NY State Ed issues memo explaining new law authorizing provision of special ed services to home schooled kids

The State Education Department (SED) has issued a memo notifying parents and school districts of the new law authorizing special ed services for home-educated children.  The memo explains the new law and highlights that parents seeking special ed services must have an approved IHIP and must submit a request in writing to the board of education by August 6, 2008 for the '08-'09 school year, and by June 1 in future years. The memo further addresses location of services--i.e. districts are empowered to determine the location of services and that can include provision in the home. There is no guidance as to how that determination should be made. The location of services issue has been hotly contested for the better part of two decades, but it should be noted that current 3602-c case law addressing this issue dictates that services be provided on site at a private school if that is necessary for the child to receive an appropriate education. There is no reason to believe that home schoolers will be treated by the SRO and courts any differently than private schoolers on this issue.

Parents of home schoolers who disagree with the CSE’s recommendations are entitled to due process and thus, can request an impartial hearing. The memo further states that “special education services must be provided to home-schooled students on an equitable basis as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools within the district.” It remains to be seen how this will be interpreted, but on its face, I’d say that it means that there should be no reduction of services to a home schooler as compared to a child attending the public schools or a child attending a private school and receiving services pursuant to 3602-c.

Enforcement of hearing officer orders: SRO says go to federal court, federal court says go away

The NYS SRO has repeatedly stated that school district failure to implement a hearing officer’s order can only be enforced via complaint to state ed or in federal court. For example, in SRO 06-130, SRO Paul Kelly stated that:

The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.151-300.153 [formerly 300.660-300.662]; 8 NYCRR 200.5[l]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dept., 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004); see generally A.R. ex. rel. R.V. v. New York City Dept. of Educ., 407 F.3d 65, 78 n.13 [2d Cir. 2005] [impartial hearing officers have no enforcement mechanism of their own]; Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-007; Application of a Child Suspected of Having a Disability, Appeal No. 03-071; Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4).  The impartial hearing officer therefore properly dismissed petitioners' due process complaint notice.

The federal courts are not so amenable to such complaints, however. A number of courts have held that the IDEA does not grant a district court jurisdiction to enforce a hearing officer's order because a party who prevails at a due process hearing is not aggrieved by the decision. Rather, the party is aggrieved by the later failure to implement the decision and that does not give rise to federal court jurisdiction(see e.g. Brennan v. Reg'l Sch. Dist. No. Bd. of Educ., 531 F.Supp.2d 245, 261 (D.Conn.2008)). For a more complete discussion of the issue, see James S. ex rel. Thelma S. v. School Dist. of Philadelphia--- F.Supp.2d ----, E.D.Pa.,2008.