Informed consent under idea

1. Informed consent under idea October 21, 2011 In-Service Training Susan D. Inman

2. IDEA is built on protecting the rights of children and parents! IDEA “creates in parents an independent stake not only in the procedures and costs implicated by [the special education] process but also in the substantive decisions to be made.” Winkelman v. Parma Sch. Dist., 550 U.S. 516, 531 (2007)

3. Meaning of Consent IDEA defines consent as: • The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language or other mode of communication; • The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; 20 U.S.C. 1414(a)(1)(D); 34 CFR 300.9

4. Meaning of Consent IDEA also requires a public agency to make “reasonable efforts” to obtain informed consent for the initial provision of services and related services and for evaluation. 34 CFR 300.300(b)(2); 71 Fed. Reg. 46543 (2006).

5. Meaning of Consent: Revocation Inherent in any right to give consent is the right to withdraw or revoke that consent!

6. Meaning of Consent:Revocation IDEA (34 CFR 300.9) goes on to say: (c)(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time. (2) If a parent revokes consent, that revocation is not retroactive (i.e. does not negate an action that has occurred after the consent was given and before the consent was revoked) (3) If the parent revokes consent in writing for their child’s receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent

7. Meaning of Consent:Related Rights of Information and Notice For the right of informed consent to operate effectively, the parent must be provided necessary information, which means: • Notice of Procedural Safeguards • Prior Written Notice • Right to receive IEP and have access to records prior to IEP team meetings and hearings • Notice of right to receive and review records

8. Application of Informed Consent Time to play… NAME THAT IDEA PROVISION!! (in which you name points in the special education process when informed consent is required)

9. When Does Informed Consent Apply? • Initial provision of special education and related services • Initial evaluations and/or reevaluations • Consent to use parents’ public benefits or insurance • Consent to release required IEP team members from meetings • Consent to alter the maintenance of placement • Consent after notice and prior to release of records • Consent to waive resolution meeting • Consent for IEP meeting time, date and location • Consent to amend IEP in writing outside IEP meeting • Parent decides whether child attends IEP meeting • Parent consents to part of a program and rejects other parts • Parent decides if hearing is open or closed, if child attends and nature of the record they receive in due process litigation • Use of an IFSP as a substitute for an IEP requires consent

10. No Explicit Informed Consent • IDEA does not explicitly require consent to the annual IEP review or to a change in the program or placement at that junction. • Presumably that means that the changes can be made at the annual review without consent after notice. • Parent retains the right to seek due process and invoke maintenance of placement.

11. LEA’s Rights Upon Withholding of Consent • DCPS/LEA Charter can file a due process complaint against the parent to obtain initial evaluation but not to force initial services or placement. • If parent withholds or revokes consent to initial service, DCPS/LEA Charter is not required to convene a meeting or provide services and is not in violation of FAPE 34 CFR 300.300(b)(4)

12. Moving Forward Without Consent • If the parent fails to respond to a request for consent… • IDEA allows for meetings to be held in absence of response (34 CFR 300.322(d)) • Failure to respond can be an implied consent to reevaluations (34 CFR 300.300(c)(2)) • Possibly change or maintenance of services at annual review meeting – but NOT amendments during the year.

13. Who Exercises Right to Consent? The parent!! (See 34 CFR 300.30 definitions) …until student reaches age of majority

14. Right to Condition or Limit Consent • IDEA says “a public agency may not use a parent’s refusal to consent to one service or activity…to deny the parent or child any other service, benefit or activity,” with a few exceptions. 34 CFR 300.300(d)(3) • The right to condition or limit consent can be complicated in practice because schools draft standard consent forms.

15. Elements of Informed Consent • A complete description of the activity • Right to understand, including information in native language • Information about evaluations • Alternatives • Right to disagree • Written notice

16. How to Use the Right to Consent

17. Using Informed Consent • IDEA is not explicit on how decisions are made at IEP meetings. • The parent is on strong grounds to assert that changes can only occur through informed consent and therefore through the provision of adequate information to allow the parent to grant such consent. • This stops short of requiring consensus but places parental participation and information at the front.

18. Using Informed Consent Potential specific uses include: • Opportunity to observe alternative programs in making placement decisions • Observation of the current placement and information on teachers and aides • Opportunities to meet with evaluators who have conducted evaluations or reevaluations • Right of parents to know actual test instruments to be used, time, location and day of evaluations • Right to set specific deadlines not otherwise required or provided under law (e.g. completion of FBA)

19. Using Informed Consent Potential specific uses include: • Right to have independent professionals observe • Right to know training and experience of staff • Right to have records and drafts before IEP and eligibility meetings • Right to know the educational environment, including numbers and general description of peers in special education and regular education classes • The right to establish ESY early in the IEP • Right to have all records and protocols • Information about the methodology and instruction modifications as part of specialized instruction

20. Using Informed Consent Basically: • The who, what, where, why and how answered concerning anything for which consent may be sought or appropriate • The right to put conditions on anything upon which you consent (i.e. to define the scope and extent of your consent) In other words….

21. Informed Consent is Awesome!* * By “awesome” I mean that informed consent is a very powerful tool for gaining information and strengthening the parent’s role in the special education process.

22. QUESTIONS??