Dated February 22, 2004

Mary Elder

Executive Director

Texas Interagency Council on

Early Childhood Intervention

4900 N. Lamar Boulevard

Austin, Texas 78751-2399

Dear Ms. Elder:

This is in response to your letter to the Office of Special Education
Programs (OSEP) and the Family Policy Compliance Office (FPCO)
requesting guidance concerning the disclosure of referral information
from a lead agency under Part C of the Individuals with Disabilities
Education Act (IDEA) to the State education agency (SEA) or the local
education agency (LEA) under Part B. The information being disclosed is
about children who will shortly turn three and transition from receiving
early intervention services under Part C to potentially receiving
special education and related services under Part B. You specifically
requested on behalf of Texas Interagency Council on Early Childhood
Intervention (TXECI), the lead agency in Texas under Part C,
clarification regarding the circumstances in which parental consent is
required for disclosure of this information by the lead agency. OSEP has
consulted with the FPCO in responding to your letter.

The IDEA requires each State to have policies and procedures to ensure a
smooth transition for toddlers receiving early intervention services
under Part C to preschool or other appropriate services, including a
description of how the lead agency will notify the LEA for the area in
which such a child resides that the child will shortly reach the age of
eligibility for preschool services under Part B. 20 U.S.C.
§1437(a)(8)(A); 34 CFR §303.148. Section 637(a)(8)(A)(ii)(II) of the
IDEA also requires the lead agency to convene a conference, with the
approval of the parents of the child, among the lead agency, the family,
and the LEA at least 90 days (and at the discretion of all such parties,
up to 6 months) before the child is eligible for preschool services
under Part B, to discuss any such services that the child may be
eligible to receive.

To help ensure a smooth transition, Congress also included specific
requirements under Part B of the IDEA for LEAs regarding transition of
children from Part C to Part B. Section 612(a)(9) of the IDEA and 34 CFR
§300.132 require the SEA to ensure: that children served under Part C
who will participate in Part B preschool programs experience a smooth
and effective transition to those preschool programs in a manner
consistent with section 637(a)(8) of the IDEA; that by the third
birthday of a child eligible under Part B, an individualized education
program (IEP) or an individualized family service plan (IFSP) with
appropriate content has been developed and is being implemented for the
child; and that each LEA will participate in transition planning
conferences arranged by the Part C lead agency.

Additionally, the SEA is responsible for ensuring that the child find
responsibilities under its program are met, even if the SEA, through an
interagency agreement or other mechanism, delegates to the lead agency
or another agency the primary role in child find for the birth through
two population. 34 C.F.R. §300.125. Since the eligibility criteria under
Parts B and C are different, the child find and evaluation procedures
under Part C must be followed when the purpose is to locate, identify
and evaluate infants and toddlers with disabilities who may be eligible
for early intervention services under Part C; and the child find and
evaluation procedures under Part B must be followed when the purpose is
to locate, identify and evaluate children with disabilities who are in
need of special education and related services under Part B. *See* 20
U.S.C. §§1412(a)(3)(A) and 1435(a)(5); 34 CFR §§ 300.125 and 303.321.

If an infant or toddler is determined eligible under Part C, that infant
and toddler with a disability and the family receive the early
intervention services identified in the child's IFSP under Part C. At
least 90 days (or up to six months depending on the State) prior to a
toddler reaching the age of three (the age of initial eligibility for
services under Part B), the Part C lead agency must notify the LEA for
the area where the child resides that the child will shortly reach the
age of eligibility for preschool services under Part B. 20 U.S.C.
§1437(a)(8)(A)(ii)(I). Both the SEA under Part B and the lead agency
under Part C are subject to their respective child find statutory
obligations under the IDEA. See 34 CFR §§300.125 (Part B) and 34 CFR
§303.148(b)(1) (Part C).

The IDEA specifically provides that the protections of the Family
Educational Rights and Privacy Act (FERPA) at 20 U.S.C. §1232g (FERPA)
apply to both Part B and Part C. 20 U.S.C. §§1417(c) and 1442.
Specifically, IDEA sections 617 and 642 define "a State's lead agency"
as a "state educational agency," and an "early intervention service
provider' as an "LEA" for purposes of FERPA. In addition, FERPA defines
"educational agency or institution" to include "any public or private
agency or institution which is the recipient of funds under any
applicable program." 20 U.S.C. §1232g(a)(3); 34 CFR §99.1. "Applicable
programs" means any program for which the U.S. Department of Education
has administrative responsibility, including Parts B and C of the IDEA.
20 U.S.C. §1221(c)(1). Thus records maintained for purposes of Parts B
and/or C by the lead agency, the SEA or the LEA on those children
referred for, or receiving, services under the IDEA are covered as
"education records" under FERPA, and must be disclosed only in
accordance with FERPA's requirements.

Under the IDEA, in States where the SEA, through an interagency
agreement or other mechanism, has included the lead agency's
participation in the SEA's child find activities, the SEA, with the lead
agency, can establish procedures that allow the lead agency to refer a
child to the SEA without prior parent consent in order to meet the SEA's
child find responsibilities under 34 CFR §300.125. The specific
information that can be included in the referral without prior parental
consent by the lead agency for these limited child find purposes are the
child's name, date of birth, and sufficient parent contact information
(as determined by the SEA) to the SEA and/or LEA so that the SEA and LEA
can meet their respective child find responsibilities.

However, the SEA may meet its child find obligations in other ways. The
SEA may require instead that the lead agency or any other agency that
makes referrals under the State's child find system notify the parent
that the child is being referred to the SEA for child find purposes and
allow the parent an opportunity to object; if the parent objects during
the period provided for objection, then the IDEA does not require that
the referral be made and, consequently in this situation, parental
consent is required before the referral can be made. In a State that
allows parents an opportunity to object to the child find referral, the
lead agency may meet its child find referral obligations in other ways.
For example, the lead agency may elect, but is not required, to convene
an IFSP meeting to explain to the parent the child find purposes of the
referral. If the parent continues to object to the referral, the lead
agency may also require the parent to confirm in writing at the IFSP
meeting that the parent objects to the referral. If the parent objects
to the referral, the SEA and LEA may meet their respective child find
obligations through other procedures, such as general public awareness
campaigns and, under these circumstances, the IDEA does not require the
referral to be made and the lead agency is no longer obligated to refer
the child to Part B.

In general under FERPA, personally identifiable information about a
child cannot be disclosed by a public agency without first obtaining
parental consent unless there is a specific exception. Specifically, you
ask whether the "directory information" exception, under FERPA at 20
U.S.C. §§1232g(a)(5) and (b)(1) might permit TXECI to disclose, without
parental consent, certain personally identifiable information to the SEA
or LEA to meet the statutory child find duties. While the directory
information exception does not apply to this situation, we have
concluded that another FERPA exception does apply.

The "directory information" exception under FERPA at 20 U.S.C.
§§1232g(a)(5) and (b)(1) allows a public agency to disclose information
designated as "directory information" to the public without first
obtaining parental consent. FERPA does not allow "directory information"
to be used to link to other categories of personally identifiable
information, such as disability. The disclosure of the child find
referral information under the IDEA by the Part C lead agency to the LEA
or SEA is not disclosure of directory information because disclosing
this information on only Part C children would identify these children
as infants and toddlers with disabilities, which information is
personally identifiable information not permitted to be released under
FERPA. Thus, the child find referral information under the IDEA by the
lead agency to the Part B agency does not fall under FERPA's directory
information exception.

However, we have concluded that FERPA and its implementing regulations
do not require the lead agency to obtain parental consent when the IDEA
requires the lead agency to make the disclosure. As more fully explained
above, the IDEA requires the lead agency to disclose some limited
personally identifiable information to the LEA and/or the SEA when the
SEA, through an interagency agreement or other mechanism, has included
the lead agency's participation in the SEA's child find activities under
34 CFR §300.125. The specific FERPA exception that allows referral for
child find purposes without prior parent consent is the exception to
disclosure of personally identifiable information to authorized
representatives of state and local educational authorities in connection
with the enforcement of Federal legal requirements which relate to any
Federally-supported education programs. 20 U.S.C. §§1232g(b)(3) and
(b)(5); 34 CFR §99.31(a)(3)(iv) and 34 CFR §99.35(a). In this case, the
disclosure of child find referral information by the lead agency to the
SEA and**/**or LEA is required to meet the statutory child find duties
under Parts B and C of the IDEA. *See* 20 U.S.C. §§1232g(b)(3) and
(b)(5); 34 CFR §§99.31(a)(3)(iv) and 99.35(a); 20 U.S.C §§1412(a)(3) and
1437(a)(8); 34 CFR §§300.125 and 303.148(b)(1). Under this FERPA
exception, the education records disclosed by the lead agency to the SEA
or LEA must be protected in a manner which will not permit the personal
identification of Part C children and their parents to anyone other than
the SEA or LEA and must be destroyed when no longer needed to enforce or
to comply with the Federal legal requirements. Further, the lead agency
must maintain, with the child's Part C records, a record that there has
been a disclosure of personally identifiable information to the SEA
and/or LEA from the child's education records. *See*, 34 CFR §99.32.

As noted earlier, under the IDEA, a State may adopt a policy of allowing
parents an opportunity to object to the referral for child find
purposes. Under such a policy, a parent may object during the period
provided for objection. If the parent objects under this circumstance,
the IDEA does not require referral of the child and, consequently in
this situation, FERPA would require prior written parental consent
before the referral can be made for child find purposes.

Disclosure of the same information by TXECI to the SEA or LEA, without
consent, for a different purpose, however, is not permissible under
either FERPA or Part C. Separate parental consent is required prior to
each of the following stages under the IDEA for the: (1) transmission of
other information about the child from the lead agency to the LEA; (2)
evaluation of the child to determine eligibility under Part B; and (3)
if the child is determined eligible under Part B, for the initial
provision of special education and related services under Part B. 20
U.S.C. §§ 1414(a)(1)(C)(i) and 1436(e); 34 CFR §§ 303.342(e),
303.344(h)(2)(iii) and 300.505.

You also ask if a State may allow parents to refuse the transmission of
information by the Part C agency if the parents do not want the SEA or
LEA to contact them regarding a referral. The lead agency under Part C
and the SEA and LEA under Part B have a statutory responsibility under
the IDEA to ensure a smooth transition for each child and family and,
under the IDEA's child find provisions, to ensure the identification,
location and evaluation of each child eligible for services under Parts
B and C of the IDEA. As discussed above, unless the SEA has adopted a
procedure allowing parents an opportunity to object, the Part C lead
agency must provide the name of the child, date of birth, and sufficient
contact information, as determined by the SEA, to allow the SEA and LEA
to fulfill their child find responsibilities; parental consent is not
required for this disclosure. However, as noted above, the parent has
the right under the IDEA to refuse to consent: (1) to having the child
evaluated under Part B and (2) to the transfer of additional information
from the child's Part C records.

Finally, you ask whether notice must be provided to a Part C family that
identifying information will be sent to the LEA for child find purposes;
while there is no such specific notice requirement under the IDEA or
FERPA that applies to that situation, States may choose to do so. Under
Part C, parents are notified of the transition conference by the lead
agency at least 90 days prior to their child turning three and should be
made aware of the referral by the lead agency to the LEA at that
conference (or earlier if the State chooses to do so). Even if parents
do not attend the transition conference, they have the right to inspect
and review under the IDEA and FERPA their child's education records,
which, as discussed above, contain a record that the SEA and/or LEA
received personally identifiable information from their child's
education records without parental consent.

I hope this information provides the clarification needed. If you need
further assistance, please contact Terese Lilly, the OSEP Part C contact
for Texas, at (202) 205-0151.

Sincerely,

> /s/

Stephanie Smith Lee

Director

Office of Special Education Programs

cc: Gene Lenz

> Division of Special Education, TEA
>
> LeRoy Rooker
>
> Director, Family Policy Compliance Office