Dated August 15, 2007

Teresa T. Combs

Senior Attorney

> Kentucky School Boards Association 260 Democrat Drive

Frankfort, Kentucky 40601

Dear Ms. Combs:

The U.S. Department of Education, Office of Special Education Programs
(OSEP) is in receipt of your letter dated June 6, 2007, in which you
ask: \"What is OSEP\'s current position on whether a local school
district must or may file a request for due process hearing in an
attempt to force a child back into the district\'s special education
program after a parent revokes consent for special education services?\"

As you know, 34 CFR §300.9 of the final Part B regulations implementing
the 2004 reauthorization of the Individuals with Disabilities Education
Act (IDEA) states that, regarding consent, the parent understands that
the granting of consent is voluntary on the part of the parent and may
be revoked at any time (34 CFR §300.9(c)(1)). 34 CFR §300.9(c)(2) goes
on to state that if a parent revokes consent, that revocation is not
retroactive (i.e., it does not negate an action that has occurred after
the consent was given and before the consent was revoked).

The \"action\" indicated above would, in your question, refer to the
provision of special education and related services pursuant to the
child\'s individualized education program (IEP). Therefore, the
revocation of consent for services does not negate the provision of
services that occurred after the parent granted consent for those
initial services and before the parent revoked the consent for provision
of special education and related services.

Under 34 CFR §300.300(b), if a parent fails to provide consent, or fails
to respond to a request for consent, to the initial provision of special
education and related services that are needed to provide a free
appropriate public education (FAPE) to the child, the public agency may
not use the procedures in subpart E of the final regulations (including
the mediation procedures under 34 CFR §300.506 or the due process
procedures under 34 CFR §§300.507-300.516) in order to obtain agreement
or a ruling that the services may be provided to the child.

The final Part B regulations do not specifically address whether parents
who previously consented to the initiation of special education services
should have the right to subsequently remove their child from special
education services. In the *Analysis of comments and Changes* section of
the 2006 regulations, we addressed concerns about situations in which a
child is receiving special education services and the child\'s parent
wants to discontinue services because they believe the child no longer
needs special education services. The issue raised was whether public
agencies should be allowed to use the procedural safeguards to continue
to provide special

> Page 2 --- Teresa T. Combs

education and related services to a child whose parent withdraws consent
for the continued provision of special education and related services.
In the past, the Department interpreted Part B of IDEA as requiring a
public agency to take the necessary steps, which could include using
informal means to reach agreement with the parents, as well as
requesting a due process hearing, to seek to override the parent\'s
revocation of consent, if the public agency believes the services are
necessary to ensure that a child eligible for special education and
related services continues to receive FAPE. The Department intends to
propose regulations to permit parents who previously consented to the
initiation of special education services, to withdraw their consent for
their child to receive, or continue to receive, special education
services. This would preclude a public agency from using due process
procedures to override a parent\'s revocation of consent. Because this
is a change from the Department\'s longstanding policies and was not
proposed in the Notice of Proposed Rulemaking (NPRM), we will provide
the public the opportunity to comment. 71 Fed. Reg. at 46551. Until
final regulations are published, there would be no bar to a public
agency using due process procedures to override a parent\'s revocation
of consent.

> Based on section 607(e) of the IDEA, we are informing you that our
> response is provided as informal guidance and is not legally binding,
> but represents an interpretation by the U.S. Department of Education
> of the IDEA in the context of the specific facts presented.

We hope this provides the information you need. If you have questions
about this issue, please do not hesitate to contact Deborah Morrow at
(202) 245-7456.

> Sincerely,
>
> /s/

Patricia J. Guard

Acting Director

> Office of Special Education Programs