Iowa Code r. 281-41.300 - Parental consent and participation
(1)
Parental consent for initial
evaluation.
a. General.
(1) The public agency proposing to conduct an
initial evaluation to determine if a child qualifies as a child with a
disability under this chapter must, after providing notice consistent with
rules 281-41.503 (256B, 34CFR300 ) and
281-41.504 (256B, 34CFR300 ),
obtain informed consent, consistent with rule
281-41.9 (256B, 34CFR300 ), from
the parent of the child before conducting the evaluation.
(2) Parental consent for an initial
evaluation must not be construed as consent for initial provision of special
education and related services.
(3)
The public agency must make reasonable efforts to obtain the informed consent
from the parent for an initial evaluation to determine whether the child is a
child with a disability.
b. Special rule: initial evaluation for a
child who is a ward of the state and not residing with a parent. For initial
evaluations only, if the child is a ward of the state and is not residing with
the child's parent, the public agency is not required to obtain informed
consent from the parent for an initial evaluation to determine whether the
child is a child with a disability if:
(1)
Despite reasonable efforts to do so, the public agency cannot discover the
whereabouts of the parent of the child;
(2) The rights of the parents of the child
have been terminated in accordance with state law; or
(3) The rights of the parent to make
educational decisions have been subrogated by a judge in accordance with state
law and consent for an initial evaluation has been given by an individual
appointed by the judge to represent the child.
c. Parental refusal to provide consent for
initial evaluation.
(1) If the parent of a
child enrolled in public school or seeking to be enrolled in public school does
not provide consent for initial evaluation under paragraph
41.300(1)"a," or the parent fails to respond to a request to
provide consent, the public agency may, but is not required to, pursue the
initial evaluation of the child by utilizing the procedural safeguards in this
chapter, including the mediation procedures under rule
281-41.506 (256B, 34CFR300 ) or
the due process procedures under rules
281-41.507 (256B, 34CFR300 ) to
281-41.516 (256B, 34CFR300 ), if
appropriate, except to the extent inconsistent with state law relating to such
parental consent.
(2) The public
agency does not violate its obligation under rules
281-41.111 (256B, 34CFR300 ) and
281-41.301 (256B, 34CFR300 ) to
281-41.311 (256B, 34CFR300 ) if
it declines to pursue the evaluation under subparagraph
41.300(1)"c"(1).
(2)
Parental consent for
services.
a. A public agency that is
responsible for making FAPE available to a child with a disability must obtain
informed consent from the parent of the child before the initial provision of
special education and related services to the child.
b. The public agency must make reasonable
efforts to obtain informed consent from the parent for the initial provision of
special education and related services to the child.
c. If the parent of a child fails to respond
to a request for, or refuses to consent to, the initial provision of special
education and related services, the public agency:
(1) May not use the procedural safeguards in
this chapter, including the mediation procedures rule
281-41.506 (256B, 34CFR300 ) or
the due process procedures under rules
281-41.507 (256B, 34CFR300 )
through 281-41.516 (256B, 34CFR300 ) in
order to obtain agreement or a ruling that the services may be provided to the
child;
(2) 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 the special education and
related services for which the parent refuses to or fails to provide consent;
and
(3) Is not required to convene
an IEP team meeting or develop an IEP under rules
281-41.320 (256B, 34CFR300 ) and
281-41.324 (256B, 34CFR300 ) for
the child.
d. If, at any
time subsequent to the initial provision of special education and related
services, the parent of a child revokes consent in writing for the continued
provision of special education and related services, the public agency:
(1) May not continue to provide special
education and related services to the child, but must provide prior written
notice in accordance with rule
281-41.503 (256B, 34CFR300 )
before ceasing the provision of special education and related
services;
(2) May not use the
procedural safeguards in this chapter, including the mediation procedures rule
281-41.506 (256B, 34CFR300 ) or
the due process procedures under rules
281-41.507 (256B, 34CFR300 )
through 281-41.516 (256B, 34CFR300 ) in
order to obtain agreement or a ruling that the services may be provided to the
child;
(3) 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; and
(4) Is not
required to convene an IEP team meeting or develop an IEP under rules
281-41.320 (256B, 34CFR300 ) and
281-41.324 (256B, 34CFR300 ) for
the child for further provision of special education and related
services.
(3)
Parental consent for reevaluations.
a.
General. Subject to
paragraph 41.300(3)"b":
(1)
Each public agency must obtain informed parental consent, in accordance with
paragraph 41.300(1)"a," prior to conducting any reevaluation
of a child with a disability.
(2)
If the parent refuses to consent to the reevaluation, the public agency may,
but is not required to, pursue the reevaluation by using the consent override
procedures described in paragraph 41.300(1)"c."
(3) The public agency does not violate its
obligation under rules
281-41.111 (256B, 34CFR300 ) and
281-41.301 (256B, 34CFR300 ) to
281-41.311 (256B, 34CFR300 ) if
it declines to pursue the evaluation or reevaluation.
b.
Exception. The informed
parental consent described in paragraph 41.300(3)"a" need not
be obtained if the public agency can demonstrate that:
(1) It made reasonable efforts to obtain such
consent; and
(2) The child's parent
has failed to respond.
(4)
Other consent
requirements.
a.
When
parental consent not required. Parental consent is not required
before:
(1) A review of existing data as part
of an evaluation or a reevaluation; or
(2) Administration of a test or other
evaluation that is administered to all children unless, before administration
of that test or evaluation, consent is required of parents of all
children.
b.
Additional consent requirements. In addition to the parental
consent requirements described in subrules 41.300(1) through 41.300(3), the
state may require parental consent for other services and activities under Part
B of the Act and of this chapter if it ensures that each public agency in the
state establishes and implements effective procedures to ensure that a parent's
refusal to consent does not result in a failure to provide the child with
FAPE.
c.
Limitation on
public agency's use of failure to give consent. A public agency may
not use a parent's refusal to consent to one service or activity under subrules
41.300(1) through 41.300(3) or paragraph 41.300(4)"b" to deny
the parent or child any other service, benefit, or activity of the public
agency, except as required by this chapter.
d.
Children who are home schooled or
placed by their parents in private schools.
(1) If a parent of a child who is home
schooled or placed in a private school by the parents at their own expense does
not provide consent for the initial evaluation or the reevaluation, or the
parent fails to respond to a request to provide consent, the public agency may
not use the consent override procedures described in paragraphs
41.300(1)"c" and 41.300(3)"a"; and
(2) The public agency is not required to
consider the child as eligible for services under rules
281-41.132 (256B, 34CFR300 ) to
281-41.144 (256B, 34CFR300
).
e.
Documenting
reasonable efforts. To meet the reasonable efforts requirement in
subparagraph 41.300(1)"a"(3), subparagraph
41.300(1)"b" (1), paragraph 41.300(2)"b," and
subparagraph 41.300(3)"b" (1), the public agency must document
its attempts to obtain parental consent using the procedures in subrule
41.322(4).
(5)
Parent participation. The identification process is to include
interactions with the individual, the individual's parents, school personnel,
and others having specific responsibilities for or knowledge of the individual.
AEA and LEA personnel will seek active parent participation throughout the
process, directly communicate with parents, and encourage parents to
participate at all decision points.
Notes
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