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

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 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in that revocation does not negate an action that has occurred after the consent was given and before the consent was revoked.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.''