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PROCEDURAL SAFEGUARDS: SURROGATE PARENTS, NOTICE AND PARENTAL CONSENT - Regulations

8. Specify when LEAs may and may not use the dispute resolution procedures in section 615 (subpart E) to obtain parental consent for evaluations and initial services.

Initial evaluation:
If the parent of a child enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation, or the parent fails to respond to a request to provide consent for an initial evaluation under 34 CFR 300.300(a)(1), the public agency may, but is not required to, pursue the initial evaluation of the child by utilizing the procedural safeguards in subpart E of Part 300 (including the mediation procedures under 34 CFR 300.506 or the due process procedures under 34 CFR 300.507 through 300.516), if appropriate, except to the extent inconsistent with State law relating to such parental consent. The public agency does not violate its obligations under 34 CFR 300.111 and 300.301 through 300.311 (child find and evaluations) if it declines to pursue the evaluation.
[34 CFR 300.300(a)(3)] [20 U.S.C. 1414(a)(1)(D)(ii)(I)]

Initial provision of services:
If the parent of a child fails to respond or refuses to consent to the initial provision of special education and related services under 34 CFR 300.300(b)(1), the public agency may not use the procedures in subpart E of Part 300 (including the mediation procedures under 34 CFR 300.506 or the due process procedures under 34 CFR 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child.
[34 CFR 300.300(b)(3)] [20 U.S.C. 1414(a)(1)(D)(ii)(II)]

If the parent of the child refuses to consent to the initial provision of special education and related services, or the parent fails to respond to a request to provide consent for the initial provision of special education and related services, the public agency:
  • Will not be considered to be in violation of the requirement to make available a free appropriate public education (FAPE) to the child for the failure to provide the child with the special education and related services for which the public agency requests consent; and
  • Is not required to convene an IEP Team meeting or develop an IEP under 34 CFR 300.320 and 300.324 for the child for the special education and related services for which the public agency requests such consent.
[34 CFR 300.300(b)(4)] [20 U.S.C. 1414(a)(1)(D)(ii)(III)]

Reevaluation:
If the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures described in 34 CFR 300.300(a)(3) (i.e., the procedural safeguards in subpart E including the mediation procedures under 34 CFR 300.506 or the due process procedures under 34 CFR 300.507 through 300.516). The public agency does not violate its obligation under 34 CFR 300.111 and 300.301 through 300.311 (child find and evaluations) if it declines to pursue the evaluation or reevaluation.
[34 CFR 300.300(c)(1)(ii) and (iii)] [20 U.S.C. 1414(c)(3)]

Dialogue Starter - Cross-stakeholder

Reaction Questions

  1. Why might a parent refuse consent?


  2. Why is it important for school personnel to understand the reasoning behind parents’ decision or indecision regarding consent, with respect to their cultural, socio-economic status, or life experiences?


  3. How might districts’ sharing of successful strategies about consent procedures increase a school’s success in obtaining parental consent?


Application Questions

  1. What strategies would be particularly powerful to encourage parents to be available to provide consent for special education services?


  2. What are the promising practices to ensure parent understanding of “informed consent?


  3. After the initial evaluation demonstrates a child qualifies for special education, what documentation is advisable if a parent does not consent to the provision of special education services for their child?


  4. How might school personnel meet the educational needs of students whose parents have refused consent for the delivery of special education services?

    These questions were developed by the following stakeholders working together:

    Role: Teacher
    Location: West Virginia

    Role: Family Member
    Location: New Jersey

    Role: General Education Administrator
    Location: California

    Role: Higher Education
    Location: Indiana

    Role: Administrator
    Location: Illinois

    Role: Special Education Administrator
    Location: Kentucky