The federal regulations for Individuals with Disabilities Education Act (IDEA) includes many provisions to protect the rights of parents and their child with a disability while also giving families and school systems means by which to resolve disputes. These rights are known as procedural safeguards.
Under section 34 CFR &300.9, parental consent is defined. Consent in IDEA means:
1. You (the parent) have been fully informed in your native language or other mode of communication (such as sign language, braille or oral communication) of all information about the action for which you are giving consent;
2. You understand and agree in writing to that action, and the consent describes that action and lists the records (if any) that will be released and to whom; AND
3. You understand that the consent is voluntary on your part and you may withdraw your consent at any time.
However, your withdrawal of consent does not negate or undo an action that has occurred after you initially gave this consent but before you withdrew it. An example of this would be you (as parent) originally agreed to sign for an initial multi-factored evaluation for your child and the evaluation has already taken place. Once you withdraw your consent, the process stops but you must put this information in writing.
Under section 34 CFR &300.300, parental consent for initial evaluation details the rights and responsibilities of the parents as well as the school district in this area. The school district of residence cannot conduct an initial evaluation of your child to determine if the child is eligible under IDEA to receive special education and related services without first providing you with prior written notice of the proposed action and without obtaining your consent as described in parental consent.
Your school district must make reasonable efforts to obtain your informed consent for an initial evaluation to decide whether your child is a child with a disability. Your consent for an initial evaluation for your child does not mean that you have given the school district consent to start providing special education or related services. This action requires additional parental consent during the plan for services under the Individualized Education Plan.
If your child is enrolled in public school, or you are seeking to enroll your child in a public school and you have refused to provide consent or failed to respond to a request to provide consent for an initial evaluation, your school district may, but is not required to, seek to conduct an initial evaluation of your child by using mediation or due process procedures. Your school district will not violate its obligations to locate, identify, and evaluate your child if it does not pursue an evaluation of your child in these circumstances.
There are special rules for initial evaluation of children who are wards of the state and not living with his/her parents. The school district does not need consent from the parent for an initial evaluation to determine if the student is a student with a disability if:
1.Despite reasonable efforts to do so, the school district cannot find the student’s parent;
2. The rights of the parents have been terminated in accordance with State law; or
3. A judge has assigned the right to make educational decisions and to consent for an initial evaluation to an individual other than the parent.
Ward of the State, as used in the IDEA, means a student who, as determined by the State where the student lives, is:
1.A foster child unless the child has a foster parent who meets the state definition of a parent;
2.Considered a ward of the State under State law; OR
3. In the custody of a public child welfare agency.
In the next few articles, more procedural safeguards and parental rights will be discussed.