Q and A Regarding 34 CFR § (b)(4)

On December 1, 2008, USDOE issued a series of new regulations for IDEA. These newly amended regulations took effect on December 31, While the new amendments implicate 11 different regulations, the most significant change involves 34 CFR § (b)(4), which now allows parental revocation of consent for special education and related services subsequent to the initial provision of those services.

 A:(4) If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency— (i)May not continue to provide special education and related services to the child, but must provide prior written notice in accordance with § before ceasing the provision of special education and related services;

(ii)May not use the procedures in subpart E of this part (including the mediation procedures under § or the due process procedures under §§ through ) in order to obtain agreement or a ruling that the services may be provided to the child; (iii)Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services; and (iv)Is not required to convene an IEP Team meeting or develop an IEP under §§ and for the child for further provision of special education and related services.

 A:Prior the current amendment, parents did not have the right to unilaterally remove their children from special education and related services after the initial provision of services.  The previous interpretation of IDEA: LEAs have a continuing obligation to provide FAPE to students after consent was given for the initial provision of special education, and the parent did not have the right to revoke this consent.

 A.The parent must revoke consent in writing for the continued provision of special education and related services.

 A:The amended regulation requires that a district take two steps upon receipt of a parent's written revocation of consent: 1.The district must promptly provide prior written notice of the change in educational placement and services that will result from the revocation of consent. 2.Within a reasonable period of time after prior written notice is provided to the parent, the district must discontinue all special education and related services.

 USDOE stated that additional procedures may be used by mutual agreement of the parent and district. For example, the district may consider holding an IEP team meeting to discuss the cessation of services.  These non-required procedures may not be used to delay the termination of services and should be strictly voluntary on the part of the parent.  The public agency does not have any obligation to ‘convince’ parents to accept the special education and related services.

 A:Yes. Because rights previously held by parents transfer to students who reach the age of majority. However, the prior written notice that is required to be provided prior to cessation of services must be provided to both the student and the student’s parents.

1. A description of the action proposed or refused by the agency;  The date upon which all “educational services and supports”, set forth in the student’s current IEP, will cease.  Procedural safeguards are also terminated by the cessation, including disciplinary procedural safeguards.

2. An explanation of why the agency proposes or refuses to take the action The reason for the proposed cessation is that the action is mandated by receipt of the parent's written revocation of consent.

3. A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action A copy of the current IEP could be attached to district’s PWN form.

4. A statement that the parents of a child with a disability have protection under the procedural safeguards of this part The district should include a copy of the procedural safeguards. These must be amended to incorporate the revised rule.

5. Sources for parents to contact to obtain assistance in understanding the provisions of this part A copy of Parent Handbook may contain this information. If not, it must be provided in addition to the Parent Handbook.

6. A description of other options that the IEP team considered and the reasons why those options were rejected  Consideration of the WROC is not mandated.  The district may only convene an IEP team meeting if the parent is willing to do so. Otherwise, the regulation precludes consideration of all other options. Cessation of IEP services is mandatory.

7. A description of other factors that are relevant to the agency’s proposal or refusal. (NOTE: Since the cessation itself is mandated by regulation, the only component of the notice that is within the district's discretion is the timing of the cessation.)

The PWN should also inform the parent that subsequent to the cessation of services, the student will be a general education student and will not be entitled to IDEA’s procedural safeguards, including IDEA procedural safeguards in disciplinary situations.

 A:The USDOE refused to establish a specific timeline for responding to the written revocation of consent. It is expected that districts “promptly respond” “within a reasonable time” before discontinuing services, and that discontinuation of services will “occur in a timely manner.”

 A:If it is made clear to the parent that their attendance at the IEP team meeting is strictly voluntary, that the meeting will not delay the cessation of special education and related services, and that the IEP team meeting will not be used to coerce the parent into accepting special education and related services. - May be an effective way to inform parents.

 A:The district can ask but a district may not require the parent to provide any explanation.

 A:It is inappropriate for school personnel to encourage a parent to revoke consent for special education and related services. If a district believes that a child is no longer a student with a disability, the appropriate procedure would be to initiate a reevaluation in order to redetermine eligibility.

 A:No. The discontinuation of services is not a determination that a child is no longer a child with a disability, but instead a cessation of services “pursuant to the decision of the parent.”

 A: No. The regulation makes it clear that revoking consent is an all or nothing proposition.

 A:No. The amended regulation explicitly prohibits a district from using mediation or the due process procedures “in order to obtain agreement or a ruling that the services may be provided to the child.”

The student’s teachers “are not required to provide the previously identified IEP accommodations in the general education environment.” “Nothing would prevent a general education teacher from providing a child whose parent has revoked consent for the continued provision of special education and related services with accommodations that are available to non-disabled children under relevant State standards. “

 A:A parent can always file suit. The real question is whether the parent has a viable claim, and based upon both the USDOE discussion and the amended regulation, the answer is no.

 A:Yes, as long as other general education students are also in that classroom, the student is placed in the classroom as a general education student and the student receives the same treatment as the other general education students in that classroom.

 A:The Office for Civil Rights (OCR) has previously addressed this question and the answer is, “No”.  By rejecting the services developed under the IDEA, the parent would essentially be rejecting what would be offered under Section 504. The IEP is the student’s 504 Plan.

 A:Just because a student’s special education and related services are discontinued pursuant to a WROC, a district is not absolved of its child-find obligations.  The USDOE notes that “the Department expects that children whose parents revoke consent will be identified, located and offered an evaluation in the same manner as any other child if the child is suspected of having a disability and being in need of special education and related services.”

 Because discontinuation of services is not a determination that the student does not have a disability, a district may continue to suspect a disability throughout the student’s educational career.  This may require periodic offers to evaluate, and documentation of those offers, in order to satisfy a district’s child-find obligations.  Hopefully some parents who revoked consent for special education and related services will reconsider their decisions when subsequent child-find contacts are made.

 A:Yes. Commentors to the proposed regulation expressed concerns about a “revolving door” and requested the USDOE limit the number of times a parent could revoke their consent for special education and related services. While acknowledging the “special education revolving door” concern, the USDOE rejected the suggestions and merely stated that a parent “always maintains the right to subsequently request an initial evaluation.”

The USDOE also states that although any evaluation to determine eligibility for special education and related services subsequent to a discontinuation of services is an initial evaluation.  A district “may not always have to expend resources on a ‘new’ initial evaluation.”  During an evaluation review a district “reviews existing evaluation data on the child... and on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed.”

 A:No. Consent for the provision of special education and related services can be thought of as specific to the parent providing that consent.  Thus if mom provides consent for special education and related services, only mom can revoke that consent. No one else may revoke her consent for her.  Accordingly, as long as a district has one parent’s consent to implement an IEP, that IEP may be implemented despite another parent’s written revocation of consent.

In the situation of dueling parents a district may be wise to convene an IEP team meeting to discuss the revoking parent’s rationale for revoking and further to inform them that only one parent’s consent is required to continue services.  Prior written notice should also be provided to the revoking parent informing him/her that the district is unable to discontinue special education and related services due to the other parent’s consent.

 A:No. Districts may not condition attendance at, or admission into, an alternative school on relinquishing a student’s right to receive FAPE.