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Massachusetts

Is there a law or regulation clearly stating if parents’ Individuals with Disabilities Education Act (IDEA) rights transfer to adult students?

• Yes, 603 Mass. Code Regs. 28.07(5) clearly states that parental rights generally transfer to students when they turn 18 years old.

Is there a law or regulation clearly stating if parents’ IDEA rights transfer to incarcerated students?

• No, Massachusetts’ transfer of or rights regulation does not clearly state whether parental rights transfer to incarcerated students.

Does the law or regulation clearly state that parents have a right to notice post transfer?

• Yes, 603 Mass. Code Regs. 28.07(5) clearly states that parents have a right to notice post transfer.

Does the law or regulation clearly state that rights do not transfer to adult students with legal guardians or conservators?

• Yes, 603 Mass. Code Regs. 28.07(5)(a) clearly states that parental rights do not transfer to an adult student if that student’s “parent has sought and received guardianship from a court of competent jurisdiction.”

Does the law or regulation clearly mention alternatives to guardianship?

• Yes, 603 Mass. Code Regs. 28.07(5)(b) and (c) clearly state that a student “may choose to share decision-making” or “to delegate continued decision-making to his or her parent.”

Is there a law or regulation creating a “special procedure” to appoint representatives for adult students deemed unable to give informed consent?

• No, Massachusetts’ transfer of or rights regulation does not create a special procedure that prevents parental rights from transferring to adult students deemed unable to give informed consent.

Do parents lose the right to make a due process complaint or to sue if their students’ right to a free, appropriate public education (FAPE) is violated if their rights transfer?

• Yes. In Re Student v. Montachusett Regional Vocational Technical Sch., BSEA # 19-07993, 119 LRP 15757 (Apr. 22, 2019) (citing Rule I(A) of the Hearing Rules for Special Education Appeals). See also In Re: Lincoln-Sudbury Regional Sch. Dist. & Rachel R., BSEA No. 11-2546, 16 MSER 424, 2010 MSE LEXIS 68 (Nov. 29, 2010) (student’s statement in IEP that she delegated financial decision-making authority to parents did not satisfy Massachusetts regulation regarding delegation of educational decision-making authority); In Re: Milton Pub. Sch. v. Dep’t of Educ. & Boston Pub. Sch., BSEA No. 07-4642, 13 MSER 137 (Apr. 30, 2007).
• However, certain hearing officers may take it upon themselves to afford adult students the opportunity to complete delegation of rights forms prior to due process hearings brought by their parents, in order for them to consider them on the merits. Cf. In re Tewksbury Pub. Sch., Mass. State Educ. Agency No. 05-2963, 43 IDELR 148, 105 LRP 19868 (Apr. 26, 2005) (finding that the adult student’s father had failed to submit a delegation of rights form prior to the hearing despite having had an opportunity to do so).
• Relatedly, Massachusetts’ failure to adopt a special procedure for appointing an educational representative for adults deemed incapable of giving informed consent may lead to failures to provide appropriate educational services. See In re: Dudley-Charlton Pub. Sch., Dkt. No. 98-3946, 4 MSER 114, 1998 MSE LEXIS 28 (June 24, 1998) (dubiously declining to allow school district to use same procedure for overriding failure of a parent to consent pursuant to 20 U.S.C. § 1414(c)(3) to override the failure to do so of an adult student).

Does state educational agency guidance clearly explain the applicable laws and/or regulations regarding transfer-of-rights?

• Yes, the State Director of Special Education issued Administrative Advisory SPED 2011-1: Age of Majority (Sept. 20, 2010) clarified that while parental rights transfer to students when they turn 18 years old, parents have a right to notice and to inspect the student’s records. This advisory also affirms that students may either choose to share decision-making or delegate decision-making to their parents.