Legal: Homeschooling Special Needs Children

Many homeschoolers are reluctantly drawn to homeschooling because the schools failed their children. This trend is expanding to include children in special needs programs, resulting in an increasing number of questions from parents choosing to homeschool their children who are interested in continuing or obtaining special needs help from the schools. In many instances a special needs child shows tremendous gains just by being removed from the public school situation and educated at home by loving and caring parents who are able to provide the stimulation and enrichment each child needs and deserves. If services are offered the family is not required to accept them. Many families do just fine without government help, but if you need it, special needs services are available to homeschoolers.

A search of the Internet reveals several sites committed to special needs legal issues. The California Department of Education, http://www.cde.ca.gov/sp/se/, is a good place to start. Another good research site is http://www.ideapractices.org. The federal government provides funding for special education, and the states must operate within the guidelines of the United States Code (USC) and the Code of Federal Regulations (CFR).

Families who choose to enroll their children in a public independent study program or charter school are entitled to the same special education services that are available to students enrolled in a traditional public school. (Ed. Code §56145.) This option is the easiest way for families to obtain special needs services because they fit into the statutory and regulatory parameters. Thus, there should not be any disruption of services for those families who are already receiving them, and new families should easily qualify for them.¹

Children with disabilities enrolled in private schools are also entitled to special education services. (34 CFR §300.451.) Therefore, families who use the private school option and follow the legal requirements for setting up a home-based private school, are entitled to the same special education benefits as any private school in California. However, the government is not required to provide services in addition to those available in the public schools. The extent of those benefits is covered by 34 CFR §300.450 et seq., 20 USC 1412 (a)(10), and California Education Code (EC) section 56170 et seq. A child in a private school is entitled to services "provided by personnel meeting the same standards as personnel providing services in the public schools"; "may receive a different amount of services than children with disabilities in public schools", and "[n]o private school child with a disability is entitled to any service or to any amount of a service the child would receive if enrolled in a public school." (34 CFR §300.455.)

The state is not required to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility." (20 USC 1412 (a)(10)(C).) Thus, the states have a certain amount of discretion when providing special education benefits to home-based private schools. If they argue that they offered a "free appropriate public education" that was rejected by the parents, they are not required to offer an additional services. These provisions are echoed by the California statutes (Ed. Code §§ 56170-56177.) As long as a "free appropriate public education" is provided to the child with the disability, the district is not required to reimburse parents for the cost of enrolling the child in a private school. (Ed. Code §56175.) Educational legal departments may interpret the law to not provide services to private school and home school students.