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Parent Cannot Revoke Consent for Special Ed, Then Claim Denial of FAPE

This is one of those (rare) moments where, as a school lawyer, you think common sense has prevailed.  We shouldn’t need a decision from a State hearing officer to tell us that once a parent has revoked consent for special education services, then the parent cannot come back and claim that the district has denied the child a Free Appropriate Public Education (FAPE).  And yet, we had a four-day hearing in February and March concerning that very issue, resulting in Final Decision and Order 11-0256, Student v. Newtown Board of Education.  The decision will be posted on the State Department of Education website, but until then, you can read a copy of it here.

In December 2008, the United States Department of Education amended the IDEA regulations to allow parents to revoke consent for special education and related services provided under IDEA.  No longer may school districts faced with a parent revocation of consent access any of the dispute resolution procedures available under IDEA in order to discuss the ramifications of such a decision or attempt to persuade a parent that this decision may not be in the best interests of the child.  No mediation, no due process.  Parents, the theory goes, have the right to make this decision without interference from the school district.

In this case, as discussed in the decision, the parent’s decision to revoke consent for special education services came after (the parent believed) the district had failed to accurately record the child’s IEP in the written documentation, and failed to implement the child’s IEP the way the parent thought it should be implemented.  However, instead of filing for due process claiming denial of FAPE or filing a complaint with the State Department of Education claiming failure to implement the IEP, the parent revoked consent for special education services, causing the child to be returned to general education with no special education services or supports.  A few months later, the decision indicates that when it became apparent that the child still needed the services, the parent began to correspond with the district, hinting around that the district should convene a PPT meeting but insisting that she was not requesting such a meeting and would not allow the IEP to be implemented.  When the district did convene a PPT and offered to implement the IEP, the parent again refused and filed for due process, but did not reinstate consent for special education services.  After four days of hearings and a post-hearing brief, the decision of the hearing officer confirms that there is no relief that can be issued in such a case because the district does not have consent from the parent to provide any services to the child.  Case dismissed.