IDEA 2004 ALERT

Comments on Proposed Rules for Part B of the Individuals with Disabilities Education Act
34 CRF Part 300 (Sec. 300.9, 300.300, and 300.512 only)

73 Federal Register 27690, May 13, 2008
Docket ID ED-2008-OSERS-0005

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§ 300.9 Consent

- PROPOSED REGULATION

ADDS NEW SECTION (3) to definition:
(c) * * *
(3) If the parents revoke consent for their child's receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent.

- COMMENTS AND RECOMMENDATIONS

COMMENT: Proposed §300.9 (c) (3) appears to be in alignment with (c)(2) which states that revocation of parental consent is not retroactive. The requirement to maintain the documentation of the student’s prior status in his/her education record is a protection that belongs to the child, [note 34 C.F.R. § 104.3(j), (l)(2)] not his/her parent. Furthermore, to the extent that the parent challenges the determination of the child’s eligibility or the accuracy of any other finding in the child’s education record, the parent can exercise his/her right to a hearing under the Family Educational Rights and Privacy Act (FERPA) to seek to correct misinformation in the child’s education record and even if unsuccessful, is entitled to include a written explanation of the parent’s position.

§ 300.300 Parental consent

- PROPOSED REGULATIONS

COMBINES CURRENT §300.300 (b)(3) AND (b)(4) AS FOLLOWS:
(3) If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency--

(i) May not use the procedures in subpart E of this part (including the mediation procedures under Sec. 300.506 or the due process procedures under Sec. Sec. 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;
(ii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent; and
(iii) Is not required to convene an IEP Team meeting or develop an
IEP under §300.320 and §300.324 for the child.

ADDS NEW SECTION (4) TO (b) as follows:

(4) If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent for the continued provision of special education and related services, the public agency--

(i) May not continue to provide special education and related services to the child;
(ii) May not use the procedures in subpart E of this part (including the mediation procedures under Sec. 300.506 or the due process procedures under Sec. Sec. 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;
(iii) Will not be considered to be in violation of the requirement to make available FAPE to the child because of the failure to provide the child with further special education and related services; and
(iv) Is not required to convene an IEP Team meeting or develop an IEP under Sec. Sec. 300.320 and 300.324 for the child for further provision of special education and related services.

- COMMENTS AND RECOMMENDATIONS

COMMENT: The current interpretation (§300.300 (b)(3)) that bars school districts from using procedures under Section 1415 (including mediation or due process procedures) when parents refuse to consent to the initial provision of special education services is supported by the language of the statute. There is nothing in current statute to suggest that parents’ revocation of consent after initiation of such services should be treated differently than their refusal to give consent initially to the provision of special education services to their child, therefore, USED’s proposed §300.300 (b)(4) appears to be an accurate interpretation.

RECOMMENDATION: To ensure that implementation of this statutory right does not create chaos and become an impediment to teaching and learning, USED should require, through these regulations, an orderly process for ensuring that the parent revoking consent understands what services will be terminated and the full implications and consequences of his/her action. Specifically, the local agency should be required to:

- obtain parental revocation of consent in writing;
- ensure that the revocation is voluntary;
- notify the parent of an opportunity to participate in a voluntary meeting with school personnel (e.g., the IEP team) at which the parent would be able to discuss the reason for decision to revoke consent, review any relevant information from the child’s IEP, prior evaluation results, teacher input, etc., and learn about all legal implications of revocation;
- make clear that the right of the parent to revoke consent would not be contingent upon his/her participation in such a meeting;
- convene the voluntary meeting at a mutually agreed upon time and place, and, as appropriate, facilitated by use of alternate means of meeting participation in accordance with current §300.328
- provide the following information to the parent in writing (either at the voluntary meeting or by other means of communication):

-explanation of the IDEA protections the parent and child will lose (e.g., the right to receive FAPE under IDEA);
-statement about the specific special education services the student will cease to receive;
-description of the student’s continued rights under Section 504 and what services, supports, or accommodations the student might receive under a Section 504 plan;
-notice that the eligible child will be protected by Section 504 and cannot be discriminated against on the basis of his/her disability and shall continue to be eligible for special education and related services under Section 504 regardless of parental consent;
-notice that the information about the child’s eligibility and receipt of special education and related services will remain in the child’s school record;
-summary of the student’s areas of strengths, needs, current levels of functioning and performance.

USED should make clear that a parent’s participation in the aforementioned meeting is discretionary.

COMMENT: The affirmative obligation of States to identify, locate, and evaluate children with disabilities residing in the State (in accordance with Sec. 300.111, Child find) is not compromised by either §300.300 (b)(3) or (b)(4). The LEA has an affirmative obligation with respect to all children to identify and locate those who may be in need of specialized instruction, and there is no basis to exclude children who may be seriously struggling as a result of their disability because they previously had received, but no longer are receiving, special education services.

RECOMMENDATION: While the LEA will not be considered to have violated the requirement to provide FAPE under IDEA based on the proposed regulation and the language of the statute, USED should clarify that this does not eliminate the LEA’s obligation to make FAPE available should a parent subsequently seek or respond to a referral for evaluation, and that the limited exception set forth under IDEA does not apply to the LEA’s obligations under Section 504.

COMMENT: USED has suggested in the comments accompanying the proposed NPRM at 73 Fed. Reg. 27,692 that 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 the child, regardless of the manifestations of his/her disability, as one deemed to have a disability. According to USED, even if 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.” This interpretation is incorrect and should be clarified and corrected. A child with a documented disability who has been determined to need special education is protected under § 1415. Children whose parents revoke consent for the provision of special education have already been determined to be eligible for special education. (See current § 300.534(a) that, consistent with the language of the law, clearly states that this regulatory provision, as well as subsections (b) and (c), only apply to children not determined eligible for special education and related services.) The fact that he child’s educational records will continue to contain information regarding prior eligibility for and receipt of special education and related services (as indicated by proposed 300.9 (c)(3)) is additional reason to reject USED’s comments in the matter of disciplinary actions.

Lastly, there is also little doubt that such students are protected from being discriminated against under Section 504 regardless of whether or not the student is receiving special education services (34 C.F.R. § 104.4). USED’s interpretation limiting the protection to be accorded students who have been determined to be eligible children with disabilities in need of special education under IDEA is also inconsistent with the Fourteenth Amendment to the U.S. Constitution, which protect a child with a disability, regardless of whether he/she receives special education, from being punished for his/her disability or discriminated against on the basis of the disability.

RECOMMENDATION: USED should correct and clarify its interpretation regarding disciplinary actions in cases of students whose parents have revoked consent for special education and related services at the time of release of final regulations regarding §300.300 (b)(4).

§ 300.512 HEARING RIGHTS

- PROPOSED REGULATION

Adds new language to existing 300.512 (a)(1) as indicated below in BOLD CAPS:
(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities, EXCEPT THAT WHETHER PARENTS HAVE THE RIGHT TO BE REPRESENTED BY NON-ATTORNEYS AT DUE PROCESS HEARINGS IS DETERMINED UNDER STATE LAW.

COMMENT: The proposed regulation represents a significant modification in USED’s position from allowing use of lay advocates at due process hearings to saying it is a matter of State law as set forth in proposed regulation § 300.512(a)(1) whether non-attorney advocates may take on the role of counsel for parents before administrative due process hearings. As such, it is potentially disruptive of the State system of administrative due process hearings especially when there is substantial evidence of the current dearth of attorneys and lay advocates available to represent parents. To date, minimal research has been conducted on data and outcomes concerning the special education administrative due process systems of states and districts. Particularly in light of the resolution session introduced by IDEA 2004, the manner in which this intervening process has been implemented (e.g., with or without attorneys or lay advocates accompanying parents) as well as the extent to which the process has had any impact on subsequent due process hearings has yet to be considered and shared with the public. Consequently, it is premature for USED, without adequate review and consideration of available research data, to propose, through regulatory amendment, such a potentially disruptive change. Given the pending reauthorization of IDEA, it is inappropriate for USED to move forward with this proposed language.

RECOMMENDATION: Delete the proposed new language in 300.512, “except that whether parents have the right to be represented by non-attorneys at due process hearings is determined under State law.”

These comments and recommendations are based on those developed by the Center for Law and Education (CLE) in collaboration with The Advocacy Institute. The full document is available here (PDF).

These comments and recommendations are supported by the following organizations:

The Advocacy Institute
Center for Law and Education
Our Children Left Behind