March 03, 2009 Recent Amendments to Regulations Implementing the Individuals With Disabilities Act (“IDEA”)

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KEEPING YOU INFORMED…

Newly amended IDEA regulations allow a parent, as defined by the IDEA, to unilaterally revoke consent for the provision of special education and related services at any time and prevent school districts from utilizing due process procedures (including mediation) to challenge the revocation of consent.  The amended regulations took effect December 31, 2008.

Prior to the enactment of the amendments, a school district was authorized to continue providing services without the need for further parental consent once a parent had consented to the initial provision of special education services, as long as the child otherwise remained eligible for those services.  The unilateral withdrawal of a child from special education was prohibited in most circumstances.

Now, under the amended regulations, if parents want to revoke their consent, they must do so in writing.  The district must then provide timely prior written notice of the date when the services will terminate in accordance with existing IDEA notice requirements.  While a district may ask the parents to explain why they are revoking consent for services, the district cannot require the parents to provide an explanation. 

Parents may not revoke consent for a particular special education service.  Rather, the right to revoke applies to the entirety of services, although parents wishing to discontinue a specific service, without the agreement of the CSE, continue to have the right to request an impartial hearing to determine the appropriateness of that service.

Once consent is withdrawn, the regulations relieve the district from responsibility for providing a free appropriate public education (“FAPE”), or convening a meeting of the committee on special education (“CSE”), or developing an individualized education program (“IEP”).  The child is considered a general education student and may be placed in any classroom where other general education students are placed.  The student can also be disciplined in the same manner as other general education students, and is no longer entitled to the special due process safeguards provided by the IDEA.

The revocation of parental consent is prospective, not retroactive.  The regulations specifically provide that a district is not required to amend the child’s records to remove references to the child’s receipt of special education services.  The United States Department of Education has also stated that parents who have revoked consent for services retain the right to request an evaluation of their child at any time, as well as the right to request reinstatement of services.

Please do not hesitate to contact us if you have any questions about these amendments.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP, 2009