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The Legal Necessity for Residential Schools Serving Deaf, Blind, and Multi-Handicapped Sensory-Impaired Children Robert Silverstein D; kuring the hearings held prior to the passage of the Education for AU Handicapped Children Act of 1975 (RL. 94-142)1, witnesses testified about the inappropriate treatment handicapped children were being subjected to by public agencies. Problems identified by the witnesses included: total exclusion, unnecessary isolation and segregation, inappropriate classification , receipt of inadequate services, unwillingness to involve parents in the decision-making process, and the lack of procedures for resolving disputes.2 P.L. 94-142, which was signed into law on November 29, 1975, includes provisions that address each of these concerns .3 Regulations implementing the legislation were published in the Federal Register on August 23, 1977.4 It is now almost 9 years since the regulations became effective. During this period, educators, parents, lawyers, and policymakers have debated, analyzed, and litigated the meaning and application of the requirements in P.L. 94-142. The purpose of this paper is to survey and analyze how courts and impartial hearing examiners have addressed the question of when, if ever, a residential placement (including a placement in a state school for the deaf or blind) constitutes the appropriate placement for a blind, deaf, or multi-handicapped sensory-impaired child. Based on a survey of legal precedent, three legal and policy conclusions are evident. First, in making .educational programming decisions under P.L. 94-142, courts define the term education broadly to include not only the teaching of academic and vocational skills, but also such nonacademic skills as, self-help, social, interpersonal, independent living, orientation and mobility training, and play and recreation. Second, the components of an appropriate educational program for a sensory-impaired child must be determined before addressing the legal requirement that a handicapped child be educated in the least restrictive environment. The components include special education and related services designed to meet the educational needs of the child, that is, academic and vocational, as well as self-help, social, interno U.S.C. 1401 et seq. 2See: S. Rept. No 94-168, 94th Cong., 1st Sess (1975) and H.R. Rept. No. 94-332, 94th Cong., 1st. Sess (1975). 3Section 504 of the Rehabilitation Act of 1973 (20 U.S.C. 794) obligates recipients of federal financial assistance to provide elementary and secondary students with a free appropriate public education. Regulations implementing Section 504 are found in 34 CFR Part 104. The requirements in the Section 504 regulation are "virtually identical" to those found in P.L. 94-142. 42 Fed. Reg. 42475 (August 23,1977). 442 Fed. Reg. 42474 (August 23,1977). The effective date of the regulations was October 1,1977. personal, independent living, orientation and mobility training , and play and recreation. Where two or more programs provide the necessary components of an appropriate program for a sensory-impaired child, the public agency must select the program that is least restrictive. To the extent only one type of program is appropriate , that program is the least restrictive environment. Third, for some sensory-impaired children, it is impossible to provide appropriate educational programming in a day program (6 hours of instruction per day). These children are entitled under the law to a residential placement to meet their needs. To the extent these children are legally entitled to a residential placement, it is imperative that state schools for the deaf and blind continue to exist. In other words, for some sensory-impaired children, the existence of residential schools providing specially designed programs is required by federal law. Courts and hearing examiners have concluded that residential programming is required where: (a) more than 6 hours of instruction are necessary to meet the child's educational needs; (b) the severity of the child's language deficiency precludes meaningful benefit from peer group learning and interaction with nonhandicapped children in the mainstreamed setting; and (c) social and emotional adjustment are poor in the mainstreamed setting. Court and hearing examiners have concluded that residential placements are appropriate for sensory-impaired children of average or above-average intelligence as well as for sensory-impaired children who have severe intellectual dysfunction. This article is organized into...


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