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IDEA Regulations Revised to Allow Revocation of Parental Consent for Special Education

Effective December 31, 2008, parents will be able to revoke consent for special education services and school districts will not be able to challenge the decision through mediation or due process.  In their comments to the new regulations, United States Department of Education officials explained that they believe that the right to revoke consent for special education is consistent with the other parental consent provisions of the IDEA regulations which require parents to give written consent for the initial provision of special education services and state that consent is voluntary and may be revoked at any time.  The concerns of school officials expressed during the regulatory comment period that eligibility for special education services should be made by a team of professionals and parents working together and that parents should not be able to veto the decision of the team were overruled in this process.

Also clarified as part of these regulatory changes: (1) If parents revoke consent for special education, the school district is not required to amend the child’s educational records to delete all references to the child’s prior receipt of special education services (34 C.F.R. 300.9(c)(3)); and (2) If parents revoke consent for special education, the school district will not be considered to be in violation of its obligation to provide FAPE to the child during the period of time when the parents refuse to consent to services (34 C.F.R. 300.300(b)(4)(iii)), and is not required to convene an IEP team meeting or develop an IEP for the child for further provision of services (34 C.F.R. 300.300(b)(4)(iv)).

Department of Education officials emphasize that when parents revoke consent for special education services, they must do so in writing, and although school officials cannot delay in ceasing to provide special education services to the child, they must provide the parent with prior written notice (and a copy of procedural safeguards) prior to stopping services.  Left unanswered is the question of whether, in order to provide the parent with prior written notice, the district must convene an IEP team meeting to discuss the parent’s revocation of consent.  Initial indications from the Connecticut State Department of Education are that it will not be necessary to convene a PPT meeting in order to issue prior written notice, but school officials should stay tuned for developments on the procedural aspects of this change and consult with their counsel on specific cases.  No form has been developed by the State Department of Education for purposes of revocation of parental consent, so we can expect that parents will submit requests for revocation in various formats, which should be reviewed on an individual basis.  School districts may wish to consider developing a form for this purpose, which can provide the parent with information that s/he needs in order to make an informed decision regarding revocation of consent.

We anticipate that one of the more difficult aspects of implementation of this provision will be continuing to comply with the “child find” obligations of IDEA, which, Department of Education officials also emphasize, are in no way abrogated or compromised by the provision that parents may revoke consent for special education.  School officials therefore are required to remove students fromm special education programming upon receipt of parental revocation of consent, but must continue to attempt to identify and provide programming to any student in the district who has or may have a disability requiring special education services.  One can imagine a scenario in which a child is removed from special education, fails to succeed in regular education, and is immediately re-referred for evaluation for special education services, turning the remaining years of the child’s education in a constant cycle of referral, evaluation (or lack of parental consent for evaluation) and refusal to consent to special education services. 

Also left unanswered are implications for providing Section 504 accommodations for students whose parents refuse to consent to special education services.  Previous guidance from Department of Education officials indicated that school districts were under no obligation to offer Section 504 accommodations to students whose parents had been offered special education IEP’s and refused to consent to such services, but school districts are under a separate obligation to avoid discriminating against individuals with disabilities under the ADA and Section 504.  Query whether we will see a shift in interpretation of these two statutes in order to avoid penalizing students with disabilities whose parents refuse to give consent for special education services.