Meeting of the Board of Regents | January 2008

SUMMARY

Issue for Discussion

Provision of special education services to students with disabilities who are instructed at home by their parents (home schooled).

Reason(s) for Consideration

To discuss a recent ruling of the State Review Office (SRO) which determined that the provision of individualized education program (IEP) services by a public school district to students with disabilities who are home schooled students educated pursuant to section 100.10 of the Regulations of the Commissioner of Education is not authorized under the Individuals with Disabilities Education Act (IDEA) or New York State law.

Proposed Handling

              This information will be shared and discussed with the Committee in January.

Procedural History

In June 2007, the SRO issued a decision (Application of a Child with a Disability, SRO Appeal No. 07-043) which determined that the provision of IEP services by a public school district to students with disabilities who are home schooled students educated pursuant to section 100.10 of the Regulations of the Commissioner of Education is not authorized under IDEA or NYS law.  The SRO’s decision is currently part of an appeal filed by the parents against the school district in Federal District Court.

Background Information

IDEA requires that home schooled students receive special education services to the same extent that other parentally placed private school students receive services only if the home schools are recognized under State law as private elementary or secondary schools.  Home schools are not recognized in New York as private elementary or secondary schools pursuant to section 3602-c of Education Law.  Therefore, in accordance with SRO Appeal No. 07-043, the provision of IEP services by a public school district to students with disabilities who are home schooled is not authorized under IDEA. The SRO also considered decisions of the Commissioner of Education that home schooled students are not enrolled in nonpublic schools for purposes of section 3602-c of Education Law (Appeal of Ando 45 Ed. Dept. Rep. 523, Commissioner’s Decision No. 15,403 - finding that a home schooled student may not receive career education services though a board of cooperative educational services (BOCES); Appeal of Pope, 40 id. 473, Commissioner’s Decision No. 14,530 - finding that a home schooled student may not participate in driver education classes that are offered to students enrolled in the public school).

Although the State does not recognize home schools as private schools, child find requirements still apply to students with disabilities, and State and local educational agencies must ensure that, if parental consent to evaluation is obtained, these students are evaluated and an IEP is developed so that a free appropriate public education (FAPE) is available to these students if their parents choose to enroll them in a public school.  However, the parents of a home schooled student may refuse consent to an initial evaluation and, if they do so or if they do not respond to a request for such consent, the school district may not seek to compel the parent to have their child evaluated to determine eligibility for special education services. (DurkeeV. Livonia Central School District, 487 F. Supp. 313 (W.D.N.Y. 2007); 34 C.F.R. §300.300(d)(4)(1)) 

Previous guidance issued by the Department directed school districts to provide special education services in accordance with a home schooled student’s IEP as requested by the student’s parent.  This guidance was issued at a time when IDEA was ambiguous on this issue (i.e., prior to the reauthorization of IDEA in 2004). Under current federal law, a school district is only required to provide services to home schooled students with disabilities if State law either treats home schooled students as public or private school students. Therefore, absent State law authorizing provision of special education services to this population, use of federal and State funds for this purpose would not be allowable. In NYS, based on data from 2006, while there are approximately 630 students who have been identified as students with disabilities statewide who are home schooled, we estimate that approximately 450 of these students currently are receiving special education services from their school districts. 

Recommendation

              The Department will be advising the field that the provision of IEP services by a public school district to students with disabilities who are home schooled students educated pursuant to section 100.10 of the Regulations of the Commissioner of Education is not authorized under IDEA or NYS law. This communication will recommend that, for home schooled students currently receiving special education services from the public school district, the Committee on Special Education reconvene to determine if any amendments to the IEP are needed to ensure that FAPE is provided upon enrollment of the student in the public schools.  Districts will be also advised to notify the parents of the need to review and revise, as appropriate, the child’s individualized home instruction plan (IHIP) to address their child’s special education needs.  The IHIP would then be reviewed and approved by the school superintendent.  As home instruction is, by its very nature, individualized and flexible, parents may provide for the special education needs of their children in different ways than those contained in the IEP. 

Timetable for Implementation

              A memorandum on the provision of special education services to students with disabilities who are home schooled will be disseminated to the field in January 2008.