Tuesday, March 3, 2009

Latest Federal Regulations - Parental Consent: Part II

The federal Office of Special Education Programs made several changes to the federal IDEA regulations effective on December 31, 2008. In a recent post about the regulatory change to parental consent to continue special education, I pointed out my skepticism of changes made by a federal agency when a resident has one f
oot out of the door.

You can review the
analysis of comments to the proposed regulations by OSEP at this link.

Here are some more of the key items discussed by OSEP concerning the changes to the consent regulations:

Other commenters argued that the change was inappropriate because the right to FAPE belongs to the child and not to the parents and the change could undermine that right. OSEP responded as follows:

Discussion: We do not agree with the commenters that § 300.300(b)(4) undermines a child's right to FAPE. Section 300.101 requires that FAPE must be available to all children with disabilities residing in a State between the ages of 3 and 21, inclusive, except that public agencies are not required to serve children aged 3 through 5 and aged 18 through 21 if serving such children is inconsistent with State law, practice or the order of any court with respect to the provision of public education to children of those ages. The child's parents, under the Act, are afforded rights regarding the provision of FAPE to their child, including the right to determine whether their child will receive special education and related services. Specifically, under section 614(a)(1)(D)(i)(II) and (ii)(II) of the Act, a parent has the authority to determine whether a public agency may begin to provide special education and related services to their child. As discussed previously, it is the Department's position that a parent also should have the authority to revoke consent to the continued provision of special education and related services to their child. The Act presumes that parents act in the best interest of their child. Therefore, affording a parent the right to consent to the initial provision of special education and related services or the right to revoke consent, in writing, to the continued provision of special education and related services is consistent with the Act and does not undermine a child's right to FAPE under § 300.101.

73 Fed Register No. 231 at page 73010 (12/1/2008)

Some commenters argued that the change in the consent regulation was a lessening of the rights of a child with a disability which is specifically forbidden by Section 607 of the Act. OSEP responded as follows:

We also disagree that allowing a parent to revoke consent for the provision of special education and related services under § 300.300(b)(4) procedurally or substantively lessens protections provided to children with disabilities as embodied in regulations in effect on July 20, 1983. As previously stated in response to other comments, a parent is recognized under the Act as the party responsible for protecting the child's interest in obtaining appropriate educational services. It is the Department's position that the protections provided to children with disabilities are enlarged rather than lessened by amending the regulations to provide that a parent's decision to revoke consent for the continued provision of special education and related services cannot be challenged by the public agency. Furthermore, the change reflected in § 300.300(b)(4) is consistent with the legislative changes made to the Act in 2004, which included adding to section 614(a)(1)(D)(ii)(II) of the Act the requirement that parental consent be obtained before the public agency begins to provide special education and related services to their child. In our view, the better reading of the Act, especially in light of the Department's long-standing regulatory definition of ''consent,'' which has included the concept that consent can be revoked at any time, is that a parent's revocation of consent for the continued provision of services cannot be challenged by a public agency any more than a parent's refusal to provide consent for the initial provision of special education and related services can be.

73 Fed Register No. 231 at page 73015 (12/1/2008)

What do you think of these changes to the federal regulations?




  1. Given that parents typically have an absolute right to forbid schools from providing their children with special education services, its hard to come up with a justification for why they shouldn't be allowed to revoke their consent in the same manner. There are some potentially troubling practical implications of this change, however.

    For example, one has to wonder about the circumstances in which a parent who has previously agreed to special education would revoke consent. Presumably, most such parents would not be categorically opposed to special education, and believed at one time that their children needed it.

    It seems possible that one outcome of this change will be that some parents who feel their child is being poorly served by special education services, who don't have the wherewithal to go through due process proceedings, or have gone through such proceedings and received an adverse decision, will revoke consent, thereby relieving the district from responsibility for their children, not because they don't want their child to receive special education, but because they don't believe the school's program is helpful.

    This might create an undesirable incentive for school's to be uncooperative with parents whose children are perceived as difficult, and for parents involved in contentious negotiations with their schools to resort to revoking their consent to escape the difficulty.

  2. When I wrote about this, one of the advocates I interviewed didn't like this provision because, if a parent revokes consent, it allows a school to treat a child as if he or she was never deemed disabled. Her feeling was, just because a child isn't receiving special education services doesn't mean the child doesn't have a disability. And so she was saying that if the student then had a behavioral issue that was disability-related, he or she would not be able to have the protections of a manifestation determination.

    I can understand the government's point of view, but, it does occur to me that it may be unwise to pretend to if a child isn't in spec ed, everything is peachy keen. Spec ed is just a set of services; not getting them doesn't mean you are therefore "non-disabled."

    Hope this makes sense!

  3. Thanks Jonathan

    I appreciate your comment.


  4. Christina,

    Always good to have you weigh in. Thanks for your input.