Top questions on special needs

About 15 percent of Home School Legal Defense Association (HSLDA) member families have identified at least one of their children as having special needs. This designation means their child has some learning deficiency that prevents the child from reaching his greatest potential academically.

All states, primarily through public schools, provide education to children who have been identified with special educational needs. To assist the states in these efforts, the federal government, through the Individuals with Disabilities Education Act (IDEA), provides funding to public schools for special needs. To receive federal funding, the public school must provide a free and appropriate public education.

There are two frequent questions HSLDA receives from home-school families regarding their rights to receive special education benefits from the public school once they begin home-schooling. First, is my child entitled to receive special education services from the public school and still be home-schooled? Second, if my child has been enrolled in a public school special education program and I want to withdraw him from the special education program, can I do so?

The answer to the first question is generally “no.” The state can provide services to whatever students it chooses. The federal mandate for receiving funds, however, only applies to public and private school students. Since states generally are short of special education funds, they tend to provide services only to public and private school students.

It is true that there are several states where home-schools operate as private schools. Therefore, public schools would be obligated to provide related services to these home-schoolers. But federal funding for private school students is very limited and normally is not sufficient to meet any significant educational needs of the private school student.

The answer to the second question is “yes.” This would seem obvious, but some school districts have interpreted the federal law regarding special education incorrectly, which has resulted in some districts refusing to allow children to leave the public system. This is accomplished by mandating evaluations and holding due process hearings for students who have withdrawn from public school special education programs.

The confusion has arisen because some people read IDEA and incorrectly believe Congress has imposed a requirement that the states must have a plan to “locate, identify, and evaluate all students” who reside in the school district and who are suspected of having special education needs. This is commonly referred to as the “Child Find” provision of the law.

HSLDA successfully defended a family in Missouri recently whose school district tried to force an unwanted evaluation on them. However, it took three years and an appeal from a federal district court to the 8th Circuit Court of Appeals to prevail on behalf of the parents and the child.

Because of the frequency of this problem for families pulling their children out of public school, HSLDA has worked with the U.S. Department of Education to clarify the federal government’s position. Under a proposed rule, a public school will not be permitted to pursue an initial special needs evaluation of a privately home-schooled child without the parents’ express consent. Under the proposal, the only way parental consent could be overridden by the school district is when the child is enrolled in a public school or seeking to be enrolled in a public school and desires to receive special education services.

The ruling in the 8th Circuit Court of Appeals case, and the proposed rule change requiring parental consent for children not enrolled in public schools to be evaluated pursuant to IDEA, means it should now be well established that only home-school parents actively seeking special education benefits are required to submit their children to special education evaluations.

Specific questions regarding home-schooling and the effects of IDEA can be sent to info@hslda.org.

Michael Smith is the president of the Home School Legal Defense Association. He may be contacted at 540/338-5600; or send e-mail to media@hslda.org.