Revoking Consent for Special Education Services COSA Fall Special Education Conference October 2009 Rae Ann Ray Office of Student Learning & Partnerships

Objectives: Part 1  Review history and definition of consent in IDEA.  Identify actions requiring consent.  Review IDEA’s December 2008 changes in 34 CFR §§300.9 and regarding the revocation of parental consent for special education services.  Consider impact of parental revocation on student’s subsequent education including discipline, §504 eligibility, and reconsideration of IDEA eligibility.

Objectives: Part 2 Review records retention requirements  IDEA, GEPA, EDGAR, FERPA  Oregon Archives OARS  Special education records created prior to revocation of consent

Consent in IDEA: Short History  IDEA 1999  IDEA 2004  IDEA 2008 (supplemental regulations) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.

Federal Register -August 14, 2006 “The Department intends to propose regulations to permit parents who previously consented to the initiation of special education services, to withdraw their consent for their child to receive, or continue to receive, special education services. Because this is a change from the Department’s longstanding policies and was not proposed in the NPRM, we will provide the public the opportunity to comment on this proposed change in a separate notice of proposed rulemaking.”

Parental Consent means that-- 34 CFR §300.9(a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication;

Parental consent means that-- 34 CFR §300.9(b) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and

Parental consent means that-- 34 CFR §300.9(c)(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime.

Informed Written Consent “Whenever consent is used in these regulations, it means that the consent is both informed and in writing.” Federal Register – August 14, Analysis of Comments and Changes

Parental Consent Required Initial evaluation Initial evaluation Initial provision–special education services Initial provision–special education services Reevaluation Reevaluation

34 CFR § (a) (1)(i) The public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability under § must, after providing notice consistent with §§ and , obtain informed consent, consistent with § 300.9, from the parent of the child before conducting the evaluation. Consent for Initial Evaluation From the Monday, August 14, 2006 Federal Register – underlining added by presenter throughout

34 CFR § (a ) (1)(ii) Parental consent for initial evaluation must not be construed as consent for initial provision of special education and related services (iii) The public agency must make reasonable efforts to obtain the informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability. Consent for Initial Evaluation

34 CFR § (a) (2) For initial evaluations only, if the child is a ward of the State and is not residing with the child’s parent, the public agency is not required to obtain informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability if— Consent for Initial Evaluation if Child is Ward of the State

34 CFR § (a) (2)(i) Despite reasonable efforts to do so, the public agency cannot discover the whereabouts of the parent of the child; (ii) The rights of the parents of the child have been terminated in accordance with State law; or (iii) The rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child. Consent for Initial Evaluation if Child is Ward of the State

34 CFR § (a) (i)...the public agency may, but is not required to, pursue the initial evaluation of the child by utilizing the procedural safeguards in subpart E of this part (including the mediation procedures under § or the due process procedures under §§ through ), if appropriate, except to the extent inconsistent with State law relating to such parental consent. Consent for Initial Evaluation – Refused or No Response

34 CFR § (a) (3)(i) If the parent of a child enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation under paragraph (a)(1) of this section, or the parent fails to respond to a request to provide consent,.... Consent for Initial Evaluation - Refused or No Response

34 CFR § (a) (ii) The public agency does not violate its obligation under § and §§ through if it declines to pursue the evaluation. Consent for Initial Evaluation – Refused or No Response

Supplemental IDEA Regulations Published December 1, 2008 Effective December 31, 2008 Included revocation of parental consent for services, affecting 34 CFR §300.9 Definition of consent and 34 CFR § Parental consent

Discontinuing Services Before revocation regulations (12/31/08) Age Graduation with a regular diploma Eligibility Determination After revocation regulations Parents may revoke consent for services – Student subsequently considered a regular education student

34 CFR § (b) – Parental consent for services. (1) A public agency that is responsible for making FAPE available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child. (2) The public agency must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child. Replaced (b)(3)-(4) Parental Consent for Services From the Monday, August 14, 2006 Federal Register From the Monday, December 1, 2008 Federal Register (effective 12/31/2008)

34 CFR § (b) – Parental consent for services. (3) If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency— (i) 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;. ( Consent for Services From the Monday, August 14, 2006 Federal Register From the Monday, December 1, 2008 Federal Register (effective 12/31/2008)

34 CFR § (b) – Parental consent for services. (3) (ii) 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 the special education and related services for which the parent refuses to or fails to provide consent; and (iii) Is not required to convene and IEP Team meeting or develop an IEP under §§ and for the child. Consent for Services From the Monday, August 14, 2006 Federal Register From the Monday, December 1, 2008 Federal Register (effective 12/31/2008)

34 CFR § (b) – Parental consent for services. (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— Consent for Services From the Monday, August 14, 2006 Federal Register From the Monday, December 1, 2008 Federal Register (effective 12/31/2008)

34 CFR § (b) – Parental consent for services. (4)(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; Consent for Services From the

34 CFR § (b) – Parental consent for services. (4)(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; Consent for Services From the Monday, August 14, 2006 Federal Register From the Monday, December 1, 2008 Federal Register (effective 12/31/2008)

34 CFR § (b) – Parental consent for services. (4)(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. Consent for Services From the Monday, August 14, 2006 Federal Register From the Monday, December 1, 2008 Federal Register (effective 12/31/2008)

Revocation of Consent Affects…  Consent Procedures Transfer of Rights Discipline Accommodations Student Records Unique settings, schools and programs

Revocation Procedures 34 CFR § (b)(4) Parents must revoke consent in writing. The local educational agency must. discontinue special education and related services after sending Prior Written Notice to the parents. States are allowed to require additional procedures that do not restrict parents’ rights to revoke consent. Revocation of Consent Revocation of Consent Areas of Impact

Transfer of Rights 34 CFR § States may allow for the transfer of parental rights to students who attain the age of majority. Local educational agencies must notify the parent and the student of the transfer. Following the transfer, local educational agencies must provide all notices required by IDEA to the student and the parents. Revocation of Consent Revocation of Consent Areas of Impact

Discipline – 34 CFR § (c)(1)(ii) After a revocation of consent, local educational agencies are not deemed to have knowledge of the student’s disability. Local education agencies are not required to initiate manifestation determinations for student whose parents have revoked consent for services. Revocation of Consent Revocation of Consent Areas of Impact

Accommodation Although local educational agencies must discontinue special education and related services following a revocation of consent for services, they may still provide accommodations available to all students under generally applicable state standards. Local educational agencies are not required to provide all accommodations included on the student’s IEP prior to revocation. Revocation of Consent Revocation of Consent Areas of Impact

Consent Definition 34 CFR § – Consent (c)(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime. (2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked). From the Monday, August 14, 2006 Federal Register 3

Consent Definition 34 CFR § – Consent (c)(3) If the parent revokes consent in writing for their child’s receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent. From the Monday, December 1, 2008 Federal Register (effective 12/31/2008) 3

Student Records – 34 CFR § 300.9(c)(3) Local educational agencies are not required to alter or remove records of a student’s prior eligibility for or receipt of special education services following the revocation of parental consent for special education services. Parents may still request modifications to student educational records that are inaccurate, misleading or in violation of the privacy or other rights of the child in accordance with 34 CFR § Revocation of Consent Revocation of Consent Areas of Impact

Charter schools In district Out-of-district Home Schooling Private schools/programs District placed (FAPE) Parentally placed (equitable services) Residential facilities District placed Agency or parentally placed Revocation of Consent Impact in Unique Settings

Eligibility under § 504 of the Rehabilitation Act of 1979 Referrals for IDEA eligibility after a revocation of parental consent for special education and related services Eligibility for Special Services – After Eligibility

20 USC § 1415(l) – Rule of Construction Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter. Eligibility under §504

Local educational agencies must treat post- revocation referrals as initial referrals. Local educational agencies must follow the initial evaluation procedures prescribed in 34 CFR § New evaluations may begin with the review of existing evaluation data, as appropriate. See 34 CFR § Additional requirement for evaluations and reevaluations Post-Revocation Referrals

Required Consent Definition 4 CFR § – Consent Consent means that— (a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication; (b) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and (c)(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime. (2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked). (3) If the parent revokes consent in writing for their child’s receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent. From the Monday, August 14, 2006 Federal Register From the Monday, December 1, 2008 Federal Register (effective 12/31/2008) 3