Educational Decision Maker Q&A
- If the student is under age 18 and is married, who is the educational decision maker or if the student is under age 18 and lives on his/her own, who is the educational decision maker?
- If the child is under age 18 and living with another family (related or non-related), who is the educational decision maker? Does it matter if the parent lives in another district?
- Can the Division of Children’s Services case worker be the educational decision maker?
- Can the foster parent be the educational decision-maker?
- When parents have equal decision making rights and they don’t agree on consent, what do you do when one parent signs consent and the other objects?
- Can another person stand in for a parent as the educational decision maker? What if he/she sends a signed note? What if he/she gives permission over the phone?
Questions and Answers
A minor (person under age 18) is emancipated if he/she is responsible for his/her own financial support. For example, (1) if a minor moves out of his home and lives on his own in an apartment or a room he rents, (2) that minor moves out and is living in an apartment with his girlfriend, (3) a minor gets married. Marriage automatically results in a minor being emancipated. However, in general, financial independence is the key to determining if a minor is emancipated. An emancipated minor is his/her own educational decision maker.
The adult that the student lives with is considered to be “acting as a parent” with implicit authority from the natural parent(s) to act as an educational decision-maker, unless the natural parent has informed the school district that despite the fact that their child is living elsewhere, they intend to continue to be the educational decision-maker. It is advisable for a school district to clarify the intent of the natural parent(s) when a child is living outside the home by sending a letter to the parent and indicating that the school will look to the adult the child lives with, to make educational decisions, unless the parent notifies the school otherwise. This way there is no confusion. The district in which the child is living is the district that serves the student.
A Division of Children’s Services case worker can temporarily serve as an educational decision maker until an educational surrogate has been assigned by the Department of by the judge overseeing the child’s case. The responsible public agency must, however, pursue that assignment without delay. (Also see, Educational Surrogate Q&A)
Yes, a foster parent is the educational decision-maker, as the foster parent is considered to be “acting as a parent.”
Consent is only required to be obtained from one parent. The school can proceed with the process for which consent was obtained and the opposing parent has procedural safeguard rights, including due process hearing rights, assuming that they are indeed joint educational decision-makers. The same is true when a parent revokes consent for special education services.
In general a parent cannot give away their educational decision-making rights. There are exceptions, like when the child is living with someone else who is acting as a parent or when a parent provides a Power of Attorney to someone, which transfers their rights. But practically speaking, the only time the status of educational decision-maker is really going to be at issue is when consent is needed, or written notice is being provided. As for attendance at IEP meetings, there is nothing to obligate a responsible public agency to convene an IEP meeting with a person the parent has indicated in a note or phone call will “act on the parent’s behalf.”