Administrative Advisory SPED 2010-1: Federal Regulation Changes
|To:||Administrators of Special Education and Other Interested Parties|
State Director of Special Education
In December, 2008, the U.S. Department of Education (USED) issued regulations that supplement the 2006 Individuals with Disabilities Education Act (IDEA) final regulations. This document highlights the new regulations1, now in effect, that affect local practice.
I. Parent Revocation of Consent and Termination of All Special Education Services
34 C.F.R. §§300.300(b)(4) and 300.9
The most significant change in the IDEA regulations concerns the right of a parent to require the district to discontinue all special education services to the parent's child by revoking consent to the services. The regulations make clear that a parent not only has the right to deny consent to the initial evaluation and initial provision of services, but to require discontinuation of all special education services by revoking consent in writing. In both instances, the school district cannot override the parent's denial of consent.
If a parent revokes consent in writing, the district must respond promptly by sending the parent written notice of its proposal to discontinue services based on the revocation of consent as well as information about how the parent can obtain a copy of his/her right to procedural safeguards. §300.300(b)(4)(i); §300.503. (Part B of this advisory, which follows, discusses the impact of revocation of consent for all special education services on a district's obligations under section 504.) The district must provide the notice a reasonable time before the district intends to discontinue the services so that the parent has time to consider the impact of their revocation of consent and ask questions. See §300.503(a).2
A district may not use mediation to obtain agreement from the parent to continue the services or to request a due process hearing to obtain a ruling requiring continued services. §300.300(b)(4)(ii). Additionally, USED comments issued with the new regulations caution that a district may not impose procedures to delay or deny discontinuation of special education services. The district may propose a meeting to discuss termination of all services but the district must be clear that the meeting is voluntary on the part of the parent. The district may ask why the parent is revoking consent but it may not require an explanation as a condition of discontinuing services.
§300.300(4)(iii) explicitly states that if a parent revokes consent to special education in writing, a school district "will not be considered to be in violation of the requirement to make [a free appropriate public education] available to the child because of the failure to provide further special education and related services." Under these circumstances, the school district has no obligation to convene an IEP Team meeting or to develop an IEP for the child. See, §300.300(4)(iv). The school district's obligations under the IDEA to make a free appropriate public education available to the child will be triggered again if the parent subsequently requests that the child receive special education services (see discussion below).
According to USED, once special education services are discontinued, the student is considered a general education student. See, 73 Fed.Reg. at 73011. If a parent revokes consent after the school year begins but before the MCAS is administered, the student is considered to be a general education student who has exited special education for accountability purposes under the No Child Left Behind Act. The student may continue to be included in the special education subgroup for purposes of calculating Adequate Yearly Progress (ALP) for 2 years after the revocation of consent. Id.
As a general education student, the student is not entitled to the special education procedures and rights afforded students with disabilities under the IDEA. See, 73 Fed. Reg. at 73012-73013. Additionally, following a revocation of consent to all special education and related services, the school is deemed not to have prior knowledge that the student has a disability for disciplinary circumstances. As discussed below, whether the school district must follow disciplinary procedures required by Section 504 of the Rehabilitation Act of 1973, as amended, is unclear. The new regulations implement provisions of the IDEA only and do not address the protections and requirements of §504 or the Americans with Disabilities Education Act. Id.
In comments to the regulations, USED has stated that the parent has the right to request an evaluation to determine special education eligibility if the student experiences difficulty in school after special education services are discontinued. Similarly, USED notes that a school district's "child find" obligations continue, such that a general education teacher has the obligation to make a referral for special education evaluation if the teacher believes that the student is experiencing academic or other difficulties due to a suspected disability. See, 73 Fed. Reg. at 73012. Regardless of the source of the referral to special education, it must be treated as a request for an initial evaluation. However, USED has also commented:
…depending on the data available, a new evaluation may not always be required. An initial evaluation, under §300.305, requires a review of existing evaluation data that includes classroom based, local or State assessments, and classroom based observations by teachers and related service providers. On the basis of that review and input from the child's parents, the IEP Team and other qualified professionals must identify what additional data, if any, are needed to determine whether the child is a child with a disability, as defined in §300.8, and the educational needs of the child. Therefore, a public agency may not always have to expend resources on a "new" initial evaluation. 73 Fed. Reg. at 73015.
Lastly, §300.9(c)(3) states that a school district is not required to amend the student's education records to remove references to receipt of special education services after services are discontinued due to revocation of consent. This regulation is consistent with §300.9(c)(2) which states that revocation of consent is not retroactive. However, USED has noted that the section does not affect the rights that a parent has under 34 CFR §§300.618 to 300.621 to request amendments to the student records on the grounds that the information is "inaccurate, misleading or otherwise in violation of the privacy or other rights of the child."
The regulations concerning revocation of consent do not address the §504 implications of a parent's revocation of consent to continued special education services under the IDEA. Also, as of the date of this memorandum, the Office of Civil Rights (OCR) has not addressed the revocation regulations in terms of how they relate to §504 obligations regarding identification of students with disabilities, accommodations, provision of services, and discipline. Past guidance, discussed below, indicates that OCR sees a close connection between actions taken under IDEA and §504 when a student is eligible under both IDEA and §504.
OCR has said in its answer to question 43 in Frequently Asked Questions about Section 504 and the Education of Children with Disabilities ("FAQ")3:
Section 504 neither prohibits nor requires a school district to initiate a due process hearing to override a parental refusal to consent with respect to the initial provision of special education and related services. Nonetheless, school districts should consider that the IDEA no longer permits school districts to initiate a due process hearing to override a parental refusal to consent to the initial provision of services.
In its 1996 Letter to McKethan, 25 IDELR, OCR answered the question whether a parent can reject special education services included in a proposed IEP for an IDEA eligible student with disabilities and then require a school district to develop a plan of special education services under §504. OCR reasoned that some "qualified students with a disability" under §504 are also eligible for services under the IDEA. School districts meet their §504 obligations for this group of students when the Team develops an IEP for the student and the district provides services pursuant to that IEP. See 34 C.F.R. §104.33 (b)(2). OCR concluded that if a parent rejects the IEP, the parent is essentially rejecting services that would be offered under §504. As such, the parent could not compel the district to develop a plan under §504 since the district had met its obligations when it followed the IDEA requirements.
Given the above, it is possible that OCR will take the position that a parent may not compel the district to develop a §504 plan of services after the parent revokes consent to continuation of all special education services under the IDEA.
Until OCR issues further clarification of its position on parental revocation of consent to all special education services, school districts should consider clarifying with the parent in writing that the district regards the parent's revocation of consent to all special education services under IDEA and G.L. c. 71B to include revocation of consent to all special education services to which the student may be entitled under §504.
As with the IDEA, even after revoking consent to special education services under §504, a parent maintains the right to subsequently request an initial evaluation to determine if the child is a child with a disability who needs special education and related services. Nothing in the Act or the implementing federal regulations prevents a parent from requesting an evaluation when the child has a discipline issue or is at risk of not succeeding in school. See 73 Fed. Reg. at 73014.
It is also important to remember that revocation of consent to special education and related services under either IDEA or §504 does not excuse school districts of other responsibilities under §504. Section 504 prohibits discrimination on the basis of disability in public schools; it requires school districts to meet the needs of students with disabilities as adequately as it meets the needs of other students. See 34 C.F.R. §104.4. Districts must provide students with disabilities with equal opportunity to access the general curriculum, general education classes, and the school facility. Therefore, school districts should consider requests for §504 plans on a case by case basis. If a parent requests a §504 plan, the district should consider the referral, follow the district's established §504 procedures, provide notice and explanation of the §504 team's decision, and provide parental due process rights.
II. Positive Efforts to Employ and Advance Qualified Efforts with a Disability
34 CFR 300.177(b) now requires school districts, as recipients of federal IDEA funding for assistance to states and local education agencies for the education of students with disabilities ("Part B funds"), to make "positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted under Part B… ."
III. Massachusetts Special Education Regulations
The Massachusetts Department of Elementary and Secondary Education will be amending the state regulations to bring them into conformity with the federal regulations concerning parental consent. In the meantime, districts should comply with the federal regulations discussed in this memorandum.
In closing, we hope this information is helpful. If you have any questions or require additional information, please contact the Department's Program Quality Assurance Services unit (781-338-3700).
1 The new federal regulations, which were effective as of December 31, 2008, may be found at 73 Federal Register 73006-73028 (December 1, 2008). The USED analysis and comments, which appear at the beginning of the document, provide helpful insight on implementation of the regulations.
The Department of Elementary and Secondary Education's Advisory 2007-1 highlights aspects of the 2006 IDEA regulations. The advisory can be found at Administrative Advisory SPED 2007-1: IDEA-2004 Implementing Regulations.
2 If a student 18 or older, who is his own special education decision maker, exercises the right to revoke consent to special education services, the parent as well as the adult child is entitled to notice. 34 CFR §300.520(a)(1)
3 OCR issued the revised FAQ on January 1, 2009 but specifically noted that it did not take into consideration the December, 2008 IDEA regulations.