Inquiry to ISBE Concerning a Parent Consent Problem

September 3, 2003

Harry Blackburn, Esq.
Illinois State Board of Education
100 W. Randolph, Suite 14-300
Chicago, Illinois 60601

Re:      Special Education Legal Inquiries

Dear Mr. Blackburn:

I am writing to obtain written clarification regarding the recently revised Illinois Special Education Rules regarding parental consent, at  23 Ill.Admin.Code 226.540.  Specifically, I have two inquiries concerning which I am requesting guidance on behalf of one of our school district clients:

1)  Revocation of Consent


The long standing rule, pursuant to both federal law as well as the Illinois rules, has always been that a school district must obtain parental consent in three specific situations: 1) Prior to conducting an initial evaluation for special education eligibility; 2) Prior to conducting any reevaluations for special education eligibility; and 3) Prior to an initial special education placement. Indeed the revised rules at section 226.540 (c), 226.540(d) and 226.540(e) continue to endorse this longstanding rule. Moreover, the redrafted section 226.540(i) indicates that the revocation of consent only applies to a situation “that requires parental consent,” which seems to refer the reader to the situations articulated at sections 226.540 (c), 226.540(d) and 226.540(e). However, confusion arises when one then reads further and attempts to interpret section 226.540(k)(2), which begins by stating “if the revocation of consent pertains to a special education placement for the student that is already in effect…”

Specifically, the language articulated at Section 226.540(k)(2), by not including the word “initial” prior to the words “special education placement,” implies that the rules have in fact been changed to allow for parental revocation of consent regarding all special education placements, not simply the initial one. If this is the case, I believe guidance from your office is critical, as it would change the long held understanding of school districts and parents.

INQUIRY:   Does the newly enacted Special Education Rule at 23 Ill.Admin.Code 226.540 (k)(2) now require school districts to obtain parental consent for all special education placements and does it allow parents to withdraw such consent for all special education placements?

2)  Conformity with OSEP Guidance


It was my understanding that the change in the rules at 23 Ill. Admin. Code 226.540 was prompted by two recent OSEP opinion letters, Letter to Cox, September 24, 2001, and Letter to Gagliardi, November 5, 2001. In those letters OSEP opined that, pursuant to the IDEA, school districts have no ability to override a parent’s lack of consent for a child’s initial special education placement by filing for due process. Furthermore, both letters firmly indicated that any State which allows a school district to file for due process in such a circumstance should change its regulations. Therefore, given this guidance and the indication that the newly revised rules were revised in part due to these two letters, I was surprised that the ISBE added the provision, at 226.540(k), which expressly allows a school district to request a hearing in order to obtain parental consent for an initial special education placement.

INQUIRY:   Please explain why the Illinois State Board of Education chose to include section 226.540(k), to allow school districts to file for due process to override lack of parental consent for an initial special education placement, despite OSEP guidance, which specifically advises states not to allow this practice.

Thank you in advance for your attention to this matter.

  Very Truly Yours,

  LAC’s signature                



Lara A. Cleary




          To date, no response has been received.