IDEA--Reauthorized Statute

## **PROCEDURAL SAFEGUARDS: SURROGATES, NOTICE AND CONSENT**

**(See also Changes in Initial Evaluation and Reevaluation)**

The reauthorized *Individuals with Disabilities Education Act* (IDEA)
was signed into law on Dec. 3, 2004 by President George W. Bush. The
provisions of the act became effective on July 1, 2005, with the
exception of some of the elements pertaining to the definition of a
"highly qualified teacher" that took effect upon the signing of the act.
This is one in a series of documents, prepared by the Office of Special
Education and Rehabilitative Services (OSERS) in the U.S. Department of
Education, that covers a variety of high-interest topics and brings
together the statutory language related to those topics to support
constituents in preparing to implement the new requirements.[^1] This
document addresses only the changes to IDEA provisions regarding
procedural safeguards related to notice to parents, surrogate parents
and parental consent that took effect on July 1, 2005. It does not
address any changes that may be made by the final regulations.

# IDEA 2004:

# 1. Adds to the procedures for the appointment of a surrogate parent.

In the case of a child who is a ward of the state, a surrogate parent
may alternatively be appointed by the judge overseeing the child\'s
care, provided that the surrogate meets the requirements of Section
615(b)(2). \[615(b)(2)(A)(i)\]

In the case of an unaccompanied homeless youth as defined in Section
725(6) of the *McKinney-Vento Homeless Assistance Act* (42 U.S.C.
11434a(6)), the local education agency (LEA) shall appoint a surrogate
in accordance with Section 615(b)(2). \[615(b)(2)(A)(ii)\]

The state shall make reasonable efforts to ensure the assignment of a
surrogate not more than 30 days after there is a determination by the
agency that the child needs a surrogate. \[615(b)(2)(B)\]

# 2. Revises requirements regarding the provision of procedural safeguards notices to 

#  parents.

A copy of the procedural safeguards available to the parents of a child
with a disability shall be given to the parents only one time a year,
except that a copy also shall be given to the parents:

-   Upon initial referral or parental request for evaluation;

-   Upon the first occurrence of the filing of a complaint under Section
    615(b)(6); and

-   Upon request by a parent.

An LEA may place a current copy of the procedural safeguards notice on
its Internet Web site if such Web site exists. \[615(d)(1)\]

# 3. Adds to required notice content, requirements for due process hearing requests and civil 

#  actions.

The procedural safeguards notice shall include a full explanation of the
procedural safeguards...relating to...

-   The opportunity to present and resolve complaints, including:

    -   The time period in which to make a complaint;

    -   The opportunity for the agency to resolve the complaint;

    -   The availability of mediation; and

        -   Civil actions, including the time period in which to file
            such actions.

\[615(d)(2)(E), (K)\]

# 4. Allows a new method of providing notices required under Section 615.

A parent of a child with a disability may elect to receive notices
required under Section 615 by an electronic mail (e-mail) communication,
if the agency makes such option available. \[615(n)\]

# 5. Specifies that LEAs may not use Section 615 remedies to obtain consent for services.

If the parent of a child for whom an agency is seeking consent to
provide special education and related services refuses to consent to
services under Section 614(a)(1)(D)(i)(II), the LEA shall not provide
special education and related services to the child by utilizing the
procedures described in Section 615. \[614(a)(1)(D)(ii)(II)\]

If the parent of such child refuses to consent to the receipt of special
education and related services, or if the parent fails to respond to a
request to provide such consent:

-   The LEA shall not be considered to be in violation of the
    requirement to make available a free appropriate public education
    (FAPE) to the child for the failure to provide such child with the
    special education and related services for which the LEA requests
    such consent; and

-   The LEA shall not be required to convene an individualized education
    program (IEP) meeting or develop an IEP under this section for the
    child for the special education and related services for which the
    LEA requests such consent.

\[614(a)(1)(D)(ii)(III)\]

# 6. Mandates consent for wards of the state.

If the child is a ward of the state (See Section 602(36)) and is not
residing with the child's parent, the agency shall make reasonable
efforts to obtain the informed consent from the parent (as defined in
Section 602) of the child for an initial evaluation to determine whether
the child is a child with a disability. The agency shall not be required
to obtain informed consent from the parent of a child for an initial
evaluation to determine whether the child is a child with a disability
if:

-   Despite reasonable efforts to do so, the agency cannot discover the
    whereabouts of the parent of the child;

-   The rights of the parents of the child have been terminated in
    accordance with state law; or

-   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 child.

\[614(a)(1)(D)(iii)\]

[^1]: Topics in this series include: Alignment With the *No Child Left
    Behind Act*; Changes in Initial Evaluation and Reevaluation;
    Children Enrolled by Their Parents in Private Schools; Discipline;
    Disproportionality and Overidentification; Early Intervening
    Services; Highly Qualified Teachers; Individualized Education
    Program (IEP) Team Meetings and Changes to the IEP; Individualized
    Education Program (IEP); Local Funding; National Instructional
    Materials Accessibility Standard (NIMAS); Part C Amendments in *IDEA
    2004*; Part C Option: Age 3 to Kindergarten Age; Procedural
    Safeguards: Surrogates, Notice and Consent; Procedural Safeguards:
    Mediation and Resolution Sessions; Procedural Safeguards: Due
    Process Hearings; Secondary Transition; State Funding; and Statewide
    and Districtwide Assessments. Documents are available on the OSERS
    Web site at: www.ed.gov/about/offices/list/osers/index.html.