1/9/2017

Dear Colleague:

We are writing to reaffirm the position of the U.S. Department of Education (ED or Department) 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. Over the last few years, States and communities have made progress in expanding early learning opportunities for young children, with all but four States investing in free public preschool programs.1 The Federal government, while aligning with the movement of States, has led several efforts to increase access to and the quality of early childhood programs, such as the Preschool Development Grants and expansion of Head Start. States have focused on improving the quality of early learning programs, including the development of early learning program standards and incorporating these into Quality Rating and Improvement Systems (QRIS).2

In September 2015, ED and the U.S. Department of Health and Human Services (HHS) issued a policy statement on promoting inclusion in early childhood programs to set a vision on this issue and provide recommendations to States, local educational agencies (LEAs), schools, and public and private early childhood programs.3 Despite the expansion of early childhood programs, there has not yet been a proportionate expansion of inclusive early learning opportunities for young children with disabilities. Given this concern and the ED-HHS policy statement on early childhood inclusion, the Office of Special Education Programs (OSEP) is updating the February 29, 2012, Dear Colleague Letter (DCL) to reaffirm our commitment to inclusive preschool education programs for children with disabilities and to reiterate that the least restrictive environment (LRE) requirements in section 612(a)(5) of the Individuals with Disabilities Education Act (IDEA or Act) are fully applicable to the placement of preschool children with disabilities.4 This DCL supersedes the 2012 OSEP DCL and includes additional information on the reporting of educational environments data for preschool children with disabilities and the use of IDEA Part B funds to provide special education and related services to preschool children with disabilities.

The LRE requirements have existed since passage of the Education for all Handicapped Children Act (EHA) in 1975 and are a fundamental element of our nation’s policy for educating students with disabilities (the Education of the Handicapped Act was renamed the IDEA in 1990). These requirements reflect the IDEA’s strong preference for educating students with disabilities in regular classes with appropriate aids and supports. Under section 612(a)(5) of the IDEA, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, must be educated with children who are not disabled. Further, special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

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1 Walter N. Ridley Lecture: Pre-Kindergarten Access and Quality are Essential for Children’s Growth and Development (November 2, 2016), available at: http://www.ed.gov/news/speeches/walter-n-ridley-lecture-pre-kindergarten-access-and-quality-are-essential-childrens-growth-and-development. For more detailed but less recent information on State investments in public preschool see: Barnett, W.S., Friedman-Krauss, A., Gomez, R.E., Squires, J.H., Clarke Brown, K., Weisenfeld, G.G., & Horowitz, M. (2016). The state of preschool 2015: State preschool yearbook. New Brunswick, NJ: National Institute for Early Education Research.

2 QRIS statewide systems are implemented in over half of the States and others are developing such systems. ED and the of Department of Health and Human Services have supported States in further developing such systems under Race to the Top-Early Learning Challenge and the Child Care Development Fund. For more information see: https://qrisguide.acf.hhs.gov/index.cfm?do=qrisabout.

3 See U.S. Departments of Education and Health and Human Services Policy Letter on the Inclusion of Children with Disabilities in Early Childhood Programs (September 14, 2015), available at: http://www2.ed.gov/policy/speced/guid/earlylearning/joint-statement-full-text.pdf.

4 Although not discussed here, other Federal laws apply to preschool-aged children with disabilities as well. These laws include section 504 of the Rehabilitation Act of 1973, as amended (Section 504) and Title II of the Americans with Disabilities Act of 1990, as amended (ADA). The Department’s Office for Civil Rights (OCR) enforces Section 504 and pursuant to a delegation by the Attorney General of the United States, OCR shares (with the U.S. Department of Justice and HHS) in the enforcement of Title II of the ADA in the education context. HHS has Title II jurisdiction over public preschools. 35 CFR §35.190(b)(3). Section 504 prohibits discrimination on the basis of disability in programs or activities that receive Federal financial assistance from the Department. 29 U.S.C. § 794, 34 CFR §104.4(a). Section 104.38 of the Department’s Section 504 regulations specify that recipients of Federal financial assistance from the Department that provide preschool education may not on the basis of disability exclude qualified persons with disabilities, and must take into account the needs of these persons in determining the aid, benefits, or services to be provided. 34 CFR §104.38. Title II prohibits discrimination on the basis of disability by public entities, including public schools, regardless of whether they receive Federal financial assistance. 42 U.S.C. §§ 12131-12134, 28 CFR Part 35 (Title II). Additionally, as applicable, entities providing preschool education must comply with the nondiscrimination requirements set forth in Title III of the ADA that prohibit discrimination on the basis of disability in places of public accommodation, including businesses and nonprofit agencies that serve the public. The U.S. Department of Justice enforces Title III of the ADA. 42 U.S.C. §§ 12181-12189, 28 CFR Part 36 (Title III).

Source: Office of Special Education Programs, U.S. Department of Education

Available at: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/preschool-lre-dcl-1-10-17.pdf