1. (a) Parental consent for initial evaluation.

   1. (1) The public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability under 34 C.F.R. § 300.8 must, after providing notice consistent with 34 C.F.R. §§ 300.503 and 300.504, obtain informed consent, consistent with 34 C.F.R. § 300.9, from the parent of the child before conducting the evaluation.
   2. (2) Parental consent for initial evaluation must not be construed as consent for initial provision of special education and related services.
   3. (3) The public agency must make reasonable efforts to obtain the informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability.

   4. (4) For initial evaluations only, if the child is a ward of the state and is not residing with the child’s parent, the public agency is not required to obtain informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability if:

      1. (A) Despite reasonable efforts to do so, the public agency cannot discover the whereabouts of the parent of the child;
      2. (B) The rights of the parents of the child have been terminated in accordance with state law; or
      3. (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 child.

2. (b)

   1. (1) If the parent of a child with a disability enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation or the parent fails to respond to a request to provide consent, the public agency may, but is not required to, pursue the initial evaluation of the child by using the due process procedures under 6 CAR § 130-1001 et seq., and 34 C.F.R. §§ 300.507 – 300.516, or the mediation procedures under 6 CAR § 130-1001 et seq., and 34 C.F.R. § 300.506 if appropriate, except to the extent inconsistent with state law relating to parental consent.
   2. (2) The public agency does not violate its obligation under 34 C.F.R. §§ 300.111 and 300.301 – 300.311 if it declines to pursue the evaluation.

3. (c) Parental consent for services.

   1. (1) A public agency that is responsible for making FAPE available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child.
   2. (2) The public agency must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child.
   3. (3) If the parent of a child fails to respond or refuses to consent to services under this section, the public agency may not use mediation procedures under 34 C.F.R. § 300.506 or due process procedures under 34 C.F.R. §§ 300.507 – 300.516 in order to obtain agreement or a ruling that the services may be provided to the child.

   4. (4) If the parent of the child 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:

      1. (A) Will not be considered to be in violation of the requirement to make available FAPE to the child for the failure to provide the child with the special education and related services for which the public agency requests consent; and
      2. (B) Is not required to convene an IEP team meeting or develop an IEP under 34 C.F.R. §§ 300.320 and 300.234 for the child for the special education and related services for which the public agency requests such consent.

4. (d) Failure to respond to request for reevaluation.

   1. (1) Each public agency must obtain informed parental consent, in accordance with 34 C.F.R. § 300.300(a)(1), prior to conducting any reevaluation of a child with a disability.
   2. (2) If the parent refuses to consent to the reevaluation, the public agency may, but it is not required to, pursue the reevaluation by using the consent override procedures described in 34 C.F.R. § 300.300(a)(3).
   3. (3) The public agency does not violate its obligations under 34 C.F.R. §§ 300.111 and 300.301 – 300.311 if it declines to pursue the evaluation or reevaluation.

   4. (4) Informed parental consent need not be obtained for reevaluation if the public agency can demonstrate that:

      1. (A) It made reasonable efforts to obtain such consent; and
      2. (B) The child's parent has failed to respond.
   5. (5) To meet the reasonable efforts requirement in subdivision (c)(2) of this section, the public agency must document its attempts to obtain parental consent using the procedures in 34 C.F.R. § 300.322(d).

5. (e) Other consent requirements.

   1. (1) Parental consent is not required before:

      1. (A) Reviewing existing data as part of an evaluation or reevaluation; or
      2. (B) Administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.
   2. (2) Limitation. A public agency may not use a parent's refusal to consent to one (1) service or activity under subsection (a) of this section to deny the parent or child any other service, benefit, or activity of the public agency, except as required by this part.

   3. (3) Parent of a child who is home schooled or placed in a private school by the parents.

      1. (A) If a parent of a child who is home schooled or placed in a private school by the parents at their 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 this section.
      2. (B) The public agency is not required to consider the child as eligible for services under 34 C.F.R. §§ 300.132 – 300.144.

6. (f) Students with disabilities who are covered by public benefits or insurance.

   1. (1) Consent. Prior to accessing a student’s or parent’s public benefits or insurance for the first time, and after providing notification to the student’s parents consistent with subdivision (f)(2) of this section, the public agency must obtain written consent from the parent that:

      1. (A) Meets the confidentiality requirements of 34 C.F.R. §§ 99.30 and 300.622, which require that the consent specify the:

7. (i) Personally identifiable information that may be disclosed (e.g., records or information about the services that may be provided to a particular student);

   1. (ii) Purpose of the disclosure (e.g., billing for special education services); and

      1. (iii) Agency to which the disclosure may be made (e.g., the state’s public benefits or insurance program, such as Medicaid); and
      2. (B) Specifies that the parent understands and agrees that the public agency may access the parent’s or student’s public benefits or insurance to pay for special education services provided by the public agency.

   2. (2) Notification. Prior to accessing a student’s or parent’s public benefits or insurance for the first time, and annually thereafter, the public agency must provide the student's parents with written notification, consistent with the requirements of 6 CAR § 130-904(c) and 34 C.F.R. § 300.503(c), that includes:

      1. (A) A statement of the parental consent provisions in subdivision (f)(1) of this section;
      2. (B) A statement that the parents are not required to sign up for or enroll in public benefits or insurance programs in order for their child to receive a free appropriate public education under Part B of the Individuals with Disabilities Education Act;
      3. (C) A statement that the parents are not required to incur an out-of-pocket expense, such as the payment of a deductible or co-pay amount, incurred in filing a claim for services provided;

      4. (D) A statement that the public agency may not use the student's benefits under a public benefits or insurance program if that use would:

         1. (i) Decrease available lifetime coverage or any other insured benefit;
         2. (ii) Result in the family paying for services that:
8. (a) (a) Would otherwise be covered by the public benefits or insurance program; and

9. (b) (b) Are required for the student outside of the time the student is in school;

   1. (iii) Increase premiums or lead to the discontinuation of benefits or insurance; or

      1. (iv) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures;
      2. (E) A statement that the parents have the right, pursuant to 34 C.F.R. pts. 99 and 300, to withdraw their consent to disclosure of their child’s personally identifiable information to the agency responsible for the administration of the state’s public benefits or insurance program (e.g., Medicaid) at any time; and
      3. (F) A statement that the withdrawal of consent or refusal to provide consent under 34 C.F.R. pts. 99 and 300 to disclose personally identifiable information to the agency responsible for the administration of the state’s public benefits or insurance program (e.g., Medicaid) does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

10. (g) Students with disabilities who are covered by private insurance.

    1. (1) With regard to services required to provide a free appropriate public education to an eligible student under 34 C.F.R. pt. 300, a public agency may access the parents’ private insurance proceeds only if the parents provide consent consistent with 6 CAR § 130-212.

    2. (2) Each time the public agency proposes to access the parents’ private insurance proceeds, the agency must:

       1. (A) Obtain such parental consent; and
       2. (B) Inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

Codification Notes: The Individuals with Disabilities Education Act is codified at 20 U.S.C. § 1400 et seq.