Q.         When is a school district required to obtain “informed consent” from a parent of a child with a disability and what is “informed consent”?

A.         The Individuals with Disabilities Education Act [IDEA], as amended, provides that an agency proposing to conduct an initial evaluation of a child determine if a child has a disability and is in need of special education, must first obtain the “informed consent” of the parents. 20 U.S.C. 1414(a)(1)(C).

             The regulations reiterate that “informed parent consent” is required for an initial evaluation and, such consent shall not be construed as consent for receipt of special education and related services. 34 C.F.R.300.505(a). If a parent refuses to consent to the evaluation, the agency may, to the extent not inconsistent with state law, pursue the evaluation though mediation and due process. 20 U.S.C. 1414(a)(1)(C)(i), (ii); 34 C.F.R. 300.505(a)(b). Prior to conducting a reevaluation of any child with a disability, the statute and regulations also require each public agency to obtain informed parental consent, except if the LEA can demonstrate that it has taken reasonable measures to obtain such consent and the child’s parent has failed to respond. 20 U.S.C. 1414(c)(3); 34 C.F.R. 300.505(c).

             Despite the new statutory language indicating an enhanced level of “informed consent,” the regulations define only “consent” not “informed consent.” The regulations promulgated in March 1999 pursuant to the IDEA Amendments of 1997, 64 Federal Register 48 (March 12, 1999), make no reference to the enhanced statutory requirement. Subsection (b) of 34 C.F.R. 300.500 defines “consent” to mean that the parent has been “fully informed of all information . . .in his native language, or other mode of communication; “understands and agrees in writing to carrying out the activity for which his consent is sought. . . “; and “understands that the granting of consent is voluntary,” and “may be revoked at any time....” but once revoked, the “revocation is not retroactive.” This latter provision concerning non-retroactive revocation of consent was the only change made in the definition of consent in the regulations recently promulgated. As promulgated, the regulation defining consent provides no guidance for monitoring whether public agencies are obtaining the enhanced level of informed consent required by statute, and indicting that the parent fully comprehends the nature and scope of the proposed activity and understands and is comfortable with knowing that he/she can refuse without fear of retaliation or any sense of intimidation. Despite the heightened standard of consent required by statute, no indicators or other rubrics are identified to determine that the parent, in fact, comprehends what he/she is being asked to give this enhanced level of consent to 34 C.F.R. 300.500, 34 C.F.R.300.505.

             Under Part C of IDEA “written parental consent” is required prior to conducting the initial evaluation and assessment of a child, and prior to initiating the provision of early intervention services for infants and toddlers experiencing developmental delay from birth through two years. 34 C.F.R..303.404(a). In addition, the statute requires that the contents of the Individualized family Service Plan [IFSP] must be fully explained to the parents and “informed written consent” from the parents must be obtained prior to provision of early intervention services described in the plan. 20 U.S.C.1436(e), 34 C.F.R. 300.343(e). As under Part B, the regulations define “consent” not “informed consent.” “Consent” has a three part definition meaning (1) that the parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent’s native language or other mode of communication; (2) the parent understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes that activity and lists the records that will be released and to whom; and (3) the parent understands that consent is voluntary and may be revoked by the parent at any time.34 C.F.R. 303.401(a)