KBS Reference Desk: Legal Rights for Special Education Students Transfer at Age 18 from Parent to Student

Q:        A high school student’s annual ARD is approaching. The student has turned 18 years old since his last ARD and has not been declared incompetent through a guardianship proceeding. Is the district required to invite the parent to attend the upcoming ARD? 

A:        No. Under Texas law, all parental rights under the Individuals with Disabilities Education Act (“IDEA”) transfer to the student at eighteen years old unless a court finds the student is incompetent pursuant to a guardianship proceeding. Following the transfer of rights, the district must still provide the parent with notice of an ARD, but there is no requirement that the parent be invited to attend, although both the district and the adult student have the ability to extend such an invitation at their discretion.

The transfer of parental rights under the IDEA is a matter of state law. 34 C.F.R. § 300.520(a); 20 U.S.C. § 1415(m)(1). In Texas, unless declared incompetent pursuant to a guardianship proceeding, all rights under the IDEA transfer from the parent to the student at the age of majority, which is eighteen years old. Therefore, as of the student’s eighteenth birthday, he or she has the right

·                     Attend ARDs and participate as a mandatory committee member;

·                     Receive prior written notice of ARD committee decisions;

·                     Consent to a reevaluation or to a change of placement;

·                     Seek an independent educational evaluation;

·                     Obtain his or her own education records; and

·                     Request mediation or a due process hearing.

The adult student may delegate some or all of these rights back to the parent through a validly executed power of attorney. Absent a power of attorney, however, the only right the parent retains after the student’s eighteenth birthday is the right to receive notice required under the IDEA. Notably, while the district must still provide the parent with notice of an ARD, the right to receive notice does not amount to an invitation to, or create a right for, the parent to attend. Both the district and the adult student may, at their discretion, extend such an invitation to the parent, but doing so is no longer required following the transfer of rights. If invited, the parent may provide input during the ARD, but it is the adult student who has the ultimate decision-making authority unless an educational power of attorney provides otherwise. See Tex. Educ. Code § 29.017; 19 Tex. Admin. Code § 89.1049; 34 C.F.R. § 300.520.

In the situation described above, because the student has reached the age of majority and has not been declared incompetent pursuant to a guardianship proceeding, all parental rights under the IDEA have transferred to the student. Absent a power of attorney by the student, the district is no longer obligated to invite the parent to the annual ARD, although it may do so at its discretion. While not required, it is generally advisable for the district to extend such an invitation because more often than not, the parent has knowledge and special expertise regarding the student that may be helpful to the ARD committee. In the event the student objects, consult with your school district’s attorney.