LEGAL GUIDE
Written by attorney Diane Wiscarson | Aug 13, 2010

Age of Majority: A Guide for Parents of Individuals with Disabilities - Education

Unless other provisions are made, when a student attains the age of 18, years all of the rights previously held under Individuals with Disabilities Education Act (IDEA) by the parent transfer to the student. The parent will still receive written notice of meetings and Prior Written Notice of special education actions, but will only attend the meetings and participate at the invitation of either the student or the school. All decision making power and procedural safeguard rights attributed to parents in IDEA transfers to the student. Transfer of rights is addressed in 20 USC 1415 (m), 34 CFR 300.520, ORS 343.181, OAR 581-015-2325 to 2330, RCW 28A.155.090 and WAC 392-172A-05135.

Guardianship

If the adult student has a guardian, one of the areas the guardian can be given authority over is education. A guardian with educational authority has the same rights as a parent of a student that has not reached the age of majority.

Surrogacy

An educational surrogate is an individual appointed by either the district or a juvenile court that makes educational decisions for a student. Upon reaching the age of majority a student has the right to request that the district appoint an educational surrogate to take over the rights that transferred to the student from the parent. Most often, the student sends a letter to the district requesting that the parent be appointed as his/her surrogate and the district sends a letter accepting that appointment.

The appointment of a surrogate can be terminated at anytime by the adult student or the surrogate, but the district can only terminate a surrogate if the surrogate no longer meets the criteria. A district cannot choose to appoint or terminate a surrogate because the parent, adult student or surrogate is being either non-responsive or uncooperative with the district’s views.

To become an educational surrogate, an individual must meet the following criteria:

· The individual must have the knowledge and skills to ensure that the child is adequately represented in decisions about special education.

· The individual may not be an employee of the school district or the Department of Education. However, surrogates shall not be considered employees of a school district solely on the basis of being compensated from public funds.

· The individual must not be an employee of any other agency involved in the education or care of the child, except of non-public agencies that provide only non-education care for the child.

· The individual must be free of any other interest that conflicts with the child’s interest.

A surrogate parent is responsible for the following:

· Representing the child in all matters related to the identification, evaluation, annual IEP, and educational placement of the child.

· Protecting the special education rights of the child.

· Learning about the child's disability and understanding the special education needs of the child.

· Representing the child in all matters relating to a free appropriate public education (FAPE).

Surrogate Parents for education are addressed in OAR 581-015-2320 and WAC 392-172A-05130.

Higher Education and § 504 Accommodations

The most important thing to know about higher education is that IDEA does NOT apply to colleges and universities. Students who have graduated with a regular diploma are no longer eligible for any special education services. Students ages 18-21 who have graduated with an alternative diploma are eligible for transition programs provided by their school districts aimed at teaching the student the skills needed to live independently, such as buying and preparing food, budgeting, renting an apartment etc.

The only legal supports that remain for students with disabilities in higher education are the ADA and § 504 of the Rehabilitation Act. Combined, these laws require that colleges and universities receiving federal funds make their programs accessible to qualified individuals with disabilities. Making programs accessible includes providing reasonable accommodations at no cost to the student. To access these accommodations, students need to contact the disability services office at their school and request specific accommodations. Reasonable accommodations can include accessible classroom and living spaces, note takers, qualified interpreters, TTY access and alternate format texts. The requirement that programs be accessible extends to extracurricular offerings as well as classes. See the attached FAQ for specific questions.

Again, the school has NO responsibility to provide accommodations unless the student requests them through the disability services office.

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