Parental Consent
Consent Defined
IDEA defines consent as follows:
The parent has been fully informed of all information relevant to the activity for which consent is sought, in their native language, or through another mode of communication;
The parent understands and agrees in writing to the carrying out of the activity for which their 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 understands that the granting of consent is voluntary on the part of the parent and may be revoked at 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retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).
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 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.
Parent Defined
“Parent” is defined by COMAR as: (i) A biological or adoptive parent; (ii) A guardian; (iii) A person acting as a parent of a student, including a grandparent, stepparent, or other relative with whom the child lives, or an individual who is legally responsible for the child's welfare; (iv) A foster parent with whom the student lives, if the foster parent has been granted limited guardianship for educational decision-making purposes by the court that has placed the child in foster care; or (v) A surrogate parent who has been appointed pursuant to Maryland legal requirements.
COMAR further indicates that the definition of "Parent" does not include: (i) An employee of a public agency responsible for the education or care of the child; or (ii) The state, if the child is a ward of the state.
The federal regulations provide that the biological or adoptive parent of a child, when attempting to act as the parent under the Act and when more than one party is qualified to act as a parent, must be presumed to be the parent unless the biological or adoptive parent does not have legal authority to make educational decisions for the child or unless a judicial decree or order identifies a specific person(s) to act as the parent or to make educational decisions.
Informed Consent Requirements
Before an IEP team conducts an initial evaluation to determine if the student qualifies as a “child with a disability,” the team must make reasonable efforts to obtain written informed consent from the parent/guardian. As part of obtaining written informed consent, the IEP team must provide a description of any evaluation procedures the team proposes to conduct.
The case manager should maintain written documentation of efforts to meet IDEA obligations with regard to obtaining parental consent by fully informing parents/guardians of the activities the IEP team plans to undertake for an initial evaluation such as telephone records, copies of correspondence sent to the parents/guardians and any responses received, or records of visits to the parents’/guardians’ home.
COMAR provides that a public agency shall promptly request parental consent to assess a student to determine if the student needs special education and related services—
when, prior to the referral, the student has not made adequate progress after an appropriate period of time when provided appropriate instruction; and
whenever a student is referred for an evaluation. The case manager should maintain written documentation of efforts to meet IDEA obligations with regard to obtaining parental consent by fully informing parents/guardians of the activities the IEP team plans to undertake for an initial evaluation such as telephone records, copies of correspondence sent to the parents/guardians, and any responses received, or records of visits to the parents’/guardians’ home.
If a parent/guardian does not provide consent for an initial evaluation or fails to respond to a request to provide consent, the school system may pursue the initial evaluation by requesting mediation and/or a due process hearing.
If MCPS declines to pursue mediation or due process regarding conducting an initial evaluation, there is no violation of its Child Find or evaluation obligations, and the student remains a general education student.
Consent for Wards of the State
The Maryland Procedural Safeguards Notice states that for an initial evaluation only, if a child is a ward of the state (which does not include a child who has a foster parent) and does not reside with their parent(s), the school district must make “reasonable efforts” to obtain the informed consent from the parent for an initial evaluation. The school district is not required to obtain consent from the parent if:
despite reasonable documented efforts to do so, the district cannot discover the whereabouts of the parent;
the parent’s rights have been terminated; or
parental rights to make educational decisions have been subrogated by a judge and given to an individual appointed by the judge to represent the child.
When is Parent Consent Required?
A public agency shall obtain written parental consent before conducting assessment procedures. If a parent/guardian refuses consent for initial assessment procedures, or assessment procedures as part of a reevaluation, a public agency may pursue assessment through mediation or a due process hearing. MCPS does not violate its obligation to locate, identify, and evaluate students suspected of having a disability if it declines to pursue the evaluation through the dispute resolution process.
A public agency is not required to obtain parental consent:
Before reviewing existing data;
Before administering a test or other procedure that is administered to all students unless, before administration of that test or procedure, consent is required of the parents/guardians of all students; or
For assessment procedures as part of a reevaluation, if the public agency can demonstrate that reasonable measures have been taken to obtain consent, and the parent/guardian has failed to respond.
A public agency shall maintain a record of its attempts to obtain parental consent.
If a student is a ward of the state, a public agency shall make reasonable efforts to obtain informed parental consent from the student's parent/guardian.
A public agency shall obtain written parental consent before the initial provision of special education and related services to a student with a disability.
A public agency may not provide special education and related services if a student's parent/guardian:
Refuses to provide MCPS consent for the initiation of special education and related services; or
Fails to respond to a request by MCPS to provide consent for the initiation of special education and related services.
If a parent/guardian refuses to provide consent for the initiation of special education and related services, MCPS may not provide special education and related services to the student by using any of the dispute resolution processes set forth in IDEA.
If a parent/guardian of a student with a disability refuses to provide the initial consent or revokes consent for special education and related services, MCPS is not:
Considered to be in violation of the requirement to make FAPE available to the student for failing to provide the student with the special education and related services for which MCPS sought parental consent; and
Required to convene an IEP team meeting or develop an IEP for the student for the special education and related services for which the public agency sought initial consent.
After the initiation of special education and related services, parental consent is not required to implement the student's subsequent IEPs.
Consent for initial evaluation may not be construed as consent for initial placement.
MCPS may not use a parent's/guardian’s refusal to consent to one service or activity to deny the parent/guardian or student any other service, benefit, or activity of MCPS.
Consent in Special Circumstances
Inviting Agencies for Transition Planning. A public agency shall obtain parental consent or the consent of the student if the decision making rights have transferred to the student before inviting a participating agency to attend a student's IEP team meeting to consider services transition services. See Parental Rights and Transfer of Rights for additional information.
Medical Assistance Eligibility. A public agency shall annually obtain parental consent to access medical assistance for service coordination and health-related services, in accordance with 34 CFR §300.154(d)(2)(iv).
Alternative Education Program and Assessments. An IEP team shall obtain written consent from a parent/guardian if the team proposes to:
Enroll the child in an alternative education program that does not issue or provide credits toward a Maryland High School Diploma; or
Identify the child for the Alternative Education Assessment aligned with the state’s alternative curriculum.
Physical Restraint and Seclusion. Parental consent also shall be required to include restraint in a student's IEP to address the child’s behavior. Effective July 1, 2022, Maryland public schools are prohibited from using seclusion as a supplementary aid or service for any student enrolled in a public school program. For more information, see the Restraint and Seclusion section of this Manual.
Revocation of Parent Consent
IDEA permits parents/guardians to revoke consent for special education services at any time. If at any time subsequent to the initial provision of special education and related services, the parent/guardian revokes consent in writing for the continued provision of special education and related services, the public agency:
Shall provide the parent/guardian PWN in accordance with 34 CFR §300.503 and Regulation .12 of this chapter before ceasing the provision of special education and related services;
May not continue to provide special education and related services to the student;
May not use the mediation or due process to obtain agreement or a ruling that the services may be provided to the child; and
Is not required to amend the student's education records to remove any references to the student's receipt of special education and related services.
In cases where the parent/guardian has revoked consent for the provision of special education services, the school is no longer required to provide the student with FAPE, is not required to convene an IEP team meeting, and the student is no longer entitled to any disciplinary or other protections afforded students pursuant to the IDEA.
Legal Authority
34 C.F.R. 300.9; 34 C.F.R. 300.300; Md. Educ. Art. 8-412; COMAR 13A.05.01.03; COMAR 13A.05.01.13 ; Md. Educ. Art. §8-412.1; Md. Code Ann., Educ. §8-405(f)(1)