The IDEA is a statute which outlines a great deal of both procedural and substantive rights conferred on children with disabilities, and their parents. Most parents do not realize is that, while there are specific obligations which school districts have to parents of students with special needs, the vast majority of the entitlements are for the children themselves. Until the child reaches the age of majority, the parents “hold” those rights for their children, and they can enforce them through any legal channels which are appropriate, from IEP Team Meetings, to litigation.
However, once a student with disabilities reaches the age of majority, their IDEA rights “transfer” from their parents, directly to them.
For most people, in most states, this means that upon the student’s eighteenth birthday, the student has legal decision-making with regard to their special education program. The IDEA states that this transfer may occur “except for a child who has been determined to be incompetent under State law.” The school district is obligated to provide notice to both the individual and the parents, including students who are incarcerated. There is a “special rule” for students who have reached the age a majority, who are not legally incompetent, but who are “determined not to have the ability to provide informed consent with respect to the educational program,” in which case the school district needs to have procedures in place to appoint the parent or another appropriate person if the parents are not available to “represent the educational interests of the child.” 20 USC 1415
If you do not believe that your child is capable of making his or her own decisions, it is important that you obtain legal decision-making authority in advance of the birthday on which the age of majority will be reached.
This can be tricky, and it is a difficult decision for parents to make. Whether a person is legally “competent” to make such decisions will be determined differently from State to State, so you need to find out what your State requires. Whether you need to go to the probate court or some other tribunal in order to obtain legal decision-making, it’s important to remember that this isn’t a question of whether you might be more wise, circumspect, or rational than your child. Courts will not declare an individual “incompetent” just because they have a disability (nor should they), nor will they defer to parents of adult children because they are more likely to make sound choices. Legal incompetence really gets at people who are not capable of making their own decisions for any number of reasons.
Some students are legally competent to make educational decisions, but they decide to have their parents act on their behalf anyway.
This is perfectly legal, but your school district should require written authority for this, such as a notarized letter from the student or a power of attorney. Even if this happens, the school will continue to send legal documents, such as invitations for IEP meetings or consents to evaluate, directly to the student and the parents as well. For authorization on legal documents like consent forms, it is almost always necessary to get the student’s own signature, even if the parents have been asked to continue making most educational decisions.
Because planning for the transfer of rights is not simple, preparation for it is supposed to occur at least a year before the student reaches the age of majority.
The IDEA requires that “beginning not later than one year before the child reaches the age of majority under State law, the IEP must include a statement that the child has been informed of the child’s rights under Part B of the Act, if any, that will transfer to the child on reaching the age of majority…” 34 CFR 300.320 Again, for most students, this means that by their seventeenth birthday at the latest, the school district should have informed them of the transfer of rights. If the age of majority is later in your State, for example 19, then you’d expect this discussion to occur prior to the eighteenth birthday. Check your State to see what the age of majority is for your child.
Properly notifying students that their rights under IDEA are about to be transferred to them is required by law, but is not necessarily being done.
Unfortunately, this provision of the special education laws tends to be overlooked quite often. Whenever I am contacted by parents of students who are eighteen (the age of majority in Connecticut) or are about to turn eighteen, I’ll ask the parents and/or the student if the school district advised them that the special education rights are going to be transferred upon the student’s eighteenth birthday. On the few occasions where I get a “yes” to that question, it rarely has occurred prior to the seventeenth birthday, as required. Usually when it has happened, it has been a few months, weeks, or sometimes days, before the student turns eighteen, and the IEP Team Chair suddenly seems to remember this requirement.
Last-minute notification of the Transfer of Rights does not give the student, or the parents, enough time to prepare.
If it’s necessary to effectuate legal authority or decision-making for the parents, finding out right before a child reaches the age of majority that this needs to be done can effectively mean that it WON’T get done. Even if there is no need for the parents to obtain such authority, the student should be given time to learn about their rights and how to enforce them. That takes time and planning. To fail to give parents and students the required year’s notice is not just unfair, it’s a violation of the law.