C. A student who has reached the
age of 18 years shall be presumed to be a competent adult, and thus all rights
under the Act shall transfer to the adult student, unless one of the following
actions has been taken:
1. The adult student
is declared legally incompetent or legally incapacitated by a court of
competent jurisdiction and a representative has been appointed by the court to
make decisions for the student;
2.
The adult student designates, in writing, by power of attorney or similar legal
document, another competent adult to be the student's agent to receive notices
and to participate in meetings and all other procedures related to the
student's educational program. A local educational agency shall rely on such
designation until notified that the authority to act under the designation is
revoked, terminated, or superseded by court order or by the adult
student;
3. The adult student is
certified, according to the following procedures, as unable to provide informed
consent. Any adult student who is found eligible for special education pursuant
to this chapter and does not have a representative appointed to make decisions
on the adult student's behalf by a court of competent jurisdiction may have an
educational representative appointed based on the following certification
procedure to act on the student's behalf for all matters described in this
chapter and to exercise rights related to the student's scholastic record. An
educational representative may be appointed based on the following conditions
and procedures: ( 34 CFR
300.520(b) )
a. Two professionals (one from list one and
one from list two, as set out in the following subdivisions,) shall, based on a
personal examination or interview, certify in writing that the adult student is
incapable of providing informed consent and that the student has been informed
of this decision:
(1) List one includes (i) a
medical doctor licensed in the state where the doctor practices medicine; (ii)
a physician's assistant whose certification is countersigned by a supervising
physician; or (iii) a certified nurse practitioner.
(2) List two includes (i) a medical doctor
licensed in the state where the doctor practices medicine; (ii) a licensed
clinical psychologist; (iii) a licensed clinical social worker; (iv) an
attorney who is qualified to serve as a guardian ad litem for adults under the
rules of the Supreme Court of Virginia; or (v) a court-appointed special
advocate for the adult student.
b. The individuals who provide the
certification in subdivision 3 a of this subsection may not be employees of the
local educational agency currently serving the adult student or be related by
blood or marriage to the adult student.
c. Incapable of providing informed consent,
as used in this section, means that the individual is unable to:
(1) Understand the nature, extent and
probable consequences of a proposed educational program or option on a
continuing or consistent basis;
(2)
Make a rational evaluation of the benefits or disadvantages of a proposed
educational decision or program as compared with the benefits or disadvantages
of another proposed educational decision or program on a continuing or
consistent basis; or
(3)
Communicate such understanding in any meaningful way.
d. The certification that the adult student
is incapable of providing informed consent may be made as early as 60 calendar
days prior to the adult student's eighteenth birthday or 65 business days prior
to an eligibility meeting if the adult student is undergoing initial
eligibility for special education services.
e. The certification shall state when and how
often a review of the adult student's ability to provide informed consent shall
be made and why that time period was chosen.
f. The adult student's ability to provide
informed consent shall be recertified at any time that the previous
certifications are challenged. Challenges can be made by the student or by
anyone with a bona fide interest and knowledge of the adult student, except
that challenges cannot be made by employees of local educational agencies.
Challenges shall be provided in writing to the local educational agency's
administrator of special education who then shall notify the adult student and
current appointed representative.
(1) Upon
receipt of a written challenge to the certification by the adult student, the
local educational agency may not rely on an educational representative,
appointed pursuant to subsection D of this section, for any purpose until a
designated educational representative is affirmed by a court of competent
jurisdiction;
(2) Upon receipt of a
written challenge to the certification by anyone with a bona fide interest and
knowledge of the adult student, the local educational agency may not rely on an
educational representative, appointed pursuant to subsection D of this section
for any purpose until a more current written certification is provided by the
appointed educational representative. Certifications provided after a challenge
are effective for 60 calendar days, unless a proceeding in a court of competent
jurisdiction is filed challenging and requesting review of the certifications.
The local educational agency shall not rely upon the designated educational
representative until the representative is affirmed by the court; or
4. The adult student,
based on certification by written order from a judge of competent jurisdiction,
is admitted to a facility for the training, treatment and habilitation of
persons with intellectual disabilities in accordance with § 37.2-806 of
the Code of Virginia. The state-operated program serving the adult student may
rely on the judicial certification and appoint an educational representative to
act on the student's behalf during the student's stay at the state-operated
program.