By Andrew M.I. Lee, J.D.
November 19, 2018
During the evaluation and special education process, parents have many legal rights and protections. Informed consent is one of them. Before the school can take certain actions, it must inform you and get your written consent. This right gives you a voice in decisions about your child’s education.
But when does the school need your informed consent? And how does the school get it? Read on to find out.
When the School Must Ask for Your Consent
Under the Individuals with Disabilities Education Act (IDEA), the school must ask for your consent at these times:
- Before the school provides special education services to your child for the first time through an IEP;
- Before inviting non-school agencies to participate in IEP meetings to discuss your child’s transition to adult life.
You must give permission in each situation above. For example, say you gave informed consent for an evaluation. Later, if the school wants to provide special education services, it must get your informed consent again.
Keep in mind that states and local schools may have rules requiring informed consent at other times, as well.
If the school takes one of these actions without getting your consent, you have options. You can ask for due process or file a state complaint.
The Legal Definition of Informed Consent
According to IDEA, informed consent has three requirements:
- You’ve been fully informed about what the school wants to do. The school will typically send you a letter or document describing what will happen in detail. This is known as prior written notice. Sometimes, this notice can be hard to understand and full of unfamiliar terms. You have the right to ask the school to explain anything you don’t understand. You also have the right to receive this notice (as well as give your consent) in your native language, like Spanish or even braille.
- You understand and agree in writing. Even if you say that you agree in a conversation or meeting, the school can’t proceed. The school needs your signature (or written agreement).
- You understand that consent is voluntary and that you can withdraw or deny consent at any time. The school must send you a written notice of your and your child’s legal rights, called procedural safeguards.
What Happens If You Refuse to Consent
You can refuse to give informed consent by simply saying no. A parent can also refuse by just not answering when asked. If you don’t give consent, the school can’t act. It’s your decision.
Sometimes, a school can’t get in contact with a parent. Or the school wants to evaluate or reevaluate a child, but a parent refuses. In these cases, the school can try to use dispute resolution options like mediation or due process to get an evaluation.
However, this only applies to evaluations. The school may never “override” your decision not to allow special education services to your child.
When Informed Consent Isn’t Needed
It’s important to know that the school doesn’t need to get informed consent in every situation.
Without your consent, the school can:
- Give your child tests that are given to all children, including standardized tests;
- Review the results of previous evaluations.
Also, once you consent in writing to special education services for the first time, the school doesn’t need your consent again to implement an IEP. It doesn’t need to keep asking permission. However, if the school wants to change your child’s IEP, it does need to give you prior written notice. And you are always able to withdraw your consent.
Explore an overview of your rights in the special education process. Debunk common myths about your child’s rights. And read how to consent to part of an IEP but not others.
Andrew M.I. Lee, J.D. is an editor and former attorney who strives to help people understand complex legal, education and parenting issues.