Proposed Regulations for IDEA ~ Parental Consent and Hearing Rights
The U.S. Department of Education (USED) released proposed new regulations for Part B of the Individuals with Disabilities Education Act (IDEA) on May 13, 2008. Among these proposed new regulations, two are critically important for parents. They are: Parental Consent and Hearing Rights. A brief description of the proposed rules follows:
PARENTAL CONSENT
A new section 300.300 (b) (4) is proposed to the Parental Consent section that allows parents to unilaterally withdraw their child from receiving special education and related services (at any time following their informed written consent for the initial provision of special education and related services).
If a parent exercises this right, the school district:
• Cannot continue to provide special education and related services to the child
• Cannot use mediation and due process procedures to obtain agreement or a ruling that services must continue to be provided.
• Will not be considered in violation of providing a Free Appropriate Public Education (FAPE)
• Will not be required to convene an IEP team meeting or develop an IEP.
Furthermore, parents and advocates should be aware that if a parent has refused services for their child under IDEA, then based on the proposed rules, the school does NOT recognize that child, regardless of the manifestations of his/her disability, as one deemed to have a disability. Consequently, even it there were evidence in the child’s file of the child being previously evaluated as having a disability with challenging behaviors, under the proposed rule that child would be treated as if he/she did not have a disability and would face disciplinary action in “the same manner as a non-disabled child.”
Hearing Rights ~ Parents’ Right to be represented by non-attorneys in due process hearings
The proposed regulations at §300.512 (a) (1) recognize that parents continue to have the right to be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities, but ADDS the following limiting language: “except that whether parents have a right to be represented by non-attorneys at due process hearings is determined under State law.”
The USED’s justification for the change in its position – expressly adding language that leaves to the states the determination of whether parents have a right to be represented at due process hearings by non-attorneys - is based on its “regard for the principle of Federal-State comity.” Where the statute is silent, the USED explains: “We believe that the regulations should respect the interests that States have in regulating the practice of law so as to protect the public and ensure the appropriate administration of justice.
The USED cited a single decision from Delaware (2001) finding that State law and legal practice determines who is able to represent parents in state administrative due process hearings. The Department further cited the case to justify its position that State oversight is necessary to protect clients from fraud and to ensure that parents are represented by persons who were qualified to represent their interests under IDEA.
The Advocacy Institute encourages parents and advocates to submit comments to USED on these issues. Specifically, (1) requesting that additional affirmative obligations be placed upon the school district in cases of parental revocation of consent for special education and related services and (2) requesting that the additional language regarding the right to representation by non-attorney advocates be deleted.
COMMENTS MUST BE SUBMITTED BY JULY 28, 2008. Additional information, including how to your submit comment, is available here.
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1 comment July 17th, 2008