Homeschooling and Special Education
Homeschooling a special needs child can be a gratifying, rewarding, and successful venture. Most Massachusetts families with special needs children receive homeschool approval with little difficulty. While the question of whether schools can hold SPED children to a higher standard when approving a homeschool plan is still open in Massachusetts (it has not been addressed in a statute or court case), since a 2006 guideline by the federal DOE was put in place, AHEM has seen a reduction in inquiries from families with special needs children seeking to find ways to successfully negotiate the approval process with their school districts. This is likely a signal that the federal guideline has provided some clarity when it comes to homeschooling children identified as having special needs.

The 2006 US DOE guideline directly addresses IDEA consent override procedures, thereby eliminating some of the confusion: "…if a parent of a child who is home schooled or placed in a private school by the parent at the parent's expense, does not provide consent for an initial evaluation or a reevaluation, or the parent fails to respond to a request to provide consent, the public agency (A) may not use the consent override procedures (described elsewhere in § 300.300), and (B) is not required to consider the child eligible for services under the requirements relating to parentally-placed private school children with disabilities (§§ 300.132 through 300.144)."¹

Shortly after the regulation was put into place, AHEM contacted the Special Education office of the Massachusetts Department of Education to determine what these federal regulations mean for Massachusetts homeschoolers with special needs. The news is good.

We wrote regarding the federal regulations for IDEA-2004 (cited below) as they apply to a child with an IEP in public school whose parents withdraw him or her to homeschool, and give express refusal to consent to a reevaluation, and waive IDEA rights in writing. We asked if the regulations, coupled with the circumstances outlined above, release the school from having to provide such a child with a free appropriate public education.

The DOE confirmed that if the parent of a child who is homeschooled does not provide consent for an initial evaluation or a reevaluation, or the parent fails to respond to a request to provide consent, the public agency may not use the consent override procedures. However, because Massachusetts is an entitlement state and the state regulations supercede the federal regulation, the local public schools must provide/make services available to a homeschooled student if the parents do sign onto an IEP. Put another way, if a homeschooler rejects services, the school is under no obligation to use consent override procedures, but if a homeschooler wants services, the school must provide them. Eligible Massachusetts homeschoolers still have right to special services through the public schools if they desire them.

Since it has now been clarified that IDEA does not require school districts to provide FAPE to children who are homeschooled, presumably school districts will no longer need to worry about liability issues concerning their obligation to provide special services to homeschoolers who have waived their right to publicly-funded services. Hopefully this will make approval of homeschooling plans for special needs students a clearer and smoother process for all parties involved. Indeed, AHEM's data collection since this regulation was published shows that homeschooling parents who do not give consent for an evaluation or reevaluation of their child/ren are less likely to run into interference from the schools.

Sometimes homeschooling parents of special needs children will still have to deal with challenges from school officials. Bringing the above-mentioned regulation (which appears in its entirety below) to the attention of the officials can help. If parents of special needs children who choose to homeschool want to continue to receive services to which they are entitled by law, the school will still be obligated to ensure that the child receives a Free Appropriate Public Education as outlined by SPED law.

Glossary
IDEA (Individuals with Disabilities Education Act): The federal special education law,… is located in the United States Code at 20 U.S.C. § 1400. In 2004, Congress reauthorized the IDEA and the amended statute is popularly referred to as "IDEA-2004." The implementing regulations for IDEA will be found in the Code of Federal Regulations (CFR) at Chapter 34, Section 300. IDEA is grounded on six basic principles [among them FAPE and IEP].

FAPE: Under federal law, students who are eligible for special education are entitled to a Free Appropriate Public Education… The FAPE standard for special education services requires the school district to provide instruction tailored to the individual student's needs, with sufficient support services to assist the student to make meaningful educational progress. Any special education services identified for the student are required to be provided at public expense with no cost to the parent…

IEP (Individual Education Program): a written document developed by a Team [which includes parental participation] that describes the programs and services that are needed and that will be provided when a student has been determined to be eligible for special education. [Parental] permission will always be requested before any IEP services are provided.

October 13, 2006: US DOE clarifies IDEA consent override procedures
The United States Department of Education published new federal regulations for the reauthorized Individuals with Disabilities Education Act (IDEA-2004). These final regulations took effect on October 13, 2006.

The United States Department of Education added a new paragraph (§ 300.300(d)(4)) to their regulations "to provide that if a parent of a child who is home schooled or placed in a private school by the parent at the parent's expense, does not provide consent for an initial evaluation or a reevaluation, or the parent fails to respond to a request to provide consent, the public agency (A) may not use the consent override procedures (described elsewhere in § 300.300), and (B) is not required to consider the child eligible for services under the requirements relating to parentally-placed private school children with disabilities (§§ 300.132 through 300.144)."²

The Office of Special Education and Rehabilitative Services provided the following discussion:

"New § 300.300(e)(4) clarifies that parents who enroll their children in private elementary schools and secondary schools have the option of not participating in an LEA's child find activities required under § 300.131. As noted in the Analysis of Comments and Changes section for subpart D, once parents opt out of the public schools, States and school districts do not have the same interest in requiring parents to agree to the evaluation of their children as they do for children enrolled in public schools, in light of the public agencies' obligation to educate public school children with disabilities. We further indicate in the discussion of subpart D that we have added new § 300.300(e)(4) (proposed § 300.300(d)) to clarify that if the parent of a child who is home schooled or placed in a private school by the child's parent at the parent's own expense does not provide consent for an initial evaluation or reevaluation, the public agency may not use the due process procedures in section 615 of the Act and the public agency is not required to consider the child for equitable services."³

The logic of the decision was further discussed in the Analysis of Comments and Changes section for subpart D, cited above:

"There are compelling policy reasons why the Act's consent override procedures should be limited to children who are enrolled, or who are seeking to enroll, in public school. Because the school district has an ongoing obligation to educate a public school child it suspects has a disability, it is reasonable for a school district to provide the parents with as much information as possible about their child's educational needs in order to encourage them to agree to the provision of special education services to meet those needs, even though the parent is free, ultimately, to reject those services. The school district is accountable for the educational achievement of all of its children, regardless of whether parents refuse the provision of educationally appropriate services. In addition, children who do not receive appropriate educational services may develop behavioral problems that have a negative impact on the learning environment for other children.

By contrast, once parents opt out of the public school system, States and school districts do not have the same interest in requiring parents to agree to the evaluation of their children. In such cases, it would be overly intrusive for the school district to insist on an evaluation over a parent's objection. The Act gives school districts no regulatory authority over private schools. Moreover, the Act does not require school districts to provide FAPE to children who are home schooled or enrolled in private schools by their parents."⁴

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¹ United States. Department of Education, Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities; Final Rule. 34 CFR Parts 300 and 301, RIN 1820-AB57, Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations, p. 46543. 9 Dec. 2006 <http://idea.ed.gov/download/finalregulations.pdf>
² Ibid.
³ Ibid, p. 46592.
⁴Ibid, p. 46635.

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The information on this website does not constitute legal advice; it is provided for informational purposes only.