No. 40274 (Emergency Rule): Rule R277-752. Adult Students with Disabilities and Informed Consent

DAR File No.: 40274
Filed: 03/18/2016 03:24:13 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to provide procedures for: 1) determining of an adult student's ability to make informed consent in the student's educational program; and 2) appointing a parent of an adult student with a disability, a former surrogate parent, or another appropriate official to represent the interests of an adult student with a disability throughout the student's eligibility for IDEA services.

Summary of the rule or change:

The rule provides definitions, as well as procedures for transfer of rights to informed consent, for determining ability to provide informed consent and appointment of an educational representative, and for applicability of rule to adult students with disabilities.

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: 20 U.S.C. 1415(m)(2) requires the state to establish procedures for appointing the parent of a child or other individual to represent certain adult students with disabilities throughout the student's eligibility for IDEA services.

State statutory or constitutional authorization for this rule:

• Subsection 53A-1-402(1)(c)
• Article X, Section 3
• 20 U.S.C. 1415(m)(2)
• Subsection 53A-1-401(3)
• 34 CFR 300.520(b)

Anticipated cost or savings to:

the state budget:

This new rule provides procedures regarding adult students with disabilities and informed consent, which likely will not result in a cost or savings to the state budget.

local governments:

An LEA may be required to update special education policies and procedures, which likely will not result in a cost or savings to local government.

small businesses:

This new rule provides procedures regarding adult students with disabilities and informed consent, which likely will not result in a cost or savings to small businesses.

persons other than small businesses, businesses, or local governmental entities:

This new rule provides procedures regarding adult students with disabilities and informed consent, which likely will not result in a cost or savings to persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

This new rule provides procedures regarding adult students with disabilities and informed consent, which likely will not result in any compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

To the best of my knowledge, there should be no fiscal impact on businesses resulting from the amendments to the rule.

Sydnee Dickson, Interim State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, or by Internet E-mail at [e-mail]

This rule is effective on:

03/18/2016

Authorized by:

Angela Stallings, Associate Superintendent, Policy and Communication

RULE TEXT

R277. Education, Administration.

R277-752. Adult Students with Disabilities and Informed Consent.

R277-752-1. Authority and Purpose.

(1) This rule is authorized by:

(a) Utah Constitution Article X, Section 3, which vests general control and supervision of public education in the Board;

(b) Subsection 53A-1-402(1)(c), which directs the Board to adopt rules regarding services to students with disabilities;

(c) Section 53A-1-401(3), which allows the Board to adopt rules in accordance with its responsibilities;

(d) the Individuals with Disabilities Education Act, 20 U.S.C. 1415(m)(2); and

(e) 34 CFR 300.520(b).

(2) The purpose of this rule is:

(a) to adopt procedures for determination of an adult student's ability to make informed consent in the student's educational program;

(b) to adopt procedures for appointing a parent of an adult student with a disability, or if a parent is not available and willing, a former surrogate parent or another appropriate individual to represent the educational interests of the adult student with a disability throughout the period of IDEA eligibility; and

(c) not to replace the other legal options for participating in the decision making process for an adult student with a disability's education program.

 

R277-752-2. Definitions.

(1) "Adult student with a disability" means:

(a) a student who has reached the age of majority; and

(b) meets eligibility criteria for special education and related services, as defined in Board special education rules.

(2) "Age of majority" means age 18 or over for a student with a disability who has not been determined to be incompetent under state law.

(3) "Educational representative" means a person who:

(a) represents the educational interests of an adult student with a disability throughout the period of IDEA eligibility; and

(b) is appointed as described in Subsection R277-752-4(8).

(4) "IEP team" means a group of individuals that is responsible for developing, reviewing, and revising an IEP for a student with a disability.

(5) "Informed consent" means that an adult student with a disability, the student's parent, or other appropriate individual has:

(a) all information relevant to the activity for which consent is sought in the student's native language or other mode of communication;

(b) understands and agrees in writing to the carrying out of the activity for which the student's consent is sought, and the consent describes that activity unless the records, if any, that will be released and to whom;

(c) understands that the granting of consent is voluntary on the part of the student and may be revoked at any time;

(d) understands that revocation is not retroactive, i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked;

- (e) understands the revocation of consent for the student's receipt of special education and related services must be in writing with the LEA providing accommodations to accomplish a revocation in writing; and

(f) understands the LEA is not required to amend the student's educational records to remove any references to the student's receipt of special education and related services because of the revocation of consent.

(6) "LEA" includes, for purposes of this rule, the Utah Schools for the Deaf and the Blind.

(7) "Notice of Transfer of Rights" means the notification an LEA must provide to an adult student with a disability and the adult student's parent when the adult student reaches the age of majority.

(8) "Surrogate parent" means an individual formerly assigned to act as a parent for a student with a disability as required in Board special education rules.

 

R277-752-3. Notice of Transfer of Rights.

(1) An LEA shall provide a Notice of Transfer of Rights to both an adult student with a disability and either the parents, former surrogate parents, or guardians of an adult student with a disability within a reasonable time after an adult student with a disability reaches the age of majority, but no less than 30 days before a student's next annual IEP.

(2) A Notice of Transfer of Rights shall include:

(a) notice that an adult student with a disability has reached the age of majority causing the rights of parents or former surrogate parents under the IDEA to transfer to the adult student with a disability; and

(b) a copy to the adult student with a disability the procedural safeguards;

(c) a description of the rights transferred to an adult student with a disability based upon the LEA's policy;

(3) Based upon LEA policy, a Notice of Transfer of Rights may include:

(a) options for an adult student with a disability and parents that may include:

(i) limited power of attorney;

(ii) guardianship; or

(iii) a determination by two or more professionals' written certification that the professional determined the adult student with a disability lacks the ability to provide informed consent with respect to the student's education program pursuant to R277-752;

(b) copies of forms to facilitate options identified in Subsection R277-752-3(3)(a), which may be created by the Board's office;

(c) links to resources; and

(d) any other information an LEA deems appropriate to assist the adult student with a disability and parent, former surrogate parent, or guardian.

 

R277-752-4. Procedure for Determining Ability to Provide Informed Consent and Appointment of Educational Representative.

(1) An adult student with a disability is presumed to be capable of making the student's own decisions.

(2) In accordance with the requirements of Subsection (3), the presumption in Subsection (1) is rebuttable if an adult student with a disability is determined by two or more professionals' written certification, to lack the ability to provide informed consent with respect to the student's educational program.

(3) To rebut the presumption, as described in Subsection(2), at least one professional from each of the following two lists shall determine whether an adult student with a disability lacks the ability to provide informed consent with respect to the student's educational program:

(a) at least one of the following:

(i) a medical doctor licensed in the state where the doctor practices medicine;

(ii) a physician's assistant whose certification is countersigned by a supervising physician meeting the criteria specified in Subsection (3)(a)(i); or

(iii) a certified nurse practitioner; and

(b) at least one of the following:

(i) a licensed clinical psychologist;

(ii) a licensed clinical social worker;

(iii) an attorney who is qualified to serve as a guardian ad litem for adults; or

(iv) a court-appointed special advocate for the adult student with a disability.

(4) A written certification described in Subsection (2) shall include at least the following:

(a) name of the adult student with a disability being evaluated;

(b) name of the professional examining, observing, or interviewing the adult student with a disability;

(c) professional degree or license that demonstrates that the professional qualifies to make the determination and certification;

(d) statements that demonstrate the professional's determination:

(i) is based upon personal examination, observation, or interview of the adult student with a disability as necessary to determine the student's ability or lack thereof to provide an informed consent with respect to the student's educational program;

(ii) is supported by specific factual information or data obtained in the personal examination, observation, or interview of the adult student with a disability;

(iii) that the adult student with a disability lacks the ability to provide an informed consent with respect to the student's education program;

(iv) that the professional informed the adult student with a disability of the professional's determination verbally or in writing;

(v) of how often a review of the adult student with a disability's lack of ability to provide informed consent shall be made, and why, but which may not be less than annually;

(e) a declaration that the professional has read and understands:

(i) all parts of the determination process; and

(ii) the professional's duty to determine the adult student with a disability's ability to provide informed consent with respect to the student' s educational program under the IDEA based upon examination, observation, or interview of the adult student with a disability;

(f) the signature of the professional;

(g) the title of the professional;

(h) the address and email of the professional;

(i) the phone number of the professional;

(j) a witness's signature;

(k) the witness's address or email; and

(l) the witness's phone number.

(5) A professional who provides a written certification described in Subsection (2) may not:

(a) be an employee of the LEA currently serving the adult student with a disability; or

(b) be related by blood or marriage to the adult student with a disability.

(6) A professional determination certifying an adult student with a disability is incapable of providing informed consent may be made as early as 60 calendar days prior to the adult student with a disability's age of majority or within a reasonable time for the parent, former surrogate parent, or other appropriate individual to represent the educational interests of the adult student with a disability by participating in the annual IEP meeting.

(7) An individual who seeks to have a determination and certification made by two or more professionals as described in this R277-752-3 shall:

(a) be responsible to pay the costs for the professional's examination, observation, or interview of the adult student with a disability; and

(b) provide the professional determination and certifications to the LEA and anyone with priority described in Subsection (8) at least 10 days before the IEP meeting.

(8) Upon receiving two or more professional certifications of determination that an adult student with a disability lacks the ability to provide informed consent with respect to the student's education program, the LEA shall appoint an educational representative in the following order:

(a) first, the spouse of an adult student with a disability if married;

(b) if there is no spouse or the spouse is unavailable or unwilling, then the parents of the adult student with a disability;

(c) if the parents are unavailable or unwilling, then a former surrogate parent; or

(d) if there is no former surrogate parent or the former surrogate parent is unavailable or unwilling, then another appropriate individual under the circumstances.

(9)(a) Recertification of an adult student with a disability's inability to provide informed consent shall occur at least 45 days before the annual IEP team meeting where the adult student with a disability's educational program will be discussed and consented to for the next year.

(b) The recertification process shall consist of all requirements as set forth in these procedures for certification.

(10) A professional's determination and certification, or the LEA's appointment of an educational representative may be challenged by one of the following individuals subject to the following priority:

(a) a court appointed guardian;

(b) the adult student with a disability;

(c) the spouse of the adult student with a disability;

(d) a parent of the adult student with a disability;

(e) the nearest living relative of the adult student with a disability;

(f) a person who:

(i) is seeking guardianship of the adult student with a disability; and

(ii) has provided a copy of the guardianship documents filed in court; or

(g) any individual with a bona fide interest in and knowledge of the adult student with a disability's ability to consent to the student's educational program.

(11)(a) A challenge to a professional determination and certification or the LEA's appointment of an educational representative shall be provided in writing to the LEA.

(b) If a person making a challenge is unable to provide the challenge in writing, an LEA shall:

(i) obtain information related to the challenge described in Subsection (11)(a) from the person making the challenge; and

(ii) complete the written challenge for the person.

(c) If a person making a challenge described in Subsection (11)(a) uses alternative communication, an LEA shall reasonably accommodate the person to obtain the challenge in writing.

(12) Upon receiving a challenge described in Subsection (11)(a), an LEA shall provide the following to the adult student with a disability and the student's educational representative:

(a) a copy of the challenge described in Subsection (11); and

(b) notice of action the LEA will take, which may include:

(i) the transfer of all educational rights back to the adult student with a disability;

(ii) holding an IEP meeting for the purpose of compliance with IDEA with the adult student with a disability and the individual with priority described in Subsection (10); or

(iii) any other action the LEA will take while the challenge is resolved through the process set forth in Board special education rules.

 

R277-752-5. Applicability of Rule to Adult Students with Disabilities.

(1) This rule only applies if:

(a) the presumption that an adult student with a disability is capable of making the student's own decisions is rebutted as set forth in R277-752-4; and

(b) the adult student with a disability has not been determined to be incompetent by a court.

(2) This rule does not apply if:

(a) there is a valid limited power of attorney, that is signed by the adult student with a disability and a parent or other appropriate individual, to allow the parent or other appropriate individual to represent the educational interests of the adult student with a disability throughout the IDEA eligibility period; or

(b) there is a court-issued guardianship decree that provides that the guardian will represent the educational interests of the adult student with a disability throughout the IDEA eligibility period.

 

KEY: special education

Date of Enactment of Last Substantive Amendment: March 18, 2016

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53A-1-402(1)(c); 53A-1-401(3); 20 U.S.C. 1415(m)(2); 34 CFR 300.520(b)

 

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