003-10 Revocation of Parent Consent

Both parents have the legal authority to make educational decisions for their child with a disability. One of the parents asks the LEA to cease special education and related services for the child. The other parent disagrees. The LEA contends that the child remains eligible for special education and related services.

Which parent’s consent right prevails?
Can the parent who consents to the child’s continuing eligibility request mediation or due process to contest the other parent’s consent revocation?

The U.S. Department of Education’s Office of Special Education Programs (OSEP) has responded to the Virginia Department of Education’s inquiry in this regard:

As long as the parent has the legal authority to make educational decisions for the child, the LEA must accept either parent’s revocation of consent for the purposes of 34 CFR §300.300(b)(4). The federal regulation governs the requirements relative to parent consent revocation. The LEA must provide the parent with prior written notice in accordance with 34 CFR §300.503 before ceasing the provision of special education and related services. 34 CFR §300.300(b)(4)(i).

If a parent, including a parent other than the parent who revoked consent, later requests that his or her child receive special education and related services, the LEA must treat this request as a request for an initial evaluation under 34 CFR §300.301, rather than a reevaluation under 34 CFR §300.303.

Under 34 CFR §300.300(b)(4)(ii), the school division may not use mediation or due process to overcome a parent’s written revocation of consent for the continued provision of special education and related services. OSEP further states that a parent who opposes the cessation of the child’s eligibility in this instance cannot request mediation or due process to resolve the dispute. This is because a decision by one parent to revoke consent is not an action by a "public agency", and the parent may only file a due process request with respect to actions which are the responsibility of the local school division, and not by another parent. In effect, the hearing officer has no role to play as the matter is not one over which s/he has jurisdiction.

Similarly, mediation is not an option as mediation is designed to resolve disputes between a public agency and a parent. OSEP states that if the parents disagree with each other, the LEA may recommend to the parents alternative dispute resolution options to resolve their disagreement, such as through local family mediation services. [Letter to Cox, OSEP, 2009; 110 LRP 10357]

Summary point: Although in the past, we understood that the school division needed the consent of one parent to move forward with an action, this is an exception that allows a parent to essentially "trump” the consent of the other parent. Specifically, if both parents have the legal authority to make educational decisions for the child, and if one parent revokes, in writing, consent for the child to receive special education and related services, the LEA must terminate services, even if the other parent has consented or is willing to consent for the child to receive special education and related services.

Reminder: For further assistance in understanding the requirements relative to parental consent revocation, please review VDOE’s Guidance Document on the Implementation of the IDEA Federal Regulations – Part B, Additional Requirements 2008 (PDF) and Model Written Prior Notice (PDF) when parents revoke consent in accordance with requirements at 34 CFR §300.300.

Note: This FAQ addresses only those instances when parents who have equal standing disagree with the issue of a child’s continued eligibility for special education and related services. Please know that an additional FAQ will be issued in the near future that addresses those instances when parents who have equal standing in special education matters disagree with each other on those issues requiring parental consent other than continued eligibility.

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