November 23, 2015
Since my young son was diagnosed with high functioning autism while in kindergarten a few years ago, I have become more aware of the rights and requirements of the federal Individuals with Disabilities Education Act (IDEA), and have had my share of IEP meetings and updates with his schools. For others dealing with these issues, an interesting problem could arise when a child who is eligible to receive special educational services under IDEA turned 18 years old.
Prior to the child reaching the age of 18, the rights under IDEA would be accorded to the child’s parents. But when the child turns 18, the rights transfer to the child. This obviously brings up the issue of what happens if the child is not capable of exercising those rights? A newly proposed statute would allow several resolutions to this issue.
First, if the child has not previously been determined to be incapacitated, the child may delegate these rights to another adult. This could be done via a power of attorney or other document to be created by the South Carolina Department of Education.
Second, if the above cannot be accomplished, it would be possible for certain qualified licensed professionals to make a certification in writing that the student is incapable of providing informed consent to make educational decisions. This certification would allow the custodial parents of the child to make decisions as an educational representative, or if they are not available, certain other designated close family members. The child would have the chance to object to this certification, and a determination of incapacity pursuant to a guardianship proceeding would seem to take precedence over this certification.
This proposed act appears to make it somewhat easier for family members to maintain control over an adult student’s rights to an education under IDEA. Without these amendments it would seem that the only alternative would be to bring a guardianship proceeding in order to gain control over the right to make educational decisions. However, the guardianship proceeding might very well not be appropriate in every situation, and can be a costly endeavor.
This new proposed law seems to try to fill in this gap where somebody may have rights under the law but be unable to adequately and thoughtfully exercise those rights. If there is any news on this new law I will provide an update, so keep coming back.