Transferring Special Education Rights from Parents to Students
In special education law, parents hold a student’s educational decision-making rights until they transfer to the student. Students with disabilities have many rights connected to special education and related services. This publication explains how special education decision-making rights transfer from parents to students, the definition of a “parent” in special education law, rights of students once transfer occurs, and rights the student has when preparing for transition out of high school. This publication is based on Washington State and federal law and assumes the reader has basic familiarity with the special education Individualized Education Program (IEP) process.
What is the process for a student to take over their educational decision-making?
At least one year before a student turns 18, the student’s IEP must contain a statement that says the student has been informed of what rights will transfer to the student upon reaching age 18. Unless certain circumstances apply (explained below), when a student turns 18, a student’s educational rights are transferred from the parents to the student. Students who hold their own education rights can authorize any adult to make educational decisions for the student by using a power of attorney. A power of attorney is a document granting a competent adult the authority to make certain decisions on the behalf of another competent adult.
Who is a “parent” for purposes of special education law?
A “parent” is defined as:
- a student’s biological or adoptive parent;
- a foster parent;
- a guardian authorized to act as the student’s parent or make educational decisions for the student;
- a person acting in place of a biological or adoptive parent, such as a stepparent, grandparent, or other relative with whom a student lives, or someone who is legally responsible for the student’s welfare; or
- a surrogate parent appointed by the school district.
After the age of 18, if a student holds their own educational rights, the student is considered a “parent” for the purposes of special education law.
Prior to transfer of rights, parents have the opportunity to observe the student in a school setting to better understand the strengths and needs of the student. All school districts must have a policy in place that outlines school procedures for allowing these observations.
What can prevent a student from having their special education rights transferred to them?
In some situations, students who are 18 or older do not hold their education rights, but this only happens if the student has a court-appointed guardian or if a certification process is followed. If a court has appointed a legal guardian for the student, the guardian will represent the student’s educational rights. Also, students who do not have appointed guardians may be certified for one year as unable to make educational decisions if two separate professionals state in writing that they have conducted a personal examination or interview with the student, the student is incapable of providing informed consent to make educational decisions, and the student has been informed of this decision. If this certification happens, the school district will assign an educational representative to the student. Certification of a student’s inability to make educational decisions can be challenged at any time by the student or an adult with a real interest in and knowledge of the student.
What rights do students get when they take over their educational rights from their parents?
A student who holds their own educational rights has all the rights their parents had, including the right to:
- Know what disability the student has, how it may affect their ability to learn and live independently, and consent to proposed services for that disability.
- Ask for an IEP meeting or a student reevaluation.
- Attend a meeting to develop the student’s IEP, which must be held within 30 calendar days of a determination of the student’s eligibility for special education and related services.
- Receive notification in advance of a mutually agreed on date, time, and location of the student’s IEP meeting so the student has an opportunity to attend.
- Be informed if a member of the IEP team cannot be present at the meeting or does not need to be present. The school and student must agree to excuse the team member.
- Take part in the student’s IEP meetings and be a part of the IEP team. If educational rights have not been transferred yet, the student should be part of the IEP team whenever this is appropriate.
- Invite people who know or have special expertise about the student, like a mentor or friend, to the IEP meeting to be part of the IEP team.
- Receive necessary accommodations at IEP meetings (related to accessibility, interpreters, etc.).
- Know and understand how the school district will measure the student’s progress toward meeting measureable annual goals.
- Receive periodic progress reports showing the progress the student is making toward their annual goals.
- Review their educational records and get a copy of the student’s most current IEP at no cost.
- Receive necessary related services. This may include, but is not limited to, transportation, physical therapy, occupational therapy, medical services, psychological services, speech-language pathology services, and counseling services.
- Request and receive a completed reevaluation within 35 school days after the date the student gave the school district written permission to reevaluate the student.
- Disagree with an evaluation, request an independent educational evaluation, and receive information from the district about independent evaluators.
- File a citizen complaint, request a due process hearing, or request mediation if a student has a special education dispute with the school.
What rights does a student receiving special education services have when preparing for life after high school?
Schools must help students receiving special education and related services prepare for life after high school by providing transition services. Transition services are designed to prepare students for activities after high school like postsecondary education, vocational education, employment, continuing and adult education, adult services, independent living, and community participation.
By age 16, a student’s IEP must include measurable postsecondary goals based on age-appropriate transition assessments and must describe transition services needed to help the student reach those goals. This transition planning may occur before age 16 if the IEP team determines this is appropriate. Students must be invited to IEP meetings whenever the purpose of the meeting is to discuss postsecondary goals and transition services. For more information on transition services, visit the Center for Change in Transition Services website.
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