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U.S. Department of Education: Promoting Educational Excellence for all Americans

Consent (Sec. 300.9)

(originally published on December 1, 2008 – 73 FR 73006; effective date – December 31, 2008)

Comment: Numerous commenters noted that the regulations include the terms "consent," "informed consent," "agree," and "agree in writing" and asked whether all the terms have the same meaning.

Discussion: These terms are used throughout the regulations and are consistent with their use in the Act. The definition of consent requires a parent to be fully informed of all information relevant to the activity for which consent is sought. The definition also requires a parent to agree in writing to an activity for which consent is sought. Therefore, whenever consent is used in these regulations, it means that the consent is both informed and in writing.

The meaning of the terms "agree" or "agreement" is not the same as consent. "Agree" or "agreement" refers to an understanding between the parent and the public agency about a particular question or issue, which may be in writing, depending on the context.

Changes: None.

Comment: A few commenters recommended adding a requirement to the definition of consent that a parent be fully informed of the reasons why a public agency selected one activity over another.

Discussion: We do not believe it is necessary to include the additional requirement recommended by the commenter. The definition of consent already requires that the parent be fully informed of all the information relevant to the activity for which consent is sought.

Changes: None.

Comment: A few commenters requested that the Department address situations in which a child is receiving special education services and the child's parent wants to discontinue services because they believe the child no longer needs special education services. A few commenters stated that public agencies should not be allowed to use the procedural safeguards to continue to provide special education and related services to a child whose parent withdraws consent for the continued provision of special education and related services.

Discussion: The Department intends to propose regulations to permit parents who previously consented to the initiation of special education services, to withdraw their consent for their child to receive, or continue to receive, special education services. Because this is a change from the Department's longstanding policies and was not proposed in the NPRM, we will provide the public the opportunity to comment on this proposed change in a separate notice of proposed rulemaking.

Changes: None.