US DOE clarifies IDEA consent override procedures
The United States Department of Education has published new federal
regulations for the reauthorized Individuals with Disabilities Education Act
(IDEA-2004). These final regulations took effect on October 13, 2006.
The United States Department of Education has added a new paragraph (�
300.300(d)(4)) to their regulations �to provide that if a parent of a child
who is home schooled or placed in a private school by the parent at the
parent�s expense, does not provide consent for an initial evaluation or a
reevaluation, or the parent fails to respond to a request to provide
consent, the public agency (A) may not use the consent override procedures
(described elsewhere in � 300.300), and (B) is not required to consider the
child eligible for services under the requirements relating to
parentally-placed private school children with disabilities (�� 300.132
through 300.144).�[1]
The Office of Special Education and Rehabilitative Services provides the
following discussion:
New � 300.300(e)(4) clarifies that parents who enroll their children in
private elementary schools and secondary schools have the option of not
participating in an LEA�s child find activities required under � 300.131. As
noted in the Analysis of Comments and Changes section for subpart D, once
parents opt out of the public schools, States and school districts do not
have the same interest in requiring parents to agree to the evaluation of
their children as they do for children enrolled in public schools, in light
of the public agencies� obligation to educate public school children with
disabilities. We further indicate in the discussion of subpart D that we
have added new � 300.300(e)(4) (proposed � 300.300(d)) to clarify that if
the parent of a child who is home schooled or placed in a private school by
the child�s parent at the parent�s own expense does not provide consent for
an initial evaluation or reevaluation, the public agency may not use the due
process procedures in section 615 of the Act and the public agency is not
required to consider the child for equitable services.[2]
The logic of this decision is further discussed in the Analysis of Comments
and Changes section for subpart D, cited above:
There are compelling policy reasons why the Act�s consent override
procedures should be limited to children who are enrolled, or who are
seeking to enroll, in public school. Because the school district has an
ongoing obligation to educate a public school child it suspects has a
disability, it is reasonable for a school district to provide the parents
with as much information as possible about their child�s educational needs
in order to encourage them to agree to the provision of special education
services to meet those needs, even though the parent is free, ultimately, to
reject those services. The school district is accountable for the
educational achievement of all of its children, regardless of whether
parents refuse the provision of educationally appropriate services. In
addition, children who do not receive appropriate educational services may
develop behavioral problems that have a negative impact on the learning
environment for other children.
By contrast, once parents opt out of the public school system, States and
school districts do not have the same interest in requiring parents to agree
to the evaluation of their children. In such cases, it would be overly
intrusive for the school district to insist on an evaluation over a parent�s
objection. The Act gives school districts no regulatory authority over
private schools. Moreover, the Act does not require school districts to
provide FAPE to children who are home schooled or enrolled in private
schools by their parents.[3]
Massachusetts Special Education Law
The above federal regulation does not change Massachusetts General Law
Chapter 71B, Children with Special Needs, that states that school age
children with disabilities are entitled to publicly-funded special education
services regardless of whether they are educated in a public or non-public
school setting.
The Massachusetts Department of Education�s Administrative Advisory SPED
2006-3R: IDEA-2004 and Private School Students clarifies:
Massachusetts� special education law requires school districts to offer
special education and related services to all students who reside in the
district, including private school students. These services must be designed
to meet the needs of eligible students and must provide students with a
genuine opportunity to participate in a public school special education
program. The school district must provide or arrange for evaluation,
determine eligibility, propose an Individualized Education Program (IEP),
and make services available to all eligible students who reside in the
district, regardless of where they attend school.�[4]
Summary
In summary, eligible Massachusetts homeschoolers still have right to special
services through the public schools if they desire them. But if a homeschool
parent does not provide consent for an initial evaluation or a reevaluation,
the school may not override that decision and is not required to consider
the child eligible for services.
Further, since IDEA does not require school districts to provide FAPE to
children who are homeschooled, presumably school districts will no longer
need to worry about liability issues concerning their obligation to provide
special services to homeschoolers who have waived their right to
publicly-funded services. Hopefully this will make approval of homeschooling
plans for special needs students a clearer and smoother process for all
parties involved.
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[1] United States. Department of Education, Assistance to States for the
Education of Children With Disabilities and Preschool Grants for Children
With Disabilities; Final Rule. 34 CFR Parts 300 and 301, RIN 1820-AB57,
Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and
Regulations, p. 46543. 9 Dec. 2006
[2] Ibid, p. 46592
[3] Ibid, p. 46635.
[4] Massachusetts. Department of Education. Administrative Advisory SPED
2006-3R: IDEA-2004 and Private School Students. By Marcia Mittnacht, State
Director of Special Education. 13 Sept.2005 (Revised 12 May 2006). 9 Dec.
2006,
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