Current through Register Vol. 28, No. 3, September 1, 2024
20.1 Age of majority: To assure that children with disabilities who have reached age 18 have an identified decision-maker, which may be the child with a disability, the IEP team shall discuss the potential need for an educational representative during the transfer of rights at age of majority review, and annually thereafter. In determining the need for an educational representative, the IEP team shall consider:
20.1.1
A child with a disability without a court-appointed guardian of the person shall be presumed to have capacity and be accorded the rights of a parent upon attainment of age 18.20.1.1.1
The public agency shall notify both the child and the parents that all rights accorded to parents under14Del.C.§3132(b) transfer to the child.
20.1.2
A child with a disability with capacity may authorize an adult agent to exercise rights through execution of a power of attorney or a standard voluntary grant of authority form published by the Department of Education.
20.1.3
The determination of capacity shall be made by the IEP team during an IEP meeting and shall conform to the following standards:20.1.3.1
In cases where capacity is uncertain, a school psychologist familiar with the child must attend the initial meeting. For purposes of this section, the term "familiar with the child" means the school psychologist has conducted a recent in-person evaluation of the child which conforms to evaluation procedures established by the Department of Education. In subsequent annual IEP meeting reviews, the participation of a school psychologist is discretionary if it is clear there has been no change in the child's capacity.
20.1.3.2
The child with a disability and parent, as defined in14Del.C.§3101(7), must be invited to participate in the meeting regardless of whether the child has already attained the age of 18.
20.1.3.3
The IEP team may consider information from sources apart from school personnel and may authorize evaluation if necessary to inform its deliberations.
20.1.3.4
If information is ambiguous, any benefit of the doubt shall be exercised in favor of a finding of capacity.
20.1.4
If the IEP team determines that the child lacks capacity, the IEP team shall appoint an individual to serve as an educational representative in the following descending order of priority:
20.1.4.1
Willing and available biological or adoptive parent;
20.1.4.2
Willing and available adult relative.
20.2
If such an individual is not identified, the IEP team shall promptly facilitate a referral to the Department of Education for appointment of an educational surrogate parent. An appointed educational representative shall have the same authority as a parent under14Del.C.§3101(7).
20.2.1
If a child with a disability or parent disagrees with the capacity determination, either may contest the determination by pursuing dispute resolution options described in the procedural safeguards in this regulation or in14Del.C.Ch. 31.
20.2.2
The capacity determination is limited to exercise of rights under14Del.C.Ch. 31 or this regulation and shall not affect exercise of rights in any other context. In furtherance of this limitation, any other statute notwithstanding, the capacity determination shall not be admissible as evidence of competency or capacity in any non-educational judicial or administrative proceeding.
(Authority: 20 U.S.C. 1415(m); 14 Del.C. §[§]3110[, 3132])
