Published Online: December 5, 2008
Published in Print: December 10, 2008, as Ed. Dept. Releases Rules for Parents Under IDEA

Ed. Dept. Releases Rules for Parents Under IDEA

The U.S. Department of Education has released changes to regulations governing the Individuals with Disabilities Education Act that affect rules regarding parental consent, non-attorney representation, and compliance requirements.

The rules, published in the Federal Register on Dec. 1, state that parents have the right to revoke their consent for their children to receive special education services, after making a request in writing.

Before the change, the regulations were unclear about how parents could stop their child from receiving special education services if they chose to do so, the Education Department said.

In an explanation that accompanied the rules when they were released for public comment earlier this year, the department said its “long-standing interpretation” was that parents could not unilaterally decide to have special education services stopped if the school district believed the child still needed such services to receive a free, appropriate public education.

The change allowing parents’ revocation of consent is “consistent with the IDEA’s emphasis on the role of parents in protecting their child’s rights,” the department said. A district may ask why a parent is choosing to revoke consent, but an explanation is not necessary.

Changing Minds

The change means that students who are removed from special education services are to be treated like general education students in all ways, the department said, including losing some of the protections given to students in special education who have discipline problems related to their disabilities.

Parents are also allowed to change their minds and have their children re-evaluated for special education services, even if earlier they had revoked consent, the department said.

Another change in the regulations will allow state law to determine whether non-lawyers can represent parents in due-process hearings.

The IDEA says that either side in a due-process hearing may be accompanied by counsel, or by people with expertise in special education. The law does not say, however, whether those experts can actually represent parents if the experts are not lawyers.

The Education Department referred to a 2000 case in Delaware, where authorities initiated proceedings against Marilyn Arons, a lay special education advocate, for unauthorized practice of law.("Court to Weigh Expert Fees in IDEA Cases," Jan. 18, 2006.) The Delaware Supreme Court ultimately decided that the IDEA did not require the state to permit non-lawyers to represent parents.

The federal special education law should respect the interest that states have in regulating legal practice, the Education Department said. The new rule would also apply to districts, which could also not be represented by lay advocates, such as special education administrators, if state law forbade it.

The rule would not prevent parents from representing themselves in due-process hearings. The U.S. Supreme Court decided in a 2007 case that such representation was permissible. ("High Court Backs Parents’ Rights to Argue Cases Under IDEA," May 25, 2007.)

A third change states that if a school district determines it is out of compliance with any of the provisions of the IDEA, the district has one year from the time the problem is noted to correct it.

The timeline is needed because problems weren’t being fixed quickly enough, the department said. Before the adoption of the rule, there was no timeline for correction in the IDEA.

Some commenters on the rules noted that some areas of noncompliance can be fixed quickly, such as those that may relate to a specific child. But larger, systemic problems might take a longer time to rectify.

However, a state or district can implement short-term correction plans while developing broader strategies, the department said.

Vol. 28, Issue 15, Page 8

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