For some parents, accepting the fact that their child needs special education can be a very tough fact to accept. Many parents face feelings of guilt, sometimes blaming themselves for their child’s special needs. Some parents may not consent to their child receiving special education, in refusal to accept this situation. However, most often, a child’s need for special education is through no fault of the parents, and in order to help a child develop to be the best that he or she can be, parental consent is needed in order for a school district to provide special education programs and services.
Parental consent for the initial evaluation is different from parental consent to actually receive special education services. Once diagnosed, the school district needs the parent’s cooperation and consent to provide the proper special education services appropriate to the child’s disability (20 USC § 1414(a)(1)(D)(i)(I); 34 CFR § 300.300(a)(1)(ii); 8 NYCRR § 200.5(b)(1)(ii)).
However, consent is not required for the initial provision of special education services in a 12-month program. When a school district provides special education services for the first time between the months of July and August, and the student was not previously identified as having a disability, the school district must obtain consent before providing special education services to the student (8 NYCRR § 200.5(b)(1)(ii)).
School districts have an obligation to provide a free appropriate education to children with disabilities, however if a parent refuses to consent to their child receiving special education, the school would not be in violation of their obligations due to the parent’s refusal to consent (20 USC § 1414(a)(1)(D)(ii)(III); 34 CFR § 300.300(b)(4); 8 NYCRR § 200.5(b)(4)).
Parents may also revoke their consent to their child’s initial evaluation or provision of special education services. Though parental consent is voluntary, and it may be revoked at any time, a revocation does not negate any district actions that were undertaken before consent was revoked (34 CFR § 300.9(c)(2); 8 NYCRR § 200.1(1)(3)).
Parents may also revoke their consent for the continued provision of special education and related services, at any time, so long as it is in writing (34 CFR §§ 300.9(c)(1), 300.300(b)(4); 8 NYCRR § 200.5(b)(5)). Once parental consent is revoked, the school must abstain from continuing to provide services to the child (34 CFR § 300.300(b)(4)(i), (ii); 8 NYCRR § 200.5(b)(5)(i), (ii)), however, they must provide the parents prior written notice before actually ceasing to provide service (8 NYCRR § 200.5(b)(5)(i).
Once a school district has ceased the provision of special education services to a child due to a revocation of parental consent, they are not required to convene a committee on special education for the child, nor are they required to develop an individual education program (IEP) to further provide services (34 CFR § 300.300(b)(4)(iv); 8 NYCRR § 200.5(b)(5)(iv)). Furthermore, they are not required to amend the student’s education records to remove references of the child’s receiving of special education (34 CFR § 300.9(c)(3); 8 NYCRR § 200.5(b)(5)(v)).
When it comes to a child receiving special equation services, the school district has a legal obligation to provide a free appropriate education to the child. This education is to be tailored to meet the specific needs of a child with a disability through special education. However, when it comes to the actual receipt of those services and programs, it is left up to the parent to consent to such services, otherwise the child may go without such beneficial aid.
Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.
Neither receipt of information presented on this site nor any email or other electronic communication sent to Castro CLAN PLLC or its lawyers through this site will create an attorney-client relationship, and no such email or communication will be treated as confidential. No user of this site should act or refrain from acting on the basis of information on this site without seeking legal advice from counsel in the relevant jurisdiction. Castro CLAN PLLC expressly disclaims liability with respect to actions taken or not taken based on the contents of this site.
Prior results do not guarantee a similar outcome.