Homeschooling and Special Education
Homeschooling a special needs child can be a gratifying, rewarding, and successful venture. While many families with special needs children homeschool in Massachusetts and receive approval with relatively little difficulty, sometimes the approval process can present greater challenges for special needs families.

The question of whether schools can hold special needs children to a higher standard when approving a homeschool plan is still open. It has not been addressed in a statute or court case. This is one reason that parents of special needs children often find themselves in murky waters when seeking approval to homeschool. While some officials argue that the "equal in thoroughness and efficiency" standard means that homeschooling parents with special needs children must provide Free Appropriate Public Education (FAPE), others feel that once an Individual Education Plan (IEP) is rejected, FAPE no longer applies.

If your child has never been to school, the path of least resistance is to not have him tested or labeled as special needs by the public school, and submit a home education plan according to the Charles guidelines. If your child already has an IEP in place, getting approval to homeschool can sometimes be more challenging.

Some parents who decide to exercise their right to reject an IEP and choose to homeschool feel they do not have to address the IEP in any way in their education plan since they are no longer in the school environment. The reason this assumption sometimes meets with opposition on the part of school officials is explained in the Interim Notice of Procedural Safeguards: If you refuse your consent to the IEP, "In most cases your refusal to consent will be fully honored. However, to protect the rights of your child the law requires the school district to consider the effect of your refusal on the education of your child. At any point after your child is first placed in a special education program, if a school district believes your refusal to consent would deny your child a free appropriate public education (FAPE), the school district must take steps to ensure that FAPE is provided… The school district cannot request a hearing to dispute your refusal to consent to the initial evaluation or initial placement of your child in special education."¹ In other words, if the school does not think your home education plan adequately addresses your child's special needs as outlined in the IEP, and they believe that FAPE applies to homeschools as well as public schools, they fear they will be held liable if they don't take steps to make sure that FAPE is provided.

Often, families choosing to homeschool a child who has been identified by the school as having special needs want to find a way to put the school's concerns to rest, receive approval, and go about the business of homeschooling. If parents choose to work with the school in this way, the goal is to show the school as specifically as possible that they are addressing the child's needs through homeschooling, and that they have carefully considered the recommendations of the IEP and either found a way to address them or set them aside because they don't apply to the homeschooling environment. For example, in rejecting an IEP parents can explain in their education plan that they will be providing recommended services through homeschooling (though not necessarily through the specific channels the school advises). Parents may also communicate that some programs recommended in the IEP are not applicable to homeschooling, because outside the school environment those particular special needs will not be present. For example, an IEP recommending a behavioral program for a student with ADHD may be relevant for that student to succeed in the school environment, but in the homeschooling environment, the needs of the student will change and the recommendations of the IEP would not apply.

Sometimes the choice to homeschool a special needs child comes after dissatisfaction with the services the school is providing. In these cases, the potentially contentious history between family and school can create barriers to receiving homeschool approval. The option of addressing the special needs in the homeschooling plan may provide a reasonable way for the family to get approval in such cases. Consulting with or using a special education advisor or advocate can help parents learn how to speak the school language, compile documentation, and package their plan in an optimal way. If the school requests meetings or hearings, parents need to make decisions about whether and how to attend them. SPED advocates can help in these cases, too. Advocates are many times less expensive than lawyers. While a lawyer may be required in an extreme case, there is every chance that with careful planning, thinking, and advice, parents can negotiate the potentially rocky road of the approval process themselves, with the help of a SPED advocate, and/or with guidance from experienced homeschoolers. The value of conversing with other homeschool families who've been through the process, especially in your own town, should not be underestimated, either.

There are any number of reasons that schools will choose to make a fuss about approving a homeschool plan for a special needs child, and keeping those in mind may make the process easier to navigate.

• One reason, as stated earlier, may be the potentially contentious history between the school and the family. If this is the primary reason, defusing emotional and charged interaction with reasonable, carefully thought out actions may help.

• Schools are required by law to identify special needs children and meet their needs. While parents retain the right to reject services, schools may fear that in the long run, their approval of a homeschool plan will make them somehow liable for failing to see the child's needs are met. In this case, the primary motivation of the school is to ensure that the needs are met, and keeping that in mind when creating a plan may help ease the approval process.

• If you find yourself in a serious conflict with the school, remember that the hearing process can be quite costly to already financially overburdened school systems. Sometimes an effective approach is to point out to school officials that the wisdom of expending significant funds on attorney fees and hearing costs, when the family has presented a plan that is educationally sound and will relieve the school of the burden of providing services, is questionable at best. Also, keep in mind that your local school committee, as elected officials, may be helpful in this situation.

• Parents who want to homeschool a special needs child and receive services from the school may encounter resistance. Special education costs are not fully reimbursed by the state and the special education budget cannot be cut by reducing services. However, it can be cut by providing needed services more efficiently. Parents of children with special education needs may benefit by asking themselves how having agreed upon services delivered by the school can be cost efficient when a child is homeschooled. Parents may also need to be flexible about when and where the services are provided if the school is delivering them. In cases where the SPED services required in a town exceed the SPED budget, the school must cut other services or implement layoffs in order to provide the SPED services. This can cause quite a bit of resentment all around. Parents who are simply fighting for services their child is entitled to receive are not at fault, of course. But understanding the issues at stake can help the efforts of parents who want to homeschool but also want their child to receive services.

• It's also important to remember that in cases where services are provided, the school officials may feel they have the right to exercise more control over the child's education than the parent wants to grant them.

Homeschooling and special needs can go hand in hand. There are many success stories of special needs children thriving in a homeschooling environment. If parents feel homeschooling is the best choice for their child, they should not be discouraged by horror stories about how school systems in Massachusetts have handled requests to homeschool special needs children. Navigating the approval process with these special circumstances may or may not be more challenging than undergoing it without having your child identified as having special needs. Parents of children with special needs enrolled in school can also have difficulties with schools regarding special education and homeschoolers are probably not being singled out. Parents can improve their chances of successful interaction with the schools by making educated, well thought out choices and by trying to determine if there is any way both parties can "win" in a SPED dispute between homeschool parents and the school administration. If help is needed, there are many resources available (see below).

Glossary²
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].

Chapter 766: The state special education law, popularly known as "Chapter 766" after the session law number under which it was passed in 1972, is contained in the Massachusetts General Laws (MGL) at Chapter 71B. The regulations implementing the statute are found in the Code of Massachusetts Regulations (CMR) at 603 CMR, Section 28.00.

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.

Resources
(compiled by Jane Kontoff)
• www.spanmass.org Special Needs Advocacy Network
• www.masspac.org Massachusetts Parent Advisory Councils
• www.fcsn.org Federation for Children with Special Needs
• www.concordspedpac.org Concord MA Parent Advisory Council
• www.ldonline.org Learning Disabilities Online
• www.uniquelygifted.org Uniquely Gifted: Resources for Gifted Children with Special Needs

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¹ Massachusetts Department of Education, Interim Notice of Procedural Safeguards, August 2005, p. 4 <http://www.doe.mass.edu/sped/prb/nps.doc>
² Ibid, p. 1-2.

The United States Department of Education has 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)."¹

The Office of Special Education and Rehabilitative Services provides 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."²

The logic of this decision is 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."³

Clarification of IDEA and Massachusetts Homeschoolers
Recently, we have been able to confirm with the Special Education office of the Massachusetts Department of Education what these federal regulations mean for Massachusetts homeschoolers with special needs, and the news is good.

We wrote regarding the federal regulations for IDEA-2004 (cited above) 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.

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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, p. 46592
³ Ibid, p. 46635

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