Informed consent under idea

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Transcript Informed consent under idea

October 21, 2011
In-Service Training
Susan D. Inman
IDEA “creates in parents an independent stake
not only in the procedures and costs implicated
by [the special education] process but also in
the substantive decisions to be made.”
Winkelman v. Parma Sch. Dist., 550 U.S. 516, 531
IDEA defines consent as:
(a) The parent has been fully informed of all
information relevant to the activity for which
consent is sought, in his or her native language
or other mode of communication;
(b) The parent understands and agrees in writing
to the carrying out of the activity for which his
or her consent is sought, and the consent
describes that activity and lists the records (if
any) that will be released and to whom;
20 U.S.C. 1414(a)(1)(D); 34 CFR 300.9
IDEA also requires a public agency to make
“reasonable efforts” to obtain informed consent
for the initial provision of services and related
services and for evaluation.
34 CFR 300.300(b)(2); 71 Fed. Reg. 46543 (2006).
Inherent in any right to give consent
is the right to withdraw or revoke
that consent!
IDEA (34 CFR 300.9) goes on to say:
(c)(1) The parent understands that the granting of
consent is voluntary on the part of the parent and may
be revoked at any time.
(2) If a parent revokes consent, that revocation is not
retroactive (i.e. does not negate an action that has
occurred after the consent was given and before the
consent was revoked)
(3) If the parent revokes consent in writing 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
For the right of informed consent to operate
effectively, the parent must be provided
necessary information, which means:
Notice of Procedural Safeguards
 Prior Written Notice
 Right to receive IEP and have access to records prior
to IEP team meetings and hearings
 Notice of right to receive and review records
Time to play…
(in which you name points in the special education
process when informed consent is required)
Initial provision of special education and related services
Initial evaluations and/or reevaluations
Consent to use parents’ public benefits or insurance
Consent to release required IEP team members from meetings
Consent to alter the maintenance of placement
Consent after notice and prior to release of records
Consent to waive resolution meeting
Consent for IEP meeting time, date and location
Consent to amend IEP in writing outside IEP meeting
Parent decides whether child attends IEP meeting
Parent consents to part of a program and rejects other parts
Parent decides if hearing is open or closed, if child attends and
nature of the record they receive in due process litigation
Use of an IFSP as a substitute for an IEP requires consent
IDEA does not explicitly require consent to the
annual IEP review or to a change in the
program or placement at that junction.
Presumably that means that the changes can be
made at the annual review without consent
after notice.
Parent retains the right to seek due process and
invoke maintenance of placement.
DCPS/LEA Charter can file a due process
complaint against the parent to obtain initial
evaluation but not to force initial services or
 If parent withholds or revokes consent to initial
service, DCPS/LEA Charter is not required to
convene a meeting or provide services and is
not in violation of FAPE
34 CFR 300.300(b)(4)
If the parent fails to respond to a request for
IDEA allows for meetings to be held in absence of
response (34 CFR 300.322(d))
 Failure to respond can be an implied consent to
reevaluations (34 CFR 300.300(c)(2))
 Possibly change or maintenance of services at annual
review meeting – but NOT amendments during the
The parent!!
(See 34 CFR 300.30 definitions)
…until student reaches age of majority
IDEA says “a public agency may not use a
parent’s refusal to consent to one service or
activity…to deny the parent or child any other
service, benefit or activity,” with a few
exceptions. 34 CFR 300.300(d)(3)
The right to condition or limit consent can be
complicated in practice because schools draft
standard consent forms.
A complete description of the activity
Right to understand, including information in
native language
Information about evaluations
Right to disagree
Written notice
IDEA is not explicit on how decisions are made
at IEP meetings.
The parent is on strong grounds to assert that
changes can only occur through informed
consent and therefore through the provision of
adequate information to allow the parent to
grant such consent.
This stops short of requiring consensus but
places parental participation and information
at the front.
Potential specific uses include:
Opportunity to observe alternative programs in
making placement decisions
Observation of the current placement and
information on teachers and aides
Opportunities to meet with evaluators who have
conducted evaluations or reevaluations
Right of parents to know actual test instruments to
be used, time, location and day of evaluations
Right to set specific deadlines not otherwise required
or provided under law (e.g. completion of FBA)
Potential specific uses include:
Right to have independent professionals observe
 Right to know training and experience of staff
 Right to have records and drafts before IEP and
eligibility meetings
 Right to know the educational environment,
including numbers and general description of peers
in special education and regular education classes
 The right to establish ESY early in the IEP
 Right to have all records and protocols
 Information about the methodology and instruction
modifications as part of specialized instruction
The who, what, where, why and how
answered concerning anything for which
consent may be sought or appropriate
 The right to put conditions on anything upon
which you consent (i.e. to define the scope
and extent of your consent)
In other words….
* By “awesome” I mean that informed consent is a
very powerful tool for gaining information and
strengthening the parent’s role in the special
education process.