transfer of rights

One of the exciting aspects of being a transition specialist who evaluates and provides consultation to students and schools across the country is that transition services are dictated by the Individuals with Disabilities Education Act (IDEA 2004), a federal law. Students have similar rights across all 50 states regarding how their IEPs must prepare them for postsecondary learning, living, and employment experiences. However, there are additional rights and responsibilities related to special education that are dictated by state laws and regulations. Age of Majority and the Transfer of Rights to students is one of these issues that varies from state to state.

At the Age of Majority, or the age of legal adulthood, in each state, young adults are granted certain legal rights (e.g., voting, marrying, opening a credit card, signing contracts). Each state determines which rights will transfer to young adults within their state. IDEA 2004 gives states the right to transfer educational decision-making rights to students who have reached the Age of Majority—this means that all of the educational rights previously accorded to parents/guardians may transfer directly to the student. The Age of Majority is 18 in most, but not all, states.

In states that transfer educational rights at the Age of Majority, school districts are required to provide notice to parents and students ahead of time so that families are not surprised that the parents’ rights will transfer to the student. Additionally, at least one year before the student reaches the Age of Majority, the student’s Individualized Education Program (IEP) needs to include a statement indicating that the student was informed of their rights under IDEA.

There are exceptions to the Transfer of Rights when a student has been determined to be “incompetent” under state law—this often involves a parent/guardian taking partial or complete guardianship of the student. Students may alternatively have a Power of Attorney drawn up so that a parent can continue to represent their educational interests. States may also have their own processes for electing decision-making when the student reaches the Age of Majority. For example, in Massachusetts, students who have turned 18 are presented with a choice to take over decision-making, share decision-making with a parent or other willing adult, or delegate decision making to their parent or another willing third party; They sign a document indicating their elected choice on or after their 18^th birthday.

There are many educational rights that a student may assume when they reach the Age of Majority. Some of these include receiving notice of IEP meetings, consenting to evaluation, placement, and/or an IEP, deciding to drop out of school, or deciding to accept a diploma and end eligibility for transition services. Parents and professionals can help students prepare for the Age of Majority and Transfer of Rights ahead of time. Pacer’s National Parent Center on Transition and Employment has put together a handout with tips for doing this important work. Some of the tips are included within my longer list of preparatory activities below:

1. Start building choice-making and decision-making skills as young as possible.
2. Teach students about the IEP process in elementary or middle school.
3. Encourage students to observe and participate in IEP meetings.
4. Allow students to invite preferred educators, family members, and community members to IEP meetings for support.
5. Role-play IEP meetings prior to participation.
6. Begin talking about Transfer of Rights when students first begin attending IEP meetings.
7. Prior to reaching the Age of Majority, talk about how the student thinks they will want to make decisions across areas of life—What decisions do you want to make totally alone? What decisions do you want to make in collaboration with others? What decisions do you want other people to make for you?
8. Help students to develop good working relationships with school personnel and team members.
9. Stay involved in the IEP process even after a child reaches the Age of Majority—but allow the student to be the primary participant in the development of their IEP.

If you suspect that your child will not be competent to handle educational decision-making, it will be important to consult with clinical and legal experts well in advance of your child reaching the Age of Majority. It is also important to keep your IEP team informed regarding any legal proceedings or arrangements that may impact educational decision-making. However, many students who are not competent to manage complex medical or financial decisions can still be strong participants in their educational processes and transition services. For tools that you can use to help educate students regarding the IEP process, please check out the video and document resources from imdetermined.org. For tools that you can use to explore decision-making and supported decision-making as students approach adulthood, please review these resources from Charting The Lifecourse.

About the Author
Kelley Challen, Ed.M., CAS, is NESCA’s Director of Transition Services, overseeing planning, consultation, evaluation, coaching, case management, training and program development services. Ms. Challen also provides expert witness testimony in legal proceedings related to special education. She is also the Assistant Director of NESCA, working under Dr. Ann Helmus to support day-to-day operations of the practice. Ms. Challen began facilitating programs for children and adolescents with special needs in 2004. After receiving her Master’s Degree and Certificate of Advanced Study in Risk and Prevention Counseling from Harvard Graduate School of Education, Ms. Challen spent several years at the MGH Aspire Program where she founded an array of social, life and career skill development programs for teens and young adults with Asperger’s Syndrome and related profiles. She additionally worked at the Northeast Arc as Program Director for the Spotlight Program, a drama-based social pragmatics program, serving youth with a wide range of diagnoses and collaborating with several school districts to design in-house social skills and transition programs. Ms. Challen is co-author of the chapter “Technologies to Support Interventions for Social- Emotional Intelligence, Self-Awareness, Personality Style, and Self-Regulation” for the book Technology Tools for Students with Autism. She is also a proud mother of two energetic boys, ages six and three. While Ms. Challen has special expertise in supporting students with Autism Spectrum Disorders, she provides support to individuals with a wide range of developmental and learning abilities, including students with complex medical needs.

Neuropsychology & Education Services for Children & Adolescents (NESCA) is a pediatric neuropsychology practice and integrative treatment center with offices in Newton, Massachusetts, Plainville, Massachusetts, and Londonderry, New Hampshire, serving clients from preschool through young adulthood and their families. For more information, please email info@nesca-newton.com, call 617-658-9800 or complete our online Intake Form.