Current through Register Vol. 28, No. 3, September 1, 2024
1.1 Parental consent for initial evaluation: The public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability shall, after providing notice consistent with 14 DE Admin. Code 926.3.0 and 926.4.0, obtain informed written consent from the parent of the child before conducting the evaluation.
1.1.1 Parental consent for initial evaluation shall not be construed as consent for initial provision of special education and related services.
1.1.2 The public agency shall 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.
1.1.3 For initial evaluations only, if the child is a ward of the State and is not residing with the child's parent, the public agency is not required to obtain informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability if:
1.1.3.1 Despite reasonable efforts to do so, the public agency cannot discover the whereabouts of the parent of the child; the rights of the parents of the child have been terminated in accordance with State law; or 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.
1.1.4 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 subsection 1.1, 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 14 DE Admin. Code 926 (including the mediation procedures or the due process procedures, if appropriate).
1.1.4.1 The public agency does not violate its obligation under 14 DE Admin. Code 923.11.0 and 14 DE Admin. Code 925.2.0 through 925.12.0 if it declines to pursue the evaluation.
1.2 Parental consent for services: A public agency that is responsible for making FAPE available to a child with a disability shall obtain informed consent from the parent of the child before the initial provision of special education and related services to the child. If any Delaware agency obtains consent for the initial provision of special education and related services under the child's first IEP, and the child transfers to, or subsequently receives services from, another Delaware public agency, the receiving agency shall not be required to obtain parental consent for the provision of special education and related services.
1.2.1 The public agency shall make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child.
1.2.2 If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services under subsection 1.2, the public agency:
1.2.2.1 May not use the procedures in 14 DE Admin. Code 926 including the mediation procedures or the due process procedures in order to obtain agreement or a ruling that the services may be provided to the child;
1.2.2.2 Will not be considered to be in violation of the requirement to make available FAPE to the child for 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
1.2.2.3 Is not required to convene an IEP team meeting or develop an IEP for the child.
1.2.3 If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency -
1.2.3.1 May not continue to provide special education and related services to the child, but shall provide prior written notice in accordance with 14 DE Admin. Code 926.3.0 before ceasing the provision of special education and related services;
1.2.3.2 May not use the procedures in 14 DE Admin. Code 926 (including the mediation procedures) or the due process procedures in order to obtain agreement or a ruling that the services may be provided to the child;
1.2.3.3 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; and
1.2.3.4 Is not required to convene an IEP team meeting or develop an IEP for the child for further provision of special education and related services.
1.3 Parental consent for re-evaluations: Subject to subsection 1.3.1, each public agency shall obtain informed parental consent, in accordance with subsection 1.1 prior to conducting any re-evaluation of a child with a disability.
1.3.1 If the parent refuses to consent to the re-evaluation, the public agency may pursue the re-evaluation by using the consent override procedures described in subsection 1.1.4.
1.3.2 The public agency does not violate its obligation under 14 DE Admin. Code 923.11.0 and 925.3.0 through 6.0 if it declines to pursue the evaluation or re-evaluation.
1.3.3 The informed parental consent described in subsection 1.3 need not be obtained if the public agency can demonstrate that it made reasonable efforts to obtain such consent; and the child's parent has failed to respond.
1.4 Other consent requirements: Parental consent is not required before reviewing existing data as part of an evaluation or a re-evaluation; or administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.
1.5 Each public agency shall establish and implement effective procedures to ensure that a parent's refusal to consent does not result in a failure to provide the child with FAPE.
1.6 A public agency may not use a parent's refusal to consent to one (1) service or activity under this section to deny the parent or child any other service, benefit, or activity of the public agency, except as required by these regulations.
1.7 If a parent of a child who is home schooled or placed in a private school by the parents at their own expense does not provide consent for the initial evaluation or the re-evaluation, or the parent fails to respond to a request to provide consent, the public agency may not use the consent override procedures in subsections 1.1.4 and 1.3; and
1.7.1 The public agency is not required to consider the child as eligible for services under 14 DE Admin. Code 923.32.0 through 923.44.0.
1.8 To meet the reasonable efforts requirement of this section, the public agency shall document its attempts to obtain parental consent using the procedures in subsection 9.6.
(Authority: 20 U.S.C. 1414(a)(1)(D) and 1414(c); 14 Del.C. §
3110)
