Dated March 20, 2003

Mr. Geoffrey A. Yudien

Legal Counsel

Vermont Department of Education

120 State Street

Montpelier, Vermont 05620-2501

Dear Mr. Yudien:

This is in response to your letter to the Office of Special Education
Programs (OSEP) requesting clarification regarding parent consent for
the provision of special education and related services for their
children with disabilities under the Individuals with Disabilities
Education Act (IDEA). Our response to each of the questions in your
letter is provided below.

1.  ***We understand that if a parent refuses to give consent for an
    initial evaluation or a reevaluation, a school district may,
    nevertheless, pursue the (re)evaluation by utilization of the due
    process procedures. See 34 C.F.R. §300.505(b). Is it similarly
    possible to override a parent's refusal to give consent for the
    initial provision of special education or related services?***

The IDEA statute and regulations contain express provisions that require
local education agencies (i.e., school districts) to obtain informed
parental consent prior to a child's initial evaluation or reevaluation
or initial provision of special education and related services. 20
U.S.C. §§(a)(1)(c)(i) and (c)(3) and 34 CFR §300.505(a). The IDEA
statute at §614(a)(1)(c)(ii) and regulations at §300.505(b) also
expressly allow an agency to override the lack of parental consent if
the parents of a child with a disability refuse to provide informed
consent for the child's initial evaluation or reevaluation.
Specifically, the agency may continue to pursue those evaluations by
using the due process procedures under §§300.507-300.509, or the
mediation procedures under §300.506, if appropriate, except to the
extent inconsistent with State law relating to parental consent.
Additionally, the statute and regulations make clear that consent for
the initial evaluation is not to be construed as consent for the initial
provision of services. 20 U.S.C. §1414(a)(1)(c)(i) and 34 CFR
§300.505(a)(2).

However, there are no comparable provisions in either the statute or
IDEA regulations that allow the agency to override parental refusal to
consent for the initial provision of special education and related
services to a child with a disability. Under §300.505(a)(1)(ii),
informed parent consent must be obtained before the initial provision of
special education and related services to a child with a disability. The
public agency may not override this requirement by using the due process
procedures or other methods under the IDEA. In States that offer
mediation prior to a due process hearing request, school districts may
use mediation to try and resolve parental refusal to consent to the
initial provision of services, provided, however, that it must be clear
to both parties that participation in mediation is voluntary on the part
of the parents and the local education agency. *See,* 34 CFR
§§300.506(a) and (b)(1).

2.  ***If a parent consents to a certain constellation of services at
    the time services are initially offered and, later, it is deemed by
    the IEP team that additional services are necessary, must parental
    consent for those additional services be obtained?***

If a parent of a child with a disability provides informed consent to
the initial provision of special education and related services under
§300.505(a)(1)(ii) and additional services are later determined
necessary by that child's individualized education program (IEP) team,
separate parental consent for those additional services is not required
under the IDEA. However, a State may choose to provide parents
additional consent rights, such as the right to consent before any
particular service is provided, as long as those additional consent
provisions are implemented consistently with §300.505, including
§300.505(d).

Parents are important members of the child's IEP team. The child's IEP
team is responsible for making determinations of the content of the
child's IEP. It is at the IEP team meeting that the IEP team determines
what, if any, additional services are necessary to enable the child to
achieve the written annual goals in his or her IEP. *See* §§ 300.344,
300.346, and 300.347. Each public agency is required to take steps to
ensure that one or both of the parents of a child with a disability are
present at each IEP meeting or are afforded the opportunity to
participate. §300.345.

Additionally, the public agency must provide written notice to the
parents of a child with a disability a reasonable time before the public
agency proposes to initiate or change the identification, evaluation, or
educational placement of the child or the provision of a free
appropriate public education (FAPE) to the child. Prior notice by the
public agency and the content of that notice must meet the requirements
of §300.503.

3.  ***Similar to the last question, if a certain service is determined
    to be necessary for the period of time covered by the initial IEP
    and, later, it is determined by the IEP team that that same service
    should continue to be provided to the child, must parental consent
    again be sought?***

If a certain service is determined to be necessary during the period
covered by the initial IEP (under which the parent consented to the
initial provision of services) and the IEP team (which includes the
parent) determines that the service should continue to be provided to a
child with a disability, the school district is not required to obtain
separate parental consent under the IDEA. However, as explained above, a
State may have additional consent rights for parents. If a State has
given parents the right to consent to a continuing service and the
parent does not consent, under §300.505(d), the agency must use its
"effective procedures to ensure that a parent's refusal to consent does
not result in failure to provide the child with FAPE," including, if
necessary, taking the appropriate steps to override parental refusal to
consent.

4.  ***We understand that, pursuant to 34 C.F.R. §300.7(2)(i), "if it is
    determined...that a child...needs only a related service and not
    special education, the child is not a child with a disability." We
    also are cognizant of 34 C.F.R. §300.505(e), which says that a
    school district "may not use a parent's refusal to consent to one
    service...to deny the parent or child any other service..." We
    wonder whether, in the situation where a parent has refused to
    consent to all but a related service, that service must be provided
    to the child.***

The citations in your question do not apply to the situation you
describe. Your question seeks to determine if the public agency must
provide a related service if parents refuse consent for all services
except for a related service. Under this scenario, we assume that (1)
the services refused are part of the initial provision of special
education and related services since there are no express provisions
under the IDEA requiring consent for subsequent provision of services
and (2) that the services refused include special education (thus the
child has already been determined to be a child with a disability and)
in which case §300.7(a)(2)(i) would not apply. If parents refuse to
consent to all services except for a related service, under the IDEA,
the school district is not required to provide the related service. In
addition, it cannot proceed to due process to override the refusal to
consent to the special education and other related services because the
parent has not provided consent to the initial provision of special
education and related services.

5.  ***If a parent refuses all special education and related services
    for a child, will that child be eligible for the protections
    provided to children with disabilities who are removed from their
    educational setting for disciplinary reasons? See 34 C.F.R. §300.519
    et seq.***

We assume your question addresses only those children whose parents
refuse to consent to the initial provision of special education and
related services since there are no express provisions under the IDEA
requiring consent for subsequent services. Section §300.527(d)(2)(iii)
requires agencies to provide special education and related services
including the protections of §§300.520 -- 300.529 to children determined
to be a child with a disability. However, in the situation you describe
where a parent of a child with a disability refuses consent for the
initial provision of services, we would consider the parent to have
refused the benefits of FAPE and its protections under the IDEA,
including the discipline procedures at §§300.520 -- 300.529, and thus
those protections would not apply to such children.

We hope that you find this explanation helpful. If you need further
assistance, please call Dr. JoLeta Reynolds at 202-205-5507.

> Sincerely,
>
> /s/
>
> Stephanie S. Lee
>
> Director
>
> Office of Special Education Programs

cc: Mr. Dennis Kane

State Director of Special Education