Daily Archives: October 14, 2015

Local Education Agency Committed a Procedural Violation by Disregarding an Adult Student’s Assignment of Educational Rights to Her Parents

GirardEdwards_image03

Author: Heather Edwards, Attorney at Law 

In Student v. Santa Clara Unified School District (OAH Case No. 2015030117), the Office of Administrative Hearings determined, among other things, that an adult student had validly assigned her educational decision-making authority to her parents. Although the school district committed procedural errors in disregarding the assignment, those errors did not result in a substantive denial of FAPE to Student.

FACTS:   Student was 19-years old and eligible for special education and related services under the category of autism. Student lived with her parents. The District did not honor Student’s assignment of her educational decision-making authority to her parents and instead addressed its offers of educational programming directly to Student and required the Student to consent to proposed IEPs, rather than her parents.  While OAH held that the District committed a procedural error by disregarding Student’s assignment of rights to her parents, it did not result in a substantive denial of FAPE in that the parents still attended the IEP meetings and their input was considered by the team.

DISCUSSION:  When a student with exceptional needs reaches the age of 18, the parent rights provided for in special education law transfer to the student. (Ed. Code § 56041.5.)  There are legal procedures, such as conservatorship, which result in an individual having the authority to make decisions for another adult.   However, not all adult-students may be impaired to the extent that they would legally qualify to be conserved.

While the Education Code does not specify how educational rights may be transferred from an adult student to another individual, special education hearing decisions have repeatedly upheld the right of the adult student to transfer their decision-making authority to a “parent.”  (See e.g. Student v. Fremont Union High School District (2009) Order on Motion For Stay-Put, OAH Case No,  2009080222, 4.)   These decisions recognize the assignment as valid if:

  • There is a clearly written designation of rights; and
  • The transfer is to someone who meets the definition of “parent” under Education Code, section 56028.  (See e.g. Student v. San Diego Unified School District (2013) Order on Motion to Dismiss, OAH case No,  2013030710, [Student could not transfer her parent rights to her attorney because attorney did not meet the legal definition of  “parent.”]

See also the federal regulation recognizing this situation in 34 CFR 300.520 providing that a State must establish procedures for appointing the parent of a child with a disability, or, if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of the child’s eligibility under IDEA if, under State law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child’s educational program.