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Posts Tagged ‘consent’

Withdrawal of IDEA consent does not automatically withdraw 504 consent

Thursday, May 22nd, 2014

D.F. v. Leon County School Board, 62 IDELR 167 (N.D. Fla. 2014): A federal district court permitted a suit by the parent of a student with a hearing impairment to continue, notwithstanding the parent’s withdrawal of consent for services in accordance with the IDEA.  The school district argued that the parent’s withdrawal of consent applied not only to IDEA services, but also any services which would be required under Section 504 or the ADA.  The court, however, held that the parent’s 504 and ADA claims could proceed since, as part of her withdrawal of consent, she requested services (such as technology to assist the student in the classroom) in accordance with Section 504.  The court noted that a parent’s refusal to consent to a more comprehensive IEP does not necessarily authorize a school “to refuse to provide technology to help a student hear in other classes.”

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Prior written notice and consent required for an FBA assessing student’s specific needs.

Monday, September 17th, 2012

Letter to Anonymous, 59 IDELR 14 (OSEP 2012):  The federal Department of Education’s Office of Special Education Programs noted that prior written notice (PWN) and parent consent is required if a school district is conducting a functional behavioral assessment (FBA) to assess the behavioral needs of a specific student.  Only if the FBA is “intended to assess the effectiveness of behavioral interventions in the school as a whole” will the district be excused from issuing a PWN and obtaining parental consent.

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Parents’ conditions to consent for re-evaluation amounted to a denial of consent, relieving school district of obligation to evaluate.

Thursday, April 5th, 2012

G.J. v. Muscogee County School District, 58 IDELR 61 (11th Cir. 2012):  A U.S. federal Court of Appeals upheld a district court’s determination that, where a student’s parents placed several specific conditions on their consent for re-evaluation, the conditions amounted to a constructive denial of consent.  Since consent was constructively denied, the school district was not obligated to re-evaluate the student.

The school sought to re-evaluate the student and provided the parents with a consent form during the kindergarten year for the student (identified as autistic and having a brain injury).  The parents returned the consent form, but with an “addendum” that contained numerous conditions upon which their consent relied.  For example, the parents conditioned their consent on being able to meet with the evaluator prior to and after the evaluation but prior to its submission to the IEP team.  The administrative law judge (ALJ) and district court both determined that, due to the extensive nature of the conditions, the “consent” essentially amounted to a denial of consent, thereby relieving the school district of its obligation to evaluate the student.  The Court of Appeals affirmed such reasoning.

Accordingly, since the parents never consented to a re-evaluation, they were not entitled to an independent educational evaluation (IEE) at public expense.  In order to be entitled to an IEE, the school district must first conduct an evaluation to which the parent may object.  Since the parents did not consent to an evaluation, no evaluation was conducted.  Therefore, there was no evaluation to which the parent could object and thus become entitled to an IEE.

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School district must ensure that parents understand a proposed action, but need not ensure they understand the precise nature of all the services or activities proposed.

Wednesday, June 22nd, 2011

Letter to Johnson, 56 IDELR 51 (OSEP 2010):  The U.S. Department of Education, Office of Special Education Programs (OSEP), advised a parent’s attorney that, when a school district seeks parental consent to conduct an evaluation or provide services, the district must ensure that it is “informed consent” and that parents generally understand the proposed action.  Signing a consent form indicating that the parent understands the proposed activity would satisfy the regulations, but the parent does not need to signify that he or she understands the precise nature of all the proposed services or activities that would be included in an IEP.

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Any parent with authority to make educational decisions may revoke consent for special education services.

Tuesday, June 21st, 2011

Letter to Ward, 56 IDELR 237 (OSEP 2010):  The U.S. Department of Education, Office of Special Education Programs, informed a state special education attorney that any parent with the legal authority to make educational decisions on behalf of a child has the right to revoke consent regarding the child’s continued receipt of special education and related services.

There is no requirement that, in order for a revocation of consent to be valid, the parent who provided consent to the provision of services be the one who also revokes.  Any parent, regardless of who provided consent, may revoke consent.  Similarly, there is no requirement that both parents must consent, or revoke consent, for such consent or revocation to be valid.

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Parents’ consent to initial provision of special education services follows the student from one public agency to another.

Thursday, November 11th, 2010

Letter to Champagne, 53 IDELR 198 (OSEP 2008):  The U.S. Department of Education’s Office of Special Education Programs stated in a policy letter that once a parent provides his or her initial consent for the provision of special education and related services that consent remains valid should the student begin receiving services from a different public agency.

The two examples cited in the letter were: (1) when a student moves from preschool to kindergarten, and begins receiving services from the school district (if that student previously did not attend public schools) and (2) if a student relocated from one school district from another (whether that relocation was interstate or intrastate).  In each situation, since the school district was still required to provide a FAPE, the student was still entitled to receive services and the parent need not provide consent to initial provision of services.  However, if the student relocates from one state to another the new state’s school district must conduct a new evaluation (unlike a student who relocates intrastate, in which case the new school district need only adopt the student’s existing IEP).

However, if the “new public agency determines that an evaluation is necessary to determine whether the child is eligible for special education and related services and the child’s educational needs, the evaluation is considered an evaluation and not a re-evaluation.”  In that event, “the public agency must follow the consent requirements for initial evaluations and the initial provision of special education and related services.”

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