2288 Liberty Street NE,
Salem, OR 97301
503-581-8156 (Voice)
503-391-0429 (fax)
888-505-2673
Special Ed Help Line: 1-888-891-6784
Email: info@oregonrisecenter.org
TRANSFER OF RIGHTS AT AGE OF MAJORITY
For school districts and families
In Oregon, at age 18, a person reaches the "age of majority." Oregon law assumes that at age 18, individuals are capable of decision-making in all areas of life, including education.
Under federal and state laws, procedural rights transfer from the parent to the student when the student reaches the age of majority. This is called "transfer of rights." Districts must notify parents and students that the rights will transfer at least one year before the student's the birthday.
Section 1: Transfer of Rights Requirements
What Rights Transfer to the Student?
After rights transfer:
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The student will receive the written notice for meetings and will be invited to attend meetings. The student may invite his/her parent(s) or other individual(s) to attend meetings.
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The student has the right to participate in all meetings where decisions are made about the student’s eligibility, special education services, and placement. The student will participate with the team in making educational decisions.
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The student will receive prior written notice of important decisions or changes related to his/her eligibility, evaluation, individualized education program (IEP), or placement before those decisions are put into place. The student also has the right to prior written notice if the district refuses the student’s request to take these actions.
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The student has the right to review his/her educational records. The student has the right to request changes to, or meetings to review his/her identification, evaluation, individualized education program (IEP), or placement.
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When consent is required, the school district must ask the student for consent rather than the parent.
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The student has the right to ask questions and to ask for help in solving problems. The student also has the right to file a complaint, request a due process hearing, and to participate in voluntary mediation regarding special education services he/she receives.
What Rights Do Parents Keep After rights transfer to the student
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Parents have a right to receive notice of educational meetings (such as IEP meetings). This notice is not an invitation to these meetings. The student or the district may invite the parent to participate on the IEP team as someone “with special knowledge" about the student. If the parent is invited by the school district to participate in the meeting, the parents name will be listed on the meeting notice as one of the participants.
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Parents will still receive copies of all Notices of Special Education Action, such as notice of change in placement, or notice that services will be terminated.
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Parents may have the right to review their child's school records, if the student qualifies as a tax dependent and is claimed by the parents.
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Parents may file a letter of complaint as a concerned citizen.
School District Notice Requirements
School districts must give notice two different times when rights transfer from parents to students:
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The school district must give notice at least one year before the student turns 18. The students IEP must include a statement that the student has been informed of the special education rights that will transfer to the student at age 18.
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School districts must also notify the student and the parents at the time of the transfer of rights.
Alternatives to the Transfer of Rights
The Oregon law provides two alternatives to the transfer of rights, the appointment of a surrogate parent by the school district at the student's request or through a court appointed guardianship.
What is a Surrogate Parent?
A surrogate parent is a person who is assigned to represent the student in all matters relating to special education and to make educational decisions as part of the student’s team. If a student who turns 18 prefers not to exercise his/her educational rights, the student may make a written request to the school district that the school district appoint his/her parent or another adult to act as a surrogate parent on his/her behalf.
The surrogate parent must be willing to accept the responsibility, and must have the necessary knowledge and skills to protect the special educational rights of the student. The person appointed as a surrogate:
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Must not be an employee of the school district or the Oregon Department of Education;
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Must not be an employee of any other agency involved in the education or care of the child (except for an employee of a non-public agency that only provides non-educational care for the child); and
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Must be free of conflict of interest that would interfere with representing the child's special education interests.
If, later on, the student wants to exercise his/her educational rights, the student may make a written request to the school district to revoke the surrogates appointment.
What is Guardianship?
If parents do think that their child will not be able to make decisions regarding various aspects of his/her life (e.g., education, money management, health care, etc.), the parents may pursue legal guardianship. If legal guardianship is obtained, the rights will not transfer to the student, but will be exercised by the guardian.
Only a court can appoint a guardian. Guardianship may be determined to be necessary if a person over 18 is "incapacitated." Under Oregon law, "incapacitated" means a condition in which a person's ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person's physical health and safety. "Meeting the essential requirements for physical health and safety” means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, and other care without which serious physical injury or illness is likely to occur. ORS 125.005(5)
Guardianship may be tailored to the individual situation. Guardianship can be limited to a single area such as educational or medical decision-making, or it can be full guardianship, including the authority to make decisions about all areas of life.
Any adult who is qualified and suitable and is willing to serve may seek appointment as guardian.
When a guardian is appointed, the student will continue to be involved in school meetings in the same way that a transition age student under age 18 would. The guardian will participate in decision making as part of the IEP team.
Information about guardianship is available from probate attorneys or advocacy organizations.
Section II: Preparing for Transfer of Rights
Students and parents need time to discuss options, plan, and make decisions that best meet the individual needs of the student. As part of this preparation, students, staff, and parents may want to consider:
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Discussing student’s priorities, needs, and options.
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Reading and discussing together the "Notice of Procedural Safeguards" booklet.
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Addressing preparation for transfer of rights as part of the IEP transition services (such as self-determination, self-advocacy, and decision making). Requesting information about student self-advocacy training/courses and enrolling, if appropriate.
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Contacting legal counsel or community organizations to explore guardianship options.
Self-Determination
Self-determination is the capacity to make choices about life and have those choices determine your life. A sense of self-determination is necessary for the development of individual identity and is a crucial catalyst for developing autonomy. In order to be able to self-determine direction in life, the skills for making informed choices and self-advocacy for oneself are essential. Self-determination plays an increasing role in the life of the individual with disabilities as that person matures into adulthood. When the transfer of educational rights happens at age 18, the student must have the skills and knowledge to actively participate in making decisions that will determine his/her future. To aid in self-determination, parents and teachers may want to begin to address at an early age, skill development in self-advocacy and in making choices at an early age.
Self-Advocacy
Teaching students about self-advocacy is necessary for successful student involvement and, ultimately, for successful transition to the adult world. Self-advocacy is based on the belief that everyone has a right to speak up and make decisions about his, or her own future. It is a life skill that adults use in everyday life. A student must be able to advocate for his or her vision of the future. It is essential for full participation in the transition planning process.
Transition planning is a way to assist students with disabilities to develop skills for making decisions about their future. This process is not done for the student, but with the student. Students attend all meetings relating to transition and their IEP’s, and they also work with the other members of their IEP teams on an ongoing basis as part of their school programs to develop necessary self-advocacy skills.
Students need to understand and be able to exercise their rights and responsibilities related to IEP’s and the transition planning process. They need to have knowledge of laws such as:
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The Individuals with Disabilities Education Act (IDEA).
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Section 504 of the Rehabilitation Act (504).
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The Americans with Disabilities Act (ADA).
It is essential that students assume as much responsibility in transition planning as possible. They need to develop the skills to:
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Assess themselves, including their skills, abilities, disabilities, and reasonable accommodations that may make successes more likely.
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Know their strengths and weaknesses.
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Be able to set goals, know how to plan activities to reach goals, and know how to get help when necessary.
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Understand the available support services of an agency, work environment, or school, and identify what supports will make a difference in their success.
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Know how and when to step back and decide if they are making progress.
The student’s active involvement in the IEP process from the earliest stage possible will increase the likelihood that many of these self-advocacy skills will be learned and practiced. This early involvement will also give the IEP team knowledge about what kinds of instruction and practice are still needed. The ability to advocate for oneself takes time to develop, and is dependent on one's self-esteem, maturity, and confidence along with practice and experience. Providing adequate time and instruction to develop these skills may enable the student to become a more successful self-advocate.
If a student needs assistance in communicating and self-advocacy, the team must still develop a way to enable the student to communicate his or her preferences. A communication device, a special advocate, or a communication expert are possible means to assist a student to express his or her opinions. Students must be encouraged to participate to the fullest extent possible. Finally, students need to know that self-advocacy goes beyond a meeting; they may need to talk with individual team members on an informal or ongoing basis. The team should encourage this informal networking and acknowledge that the student is a self-advocate even if the student only partially participates.
Making Choices
Students need to develop the skills necessary to be able to make choices and decisions about their future. They must determine priorities and develop their visions. To make informed choices, students need information about different options. For example, a student may want to try several different jobs before deciding about a career, or a student may want to experience different types of living situations (dorm, apartment, group home, etc.) before deciding where to live.
Students also need to be informed of services and accommodations available to help them be successful. They must learn to explain and use the strategies or accommodation that workfor them. Students may need to meet and talk with people who provide supports to people with disabilities to find out what is available. Teachers, parents, and others involved in transition planning with the student need to help him/her to build skills to secure information and not just provide the information. Skills that a student may need include: research skills, including Internet access, how to ask questions to gain information, and how to networkfrom one resource to another. Students should be given many opportunities for real world experiences so they develop the skills needed for life outside of home and school. They need real life practice, role-playing, and coaching.
This information was provided to you by the Oregon Parent Training and Information Center. If you need further assistance please contact OrPTI at 888-505-2673, or 503-581-8156.