016-11 Partial Parental Consent to IEP

Must a school division implement any and all parts of a child’s IEP that have been clearly consented to by the parent, even if the parent has refused consent for the implementation of some parts of the IEP? How does a school division determine what constitutes "clear" consent in these situations?

At times, IEP teams disagree on certain parts of a proposed IEP and agree on others. In such instances, it is not uncommon for parents to initial or write their names next to the provisions to which they agree with the other members of the IEP team. It is also common for parents during or after an IEP meeting, prior to consenting, to make hand-written notations on the proposed document in an attempt to consent to some, but not all, parts of the proposed IEP. Following an IEP meeting but prior to consent, parents may even, by handwritten notation, attempt to add services, or conditions to the provision of services, that were not reviewed by the other members of the IEP team.

Virginia Regulations clearly mandate school divisions to ensure that an IEP is implemented as soon as possible following parental consent to the IEP. (8 VAC 20-81-110 B.2). This regulation does not explicitly require the LEA to implement portions of the child’s IEP in the instance where the parent has not consented to the entire document; however, when read in conjunction with two other regulatory provisions, the law does not prohibit the LEA from implementing those parts of the IEP that are consented to by the parent, as it is critical that the student’s receipt of a free appropriate public education (FAPE) not be interrupted. (8 VAC 20-81-170 E.1.d, and 34 CFR § 300.300 (d)(2)). Thus, it is important that the denial of consent to one provision for a service not deny another which may be essential to the student’s receipt of FAPE.

For these reasons, VDOE has held historically and consistently that in such instances, the school division must implement those provisions on which the parties clearly agree and document what actions will be taken to resolve the items in dispute. If the parent’s notations are illegible, consent boxes are unclearly identified, and/or the parent provides commentary that make it impossible to ascertain the parent’s intentions to any degree of certainty, the IEP team may conclude that the parent has not "clearly" conveyed consent and provide the parent with prior written notice. If following an IEP team meeting but prior to consent, the parent provides notations attempting to add services or establishing conditions to the provision of services, another IEP team meeting needs to take place so that the other IEP team members review the additional requests and determine their appropriateness.

Additionally, there may be some situations in which the IEP team believes that the parent’s partial consent would actually impede the provision of FAPE. For instance, the parent and other team members agree on behavioral goals for the student, but the parent refuses consent for a more restrictive environment that the team contends will provide critical support for the achievement of the goals. In such cases, the team should provide prior written notice to the parent and consider available dispute resolution options.

Practice Tip

One practical way of processing this information is to present the parent with a "clean" copy of the proposed IEP, containing only those provisions that the LEA determines the parent has conveyed consent and requesting the parent to sign or initial consent on the "clean" IEP document. This suggestion does not eliminate the LEA’s responsibility for pursuing additional steps to resolve items in dispute in order to work towards a complete program of services for the child, and it does not eliminate the LEA’s responsibility for issuing a prior written notice in response to additional services or conditions that may have been requested by the parent.
Where the parent’s notations or comments on the proposed IEP document are readily comprehensible to the LEA, and where the parent has signed or initialed the proposed IEP document, subject to the limitations imposed by their notations or comments, it may not be necessary to present the parent with a "clean" copy of the IEP document.

http://www.doe.virginia.gov/special_ed/regulations/state/faq_implementing_regulations/2011/016-11_partial_parental_consent_iep.shtml