By: Emma Freeburg, ACDL Legal Intern (Summer 2021)*

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In Informal Discipline & How to Handle It, ACDL noted that parents of children with disabilities who require home-based instruction should advocate for their children to receive as many hours of services as necessary in order to receive a free and appropriate public education (FAPE). ACDL has found that many Arizona schools offer a maximum of four hours of instruction weekly to students whose placement is home-based instruction. This blog post explains that there is no legal basis for limiting instruction to four hours per week for students placed in home or hospital settings.

Every student with a disability has unique needs that determine the amount of supports and services they require to receive FAPE. The amount of supports they need ultimately impacts their educational placement. Educational placement refers to the amount of time each day that a student spends in special education settings versus general education settings. Under the Individuals with Disabilities Act (IDEA), schools are required to have a continuum of alternative placements available. These placements include regular classes, special classes, special schools, home instruction, and instruction in hospitals and the home. [1]

As you move along this continuum, the placements become more restrictive because the student is spending less time in the general classroom. Under IDEA, schools are required to provide a child with a free and appropriate public education (FAPE) in the least restrictive environment (LRE). Thus, if the IEP team recommends a placement of “home-based instruction,” the most restrictive placement, there must be evidence that the student’s needs cannot be met in a less restrictive environment. For example, home-based instruction may be the only appropriate placement for Alex, a nine-year old with leukemia, when he is receiving outpatient infusions because of the level of fatigue he experiences after each treatment and to avoid exposure to COVID while is immunocompromised by the treatment. However, home-based instruction is likely not the only appropriate placement for Bennet, a student with an emotional disability who engages in aggressive behavior when frustrated at school. Bennet can likely be served in a less restrictive setting, such as a special classroom or special school, or even a general education classroom, if provided the right supports and services in that setting.

Often, when schools recommend home-based instruction to students with IEPs, they will offer to provide instruction for a maximum of four hours per week. If the school states that the most instruction they can provide to your child is four hours per week, you should refer them to A.R.S. § 15-901(A)(1)(b)(vii).

This law states, “‘Full-time student’ means . . . for homebound or hospitalized, a student receiving at least four hours of instruction per week.” This means that a student must receive at least four hours of instruction to be considered a full-time student, meaning that is the minimum amount a school may provide to collect the state funds for a full-time student. This law is about school finance and has nothing to do with a determination of what an individual child needs to receive FAPE. [2] The Arizona Department of Education agrees and has clarified on their website that this funding category is unrelated to students with IEPs whose teams decide home-based instruction is the most appropriate placement. The IDEA does not favor maximum limits on services because such caps will not allow for individualized determinations of FAPE, which is what the IDEA requires.

Takeaways

• If your child’s IEP Team decides that the LRE for your child is home-based instruction and you agree, this does not mean your child should experience an automatic reduction in services.
• If the IEP Team makes any adjustments to the amount of special education and related services in your child’s IEP, make sure the changes are based on what your child needs to receive FAPE, and not on school finances.

[1] 34 C.F.R. § 300.115

[2] A.R.S. § 15-901

*Emma Freeburg is a law student at the Sandra Day O’Connor College of Law at Arizona State University. Emma completed a legal internship with ACDL during the summer of 2021. This blog post has been reviewed by ACDL Legal Director Rose Daly-Rooney and ACDL Education Team Managing Attorney Amanda Glass.

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