Information Bulletin #2 - IDEA Child Find changes HR 2732 - SB1562 10-28-2003

 

 

Did you know that: Under IDEA (Individuals with Disabilities Education Act), 34 C.F.R. 300.505, parents already do have the right to refuse consent for evaluations and the right to refuse placement of a child. There is no need for any change in IDEA to protect homeschoolers.

 

Until now, IDEA has been interpreted as applying only to children enrolled in public and private schools. It was the official position of the federal government that public school officials were not required to provide special education to children who are homeschooled. If a particular school was attempting to force parents to have a homeschooled child evaluated, quite possibly it was because the homeschool in that particular state was considered a "private school" under state law. The answer to a problem such as this is not to add more to a federal law, but to amend the state law to eliminate the necessity of considering a homeschool as a "private school" in the first place. Reduction of government regulation is far superior to an increased amount of regulation, even if it is meant to "clarify" other regulations.

 

A school district can bring the issue before a due process hearing officer. Anytime an issue is brought before an administrative officer or a judicial officer, the possibility exists for an interpretation of the law that works against the interest of a homeschooling parent. People should be made aware that in fact it is the right of parents to refuse evaluations, and that even homeschooling parents have that right. A parent is a parent, whether the parent homeschools or not.

 

 

Here is what the current law says:

The original portion of Section 614(a)(1) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(a)(1) reads -

Sec. 1414. Evaluations, eligibility determinations,
individualized education programs, and educational placements

(a) Evaluations and reevaluations

(1) Initial evaluations

(A) In general

A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation, in accordance with this paragraph and subsection (b) of this section, before the initial provision of special education and related services to a child with a disability under this subchapter.

(B) Procedures

Such initial evaluation shall consist of procedures--
(i) to determine whether a child is a child with a disability (as defined in section 1401(3) of this title); and
(ii) to determine the educational needs of such child.

(C) Parental consent

(i) In general

The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 1401(3)(A) or 1401(3)(B) of this title shall obtain an informed consent from the parent of such child before the evaluation is conducted. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.

(ii) Refusal

If the parents of such child refuse consent for the evaluation, the agency may continue to pursue an evaluation by utilizing the mediation and due process procedures under section 1415 of this title, except to the extent inconsistent with State law relating to parental consent.


(2) Reevaluations

A local educational agency shall ensure that a reevaluation of each child with a disability is conducted--
(A) if conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years; and
(B) in accordance with subsections (b) and (c) of this section.

So: with regard to federal legislation that is being considered (HR2732/SB1562) the revision to IDEA is totally unnecessary!

For information on the definition of disability under IDEA and eligibility criteria for early intervention in your state, contact your state's Part C coordinator at http://www.nectac.org/contact/Ptccoord.asp

 

 

Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD imjfaron@sbcglobal.net