IEP Process

Adult Students with Disabilities

Students who are eligible for special education services under the IDEA (Individuals with Disabilities Education Act) are entitled to receive a FAPE (Free Appropriate Public Education) from age 3 through the school year in which they turn 21. (20 USC § 1412(a)(1)(A); 34 CFR § 300.101) Under the IDEA, when the student reaches the Age of Majority (age 18), all parental rights previously held by the parent transfer to the student unless there has been a determination that the student is incompetent. (20 USC §1415 (m); 34 CFR § 300.520) At the age of 18, the student assumes the rights and protections under IDEA that were previously held by the parents.

Some students, due to the nature and severity of their disabilities, may be unable to meaningfully participate in their own educational processes. For these students, the IDEA provides a special rule: “A State must establish procedures for appointing the parent of a child with a disability, or, if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of the child's eligibility under Part B of the Act if, under State law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child's educational program.” (34 CFR § 300.520(b); see 20 USC §1415 (m)(2))

On or before the student’s 17th birthday, the IEP of the student must contain a statement that the student has been informed that at age 18, he or she has attained the age of majority in South Carolina and all parent rights transfer to him/her. Thus, at age 18, students become their own educational decision makers.

The only situation in which all rights do not automatically transfer to the student at age 18 is when a court has judged the student to be unable to fulfill his or her responsibilities (determined the student to be “incompetent”). When this has occurred, the district must provide PWN and obtain informed consent from the person whom the court has appointed as the legal guardian.

A Notice of Transfer of Rights at Age of Majority is required:

• when the student turns 17 during the effective dates of the IEP


• upon a student’s Initial Eligibility Determination if he/she is age 17 or older during the effective dates of the IEP


• upon a student’s enrollment in GCS as a student with a disability who has an IEP if he/she is age 17 or older during the effective dates of the IEP

Transfer of Rights at the Age of Majority

• Beginning at age 17, the IEP team must inform the student and the Parent/Guardian that at the age of majority under state law (age 18 in South Carolina), the rights under the IDEA will transfer to the student.


• The District must provide documentation in the IEP, at least one year before the student is 18, that the student and the Parent/Guardian have been informed of rights provided in federal and state law that will transfer to the student. The Case Manager will also document this information in the Prior Written Notice related to the meeting in which this discussion is held.


• It is important for the District to provide information and resources to the student and parents early in the IEP process to assist them in understanding the implications of the transfer of these rights under the IDEA.


• Prior to the passage of the Adult Students With Disabilities Educational Rights Consent Act (Consent Act) in June, 2016, there was only one exception to the transfer of educational rights to a student with a disability at age eighteen: Seeking a determination through the Probate Court that the student is incompetent. [34 C.F.R § 300.320(c)]

As a result of the passage of the Consent Act, the following options are available to students and their parents once the student reaches the Age of Majority (age 18). These options may be exercised in conjunction with or separately from an IEP meeting.

Option 1: All Rights Transfer To The Student (Transfer of Rights at Age of Majority)

• At age 18, students become their own educational decision makers.


• The District must provide all required special education notices to both the student and to the parents and obtain informed consent for specified special education actions from the student (same requirements as for parents).


• Parents are not entitled to attend the IEP meeting; however, either the District or the student may, but are not required to, invite the parents to attend IEP meetings as persons who are knowledgeable about the student. In Greenville County Schools we will continue to invite the parent to IEP meetings.


• Students have the right to grant or withhold consent, have access to records, to amend records, and to file a complaint, etc.


• When a student turns 18 years old, or enters a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student, and he or she is known as an “eligible student” under FERPA.

Option 2: The Student Makes Decisions With Support And Assistance (Supported Decision Making)

• The student has the right to have an adult of their choice support the student in making decisions regarding the student’s IEP.


• This option provides the student with an opportunity to seek advice/assistance when making a decision about a course of action.

The student may invite other individuals who have knowledge or special expertise regarding the student (Although the student is not required to do so, the LEA may ask the student to inform them of the individuals they are bringing to the meeting.)

Option 3: Delegation of Rights

A student with the capacity to do so may sign a power of attorney and delegate his or her rights to an agent (such as a parent) or delegate his or her rights using the Delegation of Rights form. The Delegation of Rights form is found in the Add Action menu within Enrich.

This student:
• is 18 years old or older;
• has not been determined to be incapacitated;
• does not have a court-appointed guardian;
• is able to effectively communicate wishes, interests, and preferences regarding their educational program.

Upon receipt of either a power of attorney or the Delegation of Rights to Make Educational Decisions document, the Case Manager will staple the form in the student’s special education record behind the File Access/Release Record and upload the form to the IEP software system. The Case Manager will also provide a copy of the form to the school’s records clerk for inclusion in the student’s permanent record.

Option 4: Certification of an Educational Representative

A student who is unable to communicate his or her wishes, interests, or preferences with respect to an educational program may have an educational representative certified to act on his or her behalf. This process is outlined below:

• Step 1 – A Medical Examination
  
  • The student first needs a medical examination that must be conducted by one of the following medical professionals:
    
    • Physician;
    • Nurse practitioner;
    • Physician’s assistant;
    • Psychologist; or
    • Psychiatrist
  • The licensed medical professional may not be an employee of the school district.


• Step 2 –The Medical Professional Must Examine the Student and Certify in Writing that the Student is Incapable of Communicating, With or Without Reasonable Accommodations, the Student’s Wishes, Interests, or Preferences Regarding His or Her Educational Program.
  
  • The Certification may be informal, but it must include the following information:
  • The date of the examination;
  • The basis for the determination that the student is not able to communicate his or her wishes; and
  • A statement of whether the inability to communicate is likely to last until age twenty-one.


• Step 3 – The Certification Letter is Sent to the Superintendent or Other Designated School Official
  
  • Upon receipt of a certification letter, there is a requirement to notify the student in writing that a medical professional certified that he or she is incapable of communicating and an educational representative will be designated to represent him or her. In Greenville County Schools, certification letters should be sent to the Assistant Superintendent for Special Education.
  • The notice must inform the student that he or she may challenge the designation of the educational representative.
  • If the student challenges the certification of an educational representative, the school district may not rely upon the educational representative for any decision-making purpose.
  
  Upon receipt of Certification of Educational Representative, the Case Manager will include the form in the student’s special education record behind the File Access/Release Record and upload the form to the IEP software system. The Case Manager will also provide a copy of the form to the school’s records clerk for inclusion in the student’s permanent record.

Option 5: Guardianship of the Student

• If a student is incapacitated, the parents or other appropriate person may seek guardianship of the adult child through the Probate Court process.


• The Adult Students With Disabilities Educational Rights Consent Act June, 2016, does not apply if the student has a court-appointed guardian.

Upon receipt of court-appointed guardianship documents, the Case Manager will upload the documents to the IEP software system. The Case Manager will also provide a copy of the documents to the school’s records clerk for inclusion in the student’s permanent record.

To continue to the next step in the IEP Process: Present Levels of Performance, click Next below.