Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 73006-73029 [E8-28175]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 73, Number 231 (Monday, December 1, 2008)]
[Rules and Regulations]
[Pages 73006-73029]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28175]



[[Page 73005]]

-----------------------------------------------------------------------

Part IV





Department of Education





-----------------------------------------------------------------------



34 CFR Part 300



Assistance to States for the Education of Children With Disabilities 
and Preschool Grants for Children With Disabilities; Final Rule

Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 / 
Rules and Regulations

[[Page 73006]]


-----------------------------------------------------------------------

DEPARTMENT OF EDUCATION

34 CFR Part 300

[DOCKET ID ED-2008-OSERS-0005]
RIN 1820-AB60


Assistance to States for the Education of Children With 
Disabilities and Preschool Grants for Children With Disabilities

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Final regulations.

-----------------------------------------------------------------------

SUMMARY: The Secretary issues final regulations governing the 
Assistance to States for Education of Children with Disabilities 
Program and the Preschool Grants for Children with Disabilities 
Program. These regulations are needed to clarify and strengthen current 
regulations in 34 CFR Part 300 governing the Assistance to States for 
the Education of Children with Disabilities Program and Preschool 
Grants for Children with Disabilities Program, as published in the 
Federal Register on August 14, 2006, in the areas of parental consent 
for continued special education and related services; non-attorney 
representation in due process hearings; State monitoring, technical 
assistance, and enforcement; and allocation of funds. The regulations 
also incorporate a statutory requirement relating to positive efforts 
to employ and advance in employment individuals with disabilities that 
was inadvertently omitted from the 2006 regulations.

DATES: These regulations take effect on December 31, 2008.

FOR FURTHER INFORMATION CONTACT: Tracy R. Justesen, U.S. Department of 
Education, 400 Maryland Avenue, SW., room 5107, Potomac Center Plaza, 
Washington, DC 20202-2600, Telephone: (202) 245-7605. If you use a 
telecommunications device for the deaf (TDD), you may call the Federal 
Relay System (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternate format (e.g., braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: These regulations implement changes in the 
regulations governing the Assistance to States for Education of 
Children with Disabilities Program and the Preschool Grants for 
Children with Disabilities Program that we have determined are 
necessary for effective implementation and administration of the 
programs.
    On May 13, 2008, the Secretary published a notice of proposed 
rulemaking in the Federal Register (73 FR 27690) (NPRM) to amend the 
regulations in 34 CFR Part 300 governing these programs. In the 
preamble to the NPRM, the Secretary discussed, on pages 27691 through 
27697, the changes being proposed; specifically, (1) parental 
revocation of consent after consenting to the initial provision of 
services; (2) a State's or local educational agency's (LEA) obligation 
to make positive efforts to employ qualified individuals with 
disabilities; (3) representation of parents by non-attorneys in due 
process hearings; (4) State monitoring, technical assistance, and 
enforcement of the Part B program; and (5) the allocation of funds, 
under sections 611 and 619 of the Individuals with Disabilities 
Education Act, as amended by the Individuals with Disabilities 
Education Improvement Act of 2004 (Act or IDEA), to LEAs that are not 
serving any children with disabilities.

Major Changes in the Regulations

    The following is a summary of the major changes in these final 
regulations from the regulations proposed in the NPRM (the rationale 
for each of these changes is discussed in the Analysis of Comments and 
Changes section of this preamble):
     Section 300.300(b)(4) has been revised to require that 
parental revocation of consent for the continued provision of special 
education and related services must be in writing and that upon 
revocation of consent a public agency must provide the parent with 
prior written notice in accordance with Sec.  300.503.
     The exception clause in Sec.  300.512(a)(1), regarding the 
right to be represented by non-attorneys, has been revised to apply to 
any party to a hearing, not just parents.
     The timeline in Sec.  300.602(b)(1)(i)(A), regarding the 
State's public reporting on the performance of each LEA located in the 
State, has been changed from 60 days to 120 days following the State's 
submission of the annual performance report to the Secretary.

Analysis of Comments and Changes

Introduction

    In response to the invitation in the NPRM, more than 700 parties 
submitted comments on the proposed regulations. An analysis of the 
comments and of the changes in the regulations since publication of the 
NPRM immediately follows this introduction. The perspectives of 
parents, individuals with disabilities, teachers, related services 
providers, State and local officials, and others were very important in 
helping us identify where changes to the proposed regulations were 
necessary, and in formulating the changes. In light of the comments 
received, a number of changes are reflected in these final regulations.
    We discuss substantive issues under the pertinent section. The 
analysis generally does not address--
    (a) Minor changes, including technical changes made to the language 
published in the NPRM;
    (b) Suggested changes the Secretary is not legally authorized to 
make under applicable statutory authority;
    (c) Suggested changes that are beyond the scope of the changes 
proposed in the NPRM; and
    (d) Comments that express concerns of a general nature about the 
Department or other matters that are not directly relevant to these 
regulations, such as requests for information about innovative 
instructional methods or matters that are within the purview of State 
and local decision-makers.

Consent (Sec.  300.9)

    Comment: A few commenters supported proposed Sec.  300.9(c)(3), 
which states that if a parent revokes consent for his or her child's 
receipt of 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. The commenters stated 
that this revision provides clear direction to schools regarding the 
management of student records when a parent revokes consent. The 
commenters stated that schools must have the ability to keep accurate 
records pertaining to the child and the child's receipt of special 
education and related services. One commenter recommended that proposed 
Sec.  300.9(c)(3) would be more appropriately placed in either 
Sec. Sec.  300.618 or 300.624, regarding the amendment of education 
records and the destruction of information, respectively.
    Discussion: We appreciate the commenters' support for this 
provision. Concerning the recommendation that the substance of proposed 
Sec.  300.9(c)(3) be placed in either Sec. Sec.  300.618 or 300.624, we 
have included the provision in Sec.  300.9 because the provision 
specifically relates to the definition of consent. Section 300.9(c) 
addresses revocation of consent, explaining that consent is voluntary 
and

[[Page 73007]]

may be revoked at any time. Further, Sec.  300.9(c) states that the 
parent's revocation of consent is not retroactive in that revocation 
does not negate an action that has occurred after the consent was given 
and before the consent was revoked. Proposed Sec.  300.9(c)(3) further 
defines the effect of a parent's revocation of consent on the content 
of his or her child's education records. A parent's revocation of 
consent is not retroactive; consequently, the public agency would not 
be required to amend the child's education records to remove any 
references to the child's receipt of special education and related 
services in the event the child's parent revokes consent. Therefore, we 
decline to follow the commenters' recommendation to remove Sec.  
300.9(c)(3) and include the content of this provision in either 
Sec. Sec.  300.618 or 300.624.
    Changes: None.
    Comment: One commenter recommended adding a rule of construction in 
Sec.  300.9 to clarify that nothing in proposed Sec.  300.9(c)(3) 
reduces a parent's right to request an amendment of their child's 
record in accordance with the confidentiality provisions in Sec. Sec.  
300.618 through 300.621. Another commenter requested that the language 
in proposed Sec.  300.9(c)(3) be clarified to require public agencies 
to maintain a child's special education records to ensure that public 
agencies are not allowed to amend the child's records or remove 
information at their sole discretion.
    Discussion: Proposed Sec.  300.9(c)(3) specifies that if a parent 
revokes consent for the child's receipt of special education and 
related services, the public agency is not required to remove any 
references to the child's receipt of special education and related 
services because of the parent's revocation of consent. This provision 
does not affect the rights provided to parents in Sec. Sec.  300.618 
through 300.621, including the opportunity to request amendments to 
information in education records that is inaccurate or misleading, or 
violates the privacy or other rights of a child. Additionally, proposed 
Sec.  300.9(c)(3) does not affect a public agency's responsibilities 
under Sec.  300.613, concerning a parent's right to inspect and review 
any education records relating to his or her children that are 
collected, maintained, or used by the agency under Part B of the Act, 
or Sec.  300.624, requiring a public agency to (a) inform parents when 
personally identifiable information collected, maintained, or used 
under Part B of the Act is no longer needed to provide educational 
services to the child, and (b) destroy, at the request of the parent, 
such information. Given the protections available to parents to monitor 
the information in education records, to amend records, to be notified 
if the public agency intends to destroy information in education 
records, and to ultimately have the records destroyed, adding a rule of 
construction to Sec.  300.9(c)(3), as requested by the commenter, is 
not necessary.
    We also decline to make the change recommended regarding a public 
agency's maintenance of a child's special education records, as the 
regulations already provide sufficient protection of the child's and 
parents' interests with regard to monitoring, amending, and removing 
information from the child's records. Parents have the right, under 
Sec.  300.613, to inspect and review any education records relating to 
their child that are collected, maintained, or used by the agency under 
Part B of the Act. If a parent believes that information in the 
education records collected, maintained, or used under Part B of the 
Act is inaccurate or misleading or violates the privacy or other rights 
of the child, the parent may request that the participating agency 
amend the information in the records. Additionally, under Sec.  
300.619, the agency must, on request, provide the parent with an 
opportunity for a hearing to challenge information in education records 
to ensure that it is not inaccurate.
    Further, Sec.  300.624 requires that a public agency inform parents 
when personally identifiable information is no longer needed to provide 
educational services to a child. This notice would normally be given 
after a child graduates or otherwise leaves the agency. In instances 
when an agency intends to destroy personally identifiable information 
that is no longer needed to provide educational services to a child and 
informs the parents of that determination, the parents may want to 
exercise their right, under Sec.  300.613, to access those records and 
request copies of the records they may need to acquire post-school 
benefits.
    Changes: None.
    Comment: One commenter requested that the word ``parents'' in 
proposed Sec.  303.9(c)(3) be replaced with the word ``parent'' because 
the word ``parent'' has a particular meaning under the IDEA, and 
because both the Family Educational Rights and Privacy Act (FERPA) (20 
U.S.C. 1232g) and the implementing regulations (34 CFR Part 99) and 
IDEA give rights to each individual parent.
    Discussion: We agree with the commenter that the word ``parent'' is 
more consistent with the language of the other IDEA parental consent 
provisions; therefore, we have made the requested change.
    Changes: The word ``parents'' in Sec.  300.9(c)(3) has been changed 
to ``parent.''

Parental Revocation of Consent for Special Education Services (Sec.  
300.300)

    Comment: Some commenters, including parents, teachers, and State 
educational agencies (SEAs), supported the requirements in proposed 
Sec.  300.300(b)(4) that would allow a parent of a child receiving 
special education and related services to revoke consent for those 
services. Commenters stated that if a parent has the right to initially 
consent to special education and related services, the parent also 
should have the right to revoke consent for special education and 
related services, particularly given that the plain language in Sec.  
300.9(c)(1) states that consent may be revoked at any time. Other 
commenters stated that parents are the ultimate experts on their 
children and have a fundamental right to direct their education. One 
commenter stated that schools should not have the right to force 
evaluations or services on a child through legal processes. Another 
commenter stated that a student should have every right to attempt to 
become independent and take responsibility for his or her academic 
achievement, without the assistance of an individualized education 
program (IEP).
    Some commenters generally supported a parent's right to revoke 
consent, but only if changes were made to proposed Sec.  300.300(b)(4). 
Their recommendations included giving a parent the right to revoke 
consent at any time while still ensuring that the parent receives the 
time and information needed to make informed decisions regarding his or 
her child's continued need for services. Several commenters recommended 
procedures that could be implemented when a parent unilaterally revokes 
consent for special education and related services. For example, 
commenters suggested requiring--that a parent's revocation be in 
writing; a meeting between the parent and the public agency to discuss 
the parent's decision to revoke consent for special education and 
related services; a timeline from the revocation of consent through 
discontinuation of services and a specific deadline for convening a 
meeting with the parent and providing prior written notice to the 
parent; written notice of the receipt of the

[[Page 73008]]

parent's revocation and the public agency's intent to discontinue 
services; and that the parent be given an opportunity to meet with the 
State's Parent Training Information center (PTI) to receive additional 
information concerning the potential impact of the parent's decision. 
Other suggested procedures included requiring a parent to acknowledge 
in writing that the parent has been fully informed of the educational 
services and supports that their child will no longer receive. In 
contrast, a few commenters stated that no additional procedures should 
be required when a parent revokes consent.
    Discussion: We appreciate the commenters' support for this 
provision. We agree with the commenters that revocation of consent for 
special education and related services must be in writing to ensure 
that both the public agency and the parent have documentation that the 
child will no longer receive special education and related services. 
Therefore, we have revised Sec. Sec.  300.9(c)(3) and 300.300(b)(4) to 
require that consent be revoked in writing.
    Concerning the comments about written notice of the receipt of a 
parent's revocation and the public agency's intent to discontinue 
services and the comment concerning an opportunity to meet with the 
State's PTI center to receive additional information about the 
potential effect of the parent's decision, we have not adopted 
additional procedures for parental revocation of consent for special 
education and related services because the regulations already provide 
sufficient notice protections to enable parents to understand the 
implications of the decision they are making. To clarify this point, we 
have revised Sec.  300.300(b)(4)(i) to specify that prior written 
notice consistent with Sec.  300.503 be provided to parents before a 
public agency discontinues special education and related services to 
their child. Public agencies, under Sec.  300.503, are required to give 
the parents of a child with a disability written notice that meets the 
requirements in Sec.  300.503(b) within a reasonable time before the 
public agency proposes or refuses to initiate or change the 
identification, evaluation, or educational placement of the child or 
the provision of a free appropriate public education (FAPE) to the 
child. Once a public agency receives a parent's written revocation of 
consent for a child's receipt of special education and related 
services, the public agency, under Sec.  300.503, must provide prior 
written notice to the parent regarding the change in educational 
placement and services that will result from the revocation of consent. 
The notice must include, among other matters, information on sources 
for the parents to contact that can assist the parents in understanding 
the requirements of Part B of the Act and its implementing regulations. 
Section 300.503(c)(1)(i) also requires that this prior notice be 
written in language understandable to the general public. It is 
imperative that the public agency provide the required prior notice in 
a meaningful manner. Accordingly, Sec.  300.503(c)(1)(ii) requires that 
any notice required by Sec.  300.503 must be provided in the native 
language of the parent or other mode of communication used by the 
parent, unless it is clearly not feasible to do so. Additionally, if 
the parent's native language or other mode of communication is not a 
written language, Sec.  300.503(c)(2) requires the public agency to 
take additional measures to communicate the information contained in 
the notice. These measures involve taking steps to ensure that the 
notice is translated orally or by other means to the parent in the 
parent's native language or other mode of communication, that the 
parent understands the content of the notice, and that there is written 
evidence that the requirements of Sec.  300.503(c) have been met.
    Concerning the comment about ensuring that the parent receives the 
time and information needed to make informed decisions regarding their 
child's continued need for services, a public agency cannot discontinue 
services until prior written notice consistent with Sec.  300.503 has 
been provided to the parents. Therefore, we expect public agencies to 
promptly respond to receipt of written revocation of consent by 
providing prior written notice to the parents under Sec.  300.503. 
Section 300.503 specifies that, within a reasonable time before a 
public agency discontinues services, the public agency must provide the 
parents of a child with a disability written notice of the proposal to 
discontinue services based on receipt of the parent's written 
revocation of consent. Providing such notice a reasonable time before 
the public agency discontinues services gives parents the necessary 
information and time to fully consider the change and determine if they 
have any additional questions or concerns regarding the discontinuation 
of services.
    While the notice required under Sec.  300.503 provides sufficient 
information to parents regarding revocation of consent for special 
education and related services, a State may choose to establish 
additional procedures for implementing Sec.  300.300(b)(4), such as 
requiring a public agency to offer to meet with parents to discuss 
concerns for their child's education. However, 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 of the Act and its implementing regulations. For example, while a 
public agency may inquire as to why a parent is revoking consent for 
special education and related services, a public agency may not require 
a parent to provide an explanation, either orally or in writing, prior 
to ceasing the provision of special education and related services.
    Concerning the suggestion that the Department establish a timeline 
from revocation of consent through discontinuation of services with a 
specific deadline for convening a meeting with the parent and providing 
prior written notice to the parent, we expect the discontinuation of 
services to occur in a timely manner. However, we understand that the 
specific timeline may differ, to some extent, due to parent-specific 
factors, such as whether the parent wants to meet with the public 
agency or another entity prior to the discontinuation of services. 
Thus, to provide needed flexibility, we have not mandated a specific 
timeline.
    With regard to the comment about ensuring parents acknowledge in 
writing that they have been fully informed of the educational services 
and supports that they are declining, it is the Department's position 
that the prior written notice informs parents of the educational 
services and supports that they are declining and establishes a 
sufficient record that parents have been appropriately informed.
    We also note that under Sec.  300.504, public agencies must provide 
parents, at least annually, a procedural safeguards notice that 
includes a full explanation of the procedural safeguards available to 
the parents of a child with a disability. This notice must explain the 
requirements in Sec.  300.300, including that a parent has the right to 
revoke consent, in writing, to his or her child's continued receipt of 
special education and related services.
    Changes: We have added the phrase ``in writing'' after the words 
``revokes consent'' in Sec. Sec.  300.9(c)(3) and 300.300(b)(4). We 
also have revised Sec.  300.300(b)(4)(i) to clarify that a public 
agency must provide prior written notice in accordance with Sec.  
300.503

[[Page 73009]]

before ceasing the provision of special education and related services.
    Comment: Many commenters opposed the requirements in proposed Sec.  
300.300(b)(4) that would allow a parent to revoke consent for special 
education and related services. These commenters stated that the 
decision to terminate services should be made by the IEP Team because 
the IEP Team includes both the parent and professionals. Some 
commenters stated that children cannot be placed unilaterally into 
special education because eligibility for special education and related 
services is determined by a group of qualified individuals and the 
parent; therefore, if a parent believes special education services are 
not needed, the parent should consult with the IEP Team rather than 
making that determination unilaterally.
    Other commenters suggested that when a parent believes his or her 
child is not progressing, an IEP Team meeting should be held so that 
the IEP Team, as a whole and not just the parent, can determine whether 
the level of services is appropriate for the child. The commenters 
stated that allowing the IEP Team to determine whether the child needs 
special education and related services, rather than allowing parental 
revocation of consent, would be in the child's best interest.
    One commenter stated that revoking consent should be treated 
differently than refusing to provide initial consent because revoking 
consent results in changing the status quo (i.e., terminating services 
that are currently being provided to the child). This commenter argued 
that the party seeking a change in the status quo should bear the 
burden of showing that the change is warranted. One commenter expressed 
concern specifically about a situation in which a parent revokes 
consent for special education and related services for a child placed 
in a residential setting.
    Another commenter expressed concern that allowing a parent to 
revoke consent goes too far beyond providing for meaningful parental 
participation because it gives the parent a right to veto the IEP Team.
    Discussion: We agree with the commenters that the IEP Team (defined 
in Sec.  300.23, which includes the child's parents) plays an important 
role in the special education decision-making process. For example, 
through the development, review and revision of the child's IEP, the 
IEP Team determines how to make FAPE available to a child with a 
disability. However, the IEP Team does not have the authority to 
consent to the provision of special education and related services to a 
child. That authority is given exclusively to the parent under section 
614(a)(1)(D)(i)(II) of the Act. The Secretary strongly believes that a 
parent also has the authority to revoke that consent, thereby ending 
the provision of special education and related services to their child. 
Allowing parents to revoke consent for the continued provision of 
special education and related services at any time is consistent with 
the IDEA's emphasis on the role of parents in protecting their child's 
rights and the Department's goal of enhancing parent involvement and 
choice in their child's education.
    We expect that after a parent revokes consent for the continued 
provision of special education and related services, the parent will 
continue to work with the child's school to support the child in the 
general education curriculum. Parents of nondisabled children serve as 
partners in their children's education in the same manner as parents of 
children with disabilities.
    We agree that an IEP Team meeting should be convened if any member 
of the IEP Team, including a parent, believes the child is not 
progressing. Section 300.324(b)(1)(i) and (ii)(A) requires each public 
agency to review a child's IEP periodically, but not less than 
annually, and revise the IEP as appropriate to address any lack of 
expected progress. However, the review of a child's IEP by the IEP Team 
does not replace a parent's right to revoke consent for the continued 
provision of special education and related services to his or her 
child.
    Concerning the comment that revoking consent should be treated 
differently than refusing to provide initial consent because the parent 
is seeking to terminate special education services that are presently 
provided, thus seeking to change the status quo and the comment 
expressing concern about revoking consent for a child whose current 
placement is in a residential setting, we appreciate that there are 
differences between consent for special education and related services 
and revocation of such consent. However, at their core, both issues 
entail a parent's decision of whether a child will receive special 
education and related services. Thus, section 614(a)(1)(D)(i)(II) and 
(ii)(II) of the Act, which provides a parent unilateral authority to 
refuse special education and related services, informs our decision on 
the related issue of revocation of consent for the continued provision 
of special education and related services.
    Lastly, we disagree with the comments that allowing parents to 
revoke consent exceeds the parental participation requirements in Part 
B of the Act. As previously discussed, a parent's right to revoke 
consent is consistent with the parent's right, in section 
614(a)(1)(D)(i)(II) and (ii)(II) of the Act, to determine if his or her 
child should receive special education and related services.
    Changes: None.
    Comment: Many commenters stated that parents may revoke consent for 
various reasons or beliefs that are not in the best interest of the 
child. Commenters provided specific examples such as conflicts between 
the parent and school personnel; an insufficient understanding or 
knowledge of the importance of special education and related services; 
a belief that continued participation in the special education program 
would hinder the child's success in life or stigmatize the child; and 
concerns that the special education program is not appropriate. The 
commenters expressed concern that parental revocation of consent for 
special education and related services could be detrimental to the 
academic future of a child with a disability, as well as the academic 
future and safety of children in the general education classroom.
    Other commenters expressed concern that allowing a parent to 
unilaterally revoke consent for the continued provision of special 
education and related services is not in the best interest of the child 
because these children may not receive instruction from trained 
professionals.
    Discussion: A parent, under section 614(a)(1)(D)(i)(II) and 
(ii)(II) of the Act, has the authority to consent to the initial 
provision of special education and related services, and this parental 
right applies regardless of the parent's reasons. As previously 
discussed, the Secretary believes that a parent also should have the 
authority to revoke that consent, thereby ending the provision of 
special education and related services to their child. Allowing parents 
to revoke consent for special education and related services at any 
time is consistent with the IDEA's emphasis on the role of parents in 
protecting their child's rights and the Department's goal of enhancing 
parent involvement and choice in their child's education.
    Concerning the comments asserting that parental revocation of 
consent for special education and related services could be detrimental 
to the academic future of a child with a disability, the Act presumes 
that a parent acts in the best interest of their child. If a child

[[Page 73010]]

experiences academic difficulties after a parent revokes consent to the 
continued provision of special education and related services, nothing 
in the Act or the implementing regulations would prevent a parent from 
requesting an evaluation to determine if the child is eligible, at that 
time, for special education and related services.
    Safety of all students in the classroom is of primary concern to 
the Secretary. The Department expects that schools will continue to 
maintain the safety of all students in all classrooms regardless of 
whether children are receiving special education and related services.
    We do not agree with the commenters that students whose parents 
revoke consent for the continued provision of special education and 
related services will no longer receive instruction from trained 
professionals. The Elementary and Secondary Education Act of 1965, as 
amended by the No Child Left Behind Act of 2001 (ESEA), requires that 
all teachers in a State who are teaching core academic subjects be 
``highly qualified.'' Therefore, States are required to ensure that 
students in both general and special education programs are receiving 
instruction in core academic subjects from highly qualified teachers, 
as that term is defined in section 9101 of the ESEA and 34 CFR 200.56.
    Changes: None.
    Comment: A few commenters expressed concern that proposed Sec.  
300.300(b)(4) may result in students removing themselves from services 
when they reach the age of majority. Other commenters asked whether a 
child who reaches the age of majority can hold a school responsible for 
lost services. One commenter suggested adding a new paragraph to Sec.  
300.300(b)(4) that would grant immunity to an LEA if a child with a 
disability attains the age of majority and seeks to sue the LEA for 
failure to make FAPE available because the child's parent revoked 
consent for the continued provision of special education and related 
services. Another commenter asked whether unilaterally withdrawing a 
child with a disability from special education releases the LEA from 
any liability, past or future, with regard to providing FAPE to the 
child and the remedies available for denial of FAPE.
    Discussion: Section 615(m)(1) of the Act allows, but does not 
require, a State to transfer all rights accorded to parents under Part 
B of the Act to children who have reached the age of majority under 
State law. If State law grants a child who has reached the age of 
majority under State law (except for a child with a disability who has 
been determined to be incompetent under State law) all rights 
previously granted to parents, then the parents' rights are transferred 
to the child as provided in Sec.  300.520(a), enabling that child to 
revoke consent for special education and related services under Sec.  
300.300(b)(4). However, in accordance with section 615(m)(1) of the Act 
and Sec.  300.520(a)(1)(i), the public agency must provide any notice 
required under Part B of the Act to the child and the parents. 
Therefore, the parents would receive prior written notice, consistent 
with Sec.  300.503, of the public agency's proposal to discontinue 
special education and related services based on receipt of the written 
revocation of consent from a child to whom rights transferred under 
Sec.  300.520(a). This parental notice could facilitate discussion 
between the child and parent of the decision to revoke consent and the 
potential ramifications of that decision.
    Concerning the comments about a student who reaches the age of 
majority holding a school responsible for loss of Part B services, 
Sec.  300.300(b)(4)(iii) provides that, if the parent of a child 
revokes consent in writing for the continued provision of special 
education and related services, the public agency 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 further 
special education and related services. Therefore, granting the public 
agency immunity is not necessary because the public agency will not be 
considered to be in violation of the requirement to make FAPE available 
to the child if the parent revokes consent for special education and 
related services. Revocation of parental consent releases the LEA from 
liability for providing FAPE from the time the parent revokes consent 
for special education and related services until the time, if any, that 
the child is evaluated and deemed eligible, once again, for special 
education and related services.
    Changes: None.
    Comment: Several commenters stated that the right to FAPE is a 
child's right and allowing parents to revoke consent for special 
education and related services undermines that right.
    Discussion: We do not agree with the commenters that Sec.  
300.300(b)(4) undermines a child's right to FAPE. Section 300.101 
requires that FAPE must be available to all children with disabilities 
residing in a State between the ages of 3 and 21, inclusive, except 
that public agencies are not required to serve children aged 3 through 
5 and aged 18 through 21 if serving such children is inconsistent with 
State law, practice or the order of any court with respect to the 
provision of public education to children of those ages. The child's 
parents, under the Act, are afforded rights regarding the provision of 
FAPE to their child, including the right to determine whether their 
child will receive special education and related services. 
Specifically, under section 614(a)(1)(D)(i)(II) and (ii)(II) of the 
Act, a parent has the authority to determine whether a public agency 
may begin to provide special education and related services to their 
child. As discussed previously, it is the Department's position that a 
parent also should have the authority to revoke consent to the 
continued provision of special education and related services to their 
child. The Act presumes that parents act in the best interest of their 
child. Therefore, affording a parent the right to consent to the 
initial provision of special education and related services or the 
right to revoke consent, in writing, to the continued provision of 
special education and related services is consistent with the Act and 
does not undermine a child's right to FAPE under Sec.  300.101.
    Changes: None.
    Comment: A few commenters expressed concern about how the 
revocation of consent provisions would affect children who live in 
foster homes, or where guardianship is in dispute. Another commenter 
proposed replacing the words ``the parent'' in Sec.  300.300(b)(4) with 
the words ``each parent'' because when custody of a child is in dispute 
the provision should require that each legally responsible parent 
revoke consent before special education and related services are 
discontinued.
    Discussion: Certain provisions in the Part 300 regulations, such as 
the definition of parent in Sec.  300.30 and the requirements regarding 
surrogate parents in Sec.  300.519, ensure that a child with a 
disability has an individual who can act as a parent to make 
educational decisions on behalf of the child. Parent, as defined in 
Sec.  300.30, means a biological or adoptive parent of a child; a 
foster parent, unless State law, regulations, or contractual 
obligations with a State or local entity prohibit a foster parent from 
acting as a parent; a guardian generally authorized to act as the 
child's parent, or authorized to make educational decisions for the 
child (but not the State if the child is a ward of the State); an 
individual acting in the place of a biological or adoptive parent 
(including a grandparent, stepparent, or other relative) with whom the 
child lives, or an individual who is legally

[[Page 73011]]

responsible for the child's welfare. The definition of parent also 
includes a surrogate parent who has been appointed in accordance with 
Sec.  300.519 and section 639(a)(5) of the Act. The duty to appoint a 
surrogate parent under Sec.  300.519 arises when no parent can be 
identified, the public agency, after reasonable efforts, cannot locate 
a parent, the child is a ward of the State, or the child is an 
unaccompanied homeless youth, as defined in section 725(6) of the 
McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434(a)(6)).
    The language in Sec.  300.300(b)(4) is consistent with other 
regulatory language concerning parental rights in the Part B 
regulations. Under Sec.  300.30, when guardianship or custody of a 
child with a disability is at issue, the parental rights established by 
the Act apply to both parents, unless a court order or State law 
specifies otherwise. Therefore, we decline to make the change requested 
by the commenter.
    Changes: None.
    Comment: A few commenters questioned whether a parent may revoke 
consent for the continued provision of some services and not others 
and, therefore, require the public agency to continue to provide only 
those services for which the parent has not revoked consent.
    Discussion: Section 300.300(b)(4) allows a parent at any time after 
the initial provision of special education and related services to 
revoke consent for the continued provision of special education and 
related services to their child in their entirety. Under Sec.  
300.300(b)(1), parental consent is for the initial provision of special 
education and related services generally, not for a particular service 
or services. Once a public agency receives a parental revocation of 
consent, in writing, for all special education and related services for 
a child and provides prior written notice in accordance with Sec.  
300.503, the public agency must, within a reasonable time, discontinue 
all special education and related services to the child. In this 
circumstance, the public agency may not use the procedures in subpart E 
of these regulations, including the mediation procedures under Sec.  
300.506 or the due process procedures under Sec. Sec.  300.507 through 
300.516, to obtain agreement or a ruling that the services may be 
provided to the child.
    In situations where a parent disagrees with the provision of a 
particular special education or related service and the parent and 
public agency agree that the child would be provided with FAPE if the 
child did not receive that service, the public agency should remove the 
service from the child's IEP and would not have a basis for using the 
procedures in subpart E to require that the service be provided to the 
child.
    If, however, the parent and public agency disagree about whether 
the child would be provided with FAPE if the child did not receive a 
particular special education or related service, the parent may use the 
due process procedures in subpart E of these regulations to obtain a 
ruling that the service with which the parent disagrees is not 
appropriate for their child.
    Additionally, under the regulations in Sec.  300.300(d)(2), States 
are free to create additional parental consent rights, such as 
requiring parental consent for particular services, or allowing parents 
to revoke consent for particular services, but in those cases, the 
State must ensure that each public agency in the State has effective 
procedures to ensure that the parents' exercise of these rights does 
not result in a failure to provide FAPE to the child.
    Changes: None.
    Comment: Some commenters asked how proposed Sec.  300.300(b)(4) 
will affect a school district's adequate yearly progress (AYP) 
reporting under the ESEA and whether children who previously received 
special education and related services would be counted in the special 
education subgroup. The commenters requested clarification as to 
whether the student will remain in the students with disabilities 
subgroup if services are discontinued after school has begun but before 
the State assessment is administered and whether or not the State will 
be required to provide accommodations on assessments to the student. 
Another commenter expressed concern that teachers will be blamed if a 
child fails to succeed after a parent revokes consent for the continued 
provision of special education and related services because educators 
are ``liable'' for all students under the ESEA. One commenter expressed 
concern about an LEA's and State's ability to accurately track the 
progress of students with disabilities over time, especially if large 
numbers of parents choose to exercise their right to revoke consent. 
Lastly, another commenter expressed concern that a parent who 
unilaterally withdraws his or her child from special education and 
related services may sue an LEA if a student fails to make progress.
    Discussion: Once a parent revokes consent for a child to receive 
special education and related services, the child is considered a 
general education student and will be considered a general education 
student under the ESEA. Therefore, if a parent revokes consent after 
the school year begins but before administration of the annual State 
assessment required under the ESEA, the child is considered a general 
education student who has exited special education for accountability 
purposes. Section 200.20(f) of the Title I regulations allows States to 
include, for a period of up to two AYP determination cycles, the scores 
of students who were previously identified with a disability under the 
Act, but who no longer receive special education services, in the 
special education subgroup for purposes of calculating AYP (but not for 
reporting purposes). Therefore, the State may continue to include a 
child whose parent revokes consent for special education and related 
services in the special education subgroup for purposes of calculating 
AYP for two years following parental revocation of consent. While the 
State may continue to include the child in the students with 
disabilities subgroup for purposes of calculating AYP for up to two 
years, the child will not have an IEP; therefore, the State will no 
longer be required under the IDEA to provide accommodations that were 
previously included in the child's IEP.
    Concerning the suggestion that teachers are ``liable'' and will be 
blamed if a child fails to succeed after a parent revokes consent for 
special education and related services, we disagree. Teachers play a 
critical role in ensuring that all children progress academically 
regardless of whether a child receives special education and related 
services. The majority of children who receive special education and 
related services receive their special education services in the 
general education classroom; therefore, general education teachers have 
a vital role in promoting their educational progress. These general 
education teachers will continue to have an important role in fostering 
the educational progress of all children, regardless of whether they 
receive special education and related services.
    We disagree that LEAs and States will not have the ability to 
accurately track the progress of students with disabilities over time. 
LEAs currently track the progress of all students through student 
records, report cards, progress reports, and State assessments. 
Students who no longer receive special education and related services 
due to a parent revoking consent will have their progress tracked in 
the same manner as students who do not receive special education and 
related services.
    Lastly, concerning the comment that a parent who revokes consent 
for special education and related services may sue an LEA if their 
child fails to make

[[Page 73012]]

progress, Sec.  300.300(b)(4)(iii) states that a public agency will not 
be considered in violation of the requirement to make FAPE available to 
the child because of the failure to provide the child with further 
special education and related services based on the parent's revocation 
of consent. Additionally, there is no private right of action under the 
ESEA for a parent to sue an LEA if a child fails to make progress.
    Changes: None.
    Comment: One commenter asked if a teacher is required to provide 
the accommodations listed in a child's IEP in the general education 
environment for any child for whom consent for special education and 
related services is revoked. Another commenter expressed concern that 
the children whose parents revoke consent for special education and 
related services may not receive needed accommodations and 
modifications thereby compromising the child's success in school and 
perhaps in later life.
    Discussion: Once a parent revokes consent in writing under Sec.  
300.300(b)(4) for the continued provision of special education and 
related services, a teacher is not required to provide the previously 
identified IEP accommodations in the general education environment. 
However, general education teachers often provide classroom 
accommodations for children who do not have IEPs. Nothing in Sec.  
300.300(b)(4) would prevent a general education teacher from providing 
a child whose parent has revoked consent for the continued provision of 
special education and related services with accommodations that are 
available to non-disabled children under relevant State standards.
    Changes: None.
    Comment: A few commenters requested that the Department clarify 
that the right of a parent to revoke consent for special education and 
related services does not relieve the LEA of its obligation under child 
find to identify, locate, and evaluate all children with disabilities, 
including children whose parents revoke consent for special education 
and related services. Other commenters requested clarification as to 
the time frame that applies for an LEA to comply with the child find 
and service obligations for a child who exits special education without 
the agreement of the IEP Team and whether the child should be referred 
for services each school year. One commenter expressed concern that 
allowing revocation of parental consent would potentially create a 
disincentive for general educators to refer students to special 
education because teachers would be reluctant to repeatedly refer a 
student for special education if a parent previously revoked consent 
for services.
    Discussion: The child find provisions in section 612(a)(3) of the 
Act and Sec.  300.111 require each State to have in effect policies and 
procedures to ensure that all children with disabilities residing in 
the State and who are in need of special education and related services 
are identified, located, and evaluated. Children who have previously 
received special education and related services and whose parents 
subsequently revoke consent should not be treated any differently in 
the child find process than any other child, including a child who was 
determined eligible and whose parent refused to provide initial consent 
for services. A parent who previously revoked consent for special 
education and related services may continue to refuse services; 
however, this does not diminish a State's responsibility under Sec.  
300.111 to identify, locate and evaluate a child who is suspected of 
having a disability and being in need of special education and related 
services. A public agency must obtain informed written parental 
consent, consistent with Sec.  300.300(a), before conducting an initial 
evaluation. A parent who previously revoked consent for the continued 
provision of special education and related services, like any parent of 
a child suspected of having a disability, may refuse to provide consent 
for an initial evaluation.
    Concerning the request for clarification of the child find 
timeline, child find is an ongoing process. The Department expects that 
children whose parents revoke consent will be identified, located and 
offered an evaluation in the same manner as any other child if the 
child is suspected of having a disability and being in need of special 
education and related services. Similarly, we do not agree with the 
commenter that general education teachers will not refer children who 
previously received special education and related services. States are 
required to have policies and procedures in place to ensure effective 
child find. Ensuring that general education teachers make appropriate 
referrals of children suspected of having a disability, which would 
include the referral of children whose parents have previously revoked 
consent for such services, is consistent with this responsibility.
    Changes: None.
    Comment: One commenter requested that Sec.  300.300 be amended to 
specifically state that, for discipline purposes, a public agency will 
not consider the child to be a child with a disability if the parent 
refuses consent, fails to respond to a request for consent, or revokes 
consent for special education and related services. Other commenters 
stated that revocation of consent for special education and related 
services should not impact discipline protections for children whose 
parents have revoked consent because the school has prior knowledge 
that the child is a child with a disability and the child has been 
determined eligible for services. The commenters stated that Sec.  
300.534, consistent with section 615(k)(5) of the Act, applies to 
children not yet determined to be eligible for special education and 
related services who have engaged in behavior in violation of a code of 
student conduct. One commenter expressed concern that subjecting 
previously eligible students to general education discipline procedures 
would leave these students without any education.
    Discussion: Section 300.534 generally provides protections for 
children not yet determined eligible for special education and related 
services in instances when the public agency is deemed to have 
knowledge that a child is a child with a disability before the behavior 
that precipitated the disciplinary action occurred. However, Sec.  
300.534(c)(1)(ii) states that a public agency is not deemed to have 
knowledge under this section if the parent of the child has refused 
services under the regulations implementing Part B of the Act. When a 
parent revokes consent for special education and related services under 
Sec.  300.300(b), the parent has refused services as described in Sec.  
300.534(c)(1)(ii); therefore, the public agency is not deemed to have 
knowledge that the child is a child with a disability and the child may 
be disciplined as a general education student and is not entitled to 
the Act's discipline protections.
    We do not agree that additional clarification of the discipline 
procedures is needed in Sec.  300.300 or with the comment that 
revocation of consent for special education and related services should 
not affect discipline protections because the school has prior 
knowledge that the child has been determined eligible for services. The 
provisions in Sec.  300.534(c), which mirror the language in section 
615(k)(5)(C) of the Act, are clear that once a parent refuses services 
the public agency will not be deemed to have knowledge that the child 
is a child with a disability and the child will be subject to the same 
disciplinary procedures and timelines applicable to general education 
students.

[[Page 73013]]

    We also disagree that previously eligible students who are subject 
to general education discipline procedures will be left without any 
education. Students who are no longer receiving special education and 
related services due to the revocation of parental consent to the 
continued provision of special education and related services will be 
subject to the LEA's discipline procedures without the discipline 
protections provided in the Act. However, students will continue to 
receive the full benefit of education provided by the LEA as long as 
they have not committed any disciplinary violations that affect access 
to education (e.g., violations that result in suspension). We expect 
that parents will consider possible consequences of discipline 
procedures when making the decision to revoke consent for the provision 
of special education and related services.
    Changes: None.
    Comment: One commenter asked whether a school will be able to place 
a student with a disability whose parent has revoked consent for 
special education and related services in a general education classroom 
that is co-taught by a special education teacher. Another commenter 
asked if a child must meet all the statewide assessment and credit 
requirements for graduation applicable to students in the general 
education setting if a parent revokes consent for special education and 
related services when the child is a high school senior.
    Discussion: Once a parent revokes consent for special education and 
related services under Sec.  300.300(b), the child is a general 
education student. Consequently, the child may be placed in any 
classroom where other general education students are placed. If a child 
whose parent has revoked consent is placed in a classroom that is co-
taught by a general education teacher and a special education teacher, 
then that child is placed in the classroom as a general education 
student and should be treated the same as all other general education 
students in that classroom.
    High school graduation requirements are within the purview of each 
State. However, it is reasonable to assume that any student, regardless 
of whether they are receiving special education and related services, 
will be required to meet statewide assessment and credit requirements 
for graduation with a regular diploma.
    Changes: None.
    Comment: Some commenters raised questions about the protections 
under Section 504 of the Rehabilitation Act of 1973, as amended 
(Section 504), and Title II of the Americans with Disabilities Act of 
1990, as amended (ADA), and their relationship to children with 
disabilities whose parents revoke consent for special education and 
related services under the Act. Some commenters questioned whether the 
Section 504 and ADA protections would continue to apply, and the 
relationship between a Section 504 or ADA plan and an IEP, whenever a 
parent withdraws consent for continued services under the IDEA. One 
commenter asked whether students would remain eligible for discipline 
protections under Section 504 even after a parent revokes consent for 
special education and related services. Another commenter maintained 
that, under Section 504 and the Fourteenth Amendment to the U.S. 
Constitution, a child with a disability has a right not to be 
discriminated against by imposing disciplinary sanctions for behavior 
that is a manifestation of his disability. Several commenters cited the 
statement in the Department's March 12, 1999 Analysis of Comments and 
Changes to the Final Part B regulations that ``[u]nder Section 504 of 
the Rehabilitation Act of 1973, children with disabilities may not be 
disciplined for behavior that is a manifestation of their disability if 
that disciplinary action constitutes a change of placement'' (see 64 FR 
12626), and asked how this interpretation affects the use of 
disciplinary measures for students with disabilities, protected under 
Section 504 and the ADA, but whose parent has revoked consent for 
services under Part B of the Act.
    Discussion: These final regulations implement provisions of the 
IDEA only. They do not attempt to address any overlap between the 
protections and requirements of the IDEA, and those of Section 504 and 
the ADA.
    Changes: None.
    Comment: A few commenters asked whether Sec.  300.300(b)(4) would 
affect supplemental security income (SSI) or accommodations in college.
    Discussion: If a parent revokes consent for the provision of 
special education and related services pursuant to Sec.  300.300(b)(4), 
the child's eligibility for other programs, such as SSI, may be 
affected. A parent may seek additional information concerning 
eligibility requirements for other programs from the agency responsible 
for implementing those programs. Regarding accommodations in 
postsecondary educational institutions, Office for Civil Rights (OCR) 
offers helpful guidance on the transition of individuals with 
disabilities to postsecondary education, which is available on OCR's 
Web page: https://www.ed.gov/about/offices/list/ocr/transitionguide.html.
    Changes: None.
    Comment: Some commenters expressed concern that a parent could 
assert that the public agency should have done more to convince the 
parent not to unilaterally revoke consent for special education and 
related services under Sec.  300.300(b)(4).
    Discussion: A public agency does not have any obligation to 
``convince'' parents to accept the special education and related 
services that are offered to a child. Section 300.300(b)(3)(iii) and 
(4)(iii) provides that the public agency will not be considered to be 
in violation of the requirement to make FAPE available to the child if 
the parent of a child revokes consent for the continued provision of 
special education and related services. No provision in the Act or 
implementing regulations imposes an obligation on public agencies to 
dissuade parents from revoking consent.
    Changes: None.
    Comment: One commenter recommended that if a parent revokes 
consent, the LEA should be required to offer FAPE thereafter, including 
three year reevaluations, progress monitoring, and an annual IEP until 
the LEA and the responsible SEA report under the ESEA that 80 percent 
or more of the students with disabilities in the LEA are meeting State 
standards and graduating with a regular high school diploma.
    Discussion: Section 300.300(b)(4)(iii) through (iv) makes clear 
that once a parent revokes consent for special education and related 
services, the public agency (a) will not be considered in violation of 
the obligation to make FAPE available to the child for failure to 
provide the child with further special education and related services, 
and (b) will not be required to convene an IEP Team meeting or develop 
an IEP, under Sec. Sec.  300.320 through 300.324. As noted earlier, a 
child whose parent has revoked consent should be treated the same as 
any other child in the LEA's child find process.
    We do not agree that a State should be required to offer FAPE, 
triennial reevaluations, or an annual IEP until a certain percentage of 
students with disabilities meet State standards and graduate with a 
regular high school diploma. Decisions concerning the provision of FAPE 
and special educational services are individualized and made by an IEP 
Team, which includes the child's parents. If a parent revokes consent 
for special education and related services, the child will be treated 
as a general education student

[[Page 73014]]

and will not be eligible for FAPE, triennial evaluations, or an annual 
IEP.
    Changes: None.
    Comment: Some commenters expressed concern that school district 
personnel may encourage a parent to remove their child from special 
education and related services, and a few of these commenters requested 
that the regulations be amended to prohibit a school district from 
doing so. One commenter requested that the regulations require LEAs to 
track the number of children whose parents revoke consent in each LEA 
(including a child's name, identifying information, and school name) 
and report that information to the SEA each year.
    Discussion: It is inappropriate for school personnel to encourage a 
parent to revoke consent for special education and related services. If 
school personnel believe a child no longer qualifies as a child with a 
disability, Part B of the Act and its implementing regulations provide 
a process for making that determination. Specifically Sec.  300.305(e), 
consistent with section 614(c)(5) of the Act, requires that an LEA 
evaluate a child before determining that the child is no longer a child 
with a disability. This provision applies when eligibility is in 
question and an LEA believes a child may no longer be eligible for 
special education services. A public agency must follow this long-
standing procedure if the agency believes a child should no longer 
receive special education and related services.
    Concerning the commenter's request that the Department require LEAs 
to track the number of children whose parents withdraw consent in each 
LEA, we decline to impose additional data collection requirements on 
LEAs to track the number of children whose parents revoke consent in 
each LEA because we believe the number of children whose parents revoke 
consent will be small. However, nothing in these regulations prevents a 
State from separately tracking the number of children whose parents 
revoke consent in each LEA.
    Changes: None.
    Comment: One commenter requested that the Department clarify in 
these regulations that the placement of a child in a private school 
when FAPE is at issue, pursuant to Sec.  300.148 and section 
612(a)(10)(C) of the Act, does not constitute a revocation of consent 
under Sec.  300.300(b)(4).
    Discussion: We agree with the commenter that the placement of a 
child in a private school when FAPE is at issue does not constitute a 
revocation of consent under Sec.  300.300(b). However, the provisions 
concerning the placement of a child in a private school when FAPE is at 
issue do not need to be referenced in Sec.  300.300, as suggested by 
the commenter, because those provisions are clearly outlined in Sec.  
300.148. Section 300.148 addresses the steps a parent must take when 
enrolling a child with a disability in a private school when FAPE is at 
issue. If the parent seeks reimbursement for the cost of the private 
school, then the parent must follow the procedures in Sec.  300.148(c) 
through (e). The parent must inform the IEP Team at the most recent IEP 
Team meeting that he or she is rejecting the placement proposed by the 
public agency and must inform the IEP Team of his or her intent to 
enroll the child in a private school at public expense or give written 
notice 10 business days prior to