E-signatures in parental consent procedures
Establishing protocols for electronic signatures can help districts acquire parental consent when parents are socially distant and when other means become less reliable. In addition to safety concerns, the inability of parents to successfully produce, copy and transmit documents through mail service or physically access the district can inhibit timely consent procedures, according to Jane Williams, a partner at Sweet, Stevens, Katz & Williams LLP in Pennsylvania.
Parents and educators are finding that electronic transmission of special education documents like IEPs and evaluation reports is a quick and reliable means of distributing critical documents, Williams says.
The Office of Special Education Programs has indicated that state educational agencies may use electronic or digital signatures for consent if they take steps to ensure the integrity of the process. This means, in part, that the parent must understand and agree to the carrying out of the activity for which the parent’s consent is sought. 34 CFR 300.9(b). Letter to Breton, 63 IDELR 111 (OSEP 2014).
1. Consult state law. Nothing in the IDEA statute and regulations forecloses the use of electronic signatures for there to be proof of a parent’s signature of a legally binding nature, says Williams. However, one must consult state law to see if electronic signatures are permissible in their state to show parental consent.
“In Pennsylvania, this method of signature is permissible,” says Williams. “In order to use electronic signatures as a means of verifying parental consent, there needs to be an electronic means by which parents can sign or adopt a signature electronically and then this electronic or ‘virtual’ signature will be included within the record of the student.”
2. Adopt a systemic protocol. A secure database system, such as IEPWriter, can provide a protocol to create an electronic signature to be used as a means of securing a legally binding signature.
A district must obtain written informed consent from the parent of a child with a disability before engaging in certain proposed activities, such as evaluating or reevaluating a student or initiating the student’s special education and related services. 34 CFR 300.9, she says. Thus, some form of written signature is required.
Email, telephone, and post mail are ways to verify that the parent has been contacted by the school district and, through conversation, has participated in the process. All these means are acceptable to communicate with a parent, Williams says, but a method of obtaining written parent consent must be developed in this virtual world.
The IDEA expressly allows for distribution of key documents by email when “a parent elects to receive” documents by that means. 34 CFR 300.505. When taking this approach, Williams said the district should: 1) document that the parent has “elected” to receive documents by email, as the IDEA requires; and 2) ensure that those documents are delivered to the correct address to avoid disclosure of confidential information to unintended recipients, such as coworkers of the parent(s) or someone else who may have access to the parent email.
3. Create a prepared form. Williams suggests the use of a prepared form that sets forth the consent of the parent to electronic transmission of forms, records, and other documents that may contain personally identifiable information concerning student X, and to do so through the use of the electronic mail address of Y.
The form would include the types of information to be transmitted—such as IEPs, evaluations, prior written notice, and procedural safeguards—how long the consent will remain in effect, and how the information to the electronic mail address will be transmitted.
Johnny Jackson covers special education issues for Special Ed Connection, a DA sister publication.