Dated April 10, 2003

Mr. Lawrence C. Gloeckler

Deputy Commissioner

Office of Vocational and Educational Services for

Individuals with Disabilities

Room 1606 One Commerce Plaza

Albany, New York 12234

Dear Mr. Gloeckler:

Thank you for your letter to Stephanie S. Lee, Director, Office of
Special Education Programs (OSEP), requesting clarification regarding
the inability of public agencies to override a parent's refusal to
consent to the initial provision of special education and related
services under the Individuals with Disabilities Education Act (IDEA) by
using the IDEA due process hearing procedures. You also asked about how
this provision relates to the State mandate under IDEA to provide a free
appropriate public education (FAPE). Our responses to your questions are
as follows:

1.  **How does OSEP reconcile an interpretation of its regulations that
    would diminish the protections provided to students with
    disabilities with the provisions of 20 U.S.C. §1406(b) that prohibit
    the Secretary from implementing a regulation that would lessen the
    protections that were embodied in regulations in effect on July 20,
    1983 with respect to parental consent to initial placement in
    special education, unless the regulation reflects the clear and
    unequivocal intent of Congress.**

Part B of the IDEA requires parental consent for the initial provision
of special education and related services and does not permit public
agencies to use the IDEA due process hearing procedures to override a
parental refusal to consent to the initial provision of special
education and related services. Section 614(a)(1)(C)(i) of the IDEA
Amendments of 1997 states that parental consent must be obtained before
an evaluation is conducted. It further states that "parental consent for
evaluation shall not be construed as consent for placement for receipt
of special education and related services." This provision is
immediately followed by section 614(a)(1)(C)(ii), which states that if
the parents of such child refuse consent for evaluation, the agency may
continue to pursue an evaluation by utilizing the mediation and due
process procedures under section 615, except to the extent inconsistent
with State law relating to parental consent. There is no similar
provision authorizing public agencies to use mediation or due process
procedures to override a parent's refusal to consent to the initial
provision of special education and related services.

The IDEA statute was silent on this issue prior to the 1997 Amendments.
In enacting the consent provisions of section 614(a)(1)(C) in 1997,
Congress was clearly aware of the long-standing regulatory requirement
that parental consent must be obtained before the initial provision of
special education and related services and of the requirement expressly
allowing States to override parental refusal to the initial provision of
special education and related services by using the IDEA due process
hearing procedures. Congress failed in the 1997 Amendments to IDEA to
include express provisions allowing States to use the due process
hearing procedures to override parental refusal to consent to the
initial provision of special education and related services. This
statutory language is paralleled in the Part B regulations at 34 CFR
§300.505(a) and (b).

The 1997 IDEA Amendments reflect Congress' intent to provide parents the
ultimate choice or decision regarding the initial provision of special
education and related services for their child. Congress chose not to
allow school districts to use the IDEA due process hearing procedures to
override a parent's refusal to consent to the initial provision of
special education and related services under section §614(a)(1)(c),
although an express provision was included for refusal to consent to
initial evaluations. This distinction indicates a clear congressional
intent to support parents' rights to choose whether their children would
be enrolled initially in special education. The provision allowing
school districts to proceed to due process for non-consent on
evaluations was enacted to ensure that parents' choices were informed
(such that parents would have information about the special education
and related services needs of each individual child) while still
enabling the parent to ultimately determine if his or her child would be
initially placed in special education. We believe that the IDEA statute
and Part B regulations reflect the clear and unequivocal intent of
Congress. We enclose for your information the 2003 OSEP Letter to
Gantwerk and the 2003 OSEP Letter to Yudien as additional background
information on the implementation of 20 U.S.C. §1414(a)(1)(C) and 34 CFR
§505(a)(1)(ii).

Finally, we note that there is a discrepancy in the New York State
Education Department (NYSED) regulations regarding the implementation of
the consent provisions under the IDEA. While NYSED regulations at
sections 200.5(b)(1)(ii)(b) and (iii)(a) for 5-20 year olds require the
school district board of education to initiate an impartial hearing to
determine if special education shall be provided without parental
consent, New York regulations at section 200.16(g)(5) for preschool
children (ages 3-5) expressly state that "in the event the parent does
not provide consent for the initial provision of special education
services, no further action will be taken by the \[NY\] committee on
preschool special education until such consent is obtained. NYSED must
delete the provisions of sections 200.5(b)(1)(ii)(b) and (iii)(a) that
allow school districts to initiate an impartial hearing to determine if
special education shall be provided without parental consent in order to
make such regulations consistent with the IDEA's express statutory and
regulatory provisions.

2.  **How does OSEP reconcile this interpretation with the provisions of
    20 U.S.C. §1406(c) that prohibit the Secretary, through policy
    letters or other statements, from establishing a rule that is
    required for compliance or eligibility without following the
    rule-making requirements of section 553 of Title 5 of the United
    States Code?**

The IDEA statutory and regulatory provisions are clear as explained
above in response to question 1. The Secretary is implementing
congressional mandates as reflected in express IDEA statutory and
regulatory provisions.

3.  **How does OSEP reconcile its interpretation of 34 C.F.R. §300.505
    with the provisions of 34 CFR §300.507(a) which authorize a public
    agency to commence an impartial hearing on any matter relating to
    the provision of FAPE to a student?**

The more specific statutory and regulatory language regarding parental
consent would take precedence over the more general language regarding
due process hearing procedures. The IDEA does not permit public agencies
to initiate a due process hearing if a parent refuses to consent to the
initial provision of special education and related services. 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. Informed parent consent means that the parent has
been fully informed of all information relevant to the activity for
which consent is sought (including in the case of the initial provision
of special education and related services the fact that FAPE services
and IDEA protections are not available to the child if consent is not
provided), in his or her native language, or other mode of communication
([see]{.underline} 34 CFR §300.500(b)(1)). 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]{.underline}*,* 34 CFR §§300.506(a) and
(b)(1). The public agency may use mediation to informally explain to the
parent the potential consequences to their child's education if the
parent chooses not to provide consent for the initial provision of
special education and related services for their child.

4.  **How does OSEP reconcile its interpretation of 34 CFR §300.505(a)
    and (b) with the provisions of 34 CFR §300.505(d) which authorizes a
    State to impose additional consent requirements if it ensures that
    public agencies have procedures in place to ensure that a parent's
    refusal to consent does result in a failure to provide FAPE?**

The provisions of 34 CFR §300.505(d) do not authorize a State to impose
additional consent requirements that contravene the express IDEA
statutory and regulatory provisions regarding non-consent override for
the initial provision of special education and related services. As
noted in response to question 1, the congressional mandate and intent is
clear that parental consent must be obtained before the initial
provision of special education and related services and in the section
immediately following reference to that consent requirement only
provided for States to be able to use the IDEA due process hearing
procedures to override parental refusal to consent to evaluations.

5.  **How can States and local educational agencies carry out their
    responsibilities to ensure the provision of FAPE to all students
    with disabilities, if an impartial hearing to override the
    withholding of parental consent may not be initiated?**

Under the IDEA, an individual parent's refusal to consent to the initial
provision of special education and related services relieves the State's
obligation to provide FAPE to that child until the parent provides that
consent. Once a parent consents to the initial provision of special
education and related services for a child with a disability, States
have an ongoing mandate to provide FAPE to that child including, if
appropriate, using the due process hearing procedures to override
parental refusal to consent to subsequent special education and related
services. In the 1997 IDEA Amendments, Congress expressed the judgment
that once parents are knowledgeable about their child's eligibility for
special education and related services under the IDEA and receive an
individualized education program, they have the right to make the
decision as to whether the initial receipt of special education and
related services is appropriate for their child.

I hope that you find this explanation helpful. If you would like further
assistance, please contact Dr. JoLeta Reynolds of my office at (202)
205-5507.

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

Enclosures