Quality Education for Children with Disabilities: Topic Briefs for Parents and Their Advocates

#7 – Notice and Consent

 

 

 

To assist parents in carrying out their critical role in educational decisionmaking under the Individuals with Disabilities Education Act, the statute contains detailed requirements concerning prior written notice of school decisions, and informed parental consent.  The regulations implementing Section 504 of the Rehabilitation Act of 1973 also address notice to parents, albeit in less detail. This topic brief discusses these notice and consent requirements.

 

Prior Written Notice of School Decisions -- Notice in General

            Under IDEA, parents must be given prior written notice any time a school system proposes or refuses (usually in response to a parent's request) to initiate or change the identification, evaluation or educational placement of a child with disabilities or the provision of a free appropriate public education to the child.1  This includes providing notice when school authorities decide to take certain actions under the discipline provisions of the statute.2  The Section 504 regulations require notice of actions regarding the identification, evaluation or educational placement of students with disabilities.3  The 504 regulations do not specify how, or at what point in time, the notice must be given.  They do, however, provide that notice meeting IDEA requirements will satisfy §504 as well.4

            The notice required by IDEA must include:

•                     a description of the action proposed or refused by the school system;

•                     an explanation of why the school system proposes or refuses to take the action;

•                     a description of alternatives the school system considered along with an explanation of why those alternatives were rejected;

•                     a description of each evaluation procedure, test, record or report the school system used as a basis for its proposal or refusal;

•                     a description of any other factors that are relevant to the proposal or refusal;

•                     a statement that the parents have rights under IDEA’s procedural safeguards, and an


explanation of how parents can obtain more information about procedural safeguards; and

•                     sources for parents to contact for help in understanding IDEA.5

            The notice must be written in language that the general public can understand and provided in the language or other mode of communication used by the parent.6  If the parent's native language or other mode of communication is not a written one, the school system must ensure that the notice is translated, that the parent understands it and that there is written evidence that these two requirements have been met.7

Procedural Safeguards Notice

            As noted above, notice under IDEA must include a statement that parents have rights under the procedural safeguards created by the statute, along with information about how to obtain a description of those rights.  Under certain circumstances, however, schools must automatically give parents this detailed description – called “procedural safeguards notice” – regardless of whether parents request it.  Procedural safeguards notice must be given:

 

•                     when a child is referred for an IDEA evaluation for the first time;

•                     each time the school system notifies the parents of an IEP meeting;

•                     whenever the child is to be reevaluated;

•                     whenever parents (or the school system) file a request for a due process hearing to resolve a dispute concerning the child’s education under IDEA; and

•                     whenever school authorities decide to take certain actions under IDEA’s discipline provisions.8

            The procedural safeguards notice must include a full explanation of all of the IDEA procedural safeguards concerning:

•                     independent educational evaluations;

•                     prior written notice;

•                     parental consent;

•                     access to education records;

•                     opportunity to present complaints and to initiate due process hearings;

•                     the child’s placement while due process hearings and appeals to court are pending;

•                     procedures for students who are placed in interim alternative educational settings;

•                     requirements for parents who place their children in private schools at public expense;

•                     mediation;

•                     due process hearings, including requirements for disclosing evaluation results and recommendations;

•                     state-level appeals;

•                     lawsuits;

•                     attorneys’ fees; and

•                     procedures for filing a complaint for investigation by the state educational agency.9

            The procedural safeguards notice, too,  must be written in language that the general public can understand, and provided in the language or other mode of communication used by the parent.10  If the parent's native language or other mode of communication is not a written one, the school system must ensure that the notice is translated, that the parent understands it and that there is written evidence that these two requirements have been met.11

 

Consent in General

            IDEA requires school systems to obtain informed parental consent before evaluating a child for the first time, conducting a reevaluation, or providing a child with special education and related services for the first time.12   Note that consent is not required for tests or other evaluations administered to all children, unless, of course, the school system seeks consent from all parents.13  A parent who consents to an evaluation is not also consenting to have her child receive special education and related service.  Therefore, if the evaluation results in a finding that the child is eligible for services under IDEA, separate, informed consent must be obtained before such services can be provided.14

            In addition to these IDEA requirements, IDEA permits states to require parental consent for other IDEA services and activities, for example, changes in IEPs or placement.15  However, states with additional parental consent requirements must ensure that a parent’s refusal to consent does not result in a failure to provide the child with a free appropriate public education.16  Thus, for example, if a parent refuses to consent to a particular IEP or placement change in a state that requires consent for such changes, school personnel should work with the parent to find another way to address the educational need that prompted the proposed change. 

 

Failure or Refusal to Consent

            If a parent fails to respond to a request for consent to a reevaluation, the school system may proceed anyway if it has taken “reasonable measures” to obtain consent, including telephone calls, correspondence and visits, and has documented its efforts and the results.17

            If a parent responds and refuses to consent to an initial evaluation or reevaluation, a number of possibilities might follow.  School personnel may, and should, discuss the issue with the parent in order to understand her reasons for withholding consent, explain the school system’s concerns, and try to come to a mutually agreeable resolution.  Indeed, some state laws, regulations or policies may require this process.   In addition, the IDEA regulations permit schools to request mediation in an attempt to resolve the impasse, or to seek a due process hearing and request that the hearing officer allow the evaluation (or reevaluation) to proceed over the parent’s objection.18  If, however, state law does not allow schools to do so, and/or gives parents an absolute right to refuse consent, the matter ends there, and the evaluation or reevaluation cannot proceed.19

            Finally, schools may not use a parent’s refusal to consent to one thing (e.g. a reevaluation, or a particular IEP provision in a state that requires consent for the latter) as a reason to deny a child other services or benefits due him under IDEA.20

 

 

Notes

 

 


1. 20 U.S.C. §1415(b)(3); 34 C.F.R. §300.503(a).

2. See 20 U.S.C. §1415(k)(4)(A)(i); 34 C.F.R. §300.523(a)(1).

3. 34 C.F.R. §104.36.

4. Id.

5. 20 U.S.C. §1415(c); 34 C.F.R. §300.503(b).

6. 20 U.S.C. §1415(b)(4);34 C.F.R. §300.503(c)(1).

7. 34 C.F.R. §300.503(c)(2).

8. 20 U.S.C. §1415(d)(1), (k)(4)(A)(i); 34 C.F.R. §§300.504(a), 300.523(a)(1).

9. 20 U.S.C. §1415(d)(2); 34 C.F.R. §300.504(b).

10. 20 U.S.C. §1415(d)(2);34 C.F.R. §300.504(c).

11. 20 U.S.C. §1415(d)(2);34 C.F.R. §300.504(c).

12. 20 U.S.C. §§1414(a)(1)(C), 1414(c)(3); 34 C.F.R. §300.505(a).

13. 34 C.F.R. §300.505(a)(3)(ii).

14. 34 C.F.R. §300.505(a)(2).

15. 34 C.F.R. §300.505(d), incorporating by reference §300.345(d).

16. Id.

17. 20 U.S.C. §1414(c)(3); 34 C.F.R. §300.505(c).

18. 34 C.F.R. §300.505(b).

19. See id.

20. 34 C.F.R. §300.505(e) .