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Federal Court Clarifies School Districts’ Obligation to Pay for Early Childhood Education in Private Preschools

By Mary S. Gerbig

Under the Individuals with Disabilities Education Act (IDEA), school districts are required to provide free appropriate public education (FAPE) in the least restrictive environment (LRE) to students with eligible disabilities from ages 3 to 21. For preschool age students, LRE is also considered in the context of “natural environments” relative to the most appropriate environment for the delivery of services. The concept of natural environments has been incorporated into the IDEA for many years. However, the Federal District Court recently provided guidance to school districts relative to providing services in “natural environments” and their obligation to fund private preschool or day care placements.

In Madison School District v. P.R., 08-CV-385-bbc (2/25/09), the student’s IEP contained goals and educational services that were implemented in a preschool setting. The District and the parent agreed that the services in the IEP were appropriate for the student and that the private preschool was an appropriate location for him to receive his special education services. Both the parent and the school district agreed that the private preschool was appropriate because it was the student’s “natural environment” (where he was expected to spend his days), and it permitted interaction with non-disabled peers in satisfaction of both the LRE requirement and specific IEP goals.

However, the District argued it was not responsible for payment of the student’s tuition at the private childcare program (a program for typically-developing preschool aged-children), because it was not required to pay the cost of the student’s childcare in order to provide him with a free appropriate public education. The student was in the daycare approximately 9 hours per day, five days per week, more than the required time for implementing the IEP goals.

The U.S. District Court for the Western District of Wisconsin ruled that the school district is required under IDEA to provide disabled preschool-age students an appropriate preschool education at no charge. The Court concluded that the District, not the parent, is responsible for the cost of the educational services and placement because it receives federal funds to assist with the education of children with disabilities. The Court affirmed that the school district was required to pay the portion of the student’s tuition that would cover the time when the student was receiving special education in the preschool setting. The Court, however, rejected argument from the parent’s legal counsel that the school district was responsible for all of the preschool tuition.

In reaching this conclusion, the Court affirmed the administrative law judge’s decision. In Madison Metropolitan School District, LEA-08-004 (ALJ Pederson, 2007), the administrative law judge previously found that the school district violated the IDEA when it failed to pay the tuition costs for the student’s part-time attendance at the private preschool while providing special education services at the preschool. Both the administrative law judge and the Court focused on Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46589 (August 14, 2006). The Comments to the IDEA Regulations provide the following instruction:

Public agencies that do not have an inclusive public preschool that can provide all the appropriate services and supports must explore alternative methods to ensure that the LRE requirements are met. Examples of such alternative methods might include placement options in private preschool programs or other community-based settings. Paying for the placement of qualified preschool children with disabilities in a private preschool with children without disabilities is one, but not the only, option available to public agencies to meet the LRE requirements. We believe the regulations should allow public agencies to choose an appropriate option to meet the LRE requirements. However, if a public agency determines that placement in a private preschool program is necessary as a means of providing special education and related services to a child with a disability, the program must be at no cost to the parent of the child.

The Court addressed the parent’s role in selecting the “natural environment” for delivery of educational services and concluded that it is appropriate for school districts to give consideration to parents’ wishes about their child’s “natural environment” in terms of the location where educational services will be provided. The Court confirmed that although parents are participating members of IEP teams who are entrusted to make placement determinations, school districts have the ultimate responsibility of ensuring that an IEP team, not just the parents, makes the placement determination, including determining the appropriate specific location where the services will be provided.

The Court reiterated that school district IEP teams must consider a continuum of services when selecting and making an offer of placement for preschool education services. That continuum should include private preschools or other community-based settings. Although the School District in this case argued that the student’s IEP could be implemented in other settings, including community play groups, the Court found that the record did not support a finding that the IEP team considered other community-based options for the student or offered other specific placement locations. Rather, the Court found that the school district allowed the parents to determine the location, but did not have any expectation that it would be responsible for payment of any related tuition costs.

Implications Of The Madison Metropolitan School District Decision

  1. School districts can be obligated to pay private school tuition if the IEP identifies the private school as the location designated to implement the IEP goals or services in the LRE with nondisabled peers.
  2. School district IEP teams have the option to explore community-based placements, other than the private child care or preschool options selected by parents, as the “natural environments” in the LRE to deliver services.
  3. School districts are not required to rely only on parent selection of a pre-school program as the location to implement IEP services in the natural environment with nondisabled peers.
  4. The IEP decisions regarding the location where services will be provided can include a discussion of lower-cost community based options.
  5. The regulations are clear that school districts may choose an appropriate option to meet the LRE requirements. In some circumstances that may mean that the school district may send itinerant special education services to preschool students at a daycare or a private preschool without having to pay for the student’s enrollment at the daycare or preschool. However, if non-disabled peer interaction is a necessary component of a student’s IEP, the school district must offer some option to satisfy that component at no cost to the parent.

In light of this recent decision, we recommend that school districts review their practices related to determining the IEP services and “natural environment” placements for preschool age students. If you have questions regarding this article or special education services, contact Mary S. Gerbig or your Davis & Kuelthau s.c. attorney.