Our Work
Transfer of Rights under the IDEA
What the Individuals with Disabilities Education Act says and the importance of alternatives to guardianship for youth with disabilities
There are many ways for students with disabilities and their parents and supporters to prepare for adulthood that don't involve guardianship.
The Individuals with Disabilities Education Act (IDEA) allows states to transfer parents’ rights under the IDEA to students with disabilities receiving special education services when students become adults.1 The IDEA, however, does not permit states to transfer parents’ IDEA rights to adult students if they have been "adjudicated incompetent" under state law. As a result, some observers have expressed concern that the IDEA may inadvertently prompt parents wishing to avoid transfer of rights to seek guardianship of their adult children.
Why would parents want to avoid transferring IDEA rights to their children? Ostensibly, to ensure that they continue to act as decision-makers on behalf of their adult children. By avoiding rights transfers, parents can continue to approve their adult children's individualized education programs, consent to changes of placement or reevaluations, and request due process hearings, among other important educational rights. While these are worthy aims, many parents are not encouraged to consider the long-term implications of lifelong guardianship appointments, and may be under-informed when they file guardianship petitions.
Indeed, there are several tools that allow students with disabilities and their parents to prepare for transfer of IDEA rights without pursuing guardianship. They include educational powers of attorney, educational representative appointments, delegations of authority, and supported decision-making. These alternatives to guardianship are often under-explored by students with disabilities, parents, and their professional and natural supporters.
The Guardianship Alternatives and Transfer of Rights (GATOR) project is working to improve the transfer of rights experience for everyone involved in that process. The GATOR project is a participatory action research partnership among the Institute for Community Inclusion (ICI) at the University of Massachusetts Boston, Massachusetts Advocates Standing Strong, and Self-Advocacy Association of New York State. As part of this project, HPOD's Director of Advocacy Initiatives Hezzy Smith and Executive Director Michael Ashley Stein conducted a 50-state survey of states' transfer of rights rules and policie, publishing their findings in the Drexel Law Review.2 Notably, Smith and Stein found that 40% of states' rules do not fully comply with the IDEA's requirements, and even fewer mention alternatives to guardianship that students and parents can use to prepare for transfer of rights. The GATOR project also has created a state-by-state guide, to help students with disabilities, parents, and practitioners to understand the transfer of rights rules of the road.
These efforts complement work by the Center for Youth Voice, Youth Choice (CYVYC) project, which aims to empower youth with intellectual or developmental disabilities to become ambassadors for alternatives to guardianship in their states. ICI, in partnership with the Center for Public Representation and Self Advocates Becoming Empowered, has been supporting youth and their allies in Georgia, Vermont, and Wisconsin to raise awareness of alternatives to guardianship, and will soon expand to four more states. An important part of these efforts is another state-by-state guide compiled by Smith and Stein that provides easy-to-understand information about alternatives to guardianship in each state in a simple question-and-answer format.