Two years ago, the South Dakota legislature enacted substantial changes to the way public schools handle students who choose to homeschool. If you’re unaware of this, we hope you can make some room for us under that rock you’ve been living under as it must be a delightful place!
When the new rules were first implemented, many educators and school attorneys in the state discussed how there could be unforeseen consequences to these rules, and much of the focus surrounded how activity participation for homeschool students would play out. While those questions have hardly subsided, recently we’ve been receiving more questions regarding homeschool students who qualify for special education services who wish to partially enroll in a public school.
The Individuals with Disabilities Act requires states to pass regulations that comply with its requirements, which South Dakota has done in ARSD 24:05. The Department of Education has taken the position that the IDEA and South Dakota’s regulations require only that public schools evaluate non-enrolled students in their district for special education and special education related services and make an offer of a free and appropriate public education. However, the Department has stated that schools do not need to offer those services if the student does not enroll in the school district. The Department’s guidance can be viewed here.
So what happens when a student qualifies for services, and parents wish to enroll but only partially? We would recommend schools reach out to their attorney on the subject, but remember that a “free and appropriate public education” is not a la carte. Think of a school that has made an offer of FAPE to a student subsisting of services A, B, and C. However, parents only wish to receive service C and enroll partially. In this scenario, schools should analyze whether complying with such a request would be denying that student FAPE under the IDEA (even if it’s what parents request – remember schools’ obligation under the IDEA is to provide the student with FAPE, not to give the student what the parents select). Although we work closely with the Department of Education on special education matters, schools should be cautious about placing too much weight on informal statements from the Department. These statements are not binding against a parent in a due process hearing or in federal court.
If you are interested in hearing more about this subject, KSB recently recorded a webinar touching on the subject as well as other enrollment issues. We have received so many questions about partial enrollment of special education students, we have decided to allow all of our blog subscribers to access this webinar for free here!
If you are interested in more KSB webinars, you can sign up for our monthly series or special education series here as well. If you have specific questions about partial enrollment issues or about any other legal issue that your school district is facing, feel free to reach out to any of the KSB attorneys – Tyler, Sara, Karen, Steve, Bobby, Coady or Jordan.