Section 8-60-31 - Parental consent(a) Parental consent for initial evaluation. (1)(A) The department shall obtain consent, consistent with section 8-60-2, from the parent of the student before conducting an initial evaluation to determine if a student qualifies as a student with a disability under sections 8-60-2 and 8-60-39, after providing notice consistent with sections 8-60-58 and 8-60-59;(B) Parental consent for initial evaluation shall not be construed as consent for initial provision of special education and related services;(C) The department shall make reasonable efforts to obtain the consent from the parent for an initial evaluation to determine whether the student is a student with a disability;(2) For initial evaluations only, if the student is a ward of the State and is not residing with the student's parent, the department is not required to obtain consent from the parent for an initial evaluation to determine whether the student is a student with a disability if: (A) Despite reasonable efforts to do so, the department cannot discover the whereabouts of the parent of the student;(B) The rights of the parents of the student have been terminated in accordance with state law; or(C) The rights of the parent to make educational decisions have been subrogated by a judge in accordance with state law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the student;(3)(A) If the parent of a student enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation under paragraph (1), or the parent fails to respond to a request to provide consent, the department may, but is not required to, pursue the initial evaluation of the student by utilizing the procedural safeguards in sections 8-60-56 through 8-60-82;(B) The department does not violate its obligation under section 8-60-10 and sections 8-60-33 through 8-60-43 if it declines to pursue the evaluation.(b) Parental consent for services. (1) The department is responsible for making a FAPE available to a student with a disability and shall obtain consent from the parent of the student before the initial provision of special education and related services to the student;(2) The department shall make reasonable efforts to obtain consent from the parent for the initial provision of special education and related services to the student;(3) If the parent of a student fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the department- (A) May not use the procedures in subchapter 8 (including the mediation procedures under § 8-60-60 or the due process procedures under §§ 8-60-61 through 8-60-70) in order to obtain agreement or a ruling that the services may be provided to the student;(B) Will not be considered to be in violation of the requirement to make FAPE available to the student because of the failure to provide the student with the special education and related services for which the parent refuses to or fails to provide consent; and(C) Is not required to convene an IEP team meeting or develop an IEP under §§ 8-60-44 and 8-60-48 for the student.(4) If, at any time subsequent to the initial provision of special education and related services, the parent of a student revokes consent in writing for the continued provision of special education and related services, the department- (A) May not continue to provide special education and related services to the student, but must provide prior written notice in accordance with § 8-60-58 before ceasing the provision of special education and related services;(B) May not use the procedures in subchapter 8(including the mediation procedures under § 8-60-60 or the due process procedures under §§ 8-60-61 through 8-60-70) in order to obtain agreement or a ruling that the services may be provided to the student;(C) Will not be considered to be in violation of the requirement to make FAPE available to the student because of the failure to provide the student with further special education and related services; and(D) Is not required to convene an IEP team meeting or develop an IEP under §§ 8-60-44 and 8-60-48 for the student for further provision of special education and related services.(c) Parental consent for reevaluations. (1) Subject to paragraph (2): (A) The department shall obtain parental consent, in accordance with section 8-60-31(a)(1), prior to conducting any reevaluation of a student with a disability;(B) If the parent refuses to consent to the reevaluation, the department may, but is not required to, pursue the reevaluation by using the consent override procedures described in subsection (a)(3);(C) The department does not violate its obligation under section 8-60-10 and sections 8-60-33 through 8-60-43 if it declines to pursue the evaluation or reevaluation.(2) The parental consent described in paragraph (1) need not be obtained if the department can demonstrate that: (A) It made reasonable efforts to obtain such consent; and(B) The student's parent has failed to respond.(d) Other consent requirements. (1) Parental consent is not required before: (A) Reviewing existing data as part of an evaluation or a reevaluation; or(B) Administering a test or other evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of parents of all students.(2) The department may not use a parent's refusal to consent to one service or activity under subsection (a) to deny the parent or student any other service, benefit, or activity of the department, except as required by this chapter.(3)(A) If a parent of a student who is home schooled or placed in a private school by the parents at their own expense does not provide consent for the initial evaluation or the reevaluation, or the parent fails to respond to a request to provide consent, the department may not use the consent override procedures (described in subsections (a)(3) and (c)(1); and(B) The department is not required to consider the student as eligible for services under sections 8-60-22 through 8-60-26;(4) To meet the reasonable efforts requirement in subsections (a)(1)(C), (a)(2)(A), (b)(2), and (c)(2)(A), the department shall document its attempts to obtain parental consent using the procedures in section 8-60-46(d).[Eff 11/23/09] (Auth: 20 U.S.C. 1414(a)(1)(D) and 1414(c); HRS § 302A-1112) (Imp: 34 C.F.R. §300.300 )