Georgia Council of Administrators of Special Education
Winter 2016 An Affiliate of the Georgia Association of Educational Leaders www.gcase.schoolinsites.com
Home is Where the Heart Is: The Struggles of Home-based Placements Beth Morris and Reagan Sauls, Harben, Hartley & Hawkins LLC
Home-based placements and the issues that surround these placements are some of the most complicated and emotional issues that IEP Teams face. This is because the issues that Teams are facing which result in a home- based placement are varied and complicated in and of themselves. When considering home-based placements, Teams are often considering student needs that involve severe behavioral, emotional, or medical issues which pre- vent the student from receiving FAPE in the typical school setting. Thus, an IEP Team might feel like they are fac- ing their “last resort” when considering a home-based placement and parents might be panicked or emotionally drained at the prospect. This is not always the best recipe for careful and defensible placement determinations. It is, therefore, important to have an understanding of the legal requirements that relate to home-based placements so that when your district is faced with such a decision, you are able to make appropriate placements.
While all IEP placements involve the IEP Team’s need to balance FAPE with a student’s access to the least restrictive environment, home-based placements force IEP Teams to consider the true tension of the requirements between FAPE and LRE given the restrictiveness of a home-based placement. This is because home-based place- ments are, perhaps, the most restrictive placements IEP Teams can make. There are many long standing principles in serving students with disabilities. Among these are that students may be served in various placements along the continuum of so long as it enables a student to make educational progress and that this is done in a student’s least restrictive environment. IDEA directs school districts: “To the maximum extent appropriate, children with disabilities, including children in public or pri- vate institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educa- tional environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved sat- isfactorily.”
20 U.S.C. § 1412(a)(5)(A). When a student’s needs are so severe that an IEP Team is considering a home- based placement, the balance between meeting those needs and providing the student with access to his or her LRE is often one of the most difficult aspects of the IEP Team discussion.
So, when might a home-based placement be the appropriate placement and when might it not be? Given the restrictiveness of the placement, it is important that the IEP Teams has considered whether the student might be able to participate in a less restrictive environment with the use of supplementary aids and services. LRE mandates this consideration. Thus, before making home-based placements, it is critical that IEP Teams consider, try and document other efforts. These may include training for teachers, additional accommodations, increased special education services, direct staff support (such as a one-on-one paraprofessional or other direct adult support or su- pervision), support from a behavior specialist, counseling or any other appropriate supports and services and that enable the child to make educational progress in his or her least restrictive environment. Accordingly, it is im- portant that home-based placements are not utilized in situations when staff are simply unable serve the student (due to the student’s severe needs), but only utilized when the student requires this placement in order to make edu- cational progress. Thus, it would not be defensible to recommend such a placement simply because a student melts down in the afternoons or because a student’s behavior has, generally, become so severe that the school staff is struggling to assist the student and the student is not making educational progress in the school environment. It is critical that the student’s needs are such that the placement will enable the student to make educational progress. For most students, a part day placement or full home-based placement is not going to enable the student to make educational progress.
But, for some students, a home-based placement might be the LRE for a student and in those situations an IEP Team is entitled to make such placements. The Eleventh Circuit, in considering a request for reimbursement for home-based services stated, “It is clear to us that in some cases, reimbursement for one-on-one home instruc-tional programs will be ‘appropriate’ in light of the IDEA's purpose. The IDEA clearly contemplates that a state might be required to place a student in one-on-one homebound instruction to meet the student's needs, evidenced by its definition of ‘special education’ to include ‘instruction conducted ... in the home.’ 20 U.S.C. § 1401(29); see also 34 C.F.R. § 300.115 (listing home instruction as part of the continuum of alternative placements states must make available to students to comply with the IDEA).” R.L. v. Miami-Dade Cty. Sch. Bd., 757 F.3d 1173, 1185 (11th Cir. 2014)(awarding reimbursement for one-on-one home-based services based on District’s failure to provide FAPE to a student with digestive and developmental disorders when the District declined to place the student in a smaller high school and the student then exhibited severe regression in obsessive compulsive disorder, muscle tics, severe behaviors, headaches and vomiting related to the sensory overload of the larger school). Thus, home-based place-ments are clearly an option on the continuum that should be considered by the IEP Team whenever appropriate for a student based on his or her unique needs and such a placement should be made if it is necessary in order to enable the student to make educational progress – and such progress could not be made in a less restrictive environment. Due to the strong preference to enable students to have some interaction with peers (which is unavailable at home or significantly restricted even with technology available today), there are many instances in which a stu-dent’s needs might be severe, but still not necessitate placement in a home setting. In A.K. ex rel. E.K. v. Gwinnett Cty. Sch. Dist., 556 F. App'x 790, 792-93 (11th Cir.) cert. denied, 135 S. Ct. 78, 190 L. Ed. 2d 68 (2014), the court set out the strong preference for all students be in some kind of educational setting when it stated that, “It seems clear, then, that the statute favors reintegrating children into the school setting, where they can socially interact with other children. See Dep't of Educ., Haw. v. Katherine D. ex rel. Kevin and Roberta D., 727 F.2d 809, 817 (9th Cir.1983) (‘The congressional preference for educating handicapped children in classrooms with their peers is made unmistakably clear in *793 section [1412(a)(5)(A) ].’).” In that case, the court found that the student would best be served in the school setting despite the parent’s request that the student be served at home for a three month period to allow for the student to receive a regimen of nutritional supplements every 45 minutes in a stress free environ-ment. While looking through the lens of LRE, the court analyzed the specifics of the student’s needs, noting that the student’s strict diet had not been prescribed by a doctor, she did not have a life-threatening condition, nor was she under the regular medical care of a physician that necessitated that she be served in such a restrictive placement in order to make educational progress. Likewise, in Stamps v. Gwinnett Cty. Sch. Dist., 481 F. App'x 470, 471 (11th Cir. 2012), the court found that “testimony did not establish that H.S., S.S., and J.S. had to be educated at home because they had a nonspecific immune deficiency,” affirming the lower court’s finding that the District had appropriately offered a placement in the school setting despite the family’s request for the students to be educated at home because the District could accommodate the students along with their hygiene needs and their disabilities. Home-based placements are often confused with hospital homebound placements. While they can result from similar needs at times – a student’s inability to attend school due to medical needs – they do not necessarily mean the same thing, nor is the process the same. A student who requires a home (or hospital bound) placement purely based on medical necessity and who is unable to leave the home for this reason may qualify for hospital homebound pursuant to State Board Rule 160-4-2-.31. Any student (regardless of whether he or she is served under IDEA) may receive these services if he or she meets the requirements under the rule and set out by the district. For students without disabilities, a team will meet to determine how eligible students’ educational needs will be met. For students who are already served under an IEP (or Section 504 plan), the IEP (or 504) Team will convene to de-termine how the student’s educational needs will be met. But, unlike a home-based placement, these needs may not be driven by the student requiring this placement for educational purposes. For example, a student with a disability might be having surgery and qualify for hospital-homebound services. That student may not require a home-based placement for FAPE, but still be in need of educational services for the period of time which he or she is recovering from the surgery and those services would be provided through the hospital homebound process. The IEP Team would likely ultimately be involved, but the basis for the need differs. Overall, while it is often the goal of all members of an IEP Team for a student to be served in the school setting, scenarios arise which do necessitate consideration of services outside that setting including services in the home. It is important that Teams consider all of the individual and unique needs of the student as well as the obli-gations of the district under IDEA to provide FAPE in a student’s least restrictive environment. In doing so, the district should be able to make appropriate, if not always easy, placement determinations.