Dated February 12, 2004

I write to respond to your initial inquiry about the alleged disclosure
of child find referral information about x by the X County Hospital to X
County Child Development Services (CDS) which is part of the Maine
Department of Education's child find system under Part C of the
Individuals with Disabilities Education Act (Part C of IDEA). The
information allegedly disclosed is information to enable the Part C
agency to determine whether a child aged birth to three is eligible for
early intervention services under Part C. You asked, and expressed
concern, about the circumstances under which such information about x
could be disclosed by the hospital to the child find entity under Part C
without prior parental consent under the IDEA.

Under Part C of the IDEA, the State lead agency must make available to
eligible infants and toddlers with disabilities and their families early
intervention services to address their developmental needs. 20 U.S.C.
§§1432(4), 1434(1), and 1435(a)(2). As part of the mandate to make early
intervention services available to eligible infants and toddlers and
their families, Part C of the IDEA requires the lead agency in each
State to find such children and have in place child-find policies and
procedures to ensure that primary referral sources (including hospitals)
refer potentially eligible children to the Part C child find program
within two business days of identification. 20 U.S.C. §§1435(a)(5); 34
CFR §303.321. The specific information that can be included in the
referral without prior parental consent by the primary referral source
for these limited child find purposes are the child's name, date of
birth, and sufficient parent contact information (as determined by the
lead agency) to the lead agency so that the lead agency can meet its
child find responsibilities. The purpose of child find is to ensure that
potentially eligible children with disabilities and their families are
informed of the availability of services under the IDEA by the agency or
agencies responsible for administering the IDEA in the State.

In addition, under Part B of the IDEA, the State educational agency
(SEA) is required to have child find policies and procedures in place to
identify children with disabilities from birth through 21. 20 U.S.C.
§1412(a)(3); 34 CFR §300.125. In many States where the SEA and lead
agency are different agencies, the SEA, through an interagency agreement
or other mechanism, may include the lead agency's participation in the
SEA's child find activities for birth to three children with
disabilities. However, the lead agency has an independent child find
obligation for children with disabilities aged birth to three years
under Part C of the IDEA. 20 U.S.C. §1435(a)(5); 34 CFR §§303.320 and
303.321. In Maine, the Maine Department of Education serves as both the
State educational agency under Part B and the lead agency under Part C.
Thus, the Maine Department of Education is responsible for child find
under both Parts B and C of the IDEA.

In lieu of the required disclosure under 34 CFR §303.321(d)(2), the lead
agency under Part C may, but is not required to, meet its child find
obligations for children birth to three in other ways. The lead agency
may require instead that the primary referral source or any agency that
makes referrals under the State's child find system notify the parent
that the child is being referred to the lead agency for child find
purposes and allow the parent an opportunity to object. If, under these
circumstances, 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, prior parental consent may be
required under other privacy laws before the referral can be made). If,
under these circumstances, the parent objects to the referral, the lead
agency may meet its child find obligations through other procedures,
such as general public awareness campaigns. In a State that has adopted
these notification procedures, if the parent objects to the referral,
the IDEA does not require the referral to be made to the lead agency.
See, 20 U.S.C. §1435(a)(6) and 34 CFR §§303.320 and 303.321. It is our
understanding that Maine does not have such notification procedures.

Your initial inquiry was directed to the Family Policy Compliance Office
(FPCO), the Office that administers the Family Educational Rights and
Privacy Act (FERPA), 20 U.S.C. §1232g. The FPCO initially responded to
your inquiry separately in a letter dated x and informed you that FERPA
does not apply because, based on the information the Department had at
that time, the X County Hospital was not an "educational agency or
institution" to which funds had been made available under a program
administered by the Secretary of Education. Your response letter dated x
indicated that the X County Hospital has a financial relationship with
the X County CDS (the Part C provider in X County). This letter also
responds to your x letter to the FPCO. Since your letter, the Department
has learned that the X County Hospital serves as a contractor to the X
County CDS for some early intervention services. Although the X County
Hospital is an "educational agency or institution" under FERPA to the
extent that it provides Part C services under the IDEA, FERPA only
applies to "education records" of "students." 20 U.S.C. §§1232g(a)(4)(A)
and (a)(6). The term "student" is defined to include "any person with
respect to whom an educational agency or institution maintains education
records, but does not include a person who has not been in attendance at
such agency or institution." 20 U.S.C. §1232g(a)(6). In this case, x, at
the time of the alleged disclosure, was not a "student" under Part C of
the IDEA because your prior correspondence specifically indicated that x
had not received Part C services and that you did not seek such services
on x behalf. Thus, FERPA does not apply to the disclosure by the
hospital as a primary referral source to X County CDS, which implements
the lead agency's child find responsibilities in X County.

You expressed two other concerns about Part C in your inquiry, namely
that: (1) you neither needed nor desired to seek early intervention
services for x; and (2) the referral was being made to allegedly
increase the amount of funds that the lead agency would receive from the
Federal Part C program. As to your first concern, while the lead agency
under Part C has an obligation to find infants and toddlers with
disabilities, parents have an unequivocal right under Part C of the IDEA
to decline to participate in the Part C early intervention program. Part
C requires prior written parental consent be obtained before an
evaluation and assessment can be conducted or before the provision of
early intervention services. 20 U.S.C. §1436(e); 34 CFR §§303.322(d)(2),
303.401(a)(1), and 303.404. Second, while lead agencies under Part C
receive Part C funds based in part on the State's Part C "child count",
the only children the State and lead agency are required to report on
under 20 U.S.C. §1418(a)(1) are those infants and toddlers with
disabilities who are receiving early intervention services. This
includes a count of those infants and toddlers with disabilities whose
parents have consented to their child being evaluated for early
intervention services and who are determined eligible and have
individualized family service plans (IFSPs) in place as of the December
1^st^ child count deadline. Thus, x, if x was referred to Part C but is
not receiving services under Part C, is not eligible to be included in
the State's child count data for Federal funding purposes.

Finally, IDEA's procedural protections for parents include the right to
file a State complaint if there is an alleged violation of Part C. If,
after reviewing the above information, you believe that there is a
violation of Part C of the IDEA, you may file a State complaint with the
lead agency in accordance with the Part C regulations at 34 CFR
§§303.510 through 303.512 and the lead agency is required to resolve the
complaint and issue its final decision within 60 calendar days of the
complaint being filed. In Maine, the contact for the lead agency is:

> Laurie Bertulli, Part C & Section 619 Coordinator
>
> Child Development Services\
> Department of Education\
> State House Station #146\
> Augusta, ME 04333

We trust this information is responsive to your inquiries. If you have
further questions, please contact Dr. JoLeta Reynolds of my office at
(202) 205-5507 (press 3).

Sincerely,

> /s/

Stephanie Smith Lee

Director

Office of Special Education Programs

cc: LeRoy Rooker

Family Policy Compliance Office

David Stockford

Maine Department of Education