Federal Court Vacates SRO home schooling decision

H.C. v. Colton-Pierrepont: This is a case of particular interest to home schoolers in New York State. The case was originally a parent challenge to the district’s recommended reduction in frequency of related services. The parent prevailed at hearing. On appeal, the district prevailed, but more importantly, the SRO advised that districts were not permitted to provide special education services to home schooled kids. This issue had not been raised, briefed or argued by either of the parties. Federal District Court Judge Hurd vacated the SRO decision. Although he decided the case on other grounds, he criticized the SRO for “depriv[ing] both parties of due process because he failed to inform them that he intended to rule on the rights of home-schooled students to receive special education services – an issue that neither party raised nor briefed.” Judge Hurd noted that “[t]he SRO also exceeded the scope of his authority because “[t]he decision of the State Review Officer shall be based solely upon the record before the State Review Officer . . . .” N.Y. Comp. Codes R. & Regs. tit. 8, § 279.12(a) (2008). Neither party mentioned or submitted evidence concerning the ability of home-schooled students to receive special education services.“

On August 25, 2008, the district filed a notice of appeal to the 2nd Circuit.

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.

EXTENDED SCHOOL YEAR PROGRAMS AND SERVICES in New York State

See here for state ed Q and A document on extended school year(i.e. summer) programs.

Placement vs. location of services

OSEP addresses this issue in Letter to Trigg(11/30/2007) noting that historically “placement” is the “points along the continuum of placement options available for a child with a disability” and "location" is “the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services.”

Public agencies are strongly encouraged to place a child with a disability in the school and classroom the child would attend if the child did not have a disability. However, a public agency may have two or more equally appropriate locations that meet the child's special education and related services needs and school administrators should have the flexibility to assign the child to a particular school or classroom, provided that determination is consistent with the decision of the group determining placement.

If a child's IEP requires services that are not available at the school closest to the child's home, the child may be placed in another school that can offer the services that are included in the IEP and necessary for the child to receive a free appropriate public education. If the child is placed in a school that is not the school closest to the child's home, transportation, if needed for the child to benefit from special education, must be provided as a related service at no cost to the parent, to the location where the IEP services will be provided.