3C - Consent December 2021

Explanation of Consent

Albuquerque Public Schools is required to receive consent from parents or guardians for evaluations of students and for the initial provision of special education and related services. It is the responsibility of the school district to promptly request parental consent to evaluate a child and to determine if the child needs special education and related services whenever a child is referred for an evaluation (34 CFR § 300.309(c).  It is APS’ expectation that evaluators will provide the parents with a copy of the Procedural Safeguards and request informed parental consent within ten school days of receiving a referral for evaluation from the SAT (See Student Assistance Team: General Screening and Student Intervention Guidelines for deadlines to convene the SAT and issue a Prior Written Notice of intent to evaluate or refusal to evaluate).

The Consent for Multidisciplinary Special Education Evaluation and Consent for Initial Special Education Services forms are used to obtain informed parental consent for evaluation and the initial provision of special education and related services.

The Revocation of Consent for Special Education and Related Services is designed to enable a parent or guardian to document in writing his or her revocation of consent.

If the parent or guardian wishes to revoke his/her consent after the child has begun receiving special education and related services, the parent or guardian shall be required to do so in writing.  (34 C.F.R. § 300.300(b) (4))

The parent’s or guardian’s withdrawal of consent does not negate or undo an action that has occurred in the period of time after the parent or guardian initially gave consent but before the parent or guardian withdrew it.  Additionally, Albuquerque Public Schools shall not amend or change, after the parent’s or guardian’s withdrawal of consent, the child’s education records to remove any references that the child previously received special education and related services.  (34 C.F.R. § 300.9(c) (2) and 34 C.F.R. § 300.9(c) (3))

Timeline after Gaining Consent

The District must conduct an initial evaluation within 60 days of receiving parental consent (34 CFR § 300.301©; NMAC 6.31.2 (1)(D)(I)(d). There are two exceptions to the 60-day evaluation timeline:
               1. If the parent of a child repeatedly fails or refuses to present the child for the evaluation, or

               2. If the child enrolls in a school of another public agency after the initiation of the evaluation and prior to a determination as to whether the child is a child with a disability (34 CFR §300.301 (d).

Consent for Initial Evaluations

“An initial evaluation of a child is the first complete assessment of a child to determine if the child has a disability under the Act, and the nature and extent of special education and related services required.  Once a child has been fully evaluated, a decision has been rendered that a child is eligible for services under the Act, and the required services have been determined, any subsequent evaluation of a child would constitute a reevaluation.”  (71 Fed. Reg. 46640 (August 14, 2006)); also, (OSEP Letter to Kaczynski (September 5, 2007))

Albuquerque Public Schools shall not conduct an initial evaluation of a child to determine whether the child is eligible under Part B of IDEA to receive special education and related services without first providing the parent or guardian with prior written notice of the proposed action as set forth in the “Prior Written Notice Procedural Directive” and obtaining the parent’s or guardian’s consent.  (34 C.F.R.   § 300.300(a))

Albuquerque Public Schools shall make reasonable efforts to obtain the parent’s or guardian’s informed consent for an initial evaluation to decide whether the child is a child with a disability.  (34 C.F.R. § 300.300(a) (1) (iii)) It is APS’ expectation that evaluators will request informed parental consent within ten days of receiving a referral for evaluation irrespective of the source of referral including a parent request for evaluation. The parent’s or guardian’s consent for initial evaluation shall not mean that the parent or guardian has also given his/her consent for Albuquerque Public Schools to start providing special education and related services to the child.  (34 C.F.R. § 300.300(a) (1) (ii))

Albuquerque Public Schools shall not use the parent’s or guardian’s refusal to consent to one service or activity as a basis for denying the parent or guardian of the child any other service, benefit, or activity, unless another Part B requirement requires the school district to do so.  (34 C.F.R. § 300.300(d) (3))

The screening of a child by district personnel to determine appropriate instructional strategies shall not be considered an evaluation for purposes of determining eligibility for special education and related services.  Therefore, screening may occur without obtaining informed parental consent.  (71 Fed. Reg. 46639 (August 14, 2006))

Parental consent shall not be required for observations conducted as part of routine classroom instruction and monitoring of the child’s performance before the child is referred for an evaluation.  (71 Fed. Reg. 46659 (August 14, 2006))

If the child is enrolled in public school or seeking to enroll in a public school and the parents or guardians have refused to provide consent or failed to respond to a request to provide consent for an initial evaluation, Albuquerque Public Schools may, but is not required to, seek to conduct an initial evaluation of the child by using the IDEA's mediation or due process complaint, resolution meeting, and impartial due process hearing procedures. Albuquerque Public Schools is not considered to be in violation of its child find obligations to locate, identify, and evaluate the child if it does not pursue an evaluation of the child in these circumstances.  (34 C.F.R. § 300.300(a) (3))

Special Rules for Initial Evaluation of Wards of the State

If a child is a ward of the state and is not living with his/her parent— Albuquerque Public Schools is not required to obtain consent from the parent for an initial evaluation to determine if the child is a child with a disability if:

• Despite reasonable efforts to do so, Albuquerque Public Schools  cannot discover the whereabouts of the child’s parent;
• The rights of the parents have been terminated in accordance with New Mexico state statute; or
• A judge has assigned the right to make educational decisions to an individual other than the parent and that individual has provided consent for an initial evaluation.

(34 C.F.R. §§ 300.300(a) (2) and 300.45)

Parental Consent for Services and Refusal of Services

Albuquerque Public Schools shall obtain the parent’s or guardian’s informed consent before providing special education and related services to the child for the first time.  (34 C.F.R. § 300.300(b) (1))

If after Albuquerque Public Schools has made reasonable efforts to obtain informed parental consent, the parent or guardian does not respond to a request to provide consent for the child to receive special education and related services for the first time, or if the parent or guardian refuses to give such consent or later revokes consent in writing, Albuquerque Public Schools shall not use the procedural safeguards (i.e., due process complaint, or an impartial due process hearing) to obtain agreement or a ruling that the special education and related services that were recommended by the child's IEP Team may be provided to the child without the parent’s or guardian’s consent. (34 C.F.R. § 300.300(b) (3))  However, Albuquerque Public Schools shall make reasonable efforts to obtain informed parental consent for the initial provision of special education and related services.  (34 C.F.R. § 300.300(b)(2))

If the parent or guardian refuses to give consent for the child to receive special education and related services for the first time, or if the parent or guardian does not respond to a request to provide such consent or later revokes consent in writing and Albuquerque Public Schools does not provide the child with the special education and related services for which it originally sought parental consent, Albuquerque Public Schools shall:

• Not be in violation of the requirement to make a free appropriate public education available to the child for its failure to provide those services to the child; and
• Not be required to have an IEP Team meeting or develop an IEP for the child for the special education and related services for which the parent’s or guardian’s consent was requested.

(34 C.F.R. §§ 300.300(b) (3) (iii) and 300.300(b) (4) (iii))

If the parent or guardian revokes his/her consent in writing at any point after the child is first provided special education and related services, then Albuquerque Public Schools shall not continue to provide such services, but shall provide the parent or guardian with prior written notice, as described in the “Prior Written Notice Procedural Directive,” before discontinuing those services.  (34 C.F.R. § 300.300(b)(4)(i))

Students under the age of 18 may not legally refuse services or revoke consent of services. Students age 18 or older may legally revoke services unless a guardian or representative is legally appointed to continue to make decisions on behalf of the student. A student’s refusal to access supports shall not be construed as a revocation of services. Parents or guardians of students under the age of 18, must be notified immediately of a student’s refusal of services. An IEP Team meeting, to include the parent or guardian, shall be convened at a mutually agreed on time to discuss reasons for the refusal of services and to discuss various options for the delivery of such services. All services, supports and accommodations must be written in the IEP and communicated with all staff who work with the student. Communication to staff must include how services are to be consistently implemented and how to respond to future refusal of services.

Consent for Reevaluations

Albuquerque Public Schools shall obtain the parent’s or guardian’s informed consent before it reevaluates the child, unless Albuquerque Public Schools can demonstrate that:

• It took reasonable steps to obtain parental consent for the child's reevaluation; and
• The parent or guardian did not respond.

(34 C.F.R. §§ 300.300(c)(1)(i) and 300.300 (c) (2))

If the parent or guardian refuses to consent to the child's reevaluation, Albuquerque Public Schools may, but is not required to, pursue the child's reevaluation by using the mediation, due process complaint, resolution meeting, and impartial due process hearing procedures to seek to override the parent’s or guardian’s refusal to consent to the child's reevaluation. (34 C.F.R. § 300.300(c) (1) (ii))

As with initial evaluations, Albuquerque Public Schools shall not violate its obligations under Part B of IDEA if it declines to pursue the reevaluation in this manner.  (34 C.F.R. § 300.300(c) (1) (iii))

Documentation of Reasonable Efforts to Obtain Consent

Albuquerque Public Schools shall maintain documentation of reasonable efforts to obtain parental consent for initial evaluations, to provide special education and related services for the first time, for a reevaluation, and to locate parents or wards of the state for initial evaluations.  The documentation shall include a record of Albuquerque Public Schools’ attempts in these areas, such as:

• Detailed records of telephone calls made or attempted and the results of those calls;
• Copies of correspondence sent to the parent or guardian and any responses received; and
• Detailed records of visits made to the parent’s or guardian’s home or place of employment and the results of those visits.

(34 C.F.R. § 300.300(d) (5))

Other Consent Requirements

Parental consent shall not be required before Albuquerque Public Schools may:

• Review existing data as part of the child's evaluation or a reevaluation; or
• Give the child a test or other evaluation that is given to all children unless, before that test or evaluation, consent is required from parents or guardians of all children.

(34 C.F.R. §§ 300.300(d)(1)(i) and (ii))

If the parent or guardian has enrolled the child in a private school at the parent’s or guardian’s own expense or if the parent or guardian is home schooling the child, and does not provide consent for the child's initial evaluation or the child's reevaluation, or fails to respond to a request to provide parental consent, Albuquerque Public Schools shall not use its dispute resolution procedures (i.e., mediation, due process complaint, resolution meeting, or an impartial due process hearing) and shall not be required to consider the child as eligible to receive equitable services (services made available to some parentally-placed private school children with disabilities).  (34 C.F.R. § 300.300(d) (4))

Administrative Position: Associate Superintendent for Special Education

Department Director: Executive Director of Compliance, Special Education

References

Legal Cross Ref.:

• 34 C.F.R. § 300.9
• 34 C.F.R. § 300.45
• 34 C.F.R.  § 300.300
• 71 Fed. Reg. 46639 (August 14, 2006)
• 71 Fed. Reg. 46640 (August 14, 2006)
• 71 Fed. Reg. 46659 (August 14, 2006)

Board Policy Cross Ref.:

• II Special Education

Procedural Directive Cross Ref.:

• Special Education – Prior Written Notice

Forms:

• Consent for Multidisciplinary Special Education Evaluation (contact Special Education)
• Consent for Initial Special Education Services (contact Special Education)
• Revocation of Consent for Special Education and Related Services (contact Special Education)

NSBA/NEPN Classification: IHBA

Introduced: April 1, 2011
Reviewed: April 12, 2011
Adopted: April 22, 2011
Reviewed: October 12, 2012
Revised: October 12, 2012
Reviewed: January 14, 2020
Revised: January 17, 2020
Reviewed: December 1, 2021
Revised: December 10, 2021

This page was last updated on: April 27, 2011.