September 26, 2005

Scott Defisks HoNDA Sect. 5: Special Ed Evaluations

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.’.

Chris says, “This change is due to a couple of highly publicized cases (in home school circles) of local power mad bureaucrats believing that the law required them to evaluate all disabled children, even those not receiving services from the public school system. As a general rule, amending federal law to address the outliers like this is a bad idea. It usually leads to even more federal laws.”

Who needs “power mad bureaucrats” when you have “bureaucrats [who] believe that the law requires them to evaluate all disabled children, even those not receiving services from the local public school system”?

If the problem here were “power mad bureaucrats,” I wouldn’t be proposing some little technical change to a federal law. The only thing that seems to affect power mad people is countervailing force. (I’m partial to civil rights suits, myself—they seem to bring a refreshing dose of reality to officials whose power has driven them mad.)

But if the problem consists of bureaucrats who sincerely believe they have to compel these evaluations, the solution is to limit evaluations to children who are either in public school or want to get in. That’s what we propose in this section, and we do it without any reference to “homeschooling.”

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Comments

Under IDEA, 34 C.F.R. §300.505, parents already have the right to refuse consent for evaluations. If a school district disagrees, it can bring the issue before a due process hearing officer. Yes, there may be court problems and issues at this time, but we need to understand whether they are a result of misapplication of current law or because law is being misinterpreted.

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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 HONDA legislation that is being considered (HR3753/SB1691) 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

For a more comprehensive link to all the IDEA laws and rules and regulations link to the IDEA Practices web site at IDEA '97 Law & Regs.

Posted by: Judy Aron at September 27, 2005 02:20 PM

So, Judy, how many such cases has NHELD handled?

Posted by: Scott W. Somerville at September 27, 2005 03:30 PM

Why do you need to know? are we having some sort of competition? (i.e. My caseload is bigger than you case load.. nyah nyah...)

Oh please .. do me a favor.. read the current law and explain it to an administrator demanding an evaluation, and work to change a state law instead of instituting an unconstitutional federal law.

Posted by: Judy Aron at October 4, 2005 10:36 PM

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