WHT Law

Final Withdrawal of Consent Regulations Issued by US Department of Education

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Effective December 31, 2008 – Amends IDEA Regulations Alert

We would like to alert you to a recent amendment to the federal regulations for the Individuals with Disabilities Education Act (€œIDEA€). On December 1, 2008, the U.S. Department of Education issued the final regulations for the IDEA, 300 C.F.R. Part 300, effective December 31, 2008. These final regulations allow parents of students with disabilities to revoke consent for all special education services, and school districts are not allowed to challenge the parents€™ withdrawal of consent using the due process procedures.

Prior to this amendment, parents were entitled to refuse to consent to the initial provision of special education services, and school districts could not attempt to override using due process procedures. However, the federal regulations were silent regarding revocation after a child had been receiving services. In Illinois, under 23 Ill.Admin.Code 226.540, parents could revoke consent for existing services, but school districts were allowed to challenge this revocation if they filed for a hearing within five business days of the parental request to revoke. Now, with the passage of this new federal regulations, school districts in Illinois will no longer be entitled to file for a due process hearing, and must abide by the parents’ request.

Specifically, Section 300.300(b)(4) of the federal regulations has been revised to require that parental revocation of consent for the continued provision of special education and related services be in writing, although no specific format for the writing is provided. In addition, upon receiving the written revocation of consent from a parent, a school district must provide the parent with “prior written notice,” in compliance with 300.503.  As of the date of this alert, the Illinois State Board of Education has not issued a form for school districts to use to provide the required notice.

Under the new rule, states can insist that districts offer to meet with parents who revoke their consent, although Illinois has yet to enact such a requirement. The Department of Education has commented  that if a state chooses to require some sort of a meeting, the state must ensure that any additional procedures are “voluntary for the parents, do not delay or deny the discontinuation of special education and related services, and are otherwise consistent with the requirements under Part B.”  In addition, school officials may ask parents why they are revoking consent, and may advise them of the consequences of the revocation, but parents need not respond.

While school districts must honor the written request to revoke, cessation of services is only effective after the district provides the prior written notice. There must be a ‘€œreasonable’€ period of time to provide the notice, and the services may not cease until the prior written notice is given.  The Department of Education did not spell out a timeline for any of this but says in its commentary, “we expect public agencies to promptly respond to receipt of written revocation of consent by providing prior written notice to the parents under 300.503. 73.” Federal Register 73008

School districts faced with a revocation of consent situation should advise parents of the consequences of the withdrawal of special education status, especially in the following areas:

Requirement of a Free and Appropriate Public Education
Disciplinary protections
Transition services (especially 18-22 services)
Accommodations for extracurricular activities
Graduation requirements
Special transportation

Feel free to contact us if you have any questions.