The role of parental consent in recently proposed federal regulations

By Patricia S. Phelan

The Law Office of Patricia S. Phelan

845-398-FAPE (3273)  (please note new phone #)

http://www.phelanspecialedlaw.com/

On May 13, 2008, the US Department of Education published in the Federal Register their intention to amend several of the federal regulations governing the education of children with disabilities.  The original regulations, published in the Federal Register on August 14, 2006, were enacted to interpret the Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004]. Of particular interest in the proposed regulations are those seeking to amend the parental consent section of the federal regulations (34 CFR §300.300).

Unilateral Withdrawal of Consent Proposed

Under existing federal regulations, parental consent is required before a school district can provide special education services to a student with a disability. In addition, under current regulations, once a parent has agreed to the initial provision of services, the regulations do not specifically address whether that parent can unilaterally withdraw consent for services.  See 34 CFR §300.300.  Once a parent has agreed to initial services, “Ideat has been [the US Department of Education’s] longstanding interpretation of the current regulations that…parents cannot unilaterally withdraw their child from receipt of special education and related services . . . .” Federal Register, Vol. 73, No. 93, May 13, 2008, Proposed Rules, 27691 [FR].  Even if a parent no longer wants her child to continue receiving special education, the school has the obligation to continue to provide the services IF the school feels it is necessary for the child to receive a free and appropriate public education [FAPE].

One of the proposed regulations would “permit parents to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children.”  FR 27691.  It stands to reason that a parent should be able to withdraw their consent for a child’s special education just as the parent is able to give consent for special education.  If this proposal were to take effect, no public agency could challenge a parent’s decision to unilaterally withdraw her child from special education.  The school district could not file for mediation or due process to compel the child’s services to continue.

In furtherance of “the [US] Department’s goal of enhancing parent involvement and choice in their child’s education” [FR 27691], this proposed regulation would require a school district to respect a parent’s right to decide if the child no longer requires special education services.  The district would not be able to challenge the parent’s decision to withdraw services for the child.  This proposed regulation properly gives due deference to a parent’s paramount role in advocating for a child and determining the special education and related services that are in the best interests of a child.

No Ongoing Consent Requirement Proposed

Current federal regulations do not address specifically whether a parent who consents to the initial provision of special education services must consent to subsequent IEP services.

The proposed regulations clarify that parental consent for subsequent services is not required for the continuation of special education services, after having obtained a parent’s initial consent for special education services.  The US Department of Education declined to impose an ongoing consent requirement, reasoning it is too burdensome for the schools and unfair to interfere with local control of education.  States of course have the discretion to establish additional consent requirements. I strongly disagree with the Department of Education’s refusal to require ongoing consent for IEP services.  Informed consent from a parent is required for other aspects of the special education process, such as to conduct both evaluations and reevaluations. Consent for actual services should be no exception.

Pursuant to IDEA 2004, parents are intended to play an integral role in planning a child’s special education program.  However, I am deeply concerned that the absence of an ongoing consent requirement would compromise a parent’s enhanced role.  Indeed, while the law dictates that the ultimate decision regarding a child’s special education needs is left to an IEP team of which the parent is a vital member, absent the requirement of a parent’s ongoing consent, school district personnel – – who generally outnumber parents during an IEP meeting – – will invariably control the outcome of the IEP meeting.  This would in turn frustrate the law’s intent for parents to assume a more integral role in planning their children’s educations.  Thus, mandating an annual consent requirement – -which the proposed regulations regrettably do not do – – would prevent a public agency from unreasonably controlling a student’s education.

Partial Consent Extended

Current federal regulations specify that a “public agency may not use a parent’s refusal to consent to one service or activity under paragraphs (a) or (d) (2) of [§300.300] to deny the parent or child any other service….” 34 CFR §300.300 (d) (3).  However, the current law is silent as to whether this protection applies to consent for the initial provision of services under section (b) and reevaluations under section (c) of 34 CFR §300.300.

In order to correct this “an inadvertent omission” [FR 27692] in the current law, the US Department of Education has proposed a regulation which clarifies that a public agency may not use a parent’s refusal to consent to one service to deny the child another service, under both the initial provision of services under section (b) and reevaluations under section (c) of 34 CFR §300.300.

In my experience, when parents agree with some, but not all, of the IEP team’s recommendations, school districts often claim that they will not be able to start any of the special education services until the parents consent to all of the recommended services. This subtle intimidation is contrary to the law for two reasons:  (1) The law specifically prohibits a district from using a parent’s refusal to consent to an initial evaluation to deny the child another service (hopefully, future regulations will extend this prohibition to services beyond the initial evaluation, as well); (2) Even though districts commonly request that parents “agree” to the terms of the IEP in writing, there is actually no current or proposed requirement in the federal law that a parent agree to an IEP.

Moreover, considering this partial consent proposal in the context of the regulation proposing unilateral withdrawal of consent mentioned earlier, I am apprehensive that a school district might misconstrue a parent’s agreement to some but not all services as a complete withdrawal of consent for special education.  Unable to challenge what they interpret to be a parent’s complete revocation of consent for special education, the district might attempt to place the student with special needs into a regular education environment.  The fear of this result might compromise a parent’s reasoning and compel her to agree to services against her better judgment, simply to retain special education benefits altogether. Therefore, if the proposed regulations are implemented, parents of children with disabilities must be explicit when stating their objective to either accept or reject particular special education services, while clearly indicating their overall intent to continue to consent to special education programming.

As a parent of a child with a disability and an attorney representing parents advocating for their children with disabilities, I am concerned that notwithstanding the Department of Education’s best intentions to embrace the essential role of parents reflected in IDEA, some of these proposed regulations may actually  undermine parental rights. 

Whether you agree with my concerns, or have additional comments or concerns, I encourage you to express your thoughts.  I urge members of the public to make public comments on these proposed regulations on or before July 28, 2008. You may submit comments as follows:

Electronicallyhttp://www.regulations.gov

Mail/Hand Delivery:  Tracy R. Justesen, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5107, Potomac Center Plaza,

Washington, DC 20202-2600

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