FAQs: Consent

When providing consent for an evaluation or reevaluation, can parents attach conditions to their consent, such as the specific assessment tools to be used, the evaluator, or other conditions?

The regulations that implement the IDEA require schools to obtain informed consent from the parent of the child before conducting an initial evaluation [34 C.F.R. § 300.300(a)(1)(i)] or reevaluation of a child with a disability. [34 C.F.R. § 300.300(c)] As part of any evaluation, the IEP team, which includes the parents, must review existing data and determine what, if any, additional data are needed to determine if the child is or continues to be a child with a disability, and his/her educational needs. [34 C.F.R. § 300.300(a)] Although the parents are part of the team that determines what additional data are needed, at least one court has determined that by placing conditions on their consent (such as only agreeing to consent to assessments in one area and not another, limiting the type of assessment tools to be used, or requiring a specific evaluator) parents are in effect refusing to consent. [See G.J. v. Muscogee County School District, 668 F.3d 1258, 58 IDELR 61 (11th Cir. 2012)]

Can a parent revoke consent for a particular special education service?

The Commentary to the IDEA regulations states that “Section 300.300(b)(4) allows a parent at any time after the initial provision of special education and related services to revoke consent for the continued provision of special education and related services to their child in their entirety. Under § 300.300(b)(1), parental consent is for the initial provision of special education and related services generally, not for a particular service or services. In situations where a parent disagrees with the provision of a particular special education or related service and the parent and public agency agree that the child would be provided with FAPE if the child did not receive that service, the public agency should remove the service from the child’s IEP and would not have a basis for using the procedures in subpart E to require that the service be provided to the child. If, however, the parent and public agency disagree about whether the child would be provided with FAPE if the child did not receive a particular special education or related service, the parent may use the due process procedures in subpart E of these regulations to obtain a ruling that the service with which the parent disagrees is not appropriate for their child.” [Federal Register, Vol. 73, No. 231, p. 73011 (2008)]

If a parent has provided informed written consent for an initial evaluation, is it necessary for the school to also obtain consent prior to the initial provision of special education services?

Yes. Schools are required to obtain informed consent from the parent of a child determined eligible to receive special education and related services before initially providing special education and related services. [34 C.F.R. § 300.300(b)(1)] “Parental consent for initial evaluation must not be construed as consent for [the] initial provision of special education or related services.” [34 C.F.R. § 300.300(a)(1)(ii)]

Does a school have to develop an IEP for a student newly identified as eligible for special education if the parent refuses to provide initial consent for special education services?

A “new provision in the [IDEA] relieves public agencies of any potential liability for failure to convene an IEP Team meeting or develop an IEP for a child whose parents have refused consent or failed to respond to a request for consent to the initial provision of special education and related services. It does not, however, prevent a public agency from convening an IEP Team meeting and developing an IEP for a child as a means of informing the parent about the services that would be provided with the parent’s consent.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluation, Eligibility Determinations, IEP, Educational Placement, Federal Register, Vol. 71, No. 156, p. 46634 and 46657 (August 2006)] Therefore, if a parent refuses consent for the initial provision of special education services or fails to respond to a request for such consent, a school may go ahead and develop an IEP as a means of showing parents what services the child would receive if the parents provided initial consent, but there is no requirement that schools do this.

When a parent revokes consent for special education services, can a school challenge the parent’s decision by requesting mediation or a due process hearing?

The granting of parental consent is voluntary and may be revoked at any time. “If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency may not continue to provide special education and related services to the child, but must provide prior written notice in accordance with § 300.503 before ceasing the provision of special education and related services.” [34 C.F.R. § 300.9(c)(4)] Additionally, the public agency may not challenge the parent’s decision by requesting mediation or by filing a due process complaint in order to obtain a ruling that services may be provided to the child. [Id.]

Are schools required to get parental consent on an annual basis before implementing each new individualized education program (IEP)?

“A public agency that is responsible for making a free appropriate public education (FAPE) available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child.” [34 C.F.R. §300.300(b)] (Emphasis added) Consent is required before the initial provision of special education services; however, no new consent is required if a disability category changes or if the IEP team decides to expand the delivery of services, and consent is not needed on an annual basis when a new IEP is developed and implemented.

Can a school conduct a reevaluation without parental consent?

Reevaluations “[m]ust occur at least once every 3 years, unless the parent and the public agency agree that a reevaluation is unnecessary.” [34 C.F.R. § 300.303(b)(2)] The regulations that implement the IDEA require schools to obtain informed parental consent prior to conducting any reevaluation of a child with a disability, unless the reevaluation consists solely of a review of existing data, in which case parental consent would not be required. [34 C.F.R. §§ 300.300(c), 300.300(d)(1)] Moreover, a school is not required to obtain informed parental consent if it can demonstrate that it made reasonable efforts to obtain informed parental consent, but the child’s parent failed to respond. [34 C.F.R. § 300.301(c)(2)] If, however, 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; that is, the school could request mediation or a due process hearing. [34 C.F.R. § 300.300(c)(1)(ii)]