009-10 Consent when Parents Disagree
Are the requirements related to revocation of consent applicable to matters other than the child remaining eligible for special education and related services? If both parents have equal standing and disagree when parental consent is required - thus one provides consent and the other disagrees, either orally or in writing - what is an LEA required to do? For example, if the IEP team develops an IEP with parental involvement and one parent provides consent for implementation and the other refuses consent, what is the school division required to do? Must school personnel implement the IEP with the consent of one parent, or work to achieve the consent of the other parent before implementation?
It is important to review the regulations that detail the definition of consent, as well as those circumstances that require consent before answering this question. The Virginia Regulations define consent in 8 VAC 20-81-10 as:
“Consent” means: (34 CFR 300.9)
- The parent(s) or eligible student has been fully informed of all information relevant to the activity for which consent is sought in the parent's(s') or eligible student's native language, or other mode of communication;
- The parent(s) or eligible student understands and agrees, in writing, to the carrying out of the activity for which consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and
- The parent(s) or eligible student understands that the granting of consent is voluntary on the part of the parent(s) or eligible student and may be revoked any time.
- If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked. Revocation ceases to be relevant after the activity for which consent was obtained was completed.).
- If the parent revokes consent in writing for their child’s receipt of special education services after the child is initially provided special education and related services, the local educational 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 meaning of the term "consent" is not the same as the meaning of the term "agree" or "agreement." "Agree" or "agreement" refers to an understanding between the parent and the local educational agency about a particular matter and as required in this chapter. There is no requirement that an agreement be in writing, unless stated in this chapter. The local educational agency and parent(s) should document their agreement.
In addition, the Virginia Regulations list those circumstances that require consent at 8 VAC 20-81-170 D.1. as:
- Required parental consent. Informed parental consent is required before:
- Conducting an initial evaluation or reevaluation, including a functional behavioral assessment if such assessment is not a review of existing data conducted at an IEP meeting; (34 CFR 300.300(a)(1)(i))
- An initial eligibility determination or any change in categorical identification;
- Initial provision of special education and related services to a child with a disability; (34 CFR 300.300(b)(1))
- Any revision to the child's IEP services;
- Any partial or complete termination of special education and related services, except for graduation with a standard or advance studies diploma;
- The provision of a free appropriate public education to children with disabilities who transfer between public agencies in Virginia or transfer to Virginia from another state in accordance with 8VAC20-81-120;
- Accessing a child's public benefits or insurance or private insurance proceeds in accordance with subsection F of this section; and (34 CFR 300.154)
- Inviting to an IEP meeting a representative of any participating agency that is likely to be responsible for providing or paying for secondary transition services. (34 CFR 300.321(b)(3))
The key to this answer is that the regulations use the term “parent(s)” indicating that only one parent is required to provide consent. Thus, even if only one parent provides consent, under these regulations, the school division must move forward with the action for which consent has been provided. Consequently, using the example provided in the question, if one parent provides consent to implement the IEP, the school division is required to implement the IEP. The parent who disagrees may use the dispute resolution options of mediation and/or due process to address concerns; however, in the interim, the school division is obligated to rely upon the consent that has already been provided.
Note: This is different than the circumstance when a parent revokes consent for a student to continue to be eligible for special education and related services. For information in that case, please refer to FAQ 003-10, which addresses Revocation of Consent.
Practice Tip: When both parents are involved and do not live together or are not married, school personnel need to be sure to determine that the parents have equal rights with regard to educational decisions. Additionally, the Prior Written Notice (PWN) provides an excellent mechanism to document the parents dueling positions. Under the PWN section of proposed or refused action (using our example of the developed IEP), the IEP team can document that while one parent provided consent, which gives the school division the obligation to implement the decision, one parent disagreed. The IEP team should consider documenting on the PWN the contentious issue(s), as well as the issue(s) which reflects consensus. The Procedural Safeguards document will apprise parents with information related to the dispute resolution options of mediation, complaints, and due process.