Administrative Advisory SPED 2011-1:
Age of Majority
|To:||Administrators of Special Education, Directors of Approved Private Schools, and Other Interested Parties|
|From:||Marcia Mittnacht, State Director of Special Education|
|Date:||September 20, 2010|
This advisory provides guidance to school districts concerning the transfer of rights under special education law when the student reaches age 18, the age of majority in Massachusetts.
The advisory will address:
- Notification requirements
- IEP Documentation requirements
- Transfer and sharing or delegation of rights
1. Notification requirements:
Federal special education regulations require that at least one year prior to the student reaching age 18 the student and the parent must be informed about the rights that will transfer from the parent to the student upon the student's 18th birthday. See 34 CFR §§300.320(c) and 300.520. The notification provided to both the parent and the student must explicitly state that all rights accorded to parents under special education law will transfer to the 18 year old student and that the parent will continue to receive all the required notices from the school district and will have the right to inspect the student's records, but will not longer make special education decisions for the adult student. See also state special education regulations at 603 CMR 28.07(5).
The Department recommends that school districts use the Parent's Notice of Procedural Safeguards (PNPS) to satisfy the notification requirement under the federal regulations. The PNPS currently provides the required information in Section 2.2. 1 When the student turns 17 years of age, the school district should mail the annual copy of the PNPS to the parent and to the student accompanied by a cover letter that states that the student will assume all of the rights described in the PNPS once he or she turns 18 years of age. While there is no requirement that the student or the parent acknowledge that they have received this notice, school districts may find it prudent to document the provision of the PNPS and cover letter to both the parent and the student.
School districts may also use the IEP Team meeting conducted for the student who will be turning 17 as the appropriate time to provide such notice, as well as to answer questions that the parent or student may have. If the district chooses to use the IEP meeting for such notice, however, it must have alternate procedures in place to ensure that both the parent and the student receive the notice in the event that either is absent from the IEP meeting.
Notification is not required if the right to make decisions is not being transferred to the student at the age of majority. This will only occur if a court of competent jurisdiction has determined that the student is not competent and has appointed the student's parent(s) or another individual as a guardian with the authority to make decisions, including educational decisions, for the student. The parent's stated intent to proceed to court, or the presence of a temporary guardian, does not relieve the school district of its responsibility to notify both the student and the parent about the transfer of rights.
2. IEP Documentation requirements:
Federal regulations also require that the IEP developed for the 17 year old student include "a statement that the child has been informed of the child's rights under Part B of the Act that will transfer to the child on reaching the age of majority." See 34 CFR §300.320(c). As this Department has previously indicated, such a statement should be included in the section on the IEP entitled "Other Information." 2 School districts are not required to provide detail on the transfer of rights, but must state that the student has been informed that the right to make decisions about his or her special education will transfer to the student when he or she turns 18. Examples of appropriate statements include, but are not limited to:
- (Student's name) has been provided with a copy of the PNPS and has been informed that when he is 18, he will have all of the rights that his parent has now under the special education law.
- (School District) has provided (student's name) with a copy of the PNPS and has explained the transfer of special education rights that will occur when (student) is 18 years of age.
3. Transfer and sharing or delegation of rights
When a student turns age 18, all of the decision-making rights in special education that have been exercised by the parent transfer to the adult student, unless
- a court has appointed a legal guardian for the student, 3 or
- the student indicates that he or she wants to share decision-making with his or her parent (or other willing adult), or
- the student indicates that he or she wants to delegate decision making to his or her parent (or other willing adult).
If the student chooses to share or delegate decision-making, that choice must be documented and witnessed by representatives of the school district. The student may revoke sharing or delegation of decision-making at any time. If any disagreement arises related to special education decision-making, the choice of the adult student shall prevail. See 603 CMR 28.07 (5).
When a student turns age 18, the school district must affirmatively obtain consent from the student to continue the then-current program of special education services. A new IEP does not need to be developed solely because of the transfer of rights as long as the student is willing to continue the existing IEP services. The student, however, has the same rights as the parent formerly held to accept or reject some or all of the IEP services and placement offered by the district. It is not acceptable for the district to wait until a new IEP is developed to seek consent for services from the adult student. Consistent with federal regulations and Department guidance on transition planning, the student should have been invited to attend and participate in IEP development since the age of 14. 34 CFR 300.322 (b)(2)(B). At a minimum, the student should participate in the IEP development meeting that occurs in the year prior to his or her 18th birthday. With proper notification and participation in IEP development the student should be prepared to assume his or her new responsibilities. Moreover, if required transition planning has occurred and the student has participated in the IEP development meetings, the student's preferences and interests will already have been considered and included in the IEP. 34 CFR 300.321 (b)(2).
In closing, we hope this information assists school districts in transferring rights from parents to students as they reach the age of majority. If you have any questions or require additional information, please contact Program Quality Assurance Services at the Department (781-338-3700) or at . firstname.lastname@example.org
1 See: Parent's Notice of Procedural Safeguards on page 4 of 15 in the English Version.
2 See IEP Process Guide in regard to IEP page 8, or Directions for Massachusetts IEP Forms .
3 A student is presumed to be competent unless a court has determined otherwise.