§ 59-33-340 — Identification of eligible adult student as incapable of communicating educational program wishes, interests, or preferences; procedures; designation of educational representative.

An adult student who is eligible for special education and has not been determined to be incapacitated pursuant to Article 5, Title 62, may be identified as incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences with respect to his educational program as early as sixty calendar days before his eighteenth birthday or sixty-five business days before an eligibility meeting, if he is undergoing initial eligibility for special education services, and also may have an educational representative designated pursuant to the following procedures: (1)(a) The student's physician, nurse practitioner, physician's assistant, psychologist, or psychiatrist must certify in writing to the local education agency in which the adult student is enrolled that he has examined or interviewed the student and, based upon this exam, finds the student incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding his educational program. The licensed professional's certification must include the date of the examination, the basis for the determination, and whether the student's incapability of communicating, with or without reasonable accommodations, his wishes, interests, or preferences with respect to his educational program is likely to last until after age twenty-one. The licensed professional's certification must remain in effect during the period the student receives educational services as an adult, regardless of whether the student transfers to another school or local education agency, if the student's subsequent local education agency is promptly provided with the documentation that the prior local education agency relied on in allowing an educational representative to participate on the student's behalf. The licensed professional referenced in this item may not be an employee of the local education agency or state education agency serving the student. (b) For the purposes of this section, a person is considered incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences if he is unable to: (i) express, either verbally, through an interpreter, or through augmented communication devices, his wishes, interests, or preferences for his education program; or (ii) understand, even with the support from family, administrators, and experts in the field, what choices are available in a proposed education decision or program. "Support" in this context includes a wide range of disability supports, including explaining options in plain language, using interpreters, providing visual aids, providing the information more slowly, or in similar chunks, or any other method that is effective in communicating with the student with a disability. (2) Upon receiving the certification, the superintendent of the local education agency or his designee shall, within ten days, provide a copy of the designation to the student and notify him in writing that a professional has certified that he is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences with respect to his educational program and that an educational representative will be designated to make such decisions for him. The superintendent also shall notify the student in writing that he has a right to challenge the designation of the educational representative. (3) A challenge to the designation of an educational representative must be made in writing and may be made by the student or by another person with a bona fide interest and knowledge of the student, except that challenges may not be made by an employee of a local education agency or state education agency. A challenge by an adult student must assert that he is capable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences concerning his educational program as provided in this section. (a) A challenge may be made at any time during which an educational representative is designated to act on the adult student's behalf. A challenge must be provided in writing to the superintendent of the local school district or his designee, who shall within ten business days notify the student and current appointed representative in writing. (b) Upon receipt of a written challenge in accordance with this section, the local education agency may not rely on an educational representative for any purpose. (4) If the adult student does not object to the designation, his custodial parent or adult spouse may act as the educational representative. If the custodial parent or the adult spouse are unavailable to act on behalf of the student, the educational representative may be an adult sibling, grandparent, or other adult relative, in that order of priority. If these relatives are not willing and able to serve as the educational representative of the adult student, then the local education agency providing services to the student shall designate a surrogate parent, as defined in 34 C.F.R. Section 300.519 to serve in this capacity. (5) The authority of an educational representative is limited to the authority to consent to educational services, and specifically does not include the authority to remove an adult student from educational services. The authority of an educational representative continues until he challenges the designation, he is no longer eligible for special education, or an order is issued pursuant to Article 5, Title 62, which terminates the authority of the educational representative.

Legislative History

HISTORY: 2016 Act No. 242 (H.5021), SECTION 1, eff June 5, 2016.