Dated March 17, 2008

Nan Gray, Director

At Risk and Special Education Services Utah State Office of Education

P.O. Box 144200

Salt Lake City, UT 84114-4200

Dear Ms. Gray:

This is in response to your electronic mail (email) communication to
Sheila Friedman, of my office, dated October 4, 2007, in which you pose
five questions regarding secondary transition for children with
disabilities, specifically related to consent required to invite agency
representatives to an individualized education program (IEP) Team
meeting conducted to meet the requirements of 34 CFR §300.320(b) of the
regulations for Part B of the Individuals with Disabilities Education
Act (Part B). Your questions and the Office of Special Education
Programs\' (OSEP) responses are provided below.

1.  How often must consent be obtained? Annually from parent or student
    18 or older? Once from the parent at the beginning of transition
    planning (student aged 15 or younger) and once again from the
    student when the student reaches 18 years old?

As explained below, a separate consent must be obtained from the parents
or a child who has reached the age of majority for each IEP Team
meeting, conducted in accordance with 34 CFR §300.320(b), before a
public agency can invite a representative of any participating agency
that is likely to be responsible for providing or paying for transition
services to attend the meeting. The regulation at 34 CFR §300.320(b)
provides as follows:

Beginning not later than the first IEP to be in effect when the child
turns 16, or younger if determined appropriate by the IEP Team, and
updated annually, thereafter, the child\'s IEP must include\--

\(1\) Appropriate measurable postsecondary goals based upon age
appropriate transition assessments related to training, education,
employment, and, where appropriate, independent living skills; and

\(2\) The transition services (including courses of study) needed to
assist the child in reaching those goals.

Under 34 CFR §300.321(b)(3), \"\[t\]o the extent appropriate, with the
consent of the parents or a child who has reached the age of majority,\"
if a purpose of an IEP Team meeting will be the consideration of
postsecondary goals for the child and the transition services needed to
assist the child in reaching those goals under §300.320(b), \"the public
agency must invite a representative of any participating agency that is
likely to be responsible for providing or paying for transition
services.\" [See also ]{.underline}34 CFR §300.622(b)(2) (requiring
parental consent or the consent of an

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eligible child who has reached the age of majority for the release of
personally identifiable information to officials of participating
agencies providing or paying for transition services in accordance with
34 CFR §300.321(b)(3)).

This consent requirement was included in the August 2006 final Part B
regulations to protect the confidentiality of discussions that occur at
IEP Team meetings that other agency representatives would be able to
hear, as a result of their attendance at such meetings, \"only because
they may be providing or paying for transition services.\" In order to
protect this confidential information about a child from unauthorized
disclosure to these other agency representatives, the consent of the
parent or a child who has reached the age of majority must be obtained
before a public agency can invite representatives of other participating
agencies to attend IEP Team meetings. [Assistance to States for the
Education of Children with Disabilities and Preschool Grants for
Children With Disabilities, Final Rule, Analysis of Comments and
Changes, 71 Fed. Reg. 46540, 46672 (Aug. 14, 2006). ]{.underline}Since
the conversations at each IEP Team meeting are not the same, and since
confidential information about the child is always discussed, we believe
that consent must be obtained prior to each IEP Team meeting if a public
agency proposes to invite a representative of any participating agency
that is likely to be responsible for providing or paying for transition
services. Therefore, it is not permissible under this regulation for a
public agency to obtain the consent of the parents or eligible child
only one time before the transition planning process is initiated for
the child until the child leaves school. Although your question also
asks about obtaining the requisite consent on an annual basis, one
annual consent would not be sufficient if there is more than one IEP
Team meeting conducted during a 12-month period where a purpose of the
meeting will be the consideration of the child\'s postsecondary goals
and the transition services needed to assist the child in reaching those
goals under 34 CFR §300.320(b).

2\. As a follow-up to question 1; what is preferred wording for
indicating the duration of the consent if it is requested for multiple
years? For example, would it be correct to say that parents are giving
consent for agency involvement at every IEP meeting until the student
turns 18?

As noted in our response to question 1 above, public agencies may not
request a one-time consent from parents for multiple years for every IEP
Team meeting until the student turns age 18. To be consistent with Part
B, the consent of the parents or a child who has reached the age of
majority must be obtained for each IEP Team meeting, if a purpose of the
meeting will be the consideration of the child\'s postsecondary goals
and the transition services needed to assist the child in reaching those
goals under §300.320(b), before a public agency can invite a
representative of any participating agency that is likely to be
responsible for providing or paying for transition services to attend
the meeting.

3\. Is consent required only for IEP meetings or for any time that an
agency representative meets with students, e.g. when a VR \[vocational
rehabilitation\] counselor presents orientation and eligibility
information to a group of students?

The consent requirements described above require parental or, where
appropriate, student permission for a public agency to invite, to the
IEP meeting, a representative of any participating agency that is likely
to be responsible for providing or paying for transition services in

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accordance with 34 CFR §300.321(b)(3). Whether parental consent or the
consent of the child who has reached the age of majority is required
under the circumstances described in your question would depend on
whether personally identifiable information is being released to
officials of vocational rehabilitation agencies. In the situation
described in your question, it does not appear that personally
identifiable information about the students is being released to
officials of vocational rehabilitation agencies.

4\. What information must be included in the request for consent, e.g.,
the duration of the consent, the name of the agency, the name of the
individual representative? Must the request for agency involvement
indicate that the agency representative will be invited or could it say
that the representative may be invited?

When the term consent is used in the Part B regulations, we mean consent
as defined in 34 CFR §300.9. Under 34 CFR §300.9, consent means that:
(1) the parent has been fully informed of all information relevant to
the activity for which consent is sought, in his or her native language,
or other mode of communication; (2) the parent understands and agrees in
writing to the carrying

out of the activity for which his or her consent is sought, and the
consent describes that activity and lists the records (if any) that will
be released and to whom; and (3) the parent understands that the
granting of consent is voluntary on the part of the parent and may be
revoked at any time. If the 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).
Therefore, the request for consent from the parents or a child who has
reached the age of majority for a public agency to invite a
representative of any participating agency that is likely to he
responsible for providing or paying for transition services to an IEP
Team meeting if a purpose of the meeting will be the consideration of
the child\'s postsecondary goals and the transition services needed to
assist the child in reaching those goals under §300.320(b) must contain
information sufficient to meet the standards in (1) through (3) above.
As discussed earlier, a one-time consent or consent for multiple IEP
Team meetings would not be consistent with these Part B requirements. In
addition to the information you identify, to be consistent with 34 CFR
§300.9 and the relevant consent requirements, the consent must specify
that a public agency will invite the other agency representative to an
IEP Team meeting if a purpose of the meeting will be the consideration
of the child\'s postsecondary goals and the transition services needed
to assist the child in reaching those goals only if the parents or
eligible child consents to the invitation. In addition, the consent
should explain that, and even if the parents of child gives their
consent, the public agency cannot guarantee that the other agency
representative will attend, but that the public agency is taking steps
to obtain the other agency\'s participation.

5\. From the agency folks - what is their responsibility in checking to
see that consent has been obtained prior to attending an IEP meeting, if
invited by the LEA?

The consent requirements in 34 CFR §300.321(b)(3) and 300.622(b)(2)
apply to public agencies, as that term is defined at 34 CFR §300.33,
that are responsible for providing education to children with
disabilities, and do not apply to participating agencies that are likely
to be responsible for providing or paying for transition services,
unless those entities meet the Part B definition of public agency. [See
also ]{.underline}34 CFR §300.2. Accordingly, Part B does not require
participating agencies that arc likely to be responsible for providing
or paying for transition

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services to ensure that the local educational agency has obtained the
consent from the parents or the child who has reached the age of
majority to invite them to attend an IEP Team meeting in accordance with
34 CFR §300.321(b)(3).

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 information is helpful to you. If you have further
questions, please do not hesitate to contact Sheila Friedman at
202-245-7349.

Sincerely,

/s/

William W. Knudsen

Acting Director

Office of Special Education Programs