Placement Options Required for EI

NOTE: The case law summary below presents MAC’s first body of case law on the website.; Case law refers to decisions from a state or federal court that explain and apply the language of the law, thereby creating new law by establishing precedent. Subsequent summaries will address a variety of issues regarding services to disabled children, 0-5. References to Part C cover ages 0-2.

Case

ANDREW M,; DEIRDRE M., on their own behalf and on behalf of their minor sons, P.M.; R.M. v. DELAWARE COUNTY OFFICE OF MENTAL HEALTH AND MENTAL RETARDATION; Dorothy KLEIN, in her official capacity, U.S. Court of Appeals, 3rd Circuit, June 15, 2007, 48 IDELR 30.

A public agency cannot avoid liability under Part C for failure to provide services.; In addition the “natural environment” referred to in Part C as the placement is comparable to the mainstreaming provision of IDEA.; Therefore, a continuum of placement options is required for children in early intervention.; Early intervention services are to be delivered in settings that are normal and natural for nondisabled peers of the child.; Therefore services are not limited to homes only. The Court held, “The twins’ preschool is precisely the kind of natural environment contemplated by IDEA.”

Facts

R.M. and P.M. are 2-year old fraternal twins who were eligible for Early Intervention services. Both of their IFSPs stated they used PECS (Picture Exchange Communication System).; In order to have nondisabled roll models, the parents asked to have their sons placed at a school with non-developmentally delayed children.; The County refused because they did not have a contract with the site.; Ultimately the parents placed the children there unilaterally. An EI observation was done after several parent requests. It recommended 2 hour-long sessions of speech per month. A new PECS therapist was to replace the old one after the recommendation but those services were never provided. The parents filed for due process, asking the County to pay for their sons’ attendance during the summer at a PECS summer camp, and compensatory education for the denial of language services after they enrolled in the parent chosen placement.; The Hearing Officer ruled that the children had been deprived of PEC services and ordered compensatory education as well as tuition reimbursement.

The parents filed a federal claim for attorney’s fees as prevailing parties. They were awarded $15,00 that the County appealed to the Third Circuit. The 3rd Circuit held that “when an agency provides EI services but fails to provide them in the natural environment without appropriate justification, that agency violates Part C of IDEA…” Natural environments include “the home, child care centers, or other community settings.” They are “natural or normal for the child’s age peers who have no disabilities.” The parents were denied attorney’s fees because that is not available under Part C.