La. Admin. Code tit. 28 § XLIII-1301

Current through Register Vol. 50, No. 9, September 20, 2024

Section XLIII-1301 - 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 gifted or talented student as defined in §1904 shall, after providing notice consistent with §1503, obtain written informed consent consistent with the definition of consent in §1 904, 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 an exceptionality.

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 an exceptionality, 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.

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 15 of these regulations (including the mediation procedures under §1504 or the due process procedures under §1507 through 1516) 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 §1320 and §1324 for the student.

B. Parental Consent for Services

1. A public agency that is responsible for making FAPE available to a student with an exceptionality shall obtain informed written 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 or refuses to consent to services under Subsection B of this Section, the public agency may not use the procedures in Chapter 15 of these regulations (including the mediation procedures under §1504 or the due process procedures under §1507 through 1516) in order to obtain agreement or a ruling that the services may be provided to the student.

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

a. will not be considered to be in violation of the requirement to make FAPE available to the student for the failure to provide the student with the special education and related services for which the public agency requests consent; and

b. is not required to convene an IEP Team meeting or develop an IEP under §1320 and §1324 for the student for the special education and related services for which the public agency requests such consent.

C. Parental Consent for Reevaluations

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

a. shall obtain informed written parental consent, in accordance with §1301, prior to conducting any reevaluation of a student with an exceptionality;

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 §1107 and §1305 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. If the parent's decision is to withhold consent for the initial evaluation, a reevaluation or initial placement of the student in gifted and talented services, the LEA may not request a due process hearing following the procedures outlined in §1507 of these regulations.

2. The parent may refuse special education services and subsequent reevaluations.

3. 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.

4. 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.

5. If a parent of a student who is home schooled or placed in a private school by the parent at his or her 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

6. 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 §1322

La. Admin. Code tit. 28, § XLIII-1301

Promulgated by the Board of Elementary and Secondary Education, LR 36:2016 (September 2010).

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