In March 2017, the US Supreme Court, in Endrew F. v. Douglas County School District, clarified the FAPE standard and ruled unanimously that IEPs must be “reasonably calculated to enable a child to make progress in light of the child’s circumstances.” The Court rejected the petitioner’s view that the IDEA requires schools to provide educational opportunities for children with disabilities that are “substantially equal to the opportunities afforded [to] children without disabilities.” However, the Court also rejected the view that schools, in order to meet their obligations under the IDEA, only have to provide “merely more than de minimis” education program to a student with a disability. The Court ruled that the “de minimis” test is not demanding enough, and said cogently that “[i]t cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not.”
General IDEA Information
Unless a judicial decree or court order identifies a specific person or persons to act as the “parent” under the IDEA or to make educational decisions on behalf of a child, or there is evidence that a biological or adoptive parent does not have legal authority to make educational decisions for the child, the rights accorded to parents, as that term is defined in the federal regulations at 34 C.F.R. 300.30, apply to both custodial and noncustodial parents. [34 C.F.R. § 300.30(b)(1) and (2)]
The purpose of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” [34 C.F.R. § 300.1(a)]
Are homeschooled or private school students who are eligible for special education entitled to all the special education and related services they would receive if they attended a public school district or charter school?
In Arizona, homeschooled students are considered private school students. [A.R.S. § 15-763(C)] The IDEA regulations state that “[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.” [34 C.F.R. § 300.137(a)] (However, a parentally-placed private school student may be entitled to some services under the proportionate share and equitable service provisions of the IDEA. [See 34 C.F.R. § 300.130 – 300.144]) If an IEP team determines that the appropriate and least restrictive setting for a student is a private school, then this placement must be provided at no cost to the parent. [See § 300.146 for other responsibilities of the local education agency when a student is placed in a private school by the student’s IEP team] A determining factor is whether the student is unilaterally placed in a private school by his/her parents, or whether the IEP team determines that the most appropriate and least restrictive environment for the student is a private school.
Under Arizona law, “homebound” is a funding code for a student whose doctor has certified that the student is unable to attend regular classes due to illness, disease, accident or other health condition “for a period of not less than three school months.” The statute goes on to state that homebound also applies to a student with a chronic or acute health problem whose doctor certifies that the student is “unable to attend regular classes for intermittent periods of time totaling three school months during a school year.” [A.R.S. § 15-901(B)(14)]
“Homeschool” means a nonpublic school conducted primarily by the parent, guardian or other person who has custody of the child or nonpublic instruction provided in the child’s home. [A.R.S. § 15-802(G)(2)]
The regulations that implement the IDEA state that “[s]pecial education means specially designed instruction . . . including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings.” [34 C.F.R. § 300.38(a)] (Emphasis added) The continuum of educational placements that schools must ensure includes “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.” [34 C.F.R. § 300.115(a)] Accordingly, a student’s IEP team can determine that instruction at home is the most appropriate and least restrictive environment.