Consent for initial Evaluation - Biological parent vs. Foster Parent - who has the right to give consent?
Section V.1.A.(4)(c) Consent for wards of the State.
(i) In general. - If the child is a ward of the State and is not residing with the child’s parents, the SAU shall make reasonable efforts to obtain the informed consent from the parent (as defined in 20 USC 1402) of the child for an initial evaluation to determine whether the child is a child with a disability.
(ii) Exception. - For initial evaluations only, if the child is a ward of the State and is not residing with the child’s parent, the SAU shall not be required to obtain informed consent from the parent of a child for an initial evaluation to determine whether the child is a child with a disability if: 05-071 Chapter 101, Maine Unified Special Education Regulation.
(I) Despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child;
(II) The rights of the parents of the child have been terminated in accordance with State law; or
(III) The rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child. [34CFR 300.300(a)(2)]
Could you explain more about what consent override is and when it could be applied?
Section V.1.A.(4)(a)(i) and (b)(i) states:
MUSER (4) Parental consent
.(a) In general.
(i) Consent for initial evaluation.--The SAU proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability under 34 CFR 300.8 [Section VII]after providing notice consistent with 34 CFR 300.503 and 504 [Section XV], obtain informed consent consistent with 34 CFR 300.9 [Section II.6], from the parent of such child before conducting the evaluation. Parental consent for initial evaluation must not be construed as consent for placement for receipt of special education and related services. The SAU must make reasonable efforts to obtain the informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability. [34 CFR 300.300(a)]…
(b) Absence of consent.
(i) For initial evaluation.--If the parent of a child, enrolled in public school or
seeking to be enrolled in public school does not provide consent for an initial
evaluation under clause (a)(i), or the parent fails to respond to a request to
provide the consent, the SAU may, but is not required to pursue the initial
evaluation of the child by utilizing the procedures described in 20 USC 1415,
if appropriate, . The SAU does not violate its obligation under 300.111 and 300.301 through 300.311 if it declines to pursue the evaluation. [34 CFR 300.300(a)(3)(i,iii)]
Section V.I.B.(3)(a)(i),(ii),(iii), and (b)(i), and (ii)
(3) Parent consent for reevaluation
(a) Subject to paragraph (3)(b) of this section, each SAU:
(i) Must obtain informed parental consent, in accordance with 34 CFR 300.(a)(1), prior to conducting any reevaluation of a child with a disability.
(ii) If the parent refuses to consent to the reevaluation, the SAU may, but is not required to, pursue the reevaluation by using the consent override procedures described in 1(A)(4)(a).
(iii) Does not violate its obligation under 34 CFR 300.111 and 300.301 through 300.311 if it declines to pursue the evaluation or reevaluation.
(b) The informed parental consent described in paragraph (3)(a) of this section need not be obtained if the SAU can demonstrate that
(i) It made reasonable efforts to obtain such consent; and
(ii) The child’s parent has failed to respond. [34 CFR 300.300(c)]
Further information about consent override can be found in the U.S. Department of Education's Office of Special Education Programs Analysis of Comments.
Changes: We have restructured Sec. 300.300(c)(1) and added a new Sec. 300.300(c)(1)(ii) to clarify that a public agency may, but is not required to, pursue a reevaluation using the procedural safeguards.
(i) If the parent of a child enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation under paragraph (a)(1) of this section, or the parent fails to respond to a request to provide consent, the public agency may, but is not required to, pursue the initial evaluation of the child by utilizing the procedural safeguards in subpart E of this part (including the mediation procedures under Sec. 300.506 or the due process procedures under Sec. Sec. 300.507 through 300.516), if appropriate, except to the extent inconsistent with State law relating to such parental consent.
Do we need written consent to conduct screenings? (assessments - not forthe purpose of identification)
No, please see MUSER V.I.A.(5)
(5) Rule of construction.--The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services. [34 CFR 300.302]
Do you need written consent to invite outside agencies (e.g., CDS, VocationalRehabilitation, Sweetser Case Management) to an IEP team meeting if theyalready are involved with the child?
It depends on the specific situation.
1) For CDS children transitioning from Part C to Part B services, you don’t need written consent; however SAUs must be aware that IDEA 300.321(f) states:
(f) Initial IEP Team meeting for child under Part C. In the case of a child who was previously served under Part C of the Act, an invitation to the initial IEP Team meeting must, at the request of the parent, be sent to the Part C service coordinator or other representatives of the Part C system to assist with the smooth transition of services.
2) For a child who is a State Ward or a State Agency Client, the child’s caseworker representing a youth serving agency must be an IEP Team member according to MUSER VI.2.B.(8):
For a child who is a state ward or state agency client, the child’s caseworker representing a youth serving state agency. The surrogate parent retains the sole authority to represent the child by exercising the procedural safeguards available under this rule.
3) For Part B Secondary Transition, MUSER VI.2.C.(3)(e) states:
(e) To the extent appropriate, with the consent of the parents or the child who has reached age of majority, in implementing the requirements of (c) above, the public agency must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services. [34 CFR 300.321(b)(3)]
If a student comes from out-of-state, and you need to evaluate, do you stillneed consent?
Yes. Please see MUSER Section IX.3.B.(5)(a)(ii)(I).
Is the consent for an outside agency written consent?
Wherever state or federal regulations require consent, it is a written consent. See MUSER II.6 for a definition of “Consent”.
May parents revoke consent for special services or special education services at any time subsequent to the offer of initial services?
Yes, please refer to MUSER § V.I.A.(4)(b)(iii)(I – IV). (Added August 2009)
Should we get parental consent for screening in case results indicate need forfurther evaluation? Wouldn't this allow us to use that information as part of afull referral?
Consent is not required for screenings. If the results of a screening lead to a referral for special education, a WN would be required in addition to a written consent for subsequent evaluations.
What about the parent who brings a member of an outside agency? Do weneed written consent?
No, parents and or SAUs have a right to bring other individuals who have knowledge or special expertise regarding their child. Determination of knowledge and special expertise is made by the parent and or SAU who brought the individual. Consensus is obtained from the legal IEP team members.
What if the parent allows the child to be tested, goes to the meeting but thengoes no farther (no consent for placement, counseling, etc.)?
(ii) For services.--If the parent of such child fails to respond or refuses to consent to the initial provision of special education and related, the SAU may not use the due process procedures in order to obtain agreement or a ruling that services may be provided to the child. The SAU will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent and is not required to convene an IEP Team meeting under §300.320 and 300.324 for the child. [34 CFR 300.300(b)(3)]
Would it be best practice to get a consent form for an agency that might beinvited to an IEP meeting prior to the transition IEP meeting where the child'spost-secondary goals will be discussed?
Yes, you do need the consent of the parents or the child if they have reached age of majority.