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July 28, 2008

Tracy R. Justesen, Assistant Secretary

Office of Special Education and Rehabilitative Services

Office of the Assistant Secretary

United States Department of Education

400 Maryland Avenue, SW., Room 5107

Potomac Center Plaza

Washington, DC 20202--2600

RE: Notice of Proposed Rulemaking Involving 34 CFR Part 300 dated May
18, 2008 (73 FR 27690-27701)

Docket ID: ED--2008--OSERS--0005

Dear Assistant Secretary Justesen:

Thank you for the opportunity to submit comments for your consideration
on the proposed amendments to the Individual with Disabilities Education
Improvement Act of 2004 (IDEA) implementing regulations, codified at 34
CFR Part 300. We are writing on behalf of the California Association for
Parent-Child Advocacy, a collaborative, statewide organization that
monitors and responds to legislative and policy initiatives which would
affect the educational and lifelong prospects of students with
disabilities in California, to express our concerns regarding some of
the proposed regulatory changes.

Please accept the following comments in response to the proposed changes
to the implementing regulations issued on May 13, 2008 by the U.S.
Department of Education's Office of Special Education and Rehabilitative
Services (OSERS).

*[Parental Revocation of Consent for Special Education Services (§§
300.9 and 300.300)]{.underline}*

OSERS is proposing to amend Sections 300.9 and 300.300 of Title 34 of
the Code of Federal Regulations to "*permit parents to unilaterally
withdraw their children from further receipt of special education and
related services by revoking their consent...and \[prohibit\] public
agencies \[from taking\] steps to override a parent's refusal to consent
to further services.*" Further, OSERS proposed regulations "*would not
require public agencies, once they have obtained parental consent for
the initial provision of special education and related services, to
obtain parental consent...at any subsequent time.*

[Comment:]{.underline}

CAPCA has several concerns regarding this proposal. First, IDEA is
supposed to reflect a "dual advocacy" system in which both families and
school districts attempt to serve students, and while it would
unfortunately be a mistake to assume this consistently occurs, it
sometimes does.

CAPCA would support allowing districts to accept a parent's decision to
remove a child from special education and removing the current
obligation to file for hearing if necessary in order to ensure FAPE, but
would oppose absolutely barring districts from using mediation or due
process to seek continued provision of special education services.
Barring the use of mediation is particularly troubling, as this can be a
low cost, relatively nonadversarial way to seek common ground, which is
often an attainable goal because parents of students who have already
been identified as IDEA-eligible generally object to specific services,
not to the concept of special education. Even due process may be
necessary to protect student interests in some cases in which parents
are rejecting needed services even though they lack the willingness or
ability to provide adequate services on their own. Being barred from
using the IDEA dispute resolution procedures would place school
districts in a difficult dilemma: they might be required to provide
services under Section 504---to avoid discriminating against the
student---while being barred from providing them under IDEA. Disputes
might be relegated to the costlier judicial fora which are available for
Section 504 disputes.

Therefore, CAPCA would propose changing "may not" in 300.300(b)(3)(i) to
"may, but is not required to."

Second, it is critical that parents opting out of special education make
an informed decision to do so. Given the gravity of this decision, it is
necessary that specific requirements be created to ensure informed
consent.

CAPCA, therefore, proposes changing "revokes consent for the continued
provision of special education and related services" to "makes a written
request to discontinue the provision of any and all special education
and related services that includes all of the following: (1) a brief
description of the reason for this request; (2) a statement indicating
that this is a request for complete termination of special education
services and that while the parent understands procedures for
challenging the type, duration, frequency and location of special
education services, the parent does not choose to use those procedures
at this time; (3) a statement indicating the parent recognizes that
special education participation does not preclude participation in any
academic or non-academic activity offered by a school and avers that the
purpose of the withdrawal from special education is not to secure access
to a specific public school activity or program; (4) an acknowledgment
that reapplying for special education services may involve reassessment
and delay; and (5) an acknowledgment that the student may continue to be
protected as a student with a disability or with a history of a
disability or as a person perceived as having a disability under Section
504 of the Rehabilitation Act of 1973."

It is likely that districts would develop forms for parentally requested
exits from special education, impressing on parents the importance of
this decision, making it possible to identify cases in which the
parent's intention is to challenge a particular service rather than
special education placement in general; and reducing the risk that vague
or impulsive comments by parents will have far reaching consequences. In
addition, this requirement would reduce the risk that district staff
will falsely attribute to parents service termination requests which
were not actually made.

Third, though the IDEA typically glosses over the complexity of family
arrangements by referring to "a parent," revocation of consent for
ongoing services is one area in which that simply will not work, and in
which it is not acceptable to place on the parent wishing special
education services the burden of filing for hearing to maintain them. It
is not rare for parents to disagree about whether a student needs or is
benefiting from special education services. If a student is in a special
education program, receiving previously consented to services, the
consent of each legally responsible parent should be required to
discontinue services. A contrary rule would jeopardize educational
stability for children facing family conflict. Therefore, we propose
replacing "a parent" in 300.300(b)(4) with "each parent."

Unless these or very similar changes are made, the proposed amendments
allowing parents to revoke consent for their child to receive special
education and related services would confuse parents, result in
unintended and potentially disastrous service gaps, and encourage
deceptive, coercive and divisive tactics by school districts.

Finally, CAPCA strongly objects to the suggestion in the commentary that
if a parent rejects special education services, the child loses
protection in disciplinary situations. Students do not gain insight or
control over their behavior simply because their parents opt to provide
specialized services outside the school day or to forego such services.
If changes in discipline are contemplated, they should be the subject of
a rulemaking process, not simply commentary in this one.

*[Representation by Non-Attorneys in Due Process Hearings (§
300.512)]{.underline}*

[Comment:]{.underline}

CAPCA opposes OSERS's proposed amendments to the IDEA implementing
regulations, which would leave it up to states to regulate whether
non-attorneys can represent parents in due process proceedings. In some
states non-attorney representation is critical if parents are to have
any representation at all. Non-attorney representation has been a
virtual non-issue in California: one of the most prominent school
district representatives is not a lawyer and various out of state
lawyers practice in California, while non-attorney advocates
occasionally represent parents in due process. The IDEA implementing
regulations make clear that [any party]{.underline} has the right to
*"\[b\]e accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of children
with disabilities*". (34 CFR 300.512(a)(1) This language is consistent
with the OSERS' longstanding position and the current activities of many
states. Parents are well-advised to seek attorney representation if an
affordable lawyer with relevant background is available, and they do so;
here, non-attorney representation at due process comes up when, because
of geographic remoteness or financial considerations, parents' only
alternative to advocate representation is pro per status. From a distant
California perspective, it appears that Ms. Arons became a target
because she was so effective on her clients' behalf, not because of any
genuine quality control issues. The proposed regulation would open
throughout the entire country a can of worms that is currently an issue
in very few jurisdictions, leading to unnecessarily and costly
tangential disputes and detracting from the attention of families,
districts and hearing systems to the requirements of IDEA and the needs
of the students it aims to educate.

We appreciate your consideration of these comments.