Having a child with a disability can be stressful in many ways. Not the least is ensuring that your child receives the appropriate educational services that are necessary to progress in school. Having a grandchild, niece or nephew, or stepchild with a disability living with you can present even greater challenges to ensuring the child receives what he or she needs from the public school system. One of the major issues that may be an impediment to securing the appropriate services for the child is the question of who can make educational decisions and give consent for evaluations and services.
The term that is used in education law for the individual who can provide consent is “parent”. The term "parent" includes:
- birth or adoptive parent;
- guardian who is generally authorized to act as the child’s parent or authorized to make educational decisions for the child;
- a person acting in the place of a birth or adoptive parent, including a grandparent, stepparent, or other relative with whom the child resides; or
- a person who is legally responsible for the child’s welfare (but not the State if the child is a ward of the State).
Therefore in the area of foster care, caseworkers employed by the Administration for Children’s Services and foster care agencies do not fall within the definition of "parent" and can not sign consent for special education evaluations or services, even if parental rights have been terminated or surrendered.
The birth parent or adoptive parent is presumed to be the "parent" for special education decision-making purposes. That is unless he or she does not have legal authority to make educational decisions for the child. If the birth or adoptive parent no longer has legal authority to make educational decisions for a child, then any other individual, such as a grandparent, who meets the definition of “parent” may sign consent for evaluation or services.
If you have any questions regarding this or any other topic regarding special education procedures, please contact us.