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Montana

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

• Yes, Mont. Admin. R. 10.16.3502 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, Montana’s transfer-of-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?

• No, Montana’s transfer-of-rights regulation does not clearly state 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?

• No, Montana’s transfer-of-rights regulation does not clearly state that parental rights do not transfer to adult students with legal guardians.

Does the law or regulation clearly mention alternatives to guardianship?

• No, Montana’s transfer-of-rights regulation does not mention alternatives to guardianship that may prevent parental rights from transferring.

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

• No, Montana’s transfer-of-rights regulation does not create a special procedure that prevents parental rights from transferring to adult students deemed unable to give informed consent. See In re Butte Sch. Dist. No. 1, 73 IDELR 198 (D. Mont. 2019). Nevertheless, the school district subsequently sought to appoint an educational representative for the adult student in question pursuant to 20. U.S.C. § 1415(m)(2). Butte Sch. Dist. No. 1 v. C.S., 817 Fed. Appx. 321 (9th Cir. 2020). Despite a Montana Supreme Court decision that parents are the preferred educational representatives and others should be appointed only where parents are unavailable, the Montana district court erroneously failed to recognize the parent’s right to be appointed, and was reversed by the 9th Circuit Court of Appeals. Id.

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?

• Yes. In the Matter of Anon., 2012-05, Alleged Violations of the Individuals With Disabilities Education Act (IDEA) and Montana special education laws, 2013 Mont. Off. Pub. Inst. LEXIS 1 (Jan. 25, 2013). Dubiously, however, the state review officer declined to honor an adult student’s duly executed durable power of attorney for education, by repeatedly stating that the student as an adult retained parental rights to notice, etc.

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

• Mostly not. Although the Montana Office of Public Instruction’s 2017 IDEA Special Education Part B Procedural Safeguards Notice clearly states that state regulations provide that parental rights transfer to students when they turn 18 years old, this notice provides no additional information about whether rights transfer to incarcerated students, whether parents retain a right to notice post transfer, whether rights transfer to students with court-appointed guardians, whether alternatives to guardianship may prevent parental rights from transferring, or whether there are special procedures regarding adult students deemed unable to give informed consent.
• However, sample transfer-of-rights notification letters dated April 2017 do clarify for parents and students that legal guardianship prevents parental rights from transferring and that parents have a right to notice post transfer.