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NC 1504-1.21 Transfer of Parental Rights at Age of Majority
(a) General. When a child with a disability reaches the age of 18 (except for a child with a disability who has been determined to be incompetent under State law) --
(1) (i) The LEA must provide any notice required by these Policies to both the individual and the parents; and (ii) All other rights accorded to parents under Part B of the IDEA transfer to the child.
(2) All rights accorded to parents under Part B of the IDEA transfer to children who are incarcerated in an adult or juvenile, State or local correctional institution; and
(3) The LEA must notify the individual and the parents of the transfer of rights.
(b) Special rule.
(1) When a child with a disability is determined not to have the ability to exercise his/her rights under these Policies, the LEA must provide the parent notice of options listed in sub-section (b)(2)(i-iii) of this section.
(2) A student who has reached the age of 18 shall be presumed to be a competent adult unless one of the following actions has been taken:
(i) The adult student is declared legally incompetent or legally incapacitated by a court of competent jurisdiction and a representative has been appointed by the court to make decisions for the student;
(ii) The adult student designates, in writing, by power of attorney or similar legal document, another competent adult to be the student’s agent to receive notices and to participate in meetings and all other procedures related to the student’s educational program. A local education agency shall rely on such designation until notified that the authority to act under the designation is revoked, terminated, or superseded by court order or by the adult student;
(iii) The adult student is certified, according to the following procedures, as unable to provide informed consent. Any adult student who is eligible for special education under this section and does not have a representative appointed to make decisions on the adult student’s behalf by a court of competent jurisdiction may have an educational representative appointed to act on the adult student’s behalf. An educational representative may be appointed based on the following conditions and procedures:
(A) Two professionals (one from list one and one from list two, as set forth in the following descriptions) shall, based on a personal examination or interview, certify in writing that the adult student is incapable of providing informed consent and that the student has been informed of this decision:
a. List one includes:
1. a medical doctor licensed in the state where the doctor practices medicine;
2. physician’s assistant whose certification is countersigned by a supervising physician; or
3. a certified nurse practitioner.
b. List two includes:
1. a medical doctor licensed in the state where the doctor practices medicine;
2. a licensed clinical psychologist;
3. a licensed clinical social worker;
4. an attorney who is qualified to serve as guardian ad litem for adults under NC law; or
5. a court-appointed special advocate for the adult student.
(B) The individuals who provide the certification in (iii)(A) of this section may not be employees of the local education agency currently serving the adult student or related by blood or marriage to the adult student.
(C) If an adult student has been determined to be incompetent through any of the procedures described in this section, the parent shall be appointed to act as the educational representative for the adult student. If the parent is not available, an adult family member with whom the adult student resides may be appointed. If the adult student does not reside with an adult family member, a person trained as a surrogate parent shall be appointed to serve as the educational representative for the adult student.
(iv) Incapable of providing informed consent, as used in this section, means that the adult student is unable to:
(A) Understand the nature, extent and probable consequences of a proposed educational program or option on a continuing or consistent basis;
(B) Make a rational evaluation of the benefits or disadvantages of a proposed educational decision or program as compared with the benefits or disadvantages of another proposed educational decision or program on a continuing or consistent basis; or
(C) Communicate such understanding in any meaningful way.
(v) The certification that an adult student is incapable of providing informed consent may be made as early as 60 calendar days prior to the student’s eighteenth birthday.
(vi) The certification shall state when and how often a review of the adult student’s ability to provide informed consent shall be made and why that time period was chosen.
(vii) The adult student’s ability to provide informed consent must be recertified at any time that the previous certification is challenged. Challenges can be made by the adult student or by anyone with a bona fide interest in and knowledge of the adult student, except that challenges cannot be made by employees of the LEA. Upon receipt of a written challenge, the LEA may not rely on the appointed representative until a new certification that the adult student is unable to provide informed consent has been obtained by the appointed educational representative.
(Authority: 20 U.S.C. 1415(m); 34 CFR 300.520)
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