La. Admin. Code tit. 28 § XLIII-301

Current through Register Vol. 50, No. 11, November 20, 2024

Section XLIII-301 - Parental Consent

A. Parental Consent for Initial Evaluation

a. The public agency proposing to conduct an initial evaluation to determine if a student qualifies as a student with a disability as defined in §905 shall, after providing notice consistent with §503 and 504, obtain informed consent consistent with the definition of consent in § 905, from the parent of the student before conducting the evaluation.

b. Parental consent for initial evaluation shall not be construed as consent for initial provision of special education and related services.

c. The public agency shall make reasonable efforts to obtain the informed consent from the parent for an initial evaluation to determine whether the student is a student with a disability.

2. For initial evaluations only, if the student is a ward of the state and is not residing with the student's parent, the public agency is not required to obtain informed consent from the parent for an initial evaluation to determine whether the student is a student with a disability if:

a. despite reasonable efforts to do so, the public agency cannot discover the whereabouts of the parent of the student;

b. the rights of the parents of the student have been terminated in accordance with state law; or

c. 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 student.

a. If the parent of a student enrolled in a public school or seeking to be enrolled in a public school does not provide consent for initial evaluation under Paragraph A of this Section, 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 student by utilizing the procedural safeguards in Chapter 5 of these regulations (including the mediation procedures under §506 or the due process procedures under §507 through 516), if appropriate.

b. The public agency does not violate its obligation under §111 and §302 if it declines to pursue the evaluation.

4. Within a reasonable amount of time, and not longer than 15 business days, from receipt of a written parental request for a special education evaluation, an LEA shall either request parental consent for evaluation or provide prior written notice of refusal.

B. Parental Consent for Services

1. A public agency that is responsible for making FAPE available to a student with a disability shall obtain informed consent from the parent of the student before the initial provision of special education and related services to the student.

2. The public agency shall make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the student.

3. If the parent of a student fails to respond to a request for, or refuses to consent to the initial provision of special education and related services, the public agency:

a. may not use the procedures in Chapter 5 of these regulations (including the mediation procedures under §506 or the due process procedures under §507 through 516) in order to obtain agreement or a ruling that the services may be provided to the student;

b. will not be considered to be in violation of the requirement to make FAPE available to the student because of the failure to provide the student with special education and related services for which the parent refuses to or fails to provide consent; and

c. is not required to convene an IEP Team meeting or develop an IEP under §320 and §324 for the student.

4. If, at any time subsequent to the initial provision of special education and related services, the parent of the student revokes consent in writing for the continued provision of special education and related services, the public agency:

a. may not continue to provide special education and related services to the student, but must provide prior written notice in accordance with §504 before ceasing the provision of special education and related services;

b. may not use the procedures in Chapter 5 of these regulations (including the mediation procedures under §506 or the due process procedures under §507 through 516), in order to obtain agreement or a ruling that the services may be provided to the student;

c. will not be considered to be in violation of the requirement to make FAPE available to the student because of the failure to provide the student with further special education and related services; and

d. is not required to convene an IEP Team meeting or develop an IEP under §320 and §324 for the student for further provision of special education and related services;

e. special education and related services may not be discontinued until prior written notice is sent;

f. if the parent revokes consent in writing for his/her student's receipt of special education services after the student is initially provided special education and related services, the public agency 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 because of the revocation of consent.

C. Parental Consent for Reevaluations

1. Subject to Paragraph C.2 of this Section, each public agency:

a. shall obtain informed parental consent, in accordance with §301 A, prior to conducting any reevaluation of a student with a disability;

b. 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 A.4 of this Section;

c. the public agency does not violate its obligation under §111 and §308 if it declines to pursue the evaluation or reevaluation;

2. The informed parental consent described in Paragraph C.1 of this Section need not be obtained if the public agency can demonstrate that:

a. it made reasonable efforts to obtain such consent; and

b. the student's parent has failed to respond.

D. Other Consent Requirements

1. Parental consent is not required before:

a. reviewing existing data as part of an evaluation or a reevaluation; or

b. administering a test or other evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of parents of all students.

2. A public agency may not use a parent's refusal to consent to one service or activity under Paragraph A of this Section to deny the parent or student any other service, benefit, or activity of the public agency, except as required by these regulations.

a. If a parent of a student 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 A.3 and C.1 of this Section); and

b. the public agency is not required to consider the student as eligible for services under §132

4. To meet the reasonable efforts requirement in Paragraphs A.1.c, A.2.a, B.2, and C.2.a of this Section, the public agency shall document its attempts to obtain parental consent using the procedures in §322D.

La. Admin. Code tit. 28, § XLIII-301

Promulgated by the Board of Elementary and Secondary Education, LR 34:2058 (October 2008), amended LR 36:1502 (July 2010), Amended LR 501151 (8/1/2024).

AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq.