As a Special Education Director, navigating the complexities of parental consent in special education can be challenging. One particular area that often raises questions is the revocation of parental consent. In Virginia, the regulations surrounding this issue have specific guidelines that must be followed. Let's delve into some key insights based on the U.S. Department of Education's Office of Special Education Programs (OSEP) response to an inquiry from the Virginia Department of Education.
Understanding Parental Consent Revocation
Both parents have the legal authority to make educational decisions for their child with a disability. But what happens when one parent asks the Local Education Agency (LEA) to cease special education and related services for the child, and the other parent disagrees?
Which Parent's Consent Right Prevails?
According to OSEP, if a parent has the legal authority to make educational decisions for the child, the LEA must accept either parent's revocation of consent. This is in accordance with the federal regulation 34 CFR §300.300(b)(4). The LEA is required to provide the parent with prior written notice before ceasing the provision of special education and related services.
Requesting Special Education Services Again
If a parent, including one who did not revoke consent, later requests special education and related services for the child, the LEA must treat this as a request for an initial evaluation rather than a reevaluation. This ensures that the child's needs are reassessed thoroughly before any services are reinstated.
Can Mediation or Due Process Be Requested?
Interestingly, under 34 CFR §300.300(b)(4)(ii), the school division cannot use mediation or due process to contest a parent's written revocation of consent. This means that a parent who opposes the cessation of the child's eligibility cannot request mediation or due process to resolve the dispute. The decision by one parent to revoke consent is not considered an action by a "public agency,†and thus, it is outside the jurisdiction of a hearing officer.
Alternative Dispute Resolution Options
Since mediation is designed to resolve disputes between a public agency and a parent, it is not applicable in this scenario. However, the LEA may recommend alternative dispute resolution options, such as local family mediation services, to help the parents resolve their disagreement.
Summary
Although it was previously understood that the school division needed the consent of one parent to move forward with an action, this situation allows a parent to effectively "trump†the consent of the other parent. If both parents have the legal authority to make educational decisions and one parent revokes consent in writing, the LEA must terminate services, even if the other parent consents or is willing to consent to the services.
For further assistance in understanding the requirements relative to parental consent revocation, please review the Virginia Department of Education's "Guidance Document on the Implementation of the IDEA Federal Regulations – Part B, Additional Requirements 2008†and the "Model Written Prior Notice†when parents revoke consent in accordance with requirements at 34 CFR §300.300. Both documents are available on the VDOE's website.
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