You're Not the Boss of Me Now

You're Not the Boss of Me Now
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You’re Not the Boss of Me Now

October 2021 | Issue #25

Most kids eagerly look forward to reaching adult milestones. At the age of 18, they are legal adults in California. Even the Department of Motor Vehicles agrees, and they are no longer considered ‘provisional’ licensees. In most cases, these brand-new adults are able to vote, join the military, sign contracts, request credit, get married, and seek medical treatment without parental consent even though they may still be living with their parents and attending school full-time. Before the candles on that 18th birthday cake are blown out, they have the freedom to make many decisions on their own, including their own educational decisions.

What about Suzy? She has an IEP.

The legal recognition of adult status is not limited to non-disabled 18-year-olds. The federal Individuals with Disabilities Education Act (IDEA) and California law both recognize that education rights for a student receiving special education supports and services transfer from the parent to the student immediately when the student turns 18. Notice of the transfer of education rights must be given to the student starting at least one year before his/her 18th birthday:

  • 34 C.F.R. § 300.320(c). Beginning not later than one year before the child reaches the age of majority under State Law, the IEP must include a statement that the child has been informed of the child’s rights under Part B of the Act, if any, that will transfer to the child on reaching the age of majority under § 300.520.

All students with disabilities are made aware through their IEP documents that they become their own education rights holders in accordance with 34 C.F.R. § 300.520 and California Education Code § 56041.5.

  • 34 C.F.R. § 300.520-Transfer of parental rights at age of majority.
  • (a) General. A State may provide that, when a child with a disability reaches the age of majority under State law that applies to all children (except for a child with a disability who has been determined to be incompetent under State law)—
  • (1)(i) The public agency must provide any notice required by this part to both the child and the parents; and (ii) All rights accorded to parents under Part B of the Act transfer to the child;
  • (2) All rights accorded to parents under Part B of the Act transfer to children who are incarcerated in an adult or juvenile, State or local correctional institution; and
  • (3) Whenever a State provides for the transfer of rights under this part pursuant to paragraph (a)(1) or (a)(2) of this section, the agency must notify the child and the parents of the transfer of rights.
  • (b) Special rule. 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 Part B of the Act 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.
  • Education Code § 56041.5. When an individual with exceptional needs reaches the age of 18, with the exception of an individual who has been determined to be incompetent under state law, the local educational agency shall provide any notice of procedural safeguards required by this part to both the individual and the parents of the individual. All other rights accorded to a parent under this part shall transfer to the individual with exceptional needs. The local educational agency shall notify the individual and the parent of the transfer of rights.

As parents, we never stop sharing our wisdom with our children. In many ways, we continue to guide them for years after they reach adulthood by sharing our own personal experiences and lessons learned. Despite the best of intentions, some parents may be faced with the situation where their child turns 18 and no longer wants their guidance on his/her educational program. A school district or Charter LEA cannot force an adult student to allow parent participation in the IEP process if the student is un-conserved or does not voluntarily provide authorization. An 18 year-old with his/her own educational rights and an IEP must sign informed consent for placement, services, and any assessments.

What if Suzy doesn’t want to, or can’t, be her own educational boss? There are some instances when 18-year-old students with IEPs will not grab the reins of their educational programs and may still expect their parents to continue to help with their special education program planning as part of their IEP team—that is the student’s choice to make. An adult student still receiving services under their IEP can choose to designate a parent or other trusted adult to be their educational rights designee after turning 18 without a formal court order. The adult student can also revoke that designation at any time and take back control of his/her education rights.

There will also be students who, because of their disability, lack the capacity to actively participate in their educational program development and may not be able to give informed consent for placement, services, or assessments. These students may lack the ability to understand giving consent to the appointment of a parent or other adult as their designated education rights holder, or what it means to choose to keep their own rights. As noted by Administrative Law Judge Cararea Lucier in a recent Office of Administrative Hearings decision declaring that a parent lacked standing to make educational claims on behalf of her 18 year-old child: “California law does not assume that students with intellectual disabilities are legally incompetent upon their 18th birthday (see Evidence Code § 700).” In cases involving students who are severely limited in their ability to understand, the parent or legal guardian may need to seek an order of conservatorship through the court to continue to act on behalf of the adult student and should start this process before the child turns 18.