Why is the Federal Government removing parental consent for special education services?

And what you can do about it

NOTE: Since we first released our article late last week, we received additional pertinent info, so we have updated below. We realize this is a complicated, thorny issue and are here to clarify/answer any questions you might have - please leave questions in the comments and we will get back to you!

Fairfax County Public Schools parent/advocate for disability rights, school board candidate Debra Tisler, who is featured in our forthcoming documentary “15 Days…” recently spoke with us about a proposed rule change to the Individuals with Disabilities Education Act (IDEA) that parents should be aware of:

“Specifically, the Secretary proposes to amend the IDEA Part B regulations to remove the requirement for public agencies to obtain parental consent prior to accessing for the first time a child's public benefits or insurance (e.g., Medicaid, Children's Health Insurance Program (CHIP) to provide or pay for required IDEA Part B services.”

The rule change is aimed at students with disabilities who are enrolled in Medicaid - the poorest students who are also, disproportionately black and brown - and would allow the school to access a child’s public benefits without the consent of their parents.

We cannot overstate how dramatic a change this is.

It is being characterized as an action to cut bureaucracy and increase federal funding to states for special education services - both things that most parents would agree are positive. However, in effect, the new rule will strip parents on public assistance of consent at key points in the process for receiving special education services for their children.

We want to bring your attention to the public comment period, which allows anyone to share their thoughts about the change on or before August 1st, 2023.

The IDEA ensures that children with disabilities have access to a “Free and Appropriate Public Education” (FAPE). In addition to creating guidelines for special education programs and mandating funding, the legislation enshrines parental rights. A key feature of these rights is “parental consent,” which is currently required at every step of the process- from initiating evaluation for special education services, to determining the diagnosis, to creating students’ Individualized Education Plans.

To help fund IDEA, the services of children who are enrolled in Medicaid or CHIP, are paid for through those programs, rather than by the school directly (schools get federal and state grants, but those typically don’t cover 100% of the additional cost for education students with disabilities).

In our conversation, Debra explains that a parent may withhold their consent for a school to access their child’s public benefits, if they believe the services being provided by the school do not match what is stated in their child’s IEP. From my own experience working with families who are in disputes with school districts, withholding consent at these key points in the process are essential for ensuring a child is receiving the appropriate services. It is often one of the few tools available to families — especially if a family does not have the resources to hire a lawyer.

The importance of obtaining parental consent “each time” a public agency wants to access a child’s public benefits, was re-emphasized by the U.S. Department of Education in a 2007 memorandum:

On the second page of the Memorandum, the Department of Education further clarified the intention of the additional layer of parental consent: “The Part B provisions in 34 CFR §300 .154(d)(2) are intended to ensure that the parent is fully informed of a public agency's proposed access of the child's or parents' benefits under a public benefits or public insurance program and provide written parental consent prior to the public agency's access to those public benefits or public insurance.”

In other words, a parent has the right to ensure that the services they agree to in their child’s IEP match what the school is actually providing and/or what they claim they are providing.

Despite the clear intent of the IDEA legislation with regards to parental rights, the Biden-Harris administration has signed Executive Orders 12866 and 13563, which have been interpreted by Secretary Cardona and the Department of Education as requiring a change to the rules surrounding parental consent with regard to access of public benefits. Additionally, Secretary Cardona is pointing to the Bipartisan Safer Communities Act, which calls for “the delivery of medical assistance to Medicaid and CHIP beneficiaries in school-based settings” for the expansion of the “capacity of state Medicaid agencies, local educational agencies, and school-based entities to provide assistance under Medicaid.”

Secretary Cardona’s reasoning is almost entirely focused on bureaucratic ease. The department claims that eliminating the consent requirement will save about fifteen minutes of time or about $16.76 per student. This breaks down to a savings of $13.16 for the school and $3.60 for the parents - because apparently a parent’s consent for their child who needs specialized education services can be quantified so precisely and is less valuable than cup of coffee.

The Federal Department of Education further claims that since “there are no comparable consent requirements prior to accessing public benefits for children without disabilities, the removal of this consent requirement would align public benefits consent requirements for children with disabilities to those for children without disabilities and ensure equal treatment of both groups of children.” They link 42 CFR 431.306 as evidence of this claim, but at least in my reading of the regulation, it does in fact require an agency to “obtain permission from a family or individual, whenever possible, before responding to a request for information from an outside source.”

This rule change also ignores the Federal Government’s own findings about the failure of some large districts to properly deliver and track services. For example, most recently, in November of 2022, the Office of Human Rights found that Fairfax County “failed to or was unable to provide FAPE to thousands of qualified students with disabilities . . . directed staff to apply an incorrect standard for FAPE . . . and that the Division did not accurately or sufficiently track services provided to students with disabilities.”

When there is zero accountability, is it any wonder that parents withhold their consent for services to be paid for through their child’s public benefits?

Yet, instead of using his resources at the federal government to help bring districts into compliance with basic reporting requirements that would allow parents to more clearly understand what services their child is receiving, Secretary Cardona is just getting rid of the requirement to involve parents in the conversation.

To be clear, parental consent will still be required for approval of a student’s IEP and parents will be notified the first time their public benefits are accessed and annually thereafter. However, by removing parental consent for access to public benefits each time, we remove an important layer of accountability for parents to ensure what they consented to in the IEP is actually being delivered. Again, this is important because when a parent can remove consent for a school to access funding through their child’s public benefits, the school is still responsible for paying for the service; and when a school has to pay for the service themselves, it is in their interest to close the accountability gap by ensuring the services match the needs of the student in a way the parent believes is best, so that in turn they can offset the costs through the public benefits.

When schools can access funding without accountability, they have no impetus to address the concerns of parents.

As a former public-school teacher who was involved in the development and implementation of hundreds of IEPs, and now as an advocate for families, the space between the services that are stated on paper and those actually provided is huge. It is routine for school officials falsify documentation and then use their “expertise” and jargon to bully parents (who are disproportionately low-income and often speak English as a second language) into accepting whatever it is the school is offering.

Similarly, I have listened to recordings of IEP meetings where there is a clear language barrier, and the school officials just push ahead, insisting a parent sign-on-the-line to give consent.

By further degrading the role of the parent in the IEP process, the Federal Government is signaling to schools that they can now have access to more funding with less accountability. This is good for no one - especially not for our most vulnerable students from low income families.

This rule change must also be viewed within the context of the push for “Community Schools.” These are schools that offer wrap-around services to “meet the needs of students and their communities.” Here is an example from Massachusetts:

According to the Learning Policy Institute, Community Schools “partner with community agencies and local government to provide an integrated focus on academics, health and social services, youth and community development, and community engagement.’ Many operate year-round, from morning to evening, and serve both children and adults. Although the approach is appropriate for students of all backgrounds, many community schools serve neighborhoods where poverty and racism erect barriers to learning, and where families have few resources to supplement what typical schools provide.”

Just as the idea of increasing funding and cutting bureaucracy sounds great, so does the notion of a community school. You would be surprised to learn then, that Community Schools are a teachers-union led initiative. In fact, in 2019, teachers in LA went on strike for 6 days and one of their big demands was to increase funding for Community Schools, while placing a cap on charter schools.

Recently at the annual representative assembly for the National Education Association President, the largest teachers union in the country, President Becky Pringle said that she wants every school to be a community school.

Similarly, Randi Weingarten, head of the American Federation of Teachers, the second largest teachers union in the country, has pushing for 25,000 Community Schools by 2025 (currently there about 10,000).

This is because community schools funnel more taxpayer money into public schools, which means more workers to hire, which means more people to become union members and pay dues. In fact, the AFT, is the nation’s fastest growing healthcare union. To put it simply, community schools are not about the community and they’re definitely not about the kids - they are about money and power for the union.

I believe this is one of the MOST IMPORTANT STORIES of the moment, yet likely due to its boring bureaucratic nature, it is not being covered anywhere.

Again, while the rule change may seem innocuous - a simple change in accounting that only concerns the bureaucratic administrators processing the paperwork - the implications are in fact far-reaching. Even before the past few legislative sessions and the transgender issue became the focus of our attention, many states had laws that allow for minors to consent to some medical procedures. As more schools offer more health care services, it will further blur the lines between parental rights, the rights of students, and the role of educators as well as government officials generally.

When Joe Biden says “they’re all our kids,” the President means that the government can decide what is best for your child, including the special education, mental health, and other health care services they require.

Please help get the word out by sharing this post on social media and in your group chats.

And don’t forget to leave a comment for the Department of Education.

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Stephanie is a former NYC public school teacher and has been working with Restore Childhood on our docuseries “15 Days…” Follow her on Twitter or Instagram