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

Parental Revocation of Consent for Special Education Services (Sec. 300.300)

Comment: Some commenters, including parents, teachers, and State educational agencies (SEAs), supported the requirements in proposed Sec. 300.300(b)(4) that would allow a parent of a child receiving special education and related services to revoke consent for those services. Commenters stated that if a parent has the right to initially consent to special education and related services, the parent also should have the right to revoke consent for special education and related services, particularly given that the plain language in Sec. 300.9(c)(1) states that consent may be revoked at any time. Other commenters stated that parents are the ultimate experts on their children and have a fundamental right to direct their education. One commenter stated that schools should not have the right to force evaluations or services on a child through legal processes. Another commenter stated that a student should have every right to attempt to become independent and take responsibility for his or her academic achievement, without the assistance of an individualized education program (IEP).

Some commenters generally supported a parent's right to revoke consent, but only if changes were made to proposed Sec. 300.300(b)(4). Their recommendations included giving a parent the right to revoke consent at any time while still ensuring that the parent receives the time and information needed to make informed decisions regarding his or her child's continued need for services. Several commenters recommended procedures that could be implemented when a parent unilaterally revokes consent for special education and related services. For example, commenters suggested requiring--that a parent's revocation be in writing; a meeting between the parent and the public agency to discuss the parent's decision to revoke consent for special education and related services; a timeline from the revocation of consent through discontinuation of services and a specific deadline for convening a meeting with the parent and providing prior written notice to the parent; written notice of the receipt of the parent's revocation and the public agency's intent to discontinue services; and that the parent be given an opportunity to meet with the State's Parent Training Information center (PTI) to receive additional information concerning the potential impact of the parent's decision. Other suggested procedures included requiring a parent to acknowledge in writing that the parent has been fully informed of the educational services and supports that their child will no longer receive. In contrast, a few commenters stated that no additional procedures should be required when a parent revokes consent.

Discussion: We appreciate the commenters' support for this provision. We agree with the commenters that revocation of consent for special education and related services must be in writing to ensure that both the public agency and the parent have documentation that the child will no longer receive special education and related services. Therefore, we have revised Sec. Sec. 300.9(c)(3) and 300.300(b)(4) to require that consent be revoked in writing.

Concerning the comments about written notice of the receipt of a parent's revocation and the public agency's intent to discontinue services and the comment concerning an opportunity to meet with the State's PTI center to receive additional information about the potential effect of the parent's decision, we have not adopted additional procedures for parental revocation of consent for special education and related services because the regulations already provide sufficient notice protections to enable parents to understand the implications of the decision they are making. To clarify this point, we have revised Sec. 300.300(b)(4)(i) to specify that prior written notice consistent with Sec. 300.503 be provided to parents before a public agency discontinues special education and related services to their child. Public agencies, under Sec. 300.503, are required to give the parents of a child with a disability written notice that meets the requirements in Sec. 300.503(b) within a reasonable time before the public agency proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education (FAPE) to the child. Once a public agency receives a parent's written revocation of consent for a child's receipt of special education and related services, the public agency, under Sec. 300.503, must provide prior written notice to the parent regarding the change in educational placement and services that will result from the revocation of consent. The notice must include, among other matters, information on sources for the parents to contact that can assist the parents in understanding the requirements of Part B of the Act and its implementing regulations. Section 300.503(c)(1)(i) also requires that this prior notice be written in language understandable to the general public. It is imperative that the public agency provide the required prior notice in a meaningful manner. Accordingly, Sec. 300.503(c)(1)(ii) requires that any notice required by Sec. 300.503 must be provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. Additionally, if the parent's native language or other mode of communication is not a written language, Sec. 300.503(c)(2) requires the public agency to take additional measures to communicate the information contained in the notice. These measures involve taking steps to ensure that the notice is translated orally or by other means to the parent in the parent's native language or other mode of communication, that the parent understands the content of the notice, and that there is written evidence that the requirements of Sec. 300.503(c) have been met.

Concerning the comment about ensuring that the parent receives the time and information needed to make informed decisions regarding their child's continued need for services, a public agency cannot discontinue services until prior written notice consistent with Sec. 300.503 has been provided to the parents. Therefore, we expect public agencies to promptly respond to receipt of written revocation of consent by providing prior written notice to the parents under Sec. 300.503. Section 300.503 specifies that, within a reasonable time before a public agency discontinues services, the public agency must provide the parents of a child with a disability written notice of the proposal to discontinue services based on receipt of the parent's written revocation of consent. Providing such notice a reasonable time before the public agency discontinues services gives parents the necessary information and time to fully consider the change and determine if they have any additional questions or concerns regarding the discontinuation of services.

While the notice required under Sec. 300.503 provides sufficient information to parents regarding revocation of consent for special education and related services, a State may choose to establish additional procedures for implementing Sec. 300.300(b)(4), such as requiring a public agency to offer to meet with parents to discuss concerns for their child's education. However, the State must ensure that any additional procedures are voluntary for the parents, do not delay or deny the discontinuation of special education and related services, and are otherwise consistent with the requirements under Part B of the Act and its implementing regulations. For example, while a public agency may inquire as to why a parent is revoking consent for special education and related services, a public agency may not require a parent to provide an explanation, either orally or in writing, prior to ceasing the provision of special education and related services.

Concerning the suggestion that the Department establish a timeline from revocation of consent through discontinuation of services with a specific deadline for convening a meeting with the parent and providing prior written notice to the parent, we expect the discontinuation of services to occur in a timely manner. However, we understand that the specific timeline may differ, to some extent, due to parent-specific factors, such as whether the parent wants to meet with the public agency or another entity prior to the discontinuation of services. Thus, to provide needed flexibility, we have not mandated a specific timeline.

With regard to the comment about ensuring parents acknowledge in writing that they have been fully informed of the educational services and supports that they are declining, it is the Department's position that the prior written notice informs parents of the educational services and supports that they are declining and establishes a sufficient record that parents have been appropriately informed.

We also note that under Sec. 300.504, public agencies must provide parents, at least annually, a procedural safeguards notice that includes a full explanation of the procedural safeguards available to the parents of a child with a disability. This notice must explain the requirements in Sec. 300.300, including that a parent has the right to revoke consent, in writing, to his or her child's continued receipt of special education and related services.

Changes: We have added the phrase ``in writing'' after the words ``revokes consent'' in Sec. Sec. 300.9(c)(3) and 300.300(b)(4). We also have revised Sec. 300.300(b)(4)(i) to clarify that a public agency must provide prior written notice in accordance with Sec. 300.503 before ceasing the provision of special education and related services.

Comment: Many commenters opposed the requirements in proposed Sec. 300.300(b)(4) that would allow a parent to revoke consent for special education and related services. These commenters stated that the decision to terminate services should be made by the IEP Team because the IEP Team includes both the parent and professionals. Some commenters stated that children cannot be placed unilaterally into special education because eligibility for special education and related services is determined by a group of qualified individuals and the parent; therefore, if a parent believes special education services are not needed, the parent should consult with the IEP Team rather than making that determination unilaterally.

Other commenters suggested that when a parent believes his or her child is not progressing, an IEP Team meeting should be held so that the IEP Team, as a whole and not just the parent, can determine whether the level of services is appropriate for the child. The commenters stated that allowing the IEP Team to determine whether the child needs special education and related services, rather than allowing parental revocation of consent, would be in the child's best interest.

One commenter stated that revoking consent should be treated differently than refusing to provide initial consent because revoking consent results in changing the status quo (i.e., terminating services that are currently being provided to the child). This commenter argued that the party seeking a change in the status quo should bear the burden of showing that the change is warranted. One commenter expressed concern specifically about a situation in which a parent revokes consent for special education and related services for a child placed in a residential setting.

Another commenter expressed concern that allowing a parent to revoke consent goes too far beyond providing for meaningful parental participation because it gives the parent a right to veto the IEP Team.

Discussion: We agree with the commenters that the IEP Team (defined in Sec. 300.23, which includes the child's parents) plays an important role in the special education decision-making process. For example, through the development, review and revision of the child's IEP, the IEP Team determines how to make FAPE available to a child with a disability. However, the IEP Team does not have the authority to consent to the provision of special education and related services to a child. That authority is given exclusively to the parent under section 614(a)(1)(D)(i)(II) of the Act. The Secretary strongly believes that a parent also has the authority to revoke that consent, thereby ending the provision of special education and related services to their child. Allowing parents to revoke consent for the continued provision of special education and related services at any time is consistent with the IDEA's emphasis on the role of parents in protecting their child's rights and the Department's goal of enhancing parent involvement and choice in their child's education.

We expect that after a parent revokes consent for the continued provision of special education and related services, the parent will continue to work with the child's school to support the child in the general education curriculum. Parents of nondisabled children serve as partners in their children's education in the same manner as parents of children with disabilities.

We agree that an IEP Team meeting should be convened if any member of the IEP Team, including a parent, believes the child is not progressing. Section 300.324(b)(1)(i) and (ii)(A) requires each public agency to review a child's IEP periodically, but not less than annually, and revise the IEP as appropriate to address any lack of expected progress. However, the review of a child's IEP by the IEP Team does not replace a parent's right to revoke consent for the continued provision of special education and related services to his or her child.

Concerning the comment that revoking consent should be treated differently than refusing to provide initial consent because the parent is seeking to terminate special education services that are presently provided, thus seeking to change the status quo and the comment expressing concern about revoking consent for a child whose current placement is in a residential setting, we appreciate that there are differences between consent for special education and related services and revocation of such consent. However, at their core, both issues entail a parent's decision of whether a child will receive special education and related services. Thus, section 614(a)(1)(D)(i)(II) and (ii)(II) of the Act, which provides a parent unilateral authority to refuse special education and related services, informs our decision on the related issue of revocation of consent for the continued provision of special education and related services.

Lastly, we disagree with the comments that allowing parents to revoke consent exceeds the parental participation requirements in Part B of the Act. As previously discussed, a parent's right to revoke consent is consistent with the parent's right, in section 614(a)(1)(D)(i)(II) and (ii)(II) of the Act, to determine if his or her child should receive special education and related services.

Changes: None.

Comment: Many commenters stated that parents may revoke consent for various reasons or beliefs that are not in the best interest of the child. Commenters provided specific examples such as conflicts between the parent and school personnel; an insufficient understanding or knowledge of the importance of special education and related services; a belief that continued participation in the special education program would hinder the child's success in life or stigmatize the child; and concerns that the special education program is not appropriate. The commenters expressed concern that parental revocation of consent for special education and related services could be detrimental to the academic future of a child with a disability, as well as the academic future and safety of children in the general education classroom.

Other commenters expressed concern that allowing a parent to unilaterally revoke consent for the continued provision of special education and related services is not in the best interest of the child because these children may not receive instruction from trained professionals.

Discussion: A parent, under section 614(a)(1)(D)(i)(II) and (ii)(II) of the Act, has the authority to consent to the initial provision of special education and related services, and this parental right applies regardless of the parent's reasons. As previously discussed, the Secretary believes that a parent also should have the authority to revoke that consent, thereby ending the provision of special education and related services to their child. Allowing parents to revoke consent for special education and related services at any time is consistent with the IDEA's emphasis on the role of parents in protecting their child's rights and the Department's goal of enhancing parent involvement and choice in their child's education.

Concerning the comments asserting that parental revocation of consent for special education and related services could be detrimental to the academic future of a child with a disability, the Act presumes that a parent acts in the best interest of their child. If a child experiences academic difficulties after a parent revokes consent to the continued provision of special education and related services, nothing in the Act or the implementing regulations would prevent a parent from requesting an evaluation to determine if the child is eligible, at that time, for special education and related services.

Safety of all students in the classroom is of primary concern to the Secretary. The Department expects that schools will continue to maintain the safety of all students in all classrooms regardless of whether children are receiving special education and related services.

We do not agree with the commenters that students whose parents revoke consent for the continued provision of special education and related services will no longer receive instruction from trained professionals. The Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 (ESEA), requires that all teachers in a State who are teaching core academic subjects be ``highly qualified.'' Therefore, States are required to ensure that students in both general and special education programs are receiving instruction in core academic subjects from highly qualified teachers, as that term is defined in section 9101 of the ESEA and 34 CFR 200.56.

Changes: None.

Comment: A few commenters expressed concern that proposed Sec. 300.300(b)(4) may result in students removing themselves from services when they reach the age of majority. Other commenters asked whether a child who reaches the age of majority can hold a school responsible for lost services. One commenter suggested adding a new paragraph to Sec. 300.300(b)(4) that would grant immunity to an LEA if a child with a disability attains the age of majority and seeks to sue the LEA for failure to make FAPE available because the child's parent revoked consent for the continued provision of special education and related services. Another commenter asked whether unilaterally withdrawing a child with a disability from special education releases the LEA from any liability, past or future, with regard to providing FAPE to the child and the remedies available for denial of FAPE.

Discussion: Section 615(m)(1) of the Act allows, but does not require, a State to transfer all rights accorded to parents under Part B of the Act to children who have reached the age of majority under State law. If State law grants a child who has reached the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law) all rights previously granted to parents, then the parents' rights are transferred to the child as provided in Sec. 300.520(a), enabling that child to revoke consent for special education and related services under Sec. 300.300(b)(4). However, in accordance with section 615(m)(1) of the Act and Sec. 300.520(a)(1)(i), the public agency must provide any notice required under Part B of the Act to the child and the parents. Therefore, the parents would receive prior written notice, consistent with Sec. 300.503, of the public agency's proposal to discontinue special education and related services based on receipt of the written revocation of consent from a child to whom rights transferred under Sec. 300.520(a). This parental notice could facilitate discussion between the child and parent of the decision to revoke consent and the potential ramifications of that decision.

Concerning the comments about a student who reaches the age of majority holding a school responsible for loss of Part B services, Sec. 300.300(b)(4)(iii) provides that, if the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency 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. Therefore, granting the public agency immunity is not necessary because the public agency will not be considered to be in violation of the requirement to make FAPE available to the child if the parent revokes consent for special education and related services. Revocation of parental consent releases the LEA from liability for providing FAPE from the time the parent revokes consent for special education and related services until the time, if any, that the child is evaluated and deemed eligible, once again, for special education and related services.

Changes: None.

Comment: Several commenters stated that the right to FAPE is a child's right and allowing parents to revoke consent for special education and related services undermines that right.

Discussion: We do not agree with the commenters that Sec. 300.300(b)(4) undermines a child's right to FAPE. Section 300.101 requires that FAPE must be available to all children with disabilities residing in a State between the ages of 3 and 21, inclusive, except that public agencies are not required to serve children aged 3 through 5 and aged 18 through 21 if serving such children is inconsistent with State law, practice or the order of any court with respect to the provision of public education to children of those ages. The child's parents, under the Act, are afforded rights regarding the provision of FAPE to their child, including the right to determine whether their child will receive special education and related services. Specifically, under section 614(a)(1)(D)(i)(II) and (ii)(II) of the Act, a parent has the authority to determine whether a public agency may begin to provide special education and related services to their child. As discussed previously, it is the Department's position that a parent also should have the authority to revoke consent to the continued provision of special education and related services to their child. The Act presumes that parents act in the best interest of their child. Therefore, affording a parent the right to consent to the initial provision of special education and related services or the right to revoke consent, in writing, to the continued provision of special education and related services is consistent with the Act and does not undermine a child's right to FAPE under Sec. 300.101.

Changes: None.

Comment: A few commenters expressed concern about how the revocation of consent provisions would affect children who live in foster homes, or where guardianship is in dispute. Another commenter proposed replacing the words ``the parent'' in Sec. 300.300(b)(4) with the words ``each parent'' because when custody of a child is in dispute the provision should require that each legally responsible parent revoke consent before special education and related services are discontinued.

Discussion: Certain provisions in the Part 300 regulations, such as the definition of parent in Sec. 300.30 and the requirements regarding surrogate parents in Sec. 300.519, ensure that a child with a disability has an individual who can act as a parent to make educational decisions on behalf of the child. Parent, as defined in Sec. 300.30, means a biological or adoptive parent of a child; a foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent; a guardian generally authorized to act as the child's parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State); an individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare. The definition of parent also includes a surrogate parent who has been appointed in accordance with Sec. 300.519 and section 639(a)(5) of the Act. The duty to appoint a surrogate parent under Sec. 300.519 arises when no parent can be identified, the public agency, after reasonable efforts, cannot locate a parent, the child is a ward of the State, or the child is an unaccompanied homeless youth, as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434(a)(6)).

The language in Sec. 300.300(b)(4) is consistent with other regulatory language concerning parental rights in the Part B regulations. Under Sec. 300.30, when guardianship or custody of a child with a disability is at issue, the parental rights established by the Act apply to both parents, unless a court order or State law specifies otherwise. Therefore, we decline to make the change requested by the commenter.

Changes: None.

Comment: A few commenters questioned whether a parent may revoke consent for the continued provision of some services and not others and, therefore, require the public agency to continue to provide only those services for which the parent has not revoked consent.

Discussion: Section 300.300(b)(4) allows a parent at any time after the initial provision of special education and related services to revoke consent for the continued provision of special education and related services to their child in their entirety. Under Sec. 300.300(b)(1), parental consent is for the initial provision of special education and related services generally, not for a particular service or services. Once a public agency receives a parental revocation of consent, in writing, for all special education and related services for a child and provides prior written notice in accordance with Sec. 300.503, the public agency must, within a reasonable time, discontinue all special education and related services to the child. In this circumstance, the public agency may not use the procedures in subpart E of these regulations, including the mediation procedures under Sec. 300.506 or the due process procedures under Sec. Sec. 300.507 through 300.516, to obtain agreement or a ruling that the services may be provided to the child.

In situations where a parent disagrees with the provision of a particular special education or related service and the parent and public agency agree that the child would be provided with FAPE if the child did not receive that service, the public agency should remove the service from the child's IEP and would not have a basis for using the procedures in subpart E to require that the service be provided to the child.

If, however, the parent and public agency disagree about whether the child would be provided with FAPE if the child did not receive a particular special education or related service, the parent may use the due process procedures in subpart E of these regulations to obtain a ruling that the service with which the parent disagrees is not appropriate for their child.

Additionally, under the regulations in Sec. 300.300(d)(2), States are free to create additional parental consent rights, such as requiring parental consent for particular services, or allowing parents to revoke consent for particular services, but in those cases, the State must ensure that each public agency in the State has effective procedures to ensure that the parents' exercise of these rights does not result in a failure to provide FAPE to the child.

Changes: None.

Comment: Some commenters asked how proposed Sec. 300.300(b)(4) will affect a school district's adequate yearly progress (AYP) reporting under the ESEA and whether children who previously received special education and related services would be counted in the special education subgroup. The commenters requested clarification as to whether the student will remain in the students with disabilities subgroup if services are discontinued after school has begun but before the State assessment is administered and whether or not the State will be required to provide accommodations on assessments to the student. Another commenter expressed concern that teachers will be blamed if a child fails to succeed after a parent revokes consent for the continued provision of special education and related services because educators are ``liable'' for all students under the ESEA. One commenter expressed concern about an LEA's and State's ability to accurately track the progress of students with disabilities over time, especially if large numbers of parents choose to exercise their right to revoke consent. Lastly, another commenter expressed concern that a parent who unilaterally withdraws his or her child from special education and related services may sue an LEA if a student fails to make progress.

Discussion: Once a parent revokes consent for a child to receive special education and related services, the child is considered a general education student and will be considered a general education student under the ESEA. Therefore, if a parent revokes consent after the school year begins but before administration of the annual State assessment required under the ESEA, the child is considered a general education student who has exited special education for accountability purposes. Section 200.20(f) of the Title I regulations allows States to include, for a period of up to two AYP determination cycles, the scores of students who were previously identified with a disability under the Act, but who no longer receive special education services, in the special education subgroup for purposes of calculating AYP (but not for reporting purposes). Therefore, the State may continue to include a child whose parent revokes consent for special education and related services in the special education subgroup for purposes of calculating AYP for two years following parental revocation of consent. While the State may continue to include the child in the students with disabilities subgroup for purposes of calculating AYP for up to two years, the child will not have an IEP; therefore, the State will no longer be required under the IDEA to provide accommodations that were previously included in the child's IEP.

Concerning the suggestion that teachers are ``liable'' and will be blamed if a child fails to succeed after a parent revokes consent for special education and related services, we disagree. Teachers play a critical role in ensuring that all children progress academically regardless of whether a child receives special education and related services. The majority of children who receive special education and related services receive their special education services in the general education classroom; therefore, general education teachers have a vital role in promoting their educational progress. These general education teachers will continue to have an important role in fostering the educational progress of all children, regardless of whether they receive special education and related services.

We disagree that LEAs and States will not have the ability to accurately track the progress of students with disabilities over time. LEAs currently track the progress of all students through student records, report cards, progress reports, and State assessments. Students who no longer receive special education and related services due to a parent revoking consent will have their progress tracked in the same manner as students who do not receive special education and related services.

Lastly, concerning the comment that a parent who revokes consent for special education and related services may sue an LEA if their child fails to make progress, Sec. 300.300(b)(4)(iii) states that a public agency will not be considered 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 based on the parent's revocation of consent. Additionally, there is no private right of action under the ESEA for a parent to sue an LEA if a child fails to make progress.

Changes: None.

Comment: One commenter asked if a teacher is required to provide the accommodations listed in a child's IEP in the general education environment for any child for whom consent for special education and related services is revoked. Another commenter expressed concern that the children whose parents revoke consent for special education and related services may not receive needed accommodations and modifications thereby compromising the child's success in school and perhaps in later life.

Discussion: Once a parent revokes consent in writing under Sec. 300.300(b)(4) for the continued provision of special education and related services, a teacher is not required to provide the previously identified IEP accommodations in the general education environment. However, general education teachers often provide classroom accommodations for children who do not have IEPs. Nothing in Sec. 300.300(b)(4) would prevent a general education teacher from providing a child whose parent has revoked consent for the continued provision of special education and related services with accommodations that are available to non-disabled children under relevant State standards.

Changes: None.

Comment: A few commenters requested that the Department clarify that the right of a parent to revoke consent for special education and related services does not relieve the LEA of its obligation under child find to identify, locate, and evaluate all children with disabilities, including children whose parents revoke consent for special education and related services. Other commenters requested clarification as to the time frame that applies for an LEA to comply with the child find and service obligations for a child who exits special education without the agreement of the IEP Team and whether the child should be referred for services each school year. One commenter expressed concern that allowing revocation of parental consent would potentially create a disincentive for general educators to refer students to special education because teachers would be reluctant to repeatedly refer a student for special education if a parent previously revoked consent for services.

Discussion: The child find provisions in section 612(a)(3) of the Act and Sec. 300.111 require each State to have in effect policies and procedures to ensure that all children with disabilities residing in the State and who are in need of special education and related services are identified, located, and evaluated. Children who have previously received special education and related services and whose parents subsequently revoke consent should not be treated any differently in the child find process than any other child, including a child who was determined eligible and whose parent refused to provide initial consent for services. A parent who previously revoked consent for special education and related services may continue to refuse services; however, this does not diminish a State's responsibility under Sec. 300.111 to identify, locate and evaluate a child who is suspected of having a disability and being in need of special education and related services. A public agency must obtain informed written parental consent, consistent with Sec. 300.300(a), before conducting an initial evaluation. A parent who previously revoked consent for the continued provision of special education and related services, like any parent of a child suspected of having a disability, may refuse to provide consent for an initial evaluation.

Concerning the request for clarification of the child find timeline, child find is an ongoing process. The Department expects that children whose parents revoke consent will be identified, located and offered an evaluation in the same manner as any other child if the child is suspected of having a disability and being in need of special education and related services. Similarly, we do not agree with the commenter that general education teachers will not refer children who previously received special education and related services. States are required to have policies and procedures in place to ensure effective child find. Ensuring that general education teachers make appropriate referrals of children suspected of having a disability, which would include the referral of children whose parents have previously revoked consent for such services, is consistent with this responsibility.

Changes: None.

Comment: One commenter requested that Sec. 300.300 be amended to specifically state that, for discipline purposes, a public agency will not consider the child to be a child with a disability if the parent refuses consent, fails to respond to a request for consent, or revokes consent for special education and related services. Other commenters stated that revocation of consent for special education and related services should not impact discipline protections for children whose parents have revoked consent because the school has prior knowledge that the child is a child with a disability and the child has been determined eligible for services. The commenters stated that Sec. 300.534, consistent with section 615(k)(5) of the Act, applies to children not yet determined to be eligible for special education and related services who have engaged in behavior in violation of a code of student conduct. One commenter expressed concern that subjecting previously eligible students to general education discipline procedures would leave these students without any education.

Discussion: Section 300.534 generally provides protections for children not yet determined eligible for special education and related services in instances when the public agency is deemed to have knowledge that a child is a child with a disability before the behavior that precipitated the disciplinary action occurred. However, Sec. 300.534(c)(1)(ii) states that a public agency is not deemed to have knowledge under this section if the parent of the child has refused services under the regulations implementing Part B of the Act. When a parent revokes consent for special education and related services under Sec. 300.300(b), the parent has refused services as described in Sec. 300.534(c)(1)(ii); therefore, the public agency is not deemed to have knowledge that the child is a child with a disability and the child may be disciplined as a general education student and is not entitled to the Act's discipline protections.

We do not agree that additional clarification of the discipline procedures is needed in Sec. 300.300 or with the comment that revocation of consent for special education and related services should not affect discipline protections because the school has prior knowledge that the child has been determined eligible for services. The provisions in Sec. 300.534(c), which mirror the language in section 615(k)(5)(C) of the Act, are clear that once a parent refuses services the public agency will not be deemed to have knowledge that the child is a child with a disability and the child will be subject to the same disciplinary procedures and timelines applicable to general education students.

We also disagree that previously eligible students who are subject to general education discipline procedures will be left without any education. Students who are no longer receiving special education and related services due to the revocation of parental consent to the continued provision of special education and related services will be subject to the LEA's discipline procedures without the discipline protections provided in the Act. However, students will continue to receive the full benefit of education provided by the LEA as long as they have not committed any disciplinary violations that affect access to education (e.g., violations that result in suspension). We expect that parents will consider possible consequences of discipline procedures when making the decision to revoke consent for the provision of special education and related services.

Changes: None.

Comment: One commenter asked whether a school will be able to place a student with a disability whose parent has revoked consent for special education and related services in a general education classroom that is co-taught by a special education teacher. Another commenter asked if a child must meet all the statewide assessment and credit requirements for graduation applicable to students in the general education setting if a parent revokes consent for special education and related services when the child is a high school senior.

Discussion: Once a parent revokes consent for special education and related services under Sec. 300.300(b), the child is a general education student. Consequently, the child may be placed in any classroom where other general education students are placed. If a child whose parent has revoked consent is placed in a classroom that is co- taught by a general education teacher and a special education teacher, then that child is placed in the classroom as a general education student and should be treated the same as all other general education students in that classroom.

High school graduation requirements are within the purview of each State. However, it is reasonable to assume that any student, regardless of whether they are receiving special education and related services, will be required to meet statewide assessment and credit requirements for graduation with a regular diploma.

Changes: None.

Comment: Some commenters raised questions about the protections under Section 504 of the Rehabilitation Act of 1973, as amended (Section 504), and Title II of the Americans with Disabilities Act of 1990, as amended (ADA), and their relationship to children with disabilities whose parents revoke consent for special education and related services under the Act. Some commenters questioned whether the Section 504 and ADA protections would continue to apply, and the relationship between a Section 504 or ADA plan and an IEP, whenever a parent withdraws consent for continued services under the IDEA. One commenter asked whether students would remain eligible for discipline protections under Section 504 even after a parent revokes consent for special education and related services. Another commenter maintained that, under Section 504 and the Fourteenth Amendment to the U.S. Constitution, a child with a disability has a right not to be discriminated against by imposing disciplinary sanctions for behavior that is a manifestation of his disability. Several commenters cited the statement in the Department's March 12, 1999 Analysis of Comments and Changes to the Final Part B regulations that ``[u]nder Section 504 of the Rehabilitation Act of 1973, children with disabilities may not be disciplined for behavior that is a manifestation of their disability if that disciplinary action constitutes a change of placement'' (see 64 FR 12626), and asked how this interpretation affects the use of disciplinary measures for students with disabilities, protected under Section 504 and the ADA, but whose parent has revoked consent for services under Part B of the Act.

Discussion: These final regulations implement provisions of the IDEA only. They do not attempt to address any overlap between the protections and requirements of the IDEA, and those of Section 504 and the ADA.

Changes: None.

Comment: A few commenters asked whether Sec. 300.300(b)(4) would affect supplemental security income (SSI) or accommodations in college.

Discussion: If a parent revokes consent for the provision of special education and related services pursuant to Sec. 300.300(b)(4), the child's eligibility for other programs, such as SSI, may be affected. A parent may seek additional information concerning eligibility requirements for other programs from the agency responsible for implementing those programs. Regarding accommodations in postsecondary educational institutions, Office for Civil Rights (OCR) offers helpful guidance on the transition of individuals with disabilities to postsecondary education, which is available on OCR's Web page: http://www.ed.gov/about/offices/list/ocr/ transitionguide.html.

Changes: None.

Comment: Some commenters expressed concern that a parent could assert that the public agency should have done more to convince the parent not to unilaterally revoke consent for special education and related services under Sec. 300.300(b)(4).

Discussion: A public agency does not have any obligation to ``convince'' parents to accept the special education and related services that are offered to a child. Section 300.300(b)(3)(iii) and (4)(iii) provides that the public agency will not be considered to be in violation of the requirement to make FAPE available to the child if the parent of a child revokes consent for the continued provision of special education and related services. No provision in the Act or implementing regulations imposes an obligation on public agencies to dissuade parents from revoking consent.

Changes: None.

Comment: One commenter recommended that if a parent revokes consent, the LEA should be required to offer FAPE thereafter, including three year reevaluations, progress monitoring, and an annual IEP until the LEA and the responsible SEA report under the ESEA that 80 percent or more of the students with disabilities in the LEA are meeting State standards and graduating with a regular high school diploma.

Discussion: Section 300.300(b)(4)(iii) through (iv) makes clear that once a parent revokes consent for special education and related services, the public agency (a) will not be considered in violation of the obligation to make FAPE available to the child for failure to provide the child with further special education and related services, and (b) will not be required to convene an IEP Team meeting or develop an IEP, under Sec. Sec. 300.320 through 300.324. As noted earlier, a child whose parent has revoked consent should be treated the same as any other child in the LEA's child find process.

We do not agree that a State should be required to offer FAPE, triennial reevaluations, or an annual IEP until a certain percentage of students with disabilities meet State standards and graduate with a regular high school diploma. Decisions concerning the provision of FAPE and special educational services are individualized and made by an IEP Team, which includes the child's parents. If a parent revokes consent for special education and related services, the child will be treated as a general education student and will not be eligible for FAPE, triennial evaluations, or an annual IEP.

Changes: None.

Comment: Some commenters expressed concern that school district personnel may encourage a parent to remove their child from special education and related services, and a few of these commenters requested that the regulations be amended to prohibit a school district from doing so. One commenter requested that the regulations require LEAs to track the number of children whose parents revoke consent in each LEA (including a child's name, identifying information, and school name) and report that information to the SEA each year.

Discussion: It is inappropriate for school personnel to encourage a parent to revoke consent for special education and related services. If school personnel believe a child no longer qualifies as a child with a disability, Part B of the Act and its implementing regulations provide a process for making that determination. Specifically Sec. 300.305(e), consistent with section 614(c)(5) of the Act, requires that an LEA evaluate a child before determining that the child is no longer a child with a disability. This provision applies when eligibility is in question and an LEA believes a child may no longer be eligible for special education services. A public agency must follow this long- standing procedure if the agency believes a child should no longer receive special education and related services.

Concerning the commenter's request that the Department require LEAs to track the number of children whose parents withdraw consent in each LEA, we decline to impose additional data collection requirements on LEAs to track the number of children whose parents revoke consent in each LEA because we believe the number of children whose parents revoke consent will be small. However, nothing in these regulations prevents a State from separately tracking the number of children whose parents revoke consent in each LEA.

Changes: None.

Comment: One commenter requested that the Department clarify in these regulations that the placement of a child in a private school when FAPE is at issue, pursuant to Sec. 300.148 and section 612(a)(10)(C) of the Act, does not constitute a revocation of consent under Sec. 300.300(b)(4).

Discussion: We agree with the commenter that the placement of a child in a private school when FAPE is at issue does not constitute a revocation of consent under Sec. 300.300(b). However, the provisions concerning the placement of a child in a private school when FAPE is at issue do not need to be referenced in Sec. 300.300, as suggested by the commenter, because those provisions are clearly outlined in Sec. 300.148. Section 300.148 addresses the steps a parent must take when enrolling a child with a disability in a private school when FAPE is at issue. If the parent seeks reimbursement for the cost of the private school, then the parent must follow the procedures in Sec. 300.148(c) through (e). The parent must inform the IEP Team at the most recent IEP Team meeting that he or she is rejecting the placement proposed by the public agency and must inform the IEP Team of his or her intent to enroll the child in a private school at public expense or give written notice 10 business days prior to the removal of the child from the public school. These actions, which are required in response to a disagreement between the parent and public agency about the provision of FAPE, do not constitute parental revocation of consent for special education and related services.

Changes: None.

Comment: Some commenters expressed concern that allowing parents to revoke consent for special education and related services would result in parents pulling their children in and out of special education and related services. The commenters noted that pulling children in and out of special education and related services would have a negative effect on student progress, would cause a loss of instructional time, and could affect the provision of FAPE. Other commenters expressed concern that parents, who previously revoked consent for services, will ask for special education and related services when the child has a discipline issue or is at risk of not graduating. A few commenters requested that there be a limit to how frequently a parent can revoke consent and then subsequently request reinstatement in special education for their child.

Discussion: Section 300.300(b)(4) clarifies that parents have the right to withdraw their child from special education and related services. After revoking consent for his or her child, a parent always maintains the right to subsequently request an initial evaluation to determine if the child is a child with a disability who needs special education and related services. Nothing in the Act or the implementing regulations prevents a parent from requesting an evaluation when their child has a discipline issue or is at risk of not succeeding in school. This is because, consistent with Sec. 300.101, the public agency has an affirmative obligation to make FAPE available to a child with a disability. The child's right to have FAPE available does not cease to exist upon the revocation of consent. Therefore, a parent may consider discipline and graduation requirements when determining whether to request special education and related services for their child.

We do not agree with the commenter that the Department should limit how frequently a parent may revoke consent and then subsequently request reinstatement in special education services because retaining flexibility to address the unique and individualized circumstances surrounding each child's education is important. A public agency will not be considered in violation of the obligation to make FAPE available to the child for failure to provide the child with further special education services following a parent's revocation of consent. We understand the commenter's concern that placing a child in and out of special education services may affect the provision of FAPE; however, a public agency is only responsible for providing FAPE during the time period that the parent has provided consent for special education and related services.

Changes: None.

Comment: One commenter expressed concern about potential staffing implications, especially for small school districts that may have hired a teacher with unique expertise for a child whose parent subsequently revokes consent for the continued provision of special education and related services.

Discussion: The Department appreciates that a parent's revocation of consent could affect staffing at the school and district levels and that there may be instances where staff members are no longer providing special education and related services. However, such issues should not affect a parent's right to revoke consent for special education and related services because a parent's right to determine whether his or her child will receive special education and related services is paramount.

Changes: None.

Comment: Some commenters requested that the Department clarify the procedures to be followed when a parent provides consent for special education and related services after previously revoking consent (re- enrollment), including whether re-enrollment would be considered an initial evaluation that would trigger the 60-day or other State-imposed evaluation timeline. Another commenter expressed concern about the expenditure of resources toward a ``new'' initial evaluation and IEP for a student for whom consent for special education and related services has been revoked and then granted again.

Discussion: If a parent who revoked consent for special education and related services later requests that his or her child be re- enrolled in special education, an LEA must treat this request as a request for an initial evaluation under Sec. 300.301 (rather than a reevaluation under Sec. 300.303). However, depending on the data available, a new evaluation may not always be required. An initial evaluation, under Sec. 300.305, requires a review of existing evaluation data that includes classroom based, local, or State assessments, and classroom based observations by teachers and related services providers. On the basis of that review and input from the child's parents, the IEP Team and other qualified professionals must identify what additional data, if any, are needed to determine whether the child is a child with a disability, as defined in Sec. 300.8, and the educational needs of the child. Therefore, a public agency may not always have to expend resources on a ``new'' initial evaluation.

Changes: None.

Comment: A few commenters argued that the Department does not have the authority to issue regulations that allow a parent to revoke consent for special education and related services. One commenter argued that there is no statutory language in section 614(a)(1)(D)(ii) of the Act that authorizes a parent to revoke consent once services have been provided. Other commenters argued that the Department does not have the authority to regulate in this manner because doing so violates the requirements of section 607 of the Act, which prohibits the adoption of any regulation that procedurally or substantively lessens the protections provided to children with disabilities as embodied in the regulations in effect on July 20, 1983 unless the regulation ``reflects the clear and unequivocal intent of Congress in legislation.'' These commenters noted that the current regulations (i.e., without provisions permitting the parent to revoke consent) are designed to safeguard the rights of the child, not the unilateral preferences of the parent.

Discussion: As discussed elsewhere in this preamble, although section 614(a)(1)(D) of the Act does not explicitly state that parents have the right to revoke consent for special education and related services, the parent's right to revoke consent for special education and related services at any time is consistent with the Act's emphasis on the role of parents in protecting their child's rights and the Department's goal of enhancing parent involvement and choice in their child's education.

We also disagree that allowing a parent to revoke consent for the provision of special education and related services under Sec. 300.300(b)(4) procedurally or substantively lessens protections provided to children with disabilities as embodied in regulations in effect on July 20, 1983. As previously stated in response to other comments, a parent is recognized under the Act as the party responsible for protecting the child's interest in obtaining appropriate educational services. It is the Department's position that the protections provided to children with disabilities are enlarged rather than lessened by amending the regulations to provide that a parent's decision to revoke consent for the continued provision of special education and related services cannot be challenged by the public agency. Furthermore, the change reflected in Sec. 300.300(b)(4) is consistent with the legislative changes made to the Act in 2004, which included adding to section 614(a)(1)(D)(ii)(II) of the Act the requirement that parental consent be obtained before the public agency begins to provide special education and related services to their child. In our view, the better reading of the Act, especially in light of the Department's long-standing regulatory definition of ``consent,'' which has included the concept that consent can be revoked at any time, is that a parent's revocation of consent for the continued provision of services cannot be challenged by a public agency any more than a parent's refusal to provide consent for the initial provision of special education and related services can be.

Changes: None.

Comment: One commenter suggested that allowing parents to discontinue special education and related services without a reevaluation is inconsistent with the requirement in section 614(c)(5) of the Act that a public agency conduct a reevaluation of a child before determining that the child is no longer a child with a disability.

Discussion: We disagree with the commenter that allowing a parent to revoke consent for special education and related services is inconsistent with the requirements in section 614(c)(5) of the Act. Section 614(c)(5) of the Act requires that an LEA evaluate a child before determining that the child is no longer a child with a disability. This provision applies when eligibility is in question and the LEA believes the child may no longer be eligible for special education services. Section 300.300(b)(4) allows a parent to revoke consent for the continued provision of special education and related services and does not trigger an LEA's obligation to conduct an evaluation for a child that is receiving services before determining that a child is no longer a child with a disability. If a parent revokes consent for the continued provision of special education and related services for his or her child, the public agency is not determining that the child is no longer a child with a disability as contemplated by section 614(c)(5) of the Act and Sec. 300.305(e). Instead, the public agency is discontinuing the provision of special education and related services pursuant to the decision of the parent and there is no obligation for the LEA to evaluate the child.

Changes: None.

Comment: Some commenters requested that the final regulations provide dispute resolution options for public agencies when a parent revokes consent for special education and related services. The commenters cited various reasons as to why dispute resolution options should be included in Sec. 300.300(b)(4) such as: The ability to strike a suitable balance among the interests of the public agency, parent, and child with a disability; the need for proposed Sec. 300.300(b)(4) to be consistent with section 615(b)(6)(A) of the Act and Sec. 300.507, providing that a parent or a public agency may file a due process complaint on any matter relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child; and the ability of a public agency to determine that a child is no longer a child with a disability.

Lastly, some commenters requested that public agencies be allowed to initiate the mediation process when a parent revokes consent, while another commenter stated that public agencies should, at least, be able to offer mediation and that parents can refuse to participate, at their sole discretion.

Discussion: While the dispute resolution mechanisms in section 615 of the Act generally are appropriate to resolve disputes between a parent and the public agency, it is the Department's position that they are not appropriate when a parent revokes consent for all special education and related services. Section 615(b)(6)(A) of the Act and Sec. 300.507 allow a parent or public agency to file a due process complaint on any matter relating to the identification, evaluation, and educational placement of a child with a disability, or the provision of FAPE to the child. However, section 614(a)(1)(D)(ii)(II) of the Act does not allow an LEA to use the due process procedures under section 615 of the Act, including mediation, if a parent refuses to provide consent for the initial provision of services. If an LEA cannot use the due process procedures in section 615(b)(6)(A) of the Act and Sec. 303.507 to override a parent's refusal to provide initial consent for services, then an LEA also should not be allowed to use these due process procedures to override a parent's revocation of consent for the continued provision of services. As discussed throughout this preamble, the Secretary believes that protecting the interest of parents to make the decision as to whether or not their child receives special education and related services is consistent with the intent of the Act.

We agree that the application of the due process procedures to disputes between parents and public agencies generally balances the interests of public agencies, parents, and children. However, as evidenced by section 614(a)(1)(D)(ii)(II) of the Act, which prohibits LEAs from using the due process procedures under section 615 of the Act if a parent refuses to provide consent for the initial provision of services, a public agency's right to use the due process procedures in section 615(b)(6)(A) of the Act and Sec. 303.507 is not absolute. Similarly, a public agency should not have the ability to override a parent's revocation of consent for the continued provision of special education services and related services.

Moreover, we do not agree with the commenter who suggested that allowing a parent to revoke consent will affect a public agency's ability to determine that a child is no longer a child with a disability. If a public agency believes a child is no longer a child with a disability then, as required in Sec. 300.305(e), a public agency must evaluate the child before making that determination. If the parent disagrees with the eligibility determination, then the parent may challenge the decision using the due process procedures in section 615 of the Act.

Lastly, mediation, pursuant to Sec. 300.506(a), may be used to resolve any disputes under Part B of the Act and its implementing regulations before a parent revokes consent for the continued provision of special education and related services. However, for the same reasons that mediation is not allowed when a parent refuses to provide initial consent for services, mediation is not appropriate once a parent revokes consent for the provision of special education and related services.

Changes: None.

Comment: One commenter expressed concern that allowing a parent to remove their child from special education and related services will affect LEAs' and SEAs' ability to meet their State Performance Plans (SPP) and the Annual Performance Report (APR) targets for graduation in Indicator 1 and the targets for the participation and performance of children with disabilities on statewide assessments in Indicator 3. The commenter also expressed concern about the potential failure of students with disabilities whose parents revoke consent for special education and related services to participate fully in post-school opportunities, reflected in Indicators 13 and 14, regarding secondary transition and post-school outcomes, respectively.

Discussion: Section 616(a)(3) of the Act requires the Secretary to monitor the States, and the States to monitor LEAs, using quantifiable indicators in the following priority areas: The provision of FAPE in the LRE; the State's exercise of general supervisory authority; and disproportionate representation of racial and ethnic groups in special education and related services to the extent the representation is the result of inappropriate identification. As required by the Act, the Secretary established, with broad stakeholder input, 20 indicators. States established rigorous targets for each indicator and developed activities to improve performance to meet those targets in their SPPs. States report to the Department in their APR on their performance in meeting their targets.

Generally, if a parent revokes consent for his or her child to receive special education and related services, the child is no longer required to be included in calculations for children with disabilities for indicators in the SPP/APR. States may choose to handle students whose parents revoke consent to the continued provision of special education and related services in graduation rate calculations for purposes of the SPPs/APRs in the same way that they treat other students who exit from special education and related services prior to graduation. Additionally, students whose parents revoke consent to the continued provision of special education and related services are no longer children with disabilities whose participation in post-school opportunities would be tracked by the SPP/APR Indicators 13 and 14.

Changes: None.

Comment: One commenter noted that some States' mandatory reporting requirements for abuse and neglect may be triggered when a parent revokes consent for special education and related services, especially in cases where a child may require medical services.

Discussion: The commenter is correct that each State has established reporting requirements and professional codes of conduct concerning suspected abuse and neglect. Nothing in these regulations will alter any responsibilities under those State laws.

Changes: None.