Should parents ever waive special education rights?
Updated: Feb 28, 2020
School districts often ask parents to waive special education rights, and sometimes parents choose to waive these rights without any encouragement from the school district. Understanding whether you should waive rights in any given situation can be challenging.
What are waivers?
Waivers are the intentional and voluntary abandonment of a legal right. For there to be an enforceable waiver of special education rights, your child’s school district must provide you with notice of the right you are giving up and enough information to make a reasonable decision about the waiver.
Prior written notice
The Individuals with Disabilities Education act (IDEA) requires school districts provide a notice to parents a reasonable time before the school district proposes to initiate or change the identification, evaluation or educational placement of a child or the provision of a free appropriate public education (FAPE) to the child, or refuses to do so.
What special education rights can be waived?
Parents knowingly and unknowingly waive several special education rights such as the following:
• A parent can waive the school district's initial evaluation o determine whether their child is eligible for special education and related services. Such a waiver may be accomplished during an informal conversation between the parent and school staff.
• A parent and a school district can agree to waive a student's reevaluation because they believe the evaluation is unnecessary. The decision to not reevaluate the child may save time and ensures uninterrupted services for the child. However, without up-to-date information from a comprehensive evaluation, the child's school program may not be designed to meet the child's unique needs.
• A parent and a school district can agree to waive the presence of IEP members for all or part of an IEP meeting. The disadvantage to the parent is that the team member is not present to answer the parent's questions and voice their opinions. The advantages the parent is being able to participate in the IEP meeting at a time that is convenient for the majority of the IEP team.
• A parent may waive their child's right to special education and related services. However, the child may needs these supports.
• If a parent files for due process to resolve a dispute with a school district, the parent and the school district may agree to waive the resolution meeting. Either the parent or the school district can waive mediation.
• If a parent's due process dispute with a school district settles, a settlement agreement will be written. The settlement agreement may include a provision that the parent waives certain rights as part of settlement. Parents must be very careful in waiving their rights in a written settlement agreement otherwise they may give up rights that they never intended to give up.
Waiving special education rights can prove to be problematic. For legal advice on whether to waive any of your special education rights, contact a special education attorney.
Education Attorney Molly Watson