Special Education Law Informed Consent and Signing

As with any other legal document, when you sign school district papers your signature is very important. There are three times that your signature is required during the IEP (Individualized Education Plan) process. When your child is first evaluated you must give your informed consent. When your child is reevaluated you must give your informed consent. You must also give your consent before the initial provision of special education and related services.

What districts do not tell parents:

Parents are often under the impression that if they do not like an IEP all they have to do is not sign it and it will not take effect. This is erroneous. Schools are required by law to provide FAPE, (a free, appropriate education). When a special needs child is covered by special education law (IDEA), districts are required to have a legal IEP for that child at all times. If a parent attends a meeting and simply walks out and does not sign an IEP, schools are required by law to provide FAPE, thus the new IEP goes into effect. Not signing an IEP does not invalidate that IEP as many parents think.

If you disagree with the proposed IEP, the district can require you to go to due process and prove that they are not providing FAPE. In that instance, the old IEP stays in effect, IF you told the district you disagreed with the new IEP. However, in the interest of resolving things speedily, (and cheaply for the district), usually they are willing to try to iron out the differences with the parents.

You do not have to sign the IEP at a meeting. You can request a copy to take home, to review its content, and to think about it. But, if you disagree with your child's IEP, you have an obligation to let the district know that you disagree and with what part of the IEP you disagree. Always do this by writing a Dissenting Opinion. Ask that it be attached to the IEP. Best practice in our state recommends giving the parents 10 days to consider their decision. Otherwise, schools are obligated to go ahead with the new IEP under their IDEA requirements.

If you want to know the requirements in your particular state on any deadline for disagreeing with an IEP, I recommend you contact your State Department of Education for their regulations and best practice guidelines. Federal regulations for IDEA are quoted below. I urge parents to carefully review when their informed consent is required and, just as importantly, when it is not. While it may seem cut and dried, it is critically important information.

Section 300.505 Parental consent.

(a) General.

(1) Subject to paragraphs (a)(3),(b) and (c) of this section, informed parent consent must be obtained before__

(i) Conducting an initial evaluation or reevaluation: and

(ii) Initial provision of special education and related services to a child with a disability.

(2) Consent for initial evaluation may not be construed as consent for initial placement described in paragraph (a) (1) (ii) of this section.

(3) Parental consent is not required before--

(i) Reviewing existing data as part of an evaluation or a reevaluation: or

(ii) Administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.

(b) Refusal. If the parents of a child with a disability refuse consent for initial evaluation or a reevaluation, the agency may continue to pursue those evaluations by using the due process procedures under Sec. 300.507-300.509, or the mediation procedures under Sec. 300.506 if appropriate, except to the extent inconsistent with State law relating to parental consent.

(c) Failure to respond to request for reevaluation.
(1)Informed parental consent need not be obtained for reevaluation if the public agency can demonstrate that it has taken reasonable measures to obtain that consent, and the child's parent has failed to respond.

(2) To meet the reasonable measures requirement in paragraph (c) (1) of this section, the public agency must use procedures consistent with those in Sec.300.345(d)

My brief summation here of 300.345(d): Districts are required to make every effort to involve parents participation. Many parents do not know that meetings are also supposed to be arranged at a time and place that is convenient for them as well as the district! Districts must give notice of any meeting, why it is being held, when and where, and who will be attending. If parents cannot attend ,the school are supposed to use other methods of involvement such as telephone conference calls or individual calls. They must also keep detailed records of attempts to involve the parents. If they cannot get parent involvement they can go ahead and have an IEP meeting, as it is their requirement to provide FAPE, parent or no parent.

(D) Additional State consent requirements. In addition to the parental consent requirements described in paragraph (a) of this section, a State may require parental consent for other services and activities under this part if it ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent's refusal to consent does not result in a failure to provide the child with FAPE.

Parents should breath a sigh of relief that at long last, with the new law, districts must make every effort to involve parents in all decision making regarding their child's education, and they must document that effort meticulously under IDEA requirements.

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