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IDEA and You
Federal law governs how special education services are provided to students enrolled in public schools.
Specifically, the Individuals with Disabilities Education Act (IDEA) explicitly sets out how public schools
must identify, assess and provide a Free and Appropriate Public Education (FAPE) for all children. Federal money
is passed on to states to implement these special education services, so some federal oversight exists with how states
run their programs. When you hear parents talk about Individual Education Plans (IEPs), IDEA is the law that
mandates how and what special ed services can be included in IEPs.
IDEA was reauthorized in 2004 by Congress. This is the current document you
want to be aware of, as it made important changes in identification and service delivery. Despite references made on other
homeschool sites, there is no IDEA 2000. IDEA 1997 was the last version, however it is now outdated, in terms of governing
rules.
Homeschoolers are not explicitly identified in IDEA. However, public schools are required to provide Child Find services
to all students, including homeschoolers. Once a child has been identified as qualifying for special education services,
different criteria are applied as to who receives services. Local school boards are required to count the number of non-
public school students (including those attending religous schools) eligible for special education services and apply that
number to a formula to determine its set aside funds.
No non-public school student is automatically entitled to free special education services from their school system
once they have been identified through Child Find. Local school boards, however, are obligated to meet with
"appropriate representatives" of "parentally-placed private school children with disabilities". It is at this meeting that
decisions are made as to who will receive services, what services will be provided, as well as how and where the services will
be provided. School boards are required to give appropriate representatives an opportunity to comment on each matter up
for discussion. School boards, however, do have the final say on which non-public school children will receive special
education services through public funding.
In lieu of direct services, school boards have the option of providing consultation, equipment and materials, and
teacher training for non-public school teachers and non-public school personnel.
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Maryland Homeschoolers and IDEA
While some local school boards have chosen to offer limited special education services, primarily speech-language services,
to homeschoolers, the Maryland State Department of Education's informal policy is to discourage the administration of services
to homeschool families until such time the family chooses to enroll their child in public school. MSDE, however, does
encourage all families to contact their local school system for an evaluation of services.
Maryland's Attorney General's Office has issued two statements on this matter. The first is
a 2000 Memo to the Board of Education
that clarifies the state's position on special education services to homeschoolers. The second is
a letter addressed to Senator Brochin,
dated 2006, that confirms the 2000 memo and provides a lengthy case analysis behind the rationale.
The AG's memo references a May 2000 memo from Kenneth R. Warlick,
Director of the Federal OSEP. In this memo, Mr. Warlick states "[t]he Department believes that the right of parents to
choose where their children should be educated, whether at public or private school, is extremely important."
This OSEP memo goes on to clarify the distinction in rights for children whose parents choose a private school education
versus children who attend public school. The Q/A section, question #44 in particular, addresses OSEP's interpretation
of homeschooler's eligibility for special education services under IDEA.
The problem for homeschoolers in Maryland is that a homeschool child is NOT legally considered a private school, nor a non-public school
student; thereby creating an undefined category of students. However, as the AG's Chief Counsel points out in his
2006 letter, while "neither IDEA nor the State education law requires that a local school system provide speech therapy
services to a home-schooled sutdent ... neither do they bar the school system from providing such services". Unfortunately,
enough court cases across the country have upheld that when a state fails to define a homeschool student as a private
school student, then the state does not have to provide services as defined by IDEA.
Getting the State to Pay for Private School for Your Special Needs Child
While IDEA does make provisions for when a State must pay the tuition for a private school education for a special needs
child, it is not an easy process.
Before any state will willingly pay private school tuition, a child must first be enrolled in a public school with an IEP in
place. The child must be enrolled long enough, at the very least one year, for the parents to be able to document that the school
is not able to meet their child's special education needs. At the end of at least a one year period, the parents can begin a
due process hearing which will take them before an Administrative Law Judge where their lawyer will need to demonstrate that the
school has failed to meet federal IDEA requirements for a FAPE.
If the judge sides with the family, then the child can be
enrolled in a special school and the state will bear the burden of the cost. If, however, the judge determines that the family
began the due process hearing without first exhausting all possible accomodations, the family may be ordered to pay the school
board's legal costs.
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