(1) The general assembly hereby declares that it is the primary right and obligation of the parent to choose the proper education and training for children under his care and supervision. It is recognized that home-based education is a legitimate alternative to classroom attendance for the instruction of children and that any regulation of nonpublic home-based educational programs should be sufficiently flexible to accommodate a variety of circumstances. The general assembly further declares that nonpublic home-based educational programs shall be subject only to minimum state controls which are currently applicable to other forms of nonpublic education.

(2) As used in this section:

(a) "Nonpublic home-based educational program" means the sequential program of instruction for the education of a child which takes place in a home, which is provided by the child's parent or by an adult relative of the child designated by the parent, and which is not under the supervision and control of a school district. This educational program is not intended to be and does not qualify as a private and nonprofit school.

(b) "Parent" includes a parent or guardian.

(c) "Qualified person" means an individual who is selected by the parent of a child who is participating in a nonpublic home-based educational program to evaluate such child's progress and who is a teacher licensed pursuant to article 60.5 of this title, a teacher who is employed by an independent or parochial school, a licensed psychologist, or a person with a graduate degree in education.

(3) The following guidelines shall apply to a nonpublic home-based educational program:

(a) A parent or an adult relative designated by a parent to provide instruction in a nonpublic home-based educational program shall not be subject to the requirements of the "Colorado Educator Licensing Act of 1991", article 60.5 of this title, nor to the provisions of article 61 of this title relating to teacher employment.

(b) A child who is participating in a nonpublic home-based educational program shall not be subject to compulsory school attendance as provided in this article; except that any child who is habitually truant, as defined in section 22-33-107 (3), at any time during the last six months that the child attended school before proposed enrollment in a nonpublic home-based educational program may not be enrolled in the program unless the child's parents first submit a written description of the curricula to be used in the program along with the written notification of establishment of the program required in paragraph (e) of this subsection (3) to any school district within the state.

(c) A nonpublic home-based educational program shall include no less than one hundred seventy-two days of instruction, averaging four instructional contact hours per day.

(d) A nonpublic home-based educational program shall include, but need not be limited to, communication skills of reading, writing, and speaking, mathematics, history, civics, literature, science, and regular courses of instruction in the constitution of the United States as provided in section 22-1-108.

(e) Any parent establishing a nonpublic home-based educational program shall provide written notification of the establishment of said program to a school district within the state fourteen days prior to the establishment of said program and each year thereafter if the program is maintained. The parent in charge and in control of a nonpublic home-based educational program shall certify, in writing, only a statement containing the name, age, place of residence, and number of hours of attendance of each child enrolled in said program. Notwithstanding the provisions of section 22-33-104 (1), a parent who intends to establish a nonpublic home-based educational program is not required to:

(I) Provide written notification of the program to a school district within the state until the parent's child is six years of age;

(II) Establish the program until the parent's child is seven years of age; or

(III) Continue the program or provide the notification after the child is sixteen years of age.

(f) Each child participating in a nonpublic home-based educational program shall be evaluated when such child reaches grades three, five, seven, nine, and eleven. Each child shall be given a nationally standardized achievement test to evaluate the child's academic progress, or a qualified person shall evaluate the child's academic progress. The test or evaluation results, whichever is appropriate, shall be submitted to the school district that received the notification required by paragraph (e) of this subsection (3) or an independent or parochial school within the state of Colorado. If the test or evaluation results are submitted to an independent or parochial school, the name of such school shall be provided to the school district that received the notification required by paragraph (e) of this subsection (3). The purpose of such tests or evaluations shall be to evaluate the educational progress of each child. No scores for a child participating in a nonpublic home-based educational program shall be considered for awarding academic performance ratings pursuant to section 22-7-604 or for accreditation pursuant to article 11 of this title.

(g) The records of each child participating in a nonpublic home-based educational program shall be maintained on a permanent basis by the parent in charge and in control of said program. The records shall include, but need not be limited to, attendance data, test and evaluation results, and immunization records, as required by sections 25-4-901, 25-4-902, and 25-4-903, C.R.S. Such records shall be produced to the school district that received the notification required by paragraph (e) of this subsection (3) upon fourteen days' written notice if the superintendent of said school district has probable cause to believe that said program is not in compliance with the guidelines established in this subsection (3).

(4) Any child who has participated in a nonpublic home-based educational program and who subsequently enrolls in the public school system may be tested by the school district in which the child has enrolled for the purpose of placing the child in the proper grade and shall then be placed at the grade level deemed most appropriate by said school district, with the consent of the child's parent or legal guardian. The school district shall accept the transcripts for credit from the non-public home-based educational program for any such child; except that the school district may reject such transcripts if the school district administers testing to such child and the testing does not verify the accuracy of such transcripts.

(5) (a) (I) If test results submitted to the appropriate school district pursuant to the provisions of paragraph (f) of subsection (3) of this section show that a child participating in a nonpublic home-based educational program received a composite score on said test which was above the thirteenth percentile, such child shall continue to be exempt from the compulsory school attendance requirement of this article. If the child's composite score on said test is at or below the thirteenth percentile, the school district shall require the parents to place said child in a public or independent or parochial school until the next testing period; except that no action shall be taken until the child is given the opportunity to be retested using an alternate version of the same test or a different nationally standardized achievement test selected by the parent from a list of approved tests supplied by the state board.

(II) If evaluation results submitted to the appropriate school district pursuant to the provisions of paragraph (f) of subsection (3) of this section show that the child is making sufficient academic progress according to the child's ability, the child will continue to be exempt from the compulsory school attendance requirement of this article. If the evaluation results show that the child is not making sufficient academic progress, the school district shall require the child's parents to place the child in a public or independent or parochial school until the next testing period.

(b) If the child's test or evaluation results are submitted to an independent or parochial school, said school shall notify the school district that received the notification pursuant to paragraph (e) of subsection (3) of this section if the composite score on said test was at or below the thirteenth percentile or if the evaluation results show that the child is not making sufficient academic progress. The school district shall then require the parents to proceed in the manner specified in paragraph (a) of this subsection (5).

(6) (a) If a child is participating in a nonpublic home-based educational program but also attending a public school for a portion of the school day, the school district of the public school shall be entitled to count such child in accordance with the provisions of section 22-54-103 (10) for purposes of determining pupil enrollment under the "Public School Finance Act of 1994", article 54 of this title.

(b) (I) For purposes of this subsection (6), a child who is participating in a nonpublic home-based educational program shall have the same rights as a student enrolled in a public school of the school district in which the child resides or is enrolled and may participate on an equal basis in any extracurricular or interscholastic activity offered by a public school or offered by a private school, at the private school's discretion, as provided in section 22-32-116.5 and is subject to the same rules of any interscholastic organization or association of which the student's school of participation is a member.

(II) (A) Except as provided for in sub-subparagraph (B) of this subparagraph (II), for purposes of section 22-32-116.5, the school district of attendance for a child who is participating in a nonpublic home-based educational program shall be deemed to be the school district that received the notification pursuant to paragraph (e) of subsection (3) of this section.

(B) For purposes of section 22-32-116.5, the school district of attendance for a child who withdraws from a public or private school more than fifteen days after the start of the school year and enters a non-public home-based educational program shall be the school district or private school from which the child withdrew for the remainder of that school year. If, during the remainder of that academic year, the child chooses to participate in extracurricular or interscholastic activities at the same school and was eligible for participation prior to withdrawing from the school, the child remains eligible to participate at such school.

(c) No child participating in an extracurricular or interscholastic activity pursuant to paragraph (b) of this subsection (6) shall be considered attending the public school district where the child participates in such activity for purposes of determining pupil enrollment under paragraph (a) of this subsection (6).

(d) As used in this subsection (6), "extracurricular or interscholastic activities" shall have the same meaning as "activity" as set forth in section 22-32-116.5 (10).

(e) If any fee is collected pursuant to this subsection (6) for participation in an activity, the fee shall be used to fund the particular activity for which it is charged and shall not be expended for any other purpose.

Source: L. 88: (6) amended, p. 812, § 12, effective May 24; entire section added, p. 766, § 1, effective July 1. L. 93: (6) amended, p. 457, § 2, effective April 19. L. 94: (2)(c) added and (3)(e), (3)(f), and (5) amended, p. 618, §§ 1, 2, effective April 14; (3)(b), IP(6)(b), (6)(b)(II), and (6)(b)(V) amended, p. 677, § 2, effective April 19; (6)(a) amended, p. 813, § 29, effective April 27; (6)(e) added, p. 1283, § 8, effective May 22; (6)(b) and (6)(b)(V) amended and (6)(f) added, p. 2837, § 2, effective June 7. L. 96: (6)(b) and (6)(d) amended, p. 1022, § 2, effective May 23. L. 2000: (3)(b), (3)(e), (3)(f), (3)(g), (4), (5), (6)(a), and (6)(b) amended, p. 369, § 22, effective April 10; (2)(c) and (3)(a) amended, p. 1857, § 61, effective August 2. L. 2001: (3)(b), (3)(f), (4), and (6)(b)(I) amended, p. 1494, § 17, effective June 8. L. 2006: (3)(e) amended, p. 1213, § 4, effective July 1, 2007. L. 2007: (3)(e) amended, p. 71, § 2, effective July 1, 2008.

Editor's note: Section 22-33-104.5 (6)(d) as enacted by section 7 of chapter 154, Session Laws of Colorado 1994, was subsequently repealed by section 6 of chapter 224, resulting in the relettering of the remaining provisions of subsection (6), as enacted by chapters 224 and 351.

Cross references: (1) For further provisions concerning student participation in interscholastic activities in a school in which they do not attend, see § 22-32-116.5.

(2) For the legislative declaration contained in the 2006 act amending subsection (3)(e), see section 1 of chapter 265, Session Laws of Colorado 2006.

Am. Jur.2d. See 68 Am. Jur.2d, Schools, §§ 259-262, 379.

C.J.S. See 78A C.J.S., Schools and School Districts, § 738.