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Rhode Island

February 4, 2011

No Picking and Choosing of Services in IEP, Per Commissioner

On December 7, 2010, the Rhode Island Department of Education (RIDE) issued an advisory opinion saying that a homeschooler enrolled in a public school IEP program cannot pick and choose among the special education and related services in their IEP. They must take all or nothing.

Here are the highlights and lowlights of the opinion.

Highlights

  • If your child is in a public school special education program with an IEP (individualized education program), you must be “in” or “out.” You can’t accept some of the services and reject others. (Of course, you can try to change the IEP itself.)
  • If you reject some services listed in the IEP while your child is enrolled in a public school program, the public school can take you to a hearing.
  • If your child has been in a public school IEP, the only way to completely remove the child is to formally notify the school that you revoke your consent to participate in the IEP. It is not enough just to tell them that you are withdrawing the child from public school in order to homeschool. You must specifically withdraw your consent to the IEP.
  • Even if you withdraw your consent, you still have a right to request access to the same services that the public school makes available to private school students in your school district. You will have an ISP (“individual service plan”) rather than an IEP. (Having an IEP means that your child is considered a public school student for those purposes. Having an ISP means your child is not considered a public school student for those purposes.)

Lowlights

  • The opinion is reminiscent of a federal court of appeals decision which recently said that individual parents have no right to control what their children are taught in public school. (See 427 F.3d 1197, 9th Cir. 2005.) Homeschooling with no public school involvement remains the most powerful option for parents who want to protect their freedom to choose what and how their children are taught.
  • A footnote in the opinion erroneously states “...there are limited situations in which the [parent’s] termination of FAPE may constitute abuse or neglect of the child and the district is obligated to notify child welfare authorities.” This is simply incorrect. Despite the opinion’s reliance on an older Commissioner’s decision, there is no situation in which a parental decision to terminate FAPE in and of itself would constitute neglect or abuse under Rhode Island law. Parents have a fundamental right to make educational decisions for their children.

Naturally, if a parent fails to comply with Rhode Island’s compulsory attendance law or disobeys a court order, significant accusations could arise. But in that case the accusation would arise from not complying with the law or order, not the decision to reject FAPE, per se.

On the other hand, if your child has a public school IEP, the safest plan is to obtain school committee approval before you withdraw the child and begin a homeschool program.

HSLDA has helped many member families—including those whose children have special needs—in their transition from public school to homeschool. Furthermore, we have staff members with long experience in guiding families with special needs issues.

And these are just two of the many ways we help Rhode Island homeschool families. You may be surprised how many other services we provide! Don’t hesitate to call us if you bump into a question.