PARENTAL REVOCATION OF CONSENT FOR CONTINUED SPECIAL EDUCATION AND RELATED SERVICES
34 CFR §§300.9 and 300.300

General

Sections 300.9 and 300.300 were amended effective December 31, 2008, to permit parents to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent in writing for the continued provision of special education and related services to their children. Under these final supplemental regulations, a public agency cannot, through mediation or a due process hearing, challenge the parent’s decision to seek a ruling that special education and related services must continue to be provided to the child. Parental revocation of consent must be in writing. Upon a parent’s revocation of consent, the public agency must provide the parent with prior written notice in accordance with §300.503 before ceasing the provision of special education and related services.

These regulations implement provisions of the IDEA only. They do not address any overlap between the protections and requirements of the IDEA and those of Section 504 of the Rehabilitation Act of 1973, as amended, and Title II of the Americans with Disabilities Act, as amended.
Amendment of Records
Section 300.9(c)(3) provides that a public agency is not required, because a parent revokes consent for continued services, to amend a child’s education records to remove references to the child’s receipt of special education and related services. This provision does not affect the rights provided to parents in the confidentiality provisions found at 34 CFR §§300.618 through 300.621, which include the opportunity to request amendments to information in education records that is inaccurate or misleading, or violates the privacy or other rights of a child.

Age of Majority

A child who has reached the age of majority (except for a child with a disability who has been determined to be incompetent under State law) has all rights previously granted to parents. The parents’ rights are transferred to the child as provided in §300.520(a), enabling that child to revoke consent for special education and related services under §300.300(b)(4). In accordance with section 615(m)(1) of the Act and §300.520(a)(1)(i), the public agency must provide any notice required under Part B of the Act to both the child and the parents. Therefore, the parents would receive prior written notice, consistent with §300.503, of the public agency’s proposal to discontinue special education and related services based on receipt of the written revocation of consent from a child to whom rights transferred under §300.520(a).

Revocation of Consent for a Particular Service

Effective December 31, 2008, parents may unilaterally withdraw their consent to special education and related services and, if they do, the LEA must cease providing special education services to the child.
A parent’s revocation of consent to special education services for their child must be in writing. If a parent revokes consent to special education and related services, the LEA may not continue to provide special education services to the child. But before ceasing the provision of special education services, the LEA must provide prior written notice to the parents. Because the revocation of consent is not retroactive, the LEA is not required to amend the child’s educational records to remove references to the child having received special education services.

Additionally, if parents revoke their consent and the LEA stops providing services, the LEA will not be considered to be in violation of the IDEA’s requirement to provide a FAPE to the child. Moreover, the LEA is not required to convene an IEP meeting or develop an IEP for the child. Finally, the LEA may not use mediation or the IDEA’s due process procedures to try to override the parent’s revocation of consent.
Subsequent Parental Request for Evaluation

After revoking consent for his or her child, a parent always 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. If a parent who revoked consent for special education and related services later requests that his or her child be re-enrolled in special education, an LEA must treat this request as a request for an initial evaluation under §300.301 (rather than a reevaluation under §300.303).

Discipline

When a parent revokes consent for special education and related services under §300.300(b), the parent has refused services as described in §300.534(c)(1)(ii); therefore, the public agency is not deemed to have knowledge that the child is a child with a disability and the child may be disciplined as a general education student and is not entitled to the IDEA’s discipline protections.

Accommodations

Nothing in §300.300(b)(4) would prevent a general education teacher from providing a child whose parent has revoked consent for the continued provision of special education and related services with accommodations that are available to non-disabled children under relevant State standards. However, once a parent revokes consent under §300.300(b)(4), a teacher is not required to provide the previously identified IEP accommodations in the general education environment.

Published June 1, 2009 at http://www.mde.k12.ms.us/Special_education/pdfs/Procedural_Safeguards-05-28-09.pdf