed to make an individualized determination as to whether the Student required a general education preschool program to receive a Free Appropriate Public Education (“FAPE”).
The District took the position that a school district is not required to provide a general education preschool setting for every preschool-aged special education student whose needs do not require a Special Day Class (“SDC”) setting, and that the general education setting (such as preschool) is not necessarily or presumptively the Least Restrictive Environment (“LRE”) for a preschooler. Although not mentioned in the decision, the District maintains that it did discuss a continuum of placement options to include a general education preschool setting and the IEP team determined a general education preschool setting was not necessary for the Student to receive FAPE.
At more than one IEP meeting, the IEP team discussed Head Start programs; however, ALJ Marson determined it was not sufficient to refer the parents to Head Start. ALJ Marson held, “It is not the burden of parents at an IEP meeting to ensure the consideration of the full continuum of placement options, including the general education. It is the school district that must make those options available.” Id. at p.18. ALJ Marson determined the District should have specifically discussed at an IEP meeting whether Head Start was appropriate for this specific student.
Ultimately, ALJ Marson did not decide whether this Student needed a general education preschool environment to receive FAPE. ALJ Marson decided that Rincon Valley substantially impeded the parents’ right to participate in the decision-making process regarding the provision of a FAPE to Student by not adequately considering at any of Student’s IEP meetings whether he needed a general education preschool environment to receive FAPE.
Based on this decision, school districts should ensure that every IEP team for a preschool-aged student should discuss, as part of the discussion of placement options on the continuum, whether the student requires a general education environment in order to receive FAPE. If the Student is experiencing behavioral difficulties at home or in a private preschool setting, the IEP team should discuss and the district should possibly offer placement in a general education preschool setting, even if it is for a part-time basis (which could include state preschool, Head Start, etc.).
In addition, if the IEP team chooses to refer a Student to Head Start, the most legally defensible position would be to have a Head Start representative at the IEP team meeting when placement options are discussed if the school district does not operate preschool general education classrooms.
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The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.
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