Bulletin #49 HONDA Re-Introduced - Section 5 04/26/2006

This is the fourth of a series of bulletins NHELD is preparing detailing, section by section, the exact language of HR3753/S1691, the “Home School Non-Discrimination Act of 2005”, or “HoNDA”, as proposed in the House and Senate. The bulletins will provide the exact language from the bill, along with the exact text of the existing federal law that the bill proposes to amend. The bulletins will also include NHELD’s comments on those provisions. The first bulletin was Bulletin #44 - HONDA Re-Introduced Examining Sections 1, 2 and 3 issued 10/17/2005, and the second bulletin #47 was HONDA Re-Introduced examining Section 4(a) issued 01/23/06 and the third bulletin #48 was Section 49(b) issued 1/24/2005.

NHELD believes this entire bill should be killed and all previous federal laws already adopted having anything to do with the rights of parents to instruct their children at home should be repealed.

NHELD believes that there can be no compromises on any federal legislation regarding the rights of parents to instruct their children at home.

NHELD believes all federal legislation regarding the rights of parents to instruct their children at home, no matter how beneficial the legislation appears, is wholly unconstitutional, in violation of the Tenth Amendment to the United States Constitution and must be defeated and/or repealed immediately.

Do you know what Section 5 of the HONDA bill does? We’ll go through it and let you know why NHELD supports the adoption of Section 5 of HoNDA as it is currently written and proposed. It should be proposed as separate legislation.

Since NHELD announced its opposition to the original version of this portion of HoNDA, Congress reauthorized the Individuals with Disabilities Education Act, (IDEA), rewrote major portions of that law, and re-enacted it with a new name as it is now known as the Individuals with Disabilities Education Improvement Act of 2004. Most of its provisions took effect as of July 1, 2005.

The Individuals with Disabilities Education Improvement Act of 2004 may be found at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_public_laws&docid=f:publ446.108

And also http://www.ed.gov/policy/speced/guid/idea/idea2004.html

Under the old IDEA law, public school districts were obligated under the “Child Find” section to seek out children who might have disabilities, evaluate them, and provide them with appropriate special education and related services. Under that old law, before a child could be evaluated, parents had the right to informed consent. If parents refused consent, the public school district could continue to seek an evaluation by placing the issue before a due process hearing. The parent could present evidence, the hearing officer would issue a decision, and, if the parent did not like the hearing officer’s decision, the parent could appeal to court. If the parent won, the parent could obtain reimbursement of attorney fees.

Under the Individuals with Disabilities Education Improvement Act of 2004, unfortunately, it seems in many ways, public school districts have more clout.

It is still true under the new law, specifically under 614(a)(1)(D)(i)(1), that before the public school district may evaluate a child, the district must obtain the informed consent of the parent, and it is still true that if a school district pursues the evaluation even though the parent does not consent the parties may bring the issue before a due process hearing officer and appeal to a court. The parent may have second thoughts about pursuing due process and a court appeal under the new law, however, because Congress inserted certain provisions that make it more difficult for parents to obtain a due process hearing in the first place, and that allows school districts to recoup the district’s attorney fees from the parents or from the parents’ attorney if the parents do obtain a due process hearing and/or appeal to court

615(g)(3)(B)(i) allows the school district to collect attorney fees from the parents or the parents’ attorney “who files a complaint…that is frivolous, unreasonable, without foundation…or was presented for any improper purpose…”

What parent is likely to risk the ruling of a hearing officer or a judge that may deem their complaint presented “for an improper purpose”? The term “improper purpose” could mean anything the hearing officer or judge wants it to mean. Not only does a parent now have to go through more hurdles just to get to a due process hearing, but should they get to the hearing and/or court appeal, now the parent faces having to pay perhaps thousands of dollars because some hearing officer or judge thinks their claim was presented for “an improper purpose.”

In other words, the deck is stacked more against parents today than ever.

There are many other portions of the Individuals with Disabilities Education Improvement Act of 2004 that parents should decry for a variety of reasons. Particularly troubling to parents who homeschool is the provision regarding students in “private school.” NHELD has long held the position that it is wiser legally not to consider homeschools as private schools because of the potential for laws that are aimed at traditional brick and mortar private schools to be used also to regulate homeschools. The IDEA law is a perfect example.

The “Child Find” requirement of IDEA applies to children in “private schools”. The new law details specifics allowing the local public school district not only to “find” children with disabilities who are in “private schools”, but also to “undertake activities similar to those activities undertaken for the public school children,” and to “consult with private school representatives and representatives of parents during the design and development of special education and related services for children”, including “how, when, and where special education and related services will be provided” to children in “private schools”. (See Section 612 of the IDEA legislation.) If the “private school” representatives don’t agree with the public school district, they can file a complaint, but the complaint is filed with the State public school agency, not usually the friendliest agency to homeschoolers, or, better yet, to the United States Education Secretary in Washington.

What this means is that if homeschools are considered “private schools”, and the public school district tries to “find” or to “identify” a child with a disability in that homeschool, the procedures in the new law could be applied to that homeschooler.

Section 5 of HoNDA does provide a bit of relief in that it does not attempt to insert anything about “homeschool” into the law, and it narrows the ability of the public school district to utilize those due process procedures to “find” or to “identify” children “only if the child is enrolled in public school or is seeking to be enrolled in public school.”

To this extent, and for those reasons explained, NHELD supports the adoption of this particular section of HoNDA.

As proposed, Section 5 of HoNDA reads in its entirety:

SEC. 5. CLARIFICATION OF ABSENCE OF CONSENT FOR INITIAL EVALUATION UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT.

Section 614(a)(1)(D)(ii)(I) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(a)(1)(D)(ii)(I)) is amended to read as follows:

`(I) FOR INITIAL EVALUATION- A local educational agency may pursue the initial evaluation of a child by utilizing the procedures described in section 615, except to the extent inconsistent with State law relating to parental consent for an initial evaluation under clause (i)(I), only if the child is enrolled in public school or is seeking to be enrolled in public school.'.

It would replace the existing language in Section 614 of the Individuals with Disabilities Education Improvement Act as highlighted below:

SEC. 614. EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.

      `(a) EVALUATIONS, PARENTAL CONSENT, 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), before the initial provision of special education and related services to a child with a disability under this part.

      `(B) REQUEST FOR INITIAL EVALUATION- Consistent with subparagraph (D), either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.

      `(C) PROCEDURES-

      `(i) IN GENERAL- Such initial evaluation shall consist of procedures--

      `(I) to determine whether a child is a child with a disability (as defined in section 602) within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and

      `(II) to determine the educational needs of such child.

      `(ii) EXCEPTION- The relevant timeframe in clause (i)(I) shall not apply to a local educational agency if--

      `(I) a child enrolls in a school served by the local educational agency after the relevant timeframe in clause (i)(I) has begun and prior to a determination by the child's previous local educational agency as to whether the child is a child with a disability (as defined in section 602), but only if the subsequent local educational agency is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent local educational agency agree to a specific time when the evaluation will be completed; or

      `(II) the parent of a child repeatedly fails or refuses to produce the child for the evaluation.

      `(D) PARENTAL CONSENT-

      `(i) IN GENERAL-

      `(I) CONSENT FOR INITIAL EVALUATION- The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 602 shall obtain informed consent from the parent of such child before conducting the evaluation. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.

      `(II) CONSENT FOR SERVICES- An agency that is responsible for making a free appropriate public education available to a child with a disability under this part shall seek to obtain informed consent from the parent of such child before providing special education and related services to the child.

      `(ii) ABSENCE OF CONSENT-

`(I) FOR INITIAL EVALUATION- If the parent of such child does not provide consent for an initial evaluation under clause (i)(I), or the parent fails to respond to a request to provide the consent, the local educational agency may pursue the initial evaluation of the child by utilizing the procedures described in section 615, except to the extent inconsistent with State law relating to such parental consent.

      `(II) FOR SERVICES- If the parent of such child refuses to consent to services under clause (i)(II), the local educational agency shall not provide special education and related services to the child by utilizing the procedures described in section 615.

      `(III) EFFECT ON AGENCY OBLIGATIONS- If the parent of such child refuses to consent to the receipt of special education and related services, or the parent fails to respond to a request to provide such consent--

      `(aa) the local educational agency shall not be considered to be in violation of the requirement to make available a free appropriate public education to the child for the failure to provide such child with the special education and related services for which the local educational agency requests such consent; and

      `(bb) the local educational agency shall not be required to convene an IEP meeting or develop an IEP under this section for the child for the special education and related services for which the local educational agency requests such consent.

NHELD still believes, however, that the federal government should have no authority over the right of parents to instruct their children at home.

To the extent that this federal law, or any other federal law, now or in the future, purports to compel parents in any way to have their children receive unwanted special education and related services, it should be abolished.

In the meantime, parents should look closely at the statutes in their own state that define “homeschooling”. Consider the advisability of asking the state legislature to amend the state statutes so that “homeschool” is not defined as a “private school” so that these kind of unintended consequences do not occur.

Consider also the possibility of asking the state legislature to adopt a state statute that specifically allows parents of children in a private school or children educated at home to refuse evaluations and special education and related services by public school districts.

There are many parts of the existing law that should be repealed. 
 
The HoNDA bill purports to “fix” certain portions of existing federal law supposedly to “benefit” homeschoolers. In this latest version, how will any homeschoolers benefit by having the federal government impose its regulations on homeschoolers and even, potentially, having the Secretary of Education “disapprove” of your State’s processes?
 
Will more federal regulation make you, your children, and your grandchildren more free? NHELD thinks not.
 

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