UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

June 19, 2013
Dear Colleague,
For decades, Braille has been a key tool for literacy for many blind and visually impaired
individuals. The Individuals with Disabilities Education Act (IDEA or Act),1 in section
614(d)(3)(B)(iii), specifically addresses a public agency’s responsibility to make
provisions for Braille instruction in educating blind and visually impaired students. This
requirement states that, "in the case of a child who is blind or visually impaired, [the
Individualized Education Program (IEP) Team must] provide for instruction in Braille
and the use of Braille unless the IEP Team determines, after an evaluation of the child's
reading and writing skills, needs, and appropriate reading and writing media (including
an evaluation of the child's future needs for instruction in Braille or the use of Braille),
that instruction in Braille or the use of Braille is not appropriate for the child." In the
1997 reauthorization of the IDEA, Congress added this requirement to ensure that blind
and visually impaired students are provided the Braille instruction that is necessary for
them to receive a free appropriate public education (FAPE). It was retained without
change when the IDEA was reauthorized in 2004.2 This requirement applies equally to
children who need Braille instruction when they enroll in kindergarten, as well as to
children who will benefit from Braille instruction because they face the prospect of future
vision loss later on in their educational careers.
Despite this requirement, one of the most serious concerns voiced by parents and
advocates of blind and visually impaired children is that the number of students receiving
instruction in Braille has decreased significantly over the past several decades. As a
result, these individuals believe that Braille instruction is not being provided to some
students for whom it may be appropriate. The purpose of this letter is to provide
guidance to States and public agencies to reaffirm the importance of Braille instruction as
a literacy tool for blind and visually impaired students, to clarify the circumstances in
which Braille instruction should be provided, and to reiterate the scope of an evaluation
required to guide decisions of IEP Teams in this area.3 This letter also identifies
resources that are designed to help strengthen the capacity of State and local personnel to
meet the needs of students who are blind or visually impaired.

1

Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§1401, 1411-1419 (2004).
The IDEA Part B regulation in 34 CFR §300.324(a)(2)(iii) incorporates this statutory requirement
verbatim.
3
Blind and visually impaired students are also protected by two other Federal laws: Section 504 of the
Rehabilitation Act of 1973 (Section 504), which prohibits disability discrimination by entities, such as
public schools, that receive Federal financial assistance (29 U.S.C. § 794, 34 CFR part 104); and Title II of
the Americans with Disabilities Act of 1990 (Title II), which prohibits disability discrimination by public
entities, including public schools, regardless of whether they receive Federal financial assistance (42 U.S.C.
§§ 12131-12134, 28 CFR part 35). The Office for Civil Rights (OCR) in the U.S. Department of Education
enforces Section 504 in public schools and, along with the U.S. Department of Justice, enforces Title II in
public schools. Information about OCR enforcement is available on OCR’s website at www.ed.gov/ocr.
2

Background
In the fall of 2010, nearly 30,000 of the students served under Part B of the IDEA were
reported as having “visual impairment including blindness” as their primary disability,
(approximately 0.07% of the total school population4). The population of children who
receive services under Part B of the IDEA due to blindness or visual impairment is
extremely diverse. These children display a wide range of vision difficulties and varying
adaptations to vision loss. With regard to the degree of vision loss, the student
population includes persons who are totally blind and persons with minimal light
perception, as well as persons with varying degrees of low vision. With regard to
adaptations to vision loss, persons with similar degrees of vision loss may function very
differently. A significant visual deficit that could pose formidable obstacles for some
children may pose far less formidable obstacles for others. This is because adaptations to
vision loss are shaped by individual factors, such as availability and type of family
support and the level of the child’s intellectual, emotional, physical, and motor
functioning.
The challenge for educators of blind and visually impaired children is how to teach skills
that sighted children typically acquire through vision. Blind and visually impaired
students use a variety of methods to learn to read, write, and acquire other skills. For
reading purposes, some students use Braille exclusively; others use large print or regular
print with or without low vision aids. Still others use a combination of methods,
including Braille, large print, low vision aids, and devices with computer generated
speech, while others have sufficient functional vision to use regular print.
Despite the wide range of vision difficulties and varying adaptations to vision loss in the
population of blind and visually impaired students, Braille has been a very effective
reading and writing medium for many of them. Research has shown that knowledge of
Braille provides numerous tangible and intangible benefits, including increased
likelihood of obtaining productive employment and heightened self-esteem.5 Given these
benefits, it is important that States and their public agencies ensure the appropriate
implementation of the IDEA requirement regarding Braille instruction.

4

Source: www.ideadata.org; see also 34 CFR §300.8(c)(13).
Bell, E. C. & Mino, N. “Blind and Visually Impaired Adult Rehabilitation and Employment Survey: Final
Results.” Journal of Blindness, Innovation & Research, Vol.1, No.1 (2013): Accessed April 8, 2013.
See www.pdrib.com/pages/researchreports.php.
5

Page 3 – Dear Colleague: Braille Instruction
Other IDEA Requirements
In implementing the IDEA requirement regarding Braille instruction, the following
additional IDEA requirements are applicable. Under IDEA, each State and its public
agencies must make FAPE available to children with specified disabilities residing in the
State in mandatory age ranges through a properly developed IEP. Each child’s IEP must
include the special education and related services and supplementary aids and services
that are necessary to ensure each child’s meaningful involvement and progress in the
general education curriculum offered to nondisabled students. 34 CFR §§300.101,
300.201, and 300.320-300.324.
Under 34 CFR §300.304(c)(4) and (6), an evaluation must assess the child in all areas
related to the suspected disability and must be sufficiently comprehensive to identify all
of the child’s special education and related services needs. Also, under 34 CFR
§300.304(c)(1)(iv), any assessments and other evaluation materials used to assess a child
must be conducted by trained and knowledgeable personnel.
Instruction in Braille and the Use of Braille
IEP Teams must ensure that children who are blind or who are visually impaired are
provided with the Braille instruction they need in order to receive FAPE and to ensure
their meaningful access to the general education curriculum offered to nondisabled
students. To this end, IEP Teams for blind and visually impaired students should
consider each child’s need for appropriate Braille instruction on an individual, case-bycase basis, and without undue delay. Systematic and regular instruction from
knowledgeable and appropriately trained personnel is essential for a child to become
proficient in Braille. IEP Teams must ensure that the instructional time allotted for
Braille instruction is sufficient to provide the level of instruction determined appropriate
for the child. For example, if a particular student has little or no skill in Braille reading
and writing, the IEP Team may conclude that frequent and intensive instruction in Braille
likely would be necessary to enable the student to have meaningful access to the general
curriculum.
Scope of Evaluation Related to Braille Instruction
The IDEA requires that Braille instruction must be provided to a child who is blind or
visually impaired, unless the IEP Team determines, based on an evaluation of the child's
current and future reading and writing needs, that Braille instruction is not appropriate for
a particular child. Generally, determinations regarding the components of evaluations for
particular children are matters within the purview of State and local officials. The
evaluation of vision status and the need (or future need) for Braille instruction should be
thorough and rigorous, include a data-based media assessment, be based on a range of
learning modalities, including auditory, tactile, and visual, and include a functional visual
assessment. An assessment of a child’s vision status generally would include the nature
and extent of the child’s visual impairment, and its effect, for example, on the child’s
ability to learn to read, write, do mathematical calculations, and use computers and other

Page 4 – Dear Colleague: Braille Instruction
assistive technology, as well as the child’s ability to be involved in and make progress in
the general curriculum offered to nondisabled students. Such an evaluation generally
would be closely linked to the assessment of the child’s present and future reading and
writing objectives, needs, and appropriate reading and writing media. The information
obtained through the evaluation generally should be used by the IEP Team in determining
whether it would be appropriate to provide a blind or visually impaired child with
instruction in Braille or the use of Braille as required by the IDEA. Factors, such as
shortages of trained personnel to provide Braille instruction; the availability of alternative
reading media (including large print materials, recorded materials, or computers with
speech output); or the amount of time needed to provide a child with sufficient and
regular instruction to attain proficiency in Braille, may not be used to deny Braille
instruction to a child. Rather, it would be appropriate to deny Braille instruction to a
child only when the child’s IEP Team, based on the results of a thorough and rigorous
evaluation, determines that instruction in Braille would be inappropriate for that child. In
addition, because the evaluation also must assess a child’s future needs, a child’s current
vision status should not necessarily determine whether it would be inappropriate for that
child to receive Braille instruction while in school. This is particularly true for a child
with a degenerative vision condition who may have a high degree of functional vision
when the evaluation is conducted. The evaluation of such a child would need to assess
whether, despite the child’s current vision status, the child still could benefit from Braille
instruction while in school to increase the likelihood that the child will obtain productive
employment and be able to participate more fully in family and community life.
Office of Special Education Programs’ Investments and Supports
A. Personnel Preparation
To help ensure that children with blindness and visual impairments receive appropriate
services, evidence-based interventions, and appropriate materials and media, including
Braille and Braille instruction, the U.S. Department of Education’s Office of Special
Education Programs (OSEP) awards competitive grants to support university programs
that prepare teachers of students who are blind or visually impaired. During Fiscal Year
(FY) 2012, OSEP invested approximately $18.6 million of discretionary grant funds
specifically to improve services and results for children who are blind or visually
impaired. These funds supported a variety of personnel preparation and technology
projects to increase the numbers of certified and licensed professionals with the unique
and specialized skills necessary to support the education of students with blindness and
visual impairments. OSEP funds personnel preparation programs for teachers of blind or
visually impaired students, Braille teachers, and orientation and mobility instructors.
OSEP requires these personnel development programs to include curricula and
coursework in Braille and Braille instruction.

Page 5 – Dear Colleague: Braille Instruction
B. Accessible Instructional Materials
OSEP also funds technology investments that promote the development, demonstration,
and use of technologies that provide students with print disabilities equal access to the
general education curriculum through collaboration with various industry, educational,
and consumer collaborators. These funding opportunities are designed to help strengthen
State and local capacity to meet the educational needs of children who are likely to
experience vision loss later in childhood or early adolescence.
Additionally, OSEP supports several initiatives to promote timely access to accessible
instructional materials for blind and visually impaired students. The National
Instructional Materials Access Center (NIMAC) is a national repository that makes
National Instructional Materials Accessibility Standard (NIMAS)6 files available for the
production of print instructional materials in specialized formats. The NIMAC receives
files in NIMAS format from textbook publishers, State educational agencies (SEAs) and
local educational agencies (LEAs), and makes these files available for download in a
variety of specialized formats, such as Braille, audio, or digital text, on behalf of
elementary or secondary school students who are blind, are visually impaired, or have
other print disabilities. Consistent with the IDEA requirements for SEAs and LEAs to
make accessible instructional materials available to persons who are blind, are visually
impaired, or have other print disabilities, all States must adopt NIMAS; however, SEAs
and LEAs may choose, but are not required to, coordinate with the NIMAC in carrying
out this responsibility.7
SEAs and LEAs are encouraged to access Bookshare, an online, accessible, digital library
that allows students to access a large and diverse collection of titles for school or pleasure
reading including textbooks, literature, leisure reading, reference materials, newspapers,
and magazines. Students can read multimodally (e.g., see and hear words as they are
being read and highlighted) and download reading materials to be used with other
technologies such as personal computers and cell phone devices.8 In 2007, Bookshare
received a $32 million five-year grant from OSEP to provide free access for students with
a qualified print disability.
The Office of Special Education and Rehabilitative Services (OSERS) provides a direct
appropriation to the American Printing House for the Blind (APH) to produce and
distribute books and other educational materials for students who are blind.9 SEA
representatives may order Braille textbooks from APH at no cost. In 2012, APH offered
955 unique products designed to assist with the education of students who are blind or
visually impaired.

6

NIMAS describes the minimum standard that SEAs and LEAs must meet in order to comply with their
responsibility under the IDEA to provide instructional materials to blind persons or other persons with print
disabilities. See sections 612(a)(23)(A), 613(a)(6), and 674(e)(4) of IDEA.
7
For more information regarding NIMAS and NIMAC, go to www.aim.cast.org.
8 For further information about Bookshare, go to www.Bookshare.org.
9
See 20 U.S.C. §§101-106a (2009); See also www.aph.org for further information.

Page 6 – Dear Colleague: Braille Instruction
Conclusion
Braille is a very effective reading and writing medium for many blind and visually
impaired persons, and research has shown that knowledge of Braille provides numerous
tangible and intangible benefits.10 Therefore, it is imperative that IEP Teams for blind
and visually impaired students provide for instruction in Braille and the use of Braille for
those students, unless, based on a thorough and rigorous evaluation, the IEP Team
determines that instruction in Braille or the use of Braille is not appropriate for a
particular student.
We hope this information is helpful in clarifying the application of the IDEA
requirements regarding Braille instruction for children who are blind or visually
impaired. Thank you for your continued interest in improving results for children with
disabilities.
Sincerely,

Melody Musgrove, Ed. D.
Director,
Office of Special Education Programs

10

Bell & Mino, op.cit.

Michael K. Yudin
Delegated the Authority
to perform the functions
and the duties of Assistant
Secretary for Special
Education and
Rehabilitative Services


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

June 11, 2013
TO:

State Directors of Special Education

FROM:

Michael K. Yudin
Melody Musgrove, Ed.D.
Delegated the authority to perform the Director
functions and duties of Assistant
Office of Special Education Programs
Secretary for Special Education and
Rehabilitation Services

SUBJECT:

Suggested Model for Written Notification of Parental Rights regarding Use of
Public Benefits or Insurance

On February 14, 2013, the Office of Special Education and Rehabilitative Services (OSERS)
published the final regulations under the Individuals with Disabilities Education Act (IDEA) to
amend 34 CFR §300.154(d) governing the use of public benefits or insurance, at
78 Fed. Reg. 10525. Section 300.154(d)(2)(v) includes a new requirement for public agencies to
provide written notification to a child’s parents before accessing a child’s or parent’s public
benefits or insurance (e.g., Medicaid) for the first time and annually thereafter. This notification,
which must be written in language understandable to the general public and in the parent’s native
language or other mode of communication used by the parent, unless it is clearly not feasible to
do so, must inform the child’s parents of all of the rights and protections that are available to
them under the IDEA so that they can make an informed decision regarding whether to allow a
public agency to use their or their child’s public benefits or insurance to pay for services for their
child under the IDEA.
Specifically, the written notification must contain: a statement of the parental consent
requirements in new §300.154(d)(2)(iv); a statement of the “at no cost” provisions in
§300.154(d)(2); a statement that parents have the right to withdraw their consent to disclosure of
their child’s personally identifiable information to the public benefits or insurance program (e.g.,
Medicaid) at any time; and a statement of the public agency’s continuing obligation to ensure
that all required services are provided at no cost to the parent even if the parent withdraws his or
her consent or refuses to consent. 34 CFR §300.154(d)(2)(v).

www.ed.gov
400 MARYLAND AVE., SW, WASHINGTON, DC 20202
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by
fostering educational excellence and ensuring equal access.

Page 2
To assist States and public agencies in implementing this new requirement, we are providing the
attached model written notification, which you may wish to provide to school districts in your
State to use to meet the requirements of new §300.154(d)(2)(v). If you choose to use the
attached notification to meet this new IDEA requirement, we would encourage you to tailor it to
include your State-specific information, for example, by including your State name, school
district name, and the name of your State’s agency responsible for administering the public
benefits or insurance program. Your State and local educational agencies are not required to use
this model notification to satisfy their responsibilities under new §300.154(d)(2)(v). If you
choose instead to develop your own notification, it must include all of the required information
in 34 CFR §300.154(d)(2)(v).
Thank you for your ongoing commitment to improving results for children with disabilities. If
you would like further assistance, please contact Mary Louise Dirrigl at 202-245-7324 or via
e-mail at mary.louise.dirrigl@ed.gov .

FORM: WRITTEN NOTIFICATION

1

IDEA PART B WRITTEN NOTIFICATION REGARDING
USE OF PUBLIC BENEFITS OR INSURANCE
INTRODUCTION
You are receiving this written notification to give you information about your rights and
protections under Part B of the Individuals with Disabilities Education Act (IDEA), so that
you can make an informed decision about whether you should give your written consent
to allow your school district to use your or your child’s public benefits or insurance to
pay for special education and related services that your school district is required to
provide at no cost to you and your child under IDEA. First, we will provide some basic
information about IDEA.
Part B of IDEA is the Federal law that provides for assistance to States and school
districts in making a free appropriate public education (FAPE), which includes special
education and related services, available to children with disabilities in the least
restrictive environment. If your child has been evaluated and found eligible for services
under IDEA because he or she has a disability and needs special education and related
services, your school district must develop an individualized education program (IEP)
for your child. Your school district must provide the special education and related
services included in your child’s IEP at no charge to you or your child.
IDEA funds pay a portion of your child’s special education and related services. Funds
from a public benefits or insurance program (for example, Medicaid funds) also may be
used by your school district to help pay for special education and related services, but
only if you choose to provide your consent, as explained below. Also, your school
district cannot access your or your child’s public benefits or insurance if it would result in
a cost to you, such as a decrease in your benefits or an increase in your premiums.
These “no cost” provisions are explained below as well.
Before your school district can ask you to provide your consent to access your or your
child’s public benefits or insurance for the first time, it must provide you with this
notification of the rights and protections available to you under IDEA. This notification is
intended to help you understand these rights and protections, including the type of
consent your school district will ask you to provide. If you choose not to provide your
consent, or later decide to withdraw your consent, your school district has a continuing
responsibility to ensure that your child is provided all required special education and
related services under IDEA at no charge to you or your child.

FORM: WRITTEN NOTIFICATION

NOTIFICATION REQUIREMENTS
34 CFR §300.154(d)(2)(v)
You are receiving this notification because IDEA requires that you be informed of your
rights and protections when your school district seeks to use your or your child’s public
benefits or insurance to pay for special education and related services. The following
sections explain when you must receive this notification and what information must be
included in the notification.
When Notification Must Be Provided
You must receive this notification:
 before your school district seeks to use your or your child’s public benefits or
insurance for the first time and before it obtains your consent to use those
benefits or insurance for the first time (the consent requirement is described
below); and
 annually thereafter.
Format of Notification
This notification must be:
 written;
 in language understandable to the general public; and
 in your native language or in another mode of communication you use, unless it
is clearly not feasible to do so.

CONTENTS OF NOTIFICATION
34 CFR §300.154(d)(2)(v)(A)-(D)
This notification will explain: 1) the consent that your school district must obtain from
you before it can use your or your child’s public benefits or insurance for the first time;
2) IDEA’s “no cost” provisions that apply to your school district if it seeks to use your or
your child’s public benefits or insurance; 3) your right to withdraw your consent to the
disclosure of your child’s personally identifiable information to your State’s public
benefits or insurance program agency at any time; and 4) your school district’s
continuing responsibility to ensure that your child is provided all required special
education and related services at no charge to you or your child, even if you withdraw
your consent or refuse to provide consent.

2

FORM: WRITTEN NOTIFICATION

3

PARENTAL CONSENT
34 CFR §300.154(d)(2)(iv)(A)-(B)

**If your school district has not accessed your public benefits or insurance in the past to
pay for services that it was required to provide your child under IDEA at no charge to
you or your child, all of the parental consent requirements described below apply.
Before your school district can use your or your child’s public benefits or insurance for
the first time to pay for special education and related services under IDEA, it must
obtain your signed and dated written consent. Generally, your school district will
provide you with a consent form for you to sign and date. Note that your school district
is only required to obtain your consent one time.
This consent requirement has two parts.
1. Consent for Disclosure of Your Child’s Personally Identifiable Information to the
State agency responsible for administering your State’s Public Benefits or Insurance
Program
Under Federal law—the Family Educational Rights and Privacy Act (FERPA) and the
confidentiality of information provisions in IDEA—your school district is required to
obtain your written consent before disclosing personally identifiable information (such as
your child’s name, address, social security number, student number, IEP, or evaluation
results) from your child’s education records to a party other than your school district,
with some exceptions. In this situation, your school district is required to obtain your
consent before disclosing personally identifiable information for billing purposes to the
agency in your State that administers the public benefits or insurance program. Your
consent must specify the personally identifiable information that your school district may
disclose (for example, records or information about the services that may be provided to
your child), the purpose of the disclosure (for example, billing for special education and
related services), and the agency to which your school district may disclose the
information (for example, the Medicaid or other agency in your State that administers
the public benefits or insurance program).
[Optional: If you choose to provide consent and your child’s personally
identifiable information is disclosed to your State’s public benefits or insurance
program agency, you may request and receive from your school district a copy of
the records your school district disclosed to that agency.]
2. Statement to Access Public Benefits or Insurance
Your consent must include a statement specifying that you understand and agree that
your school district may use your or your child’s public benefits or insurance to pay for
services under 34 CFR part 300, which are special education and related services
under IDEA.

FORM: WRITTEN NOTIFICATION

4

[Note to States and School Districts: You should include in the notification
how your school district is expected to obtain this consent statement (for
example, by adding the statement to the consent form for the disclosure of
personally identifiable information; or by providing a separate consent form).]
Both parts of this consent requirement apply to the school district that is responsible for
serving your child under IDEA. If your child moves to a new school within the same
school district, you would not be required to provide a new consent because the same
school district is still responsible for serving your child under IDEA. But if you enroll
your child in a new school in a new school district, the new school district that is
responsible for serving your child under IDEA must obtain a new consent from you
before it can bill your child’s public benefits or insurance program for the first time. The
consent you would provide to your child’s new school district must include both parts of
the consent as described above.
[Optional:
Electronic consent, if applicable (34 CFR §99.30(d))
As noted above, your consent must be written, signed, and dated. While there
generally will be a paper form for you to fill out, you may provide your written
consent in an electronic form, if your submission identifies and authenticates you
as the individual providing the consent, includes an electronic signature and date,
and your submission indicates that you approve the information contained in the
consent.]
[Optional:
Previous consent
If you gave your consent in the past for your school district to access your or your
child’s public benefits or insurance to pay for special education and related
services under IDEA, your school district is not required to obtain a new consent
from you if the following two conditions are present:
1. There is no change in any of the following: the type of services to be provided to
your child (for example, physical therapy or speech therapy); the amount of
services to be provided to your child (for example, hours per week lasting for the
school year); or the cost of the services (that is, the amount charged to the public
benefits or insurance program); and
2. Your school district has on file the consent you previously provided. This
previous consent must meet the requirements that were in effect under the prior
IDEA regulations, and your school district will know what requirements applied
under those prior regulations. An example of a previous consent your school
district may have on file is a parental consent form you gave directly to another
agency, such as the [insert name of State] Medicaid agency.

FORM: WRITTEN NOTIFICATION

5

Even if your school district is not required to obtain a new consent from you, your school
district still must provide you with this notification before it may continue to bill your or
your child’s public benefits or insurance program to pay for special education and
related services under IDEA.
If your school district already has on file your consent to use your or your child’s public
benefits or insurance to pay for special education and related services under IDEA, your
school district must request that you provide a new consent when there is a change in
any of the following: the type (for example, physical therapy or speech therapy), amount
(for example, hours per week lasting for the school year), or cost of services (that is, the
amount charged to the public benefits or insurance program).
An example of a change in the type of services would be that your child would receive
speech therapy in addition to physical therapy and therefore, the services billed to your
public benefits or insurance program would be different. An example of a change in the
amount of services would be if your child was previously receiving 3 hours per week of
physical therapy and will now be receiving 2 hours per week. An example of a change
in the cost of your child’s services would occur if the amount billed to the public benefits
or insurance program for a particular service increases or decreases.
If any of these changes occur, your school district must obtain from you a one-time
consent, specifying that you understand and agree that your school district may access
your or your child’s public benefits or insurance to pay for special education and related
services under IDEA. Before you provide your school district the new, one-time
consent, your school district must provide you with this notification. Once you provide
this one-time consent, you will not be required to provide your school district with any
additional consent in order for it to access your or your child’s public benefits or
insurance if your child’s services change in the future. However, your school district
must continue to provide you with this notification annually.]

NO COST PROVISIONS
34 CFR §300.154(d)(2)(i)-(iii)
The IDEA “no cost” protections regarding the use of public benefits or insurance are as
follows:
1. Your school district may not require you to sign up for, or enroll in, a public
benefits or insurance program in order for your child to receive FAPE. This
means that your school district may not make your enrollment in a public benefits
or insurance program a condition of providing your child the services it is required
to provide your child under IDEA at no charge to you or your child.
2. Your school district may not require you to pay an out-of-pocket expense, such
as the payment of a deductible or co-pay amount for filing a claim for services
that your school district is otherwise required to provide your child without
charge. For example, if your child’s IEP includes speech therapy and your
insurance requires a $25 co-pay or deductible payment for a session, you could

FORM: WRITTEN NOTIFICATION

6

not be charged the $25. Your school district would need to pay the cost of your
co-pay or deductible in order to bill your or your child’s public benefits or
insurance program for the particular service.
3. Your school district may not use your or your child’s public benefits or insurance
if using those benefits or insurance would:
a. Decrease your available lifetime coverage or any other insured benefit,
such as a decrease in your plan’s allowable number of physical therapy
sessions available to your child or a decrease in your plan’s allowable
number of sessions for mental health services;
b. Cause you to pay for services that would otherwise be covered by your
public benefits or insurance program because your child also requires
those services outside of the time your child is in school;
c. Increase your premium or lead to the cancelation of your public benefits or
insurance; or
d. Cause you to risk the loss of your or your child’s eligibility for home and
community-based waivers that are based on your total health-related
expenditures.

WITHDRAWAL OF CONSENT
34 CFR §300.154(d)(2)(v)(C)
If you provided your consent for your school district to disclose your child’s personally
identifiable information to the State agency that is responsible for administering your
public benefits or insurance program [insert the name of the agency], you have the right
under 34 CFR part 99 (FERPA regulations) and 34 CFR part 300 (IDEA regulations) to
withdraw that consent at any time.
If you do not want your school district to continue to bill your or your child’s public
benefits or insurance program for special education and related services under IDEA,
you would need to withdraw your consent to your school district’s disclosure of your
child’s personally identifiable information to the agency in your State that is responsible
for administering that program. The FERPA and IDEA regulations, however, do not
contain procedures for withdrawal of consent to disclosure of your child’s personally
identifiable information. If you wish to withdraw your consent, you should ask your
school district what procedures you would need to follow. For example, your school
district may ask you to submit your withdrawal request in writing.
[Optional: School districts may wish to include in this notification their
procedures for withdrawal of consent to the disclosure of personally identifiable
information.]

FORM: WRITTEN NOTIFICATION

7

WHAT YOUR SCHOOL DISTRICT MUST DO IF YOU WITHDRAW YOUR
CONSENT OR REFUSE TO PROVIDE YOUR CONSENT
34 CFR §300.154(d)(2)(v)(D)
Finally, without your consent, your school district cannot bill your or your child’s public
benefits or insurance program to pay for special education and related services that it is
required to provide your child under IDEA at no charge to you or your child. If you
withdraw your consent or refuse to provide consent under the FERPA and IDEA
regulations, your school district may not use your withdrawal of consent or refusal to
provide consent to disclose personally identifiable information to a public benefits or
insurance program to deny your child the special education and related services he or
she is otherwise entitled to receive under IDEA. Therefore, if you refuse to provide
consent or withdraw consent, your school district has a continuing responsibility to
ensure that your child is provided all required services necessary to receive an
appropriate education at no charge to you or your child.
We hope this information is helpful to you in making an informed decision regarding
whether to allow your school district to use your or your child’s public benefits or
insurance to pay for special education and related services under IDEA.

CONTACT INFORMATION:
For additional information and guidance on the requirements governing the use of public
benefits or insurance to pay for special education and related services see:
http://www2.ed.gov/policy/speced/reg/idea/part-b/part-b-parental-consent.html.
[States and LEAs include contact information here]


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
May 21, 2013
Christopher Northrop, President
New England Juvenile Defender Center
246 Deering Avenue
Portland, Maine 04102
Dear Mr. Northrop:
This is in response to your October 8, 2012 letter to me requesting clarification of the Office of Special
Education Program’s (OSEP) position regarding requirements for parental input into individualized education
programs (IEPs) under Part B of the Individuals with Disabilities Education Act (IDEA). Specifically, you ask
if there are limits on how, or in what manner, a parent may participate as a member of the IEP Team and if the
rights and responsibilities of parent members of the IEP Team related to raising concerns differ from those of
the other team members, as it relates to parents providing written notice of their concerns a specific time before
the IEP Team meeting is held.
Your questions arise from a recently-adopted local educational agency (LEA) policy that requires parents to
provide a copy of their concerns to the members of their child's IEP team, in writing, three days before an IEP
meeting in order for their concerns to be addressed at the meeting. Your letter states that it appears the LEA
based this policy on OSEP’s Letter to Anonymous dated January 19, 2011 (Letter to Anonymous), which
includes the following:
“We believe it would be reasonable for a public agency to establish criteria, including a requirement
that it receive the entire evaluation report and not just the scaled scores by a certain time, to give the
public agency the opportunity to review the report prior to scheduling an IEP Team meeting to
discuss that evaluation.”
The analysis in Letter to Anonymous was specific to the facts presented by the writer. The letter provides
guidance to public agencies developing criteria specific to the introduction at IEP meetings of a privatelyobtained evaluation, as the information in that evaluation could be complex and may require significant review
by the public agency prior to any discussions regarding its utility. As discussed below, we do not believe that
the analysis in Letter to Anonymous is applicable to the situation you describe.
As you know, the IDEA gives deference to the parents’ rights and role in the development of IEPs. For
example, the LEA must take steps to ensure that the parents of a child with a disability are present at each IEP
Team meeting or are afforded the opportunity to participate, through notification of the meeting early enough
to ensure that they will have an opportunity to attend, and scheduling the meeting at a mutually agreed on time
and place. (See 34 CFR §300.322(a); 71 FR 46540, 46678, August 14, 2006.) In addition, the LEA must
provide the parents prior written notice 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; or refuses to initiate or change the identification, evaluation,
or educational placement of the child or the provision of FAPE to the child. (See 34 CFR §300.501.)
In response to comments regarding the development of draft IEPs prior to an IEP meeting, the Analysis of
Comments and Changes to the IDEA 2004 final regulations states that “parents have the right to bring
questions, concerns, and preliminary recommendations to the IEP Team meeting as part of a full discussion of
the child’s needs and the services to be provided to meet those needs.” (See 71 FR 46678, August 14, 2006.)
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Page 2 – Christopher Northrup
It may be helpful for parents to raise concerns to the IEP Team prior to the meeting, particularly if resolving
the concern would require extensive research or attendance at the meeting by a person who would not
otherwise be in attendance. However, we believe that it would be inconsistent with the intent and requirements
of the IDEA for an LEA to adopt a blanket policy requiring parents to provide a written copy of their concerns
to the IEP Team three days before an IEP meeting in order to have their concerns addressed at that meeting.
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.
If you have any further questions, please do not hesitate to contact Frank Miller, of my staff, at 202-245-7065
or by email at Frank.E.Miller@ed.gov.

Sincerely,

Melody Musgrove, Ed.D
Director
Office of Special Education Programs
cc: State Director of Special Education


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
May 8, 2013
Charlcie Flinn
ECI Program Director
North Texas Rehabilitation Center
1005 Midwestern Parkway
Wichita Falls, Texas 76302
Dear Ms. Flinn:
This is in response to your electronic mail (email) correspondence to the U.S. Department of Education’s
(Department) Information Resource Center dated December 6, 2012, in which you seek clarification regarding
the applicability of the Family Educational Rights and Privacy Act (FERPA) and its regulations and the Health
Insurance Portability and Accountability Act (HIPAA) Privacy Rule as those legal authorities relate to the
early intervention records of a toddler who received early intervention services under Part C of the Individuals
with Disabilities Education Act (IDEA Part C) through your agency. Your inquiry was forwarded to the
Department’s Office of Special Education Programs (OSEP), the office responsible for implementing IDEA
Part C, for response because the inquiry is best answered in the context of IDEA Part C.
From your email, I understand that your agency, the North Texas Rehabilitation Center, is an early intervention
service (EIS) provider under IDEA Part C and that it received a request from TRICARE (a potential funding
source for IDEA Part C services) for the early intervention records of an infant or toddler who had previously
received early intervention services under IDEA Part C from your agency. You stated that your agency did not
provide TRICARE with the requested early intervention records because it did not have authorization, i.e.,
parental consent, in accordance with IDEA Part C and FERPA, to provide the early intervention records to
TRICARE. Finally, you stated that TRICARE cited to the HIPAA Privacy Rule as authority for your agency
to be able to send the requested early intervention records without parental consent. While the Department
does not administer HIPAA, your inquiry directly relates to the definition under IDEA Part C of “early
intervention records” of infants and toddlers, and how that term is interpreted with respect to FERPA
regulations and the HIPAA Privacy Rule.
The term “early intervention records” was added to the September 28, 2011 final IDEA Part C regulations in
34 CFR §303.403(b) and is the same operationally as the term “education records” for purposes of the
applicable confidentiality provisions in the FERPA regulations in 34 CFR Part 99. The more specific
provisions in the IDEA Part C regulations in 34 CFR §§303.401 through 303.417 govern the confidentiality
rights of infants and toddlers with disabilities and their parents under IDEA Part C and incorporate provisions
in the FERPA regulations in 34 CFR Part 99 that refer to “education records.” As noted in the IDEA Part C
regulations in 34 CFR §303.414(b)(1)(ii), “education records” under the FERPA regulations in 34 CFR §99.31
means “early intervention records” as defined in the IDEA Part C regulations in 34 CFR §303.403(b).

With regard to your question about the HIPAA implications, the HIPAA Privacy Rule in 45 CFR
§160.103 exempts from the definition of “Protected Health Information” (PHI), those “education records”
that are covered by FERPA. The December 7, 2012 letter by the Family Policy Compliance Office
(FPCO) which administers FERPA, noted that “early intervention records” under Part C of the IDEA are
equivalent to or the same as “education records” under FERPA for purposes of the PHI exemption under
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fostering educational excellence and ensuring equal access.

Page 2 – Ms. Charlcie Flinn
the HIPAA Privacy Rule. Thus, if IDEA Part C records are covered under the IDEA Part C
confidentiality provisions in 34 CFR §§303.401 through 303.417 (which are consistent with, and
incorporate specific protections under FERPA), those records are exempt as PHI under the HIPAA
Privacy Rule.
The IDEA Part C confidentiality provisions, in 34 CFR §303.414(b), state that a lead agency or other
participating agency may not, “… disclose personally identifiable information, as defined in [34 CFR]
§303.29, to any party except participating agencies (including the lead agency and EIS providers) that are
part of the State’s Part C system without parental consent unless authorized to do so under …[specific
exceptions].” The definition of “participating agency” in 34 CFR §303.403(c) includes “any individual,
agency, entity, or institution that collects, maintains, or uses personally identifiable information to
implement the requirements in part C of the Act and the regulations in this part with respect to a particular
child. … [and] includes the lead agency and EIS providers….” This definition excludes “public agencies
… that act solely as funding sources for [IDEA] Part C services” which would include TRICARE.
Therefore, unless the disclosure is otherwise authorized under 34 CFR §303.414(b), your agency, as an
EIS provider and a participating agency under IDEA Part C, may only disclose personally identifiable
information from an early intervention record to a funding source such as TRICARE after first obtaining
parental consent as required under 34 CFR §303.414(a).
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.
If you have any further questions, please do not hesitate to contact Frank Miller, of my staff, at 202-2457065 or by email at Frank.E.Miller@ed.gov

Sincerely,

Melody Musgrove, Ed.D
Director
Office of Special Education Programs
cc:

Part C Coordinator
Dale King, Director, FPCO


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
4/18/2013
Marsha Johnson, Chairperson
Utah Provider Consortium
565 East 4500 South, Suite A 220
Salt Lake City, Utah 84107
Dear Ms. Johnson:
This letter is in response to your May 30, 2012 letter to me and the July 16, 2012 telephone conversation
with my staff requesting clarification of information provided by the U.S. Department of Education’s
(Department), Office of Special Education Programs (OSEP) June 7, 2005 letter to Ms. Sandy Morris
(Letter to Morris) regarding settings that constitute natural environments for infants and toddlers with
disabilities. In your correspondence, you inquire if the following statement from Letter to Morris remains
OSEP’s current position –
“Many center-based programs that formerly served only children with disabilities have now
integrated children without disabilities, creating a daycare or preschool program constituting a
natural environment. [Individualized Family Service Plans (IFSPs)] are not required to include a
justification for services in such a setting.” (Letter to Morris)
In addition, during the July 16, 2012 call with my staff, you asked if there is a specific point at which a
center-based program serving children with disabilities would become a natural environment consistent
with the requirement at 34 CFR §303.26.
The Letter to Morris continues to reflect OSEP’s policy that, in general, providing early intervention
services in a group setting limited exclusively to infants and toddlers with disabilities would not constitute
a natural environment, however, a justification would not be required in the IFSP if an IFSP team
determines that a center-based program, which formerly served only children with disabilities and now
has integrated children without disabilities, is a community-based setting and the natural environment for
a particular child. Although, OSEP promulgated new Part C regulations in 2011 based on the 2004
amendments to the Individuals with Disabilities Education Act (IDEA), the new regulations regarding
natural environments remain substantively unchanged from those referenced in the Letter to Morris. In
particular, the definition of natural environments in 34 CFR §303.26 and the provision in 34 CFR
§303.126 that requires a State to have policies and procedures to ensure that early intervention services
are provided to the maximum extent appropriate in natural environments, unless the IFSP team
determines that the early intervention services cannot be achieved satisfactorily in a natural environment,
have not been changed. The provisions in 34 CFR §303.344(d)(1)(ii) requiring that the IFSP team
determine the service setting for each child and, in cases where the IFSP team determines that a service
cannot be delivered in the natural environment, include a justification in the IFSP based on the child’s
outcomes for not providing that service in the natural environment, also remain unchanged.
You also asked whether there is a specific point at which a center-based program serving children with
disabilities could become a natural environment. A center-based program that meets the definition of a

community-based setting for data collection purposes may be considered a natural environment.
Natural environments are defined as “settings that are natural or typical for a same-aged infant or
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Page 2 – Ms. Marsha Johnson
toddler without a disability … [and] may include home or community settings.” 34 CFR
§303.26. To understand the context of the definition of community-based settings, it is helpful to
review prior and current Part C data collection instructions that have defined these terms for
State reports. In addition, it is also instructive to review the definition of least restrictive
environment under Part B of the IDEA, which serves a similar purpose of ensuring that, to the
maximum extent appropriate, children with disabilities are educated with children who are not
disabled.
Beginning with the 2006 IDEA data collections for Part C service settings (former Table 2), the
instructions for the States’ IDEA Part C Section 618 “Report of Program Settings Where Early
Intervention Services are Provided to Children with Disabilities and their Families in Accordance
with Part C” refer to “community-based settings” as settings “where children without disabilities
typically are found,” and include examples such as child care centers (including family day care),
preschools, regular nursery schools, early childhood centers, libraries, grocery stores, parks,
restaurants, and community centers (e.g., the YMCA, Boys and Girls Clubs).1
Prior to 2006, the IDEA Part C data collection form for service settings used the term “Programs
Designed for Typically Developing Children,” instead of “community-based settings,” and States
were instructed in 2006 to cross-walk those categories. The term “Programs Designed for
Typically Developing Children” in the pre-2006 IDEA Part C Table 2 collections was defined as
“services … provided in a program regularly attended by a group of children. Most of the
children in this setting do not have disabilities.” (Emphasis added) The purpose of ensuring that
most of the children in either programs for typically developing children or community-based
settings do not have disabilities is to ensure that infants and toddlers with disabilities have the
opportunity to interact on a regular basis with typically developing children.
The purpose under Part C of integrating infants and toddlers with disabilities with their peers
who are not disabled is similar to the purpose of the “least restrictive environment” requirement
under IDEA, Part B, which states a strong preference for educating children with disabilities to
the maximum extent appropriate in regular classes alongside their peers without disabilities.
While the Part B and Part C early childhood programs differ in some aspects, they both serve to
ensure that young children with disabilities interact with peers who are not disabled, to the
maximum extent appropriate. Under IDEA Part B, the term “Regular Early Childhood Program”
is defined for data collection purposes as a program that includes a majority (at least 50 percent)
of nondisabled children (i.e., children without IEPs).2 The purpose of this definition is to ensure
that this preschool setting provides preschool children with disabilities the opportunity to interact
on a regular basis with their typically developing peers.
We hope this information is helpful. If you would like further information, the Department
supports many early childhood research and demonstration projects to assist states and local
programs in the implementation of Part C. One such project that provides extensive information
1

Beginning in September 2012, the Part C service settings data collection was moved to the Department’s EDFacts
Metadata and Process System (EMAPS) and was renamed “IDEA Part C Child Count and Setting.” See
http://www2.ed.gov/about/inits/ed/edfacts/index.html
2
See, OSEP Dear Colleague Letter February 29, 2012, which states “For data collection purposes, the Department
defines a Regular Early Childhood Program as a program that includes a majority (at least 50 percent) of nondisabled children… and may include, but is not limited to, Head Start, kindergartens, preschool classes offered to an
eligible pre-kindergarten population by the public school system, private kindergartens or preschools, and group
child development centers or child care.”

Page 3 – Ms. Marsha Johnson
regarding promising practices in implementing the Part C natural environment requirement is the
Early Childhood Technical Assistance Center at www.ectacenter.org
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.
If you have any further questions, please do not hesitate to contact Frank Miller, of my staff, at
202-245-7065 or by email at Frank.E.Miller@ed.gov.
Sincerely,

Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
cc: State Part C Coordinator


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
April 2, 2013
Ms. Glenna Gallo
State Director of Special Education
Utah State Office of Education
250 East 500 South
P.O. Box 144200
Salt Lake City, Utah 84114-4200
Dear Ms. Gallo:
This is in response to your letter dated April 23, 2012 to Alexa Posny, former Assistant Secretary,
Office of Special Education and Rehabilitative Services (OSERS), U.S. Department of Education,
which was forwarded to me for response. I apologize for the delay in responding. In your letter, you
request clarification of the consent requirements in Part B of the Individuals with Disabilities
Education Act (IDEA) as they relate to functional behavior assessments (FBA). Specifically, you
ask us to expand on our guidance issued in our February 9, 2007 letter to Dr. Kris Christiansen
(Letter to Christiansen) regarding consent for FBAs and in OSERS’s Questions and Answers on
Discipline Procedures, revised June 2009 (Discipline Q&A). A summary of your questions and the
Office of Special Education Programs’ (OSEP’s) answers follow.
Question 1: Does the definition of an FBA include both informal, i.e., observation, and formal
assessments conducted by teachers to determine appropriate instructional interventions?
OSEP’s Response: Neither the IDEA nor its implementing regulations at 34 CFR Part 300 define
“FBA.” As stated in the answer to Question E-2 of the Discipline Q&A,
“[a]n FBA focuses on identifying the function or purpose behind a child’s behavior.
Typically, the process involves looking closely at a wide range of child-specific
factors (e.g., social, affective, environmental).”
An FBA may include both observation and formal assessments.
Question 2: Since an FBA is required under 34 CFR §300.530(f) in situations where an
individualized education program (IEP) Team has determined that certain conduct was a
manifestation of a child’s disability, how can a local educational agency’s (LEA) ability to conduct
an FBA be dependent on parental consent?
OSEP’s Response: In cases where a decision is made to change the placement of a child with a
disability because of a violation of a code of student conduct, the LEA, the parent, and relevant
members of the child’s IEP Team (as determined by the parent and the LEA), collectively referred to
here as the IEP Team, must conduct a manifestation determination consistent with the requirements
in 34 CFR §300.530(e). If the IEP Team determines that the conduct was a manifestation of the
child’s disability, it must take one of two actions: 1) conduct an FBA, unless the LEA has conducted
an FBA before the behavior that resulted in the change of placement occurred, and implement a
behavioral intervention plan (BIP) for the child; or 2) if a BIP already has been developed, review
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Page 2 – Ms. Glenna Gallo
the BIP, and modify it as necessary, to address the behavior. 34 CFR §300.530(f)(1)(i) and (ii)
(emphasis added). Therefore, an LEA is not required to conduct an FBA in every situation where an
IEP Team determines that a child's conduct was a manifestation of his or her disability.
In cases where the IEP Team seeks to conduct an FBA to determine if a child’s conduct was a
manifestation of his or her disability, the LEA must obtain parental consent because “[a]n FBA is generally understood to be an individualized evaluation of a child in
accordance with 34 CFR §§300.301 through 300.311 to assist in determining whether
the child is, or continues to be, a child with a disability. The FBA process is
frequently used to determine the nature and extent of the special education and
related services that the child needs, including the need for a BIP. As with other
individualized evaluation procedures, and consistent with 34 CFR §300.300(a) and
(c), parental consent is required for an FBA to be conducted as part of the initial
evaluation or a reevaluation.”
Question 3: As used in the Discipline Q&A, clarify the meanings of “school as a whole,” “entire
school,” and “overall school behavior” as they relate to an FBA.
OSEP’s Response: We believe that you are referring to the usage of those phrases in the Letter to
Christiansen, as those phrases are not used in the Discipline Q&A. As stated in your correspondence,
and quoted from the Letter to Christiansen, it is the Department’s position that “if the FBA is intended to assess the effectiveness of behavioral interventions in the
school as a whole, the parental consent requirements in 34 CFR §300.300(a) and (c)
generally would not be applicable to such an FBA because it would not be focused on
the educational and behavioral needs of an individual child. If an FBA is used, for
example, in the context of positive behavior supports as a process for understanding
problem behaviors within the entire school and to improve overall student behavior in
the school, it generally would not be considered an evaluation that would require
parental consent, unless such consent is required from the parents of all children in
the school prior to conducting such an evaluation. 34 CFR §300.300(d)(1)(ii).”
Letter to Christiansen at 2.
In the above context, the phrases “school as a whole” and “entire school” are assigned their
commonly understood meaning, i.e., all or most of the children in a school rather than an individual
child. Likewise, the phrase “overall student behavior”1 is assigned its commonly understood
meaning, i.e., behavior of all or most of the children in a school.
Question 4: Would a formative “three term contingency” assessment (e.g., noting a particular
stimulus, a student’s response to that stimulus, and the consequences of the student’s response) used
by a teacher with all students on a daily basis be considered an evaluation requiring parental consent?

1

The phrase “overall school behavior,” as indicated in your question, is not used in the Letter to Christiansen.

Page 3 – Ms. Glenna Gallo
OSEP’s Response: No, unless such consent is required from the parents of all children in the school
prior to conducting such an evaluation. 34 CFR §300.300(d)(1)(ii). You provide an example above
of an assessment given to all students as part of a daily classroom management routine. Parental
consent is not required for such an FBA in that context because the FBA would not be focused on the
educational and behavioral needs of an individual child.
However, if, as part of an FBA for an individual student, a teacher were to conduct a “three term
contingency” assessment to determine whether the student has a disability and to determine the
nature and extent of the special education and related services that the student needs, the FBA would
be considered an initial evaluation or reevaluation, in accordance with 34 CFR §300.15. Parental
consent is required for an FBA to be conducted as an initial evaluation or a reevaluation of a child,
consistent with 34 CFR §300.300(a) and (c).
Question 5: Must a school team obtain parental consent prior to collecting academic functional
assessment data within a response to intervention (RTI) model?
OSEP’s Response: There are a number of RTI frameworks, and while the Department does not
endorse a particular one, they tend to share several core characteristics. These characteristic are: (1)
high-quality, evidence-based instruction in general education settings; (2) screening of all students
for academic and behavioral problems; (3) two or more levels (sometimes referred to as “tiers”) of
instruction that are progressively more intense and based on the student’s response to instruction; and
(4) continuous monitoring of student performance. For example, one RTI framework may include a
primary, secondary, and tertiary level of instructional support. In this framework, the primary level
applies to all students in a general education setting, and the activities at this level are designed to
provide high-quality instruction to the entire class or school and not principally intended to address
the needs of students who are struggling. Secondary level activities provide specialized small-group
instruction for students determined to be at risk for academic and behavioral problems. Tertiary level
activities include specialized, individualized instructional or behavioral support for students with
intensive needs.
Consistent with the answer to Question 4, parental consent is not required to collect data from all
students in a general education setting at the primary level of an RTI framework, because the data
collection would not be focused on the educational and behavioral needs of an individual child.
Parental consent also would not be required to review such data when conducting an evaluation of a
child under 34 CFR §300.305, because the data would be considered “existing evaluation data.” 34
CFR §300.300(d)(1)(i). (See Answer to Question 6 for further discussion on existing evaluation
data.)
However, parental consent would be required if, during the secondary or tertiary level of an RTI
framework for an individual student, a teacher were to collect academic functional assessment data to
determine whether the child has, or continues to have, a disability and to determine the nature and
extent of the special education and related services that the child needs. As with other individualized
evaluation procedures, and consistent with 34 CFR §300.300(a) and (c), parental consent is required
for an FBA to be conducted as part of an initial evaluation or reevaluation of a child when
determining if a child qualifies as a child with a disability.

Page 4 – Ms. Glenna Gallo
Question 6: Why must the LEA obtain parental consent before conducting a behavior observation as
a part of an FBA, but not before reviewing a student’s record, including current classroom-based
observations, as part of a reevaluation under 34 CFR §300.305?
OSEP’s Response: As explained in the answer to Question 2 above and in the Discipline Q&A, an
FBA is generally understood to be an individualized evaluation of a child in accordance with 34 CFR
§§300.301 through 300.311 to assist in determining whether the child is, or continues to be, a child
with a disability. Parental consent is required prior to conducting such an FBA. In contrast, reviews
of a student’s record conducted in accordance with 34 CFR §300.305 are reviews of existing
evaluation data. OSEP previously explained that “[t]he public agency is not required to obtain parental consent before reviewing
existing data as part of an evaluation or a reevaluation. 34 CFR §300.300(d)(1)(i).
The review of existing data is part of the evaluation process. Section 300.305(a),
consistent with section 614(c)(1) of IDEA, states that, as part of any reevaluation, the
individualized education program (IEP) Team and other qualified professionals, as
appropriate, must review existing evaluation data on the child, and on the basis of
that review, and input from the child’s parents, identify what additional data, if any,
are needed to determine whether the child continues to have a disability, and the
educational needs of the child.”
Response to Question 1 in Letter to Anonymous, dated February 6, 2007 (Letter to Anonymous).
However, after reviewing existing evaluation data, the public agency must obtain parental consent
before conducting any additional assessments needed for a reevaluation. 34 CFR §300.300(c)(1); see
also Response to Questions 6 and 7 in Letter to Anonymous. Additional assessments may be
necessary if the IEP Team and other qualified professionals determine that additional data are needed
or the parent requests an assessment to determine whether the child continues to be a child with a
disability and to determine the nature and extent of the special education and related services that the
child needs.
Based on section 607(e) of the IDEA, we are informing you that our responses are provided as
informal guidance and are not legally binding, but represent an interpretation by the U. S.
Department of Education of the IDEA in the context of the specific facts presented.
We hope this explanation is helpful. If you have further questions, please do not hesitate to contact
Rebecca Walawender at 202-245-7399 or by email at Rebecca.Walawender@ed.gov.

.
Sincerely,

Melody Musgrove, Ed.D
Director
Office of Special Education Programs


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
March 27, 2013
William J. Casey, Esq.
Watson Bennett Colligan & Schechter LLP
12 Fountain Plaza, Suite 600
Buffalo, New York 14202
Dear Mr. Casey:
This is in response to your letter to me dated October 2, 2012 asking for clarification of specific
requirements in Part B of the Individuals with Disabilities Education Act (IDEA) and its
implementing regulations at 34 CFR Part 300. On December 17, 2012, Rebecca Walawender,
Deputy Director of the Monitoring and State Improvement Planning Division in the Office of
Special Education Programs (OSEP), held a conference call with you to clarify the question
posed in your letter. You ask:
Would it be inconsistent with the requirements of 20 U.S.C. 1415(f)(1)(B) [and] 34 C.F.R.
§300.510(a) (or any other rules and regulations of the IDEA) for an LEA [local educational
agency] to convene a resolution meeting, but at such meeting refuse to discuss the issues raised
in a parent's due process complaint and instead only offer to convene an IEP [individualized
education program] Team meeting as the only forum where parent's issues will be addressed?
Based on your letter and conversation with Ms. Walawender, I understand that your firm’s client,
the parent of a child with a disability and party to a due process complaint filed consistent with
the procedures in 34 CFR §§300.507 through 300.515, and her attorney, attended a resolution
session convened by the LEA. At the resolution meeting, you allege that the LEA refused to
discuss the issues raised in the parent’s due process complaint and informed the parent that she
would have to request an IEP Team meeting to discuss the issues raised in the parent’s due
process complaint.
It is not generally OSEP’s practice to comment on matters that are the subject of a due process
complaint or due process hearing; further, OSEP expresses no view as to the accuracy of the
facts alleged in your inquiry. However, LEAs must comply with the statutory and regulatory
provisions cited in your inquiry in conducting resolution meetings pursuant to 20 U.S.C.
1415(f)(1)(B) and 34 CFR §300.510. Pursuant to 34 CFR §300.510(a)(2), the purpose of the
meeting is for the parent of the child to discuss the due process complaint, and the facts that form
the basis of the due process complaint, so that the LEA has the opportunity to resolve the dispute
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Page 2 – Mr. William Casey
that is the basis for the due process complaint. Therefore, when the LEA convenes a resolution
meeting with the parent and other required participants, and in the absence of a written
agreement that the resolution meeting need not be held, it would be inconsistent with the
requirements in 34 CFR §300.510(a)(2) regarding the purpose of the resolution meeting for the
LEA to refuse to discuss the issues raised in the parent’s due process complaint during that
meeting.
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.
If you have further questions, please do not hesitate to contact Rebecca Walawender at 202-2457399 or by email at Rebecca.Walawender@ed.gov.
Sincerely,

Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
cc: State Director of Special Education


IDEA Part B Final Regulations Related to
Parental Consent to Access Public Benefits or Insurance (e.g., Medicaid)
On February 14, 2013, the Department published in the Federal Register IDEA Part B final
regulations that change the requirements in 34 CFR 300.154(d) related to parental consent to access
public benefits or insurance (e.g., Medicaid). Previously, public agencies were required to obtain
parental consent each time access to public benefits or insurance was sought. These final
regulations, which take effect on March 18, 2013, will make it easier for school districts to access
public benefits while still protecting family rights. The new rules—
(1) ensure that parents of children with disabilities are informed of all of their legal protections

when public agencies seek to access public benefits or insurance to pay for services; and
(2) address the concerns expressed by State educational agencies and local educational

agencies that requiring parental consent each time access to public benefits or insurance is
sought, in addition to the parental consent required by the Family Educational Rights and
Privacy Act and section 617(c) of the IDEA, imposes unnecessary costs and administrative
burdens.
Specifically, these final regulations require that public agencies—


obtain a one-time written consent from the parent, after providing the written notification
described below, before accessing the child’s or the parent’s public benefits or insurance for
the first time. This consent must specify (a) the personally identifiable information that may be
disclosed (e.g., records or information about the services that may be provided to a particular
child); (b) the purpose of the disclosure (e.g., billing for services); and (c) the agency to which
the disclosure may be made (e.g., Medicaid). The consent also must specify that the parent
understands and agrees that the public agency may access the child’s or parent’s public
benefits or insurance to pay for services.



provide written notification to the child’s parents before accessing the child’s or the parent’s
public benefits or insurance for the first time and prior to obtaining the one-time parental
consent and annually thereafter. The written notification must explain all of the protections
available to parents under Part B, as described in 34 CFR §300.154(d)(2)(v) to ensure that
parents are fully informed of their rights before a public agency can access their or their child’s
public benefits or insurance to pay for services under the IDEA. The notice must be written in
language understandable to the general public and in the native language of the parent or
other mode of communication used by the parent, unless it is clearly not feasible to do so.

In Summary:
The regulations protect family rights by ensuring that (1) the one-time parental consent specifies
that the parent understands and agrees that the public agency may access their or their child’s public
benefits or insurance to pay for services under the IDEA; and (2) the written notification provides
parents with critical information that they may not have received in the past to enable parents to
understand all of their rights and protections when a public agency seeks to access their or their
child’s public benefits or insurance.
At the same time, the regulations reduce burden in that public agencies are no longer required to
obtain parental consent each time access to public benefits or insurance is sought. By no longer
requiring public agencies to obtain parental consent each time access to public benefits or insurance
is sought, public agencies will experience a reduction in paperwork and will be able to implement a
simplified process to access a child’s or parent’s public benefits or insurance.

17192.1


Non-Regulatory Guidance on the
IDEA Part B Regulations Regarding Parental Consent for the Use of
Public Benefits or Insurance to Pay for Services under the IDEA,
Issued February 14, 2013, and Effective March 18, 2013
This guidance provides State educational agencies, local educational agencies, parent
advocacy organizations, and other interested parties with information on the new
regulations related to parental consent for the use of public benefits or insurance to pay
for services under Part B of the Individuals with Disabilities Education Act (IDEA). The
new regulations were published in the Federal Register on February 14, 2013, and are
effective on March 18, 2013. The new regulations amend the Department’s regulations
in 34 CFR §300.154(d)(2)(iv) that were published in the Federal Register on August 14,
2006. The prior regulations required the public agency responsible for providing a free
appropriate public education to a child with a disability under the IDEA to obtain parental
consent each time access to public benefits or insurance (e.g., Medicaid) was sought.
The new regulations have two basic requirements. First, the public agency must notify
parents in writing of a number of safeguards to protect their rights before the public
agency accesses the child’s or parent’s public benefits or insurance to pay for services
under the IDEA for the first time and annually thereafter. 34 CFR §300.154(d)(2)(v).
Second, the public agency must obtain a one-time written consent from the parent that
meets the requirements of 34 CFR §99.30 and §300.622, and also specifies that the
parent understands and agrees that the public agency may access the child’s or
parent’s public benefits or insurance to pay for special education or related services
under part 300 (services under the IDEA). 34 CFR §300.154(d)(2)(iv).
Below we describe the new regulations and provide guidance on implementing these
new regulations, including requirements pertaining to children with disabilities whose
public benefits or insurance have previously been accessed by a public agency and
children with disabilities who transfer to a new school within a new public agency or to a
new school within the same public agency.

Q1.

What are a public agency’s obligations under the new regulations with
respect to notifying parents of their rights and obtaining consent from a
parent to access the child’s public benefits or insurance (e.g., Medicaid)?

A1.

Under the new regulations, a public agency must obtain parental consent before
the public agency accesses a child’s or parent’s public benefits or insurance for
the first time. This is a one-time consent, i.e., the public agency is no longer
required to obtain parental consent each time access to public benefits or
insurance is sought. The new regulations also require that the public agency
provide written notification to the child's parents, consistent with new
§300.154(d)(2)(v), before parental consent is obtained (see Q2). 34 CFR
§300.154(d)(2)(iv).

Q2.

What are the parental notification requirements under the new regulations?

A2.

Prior to accessing a child’s or parent’s public benefits or insurance for the first
time, and annually thereafter, a public agency must provide written notification,
consistent with §300.503(c), to the child’s parents, that includes-1) A statement of the parental consent provisions in §300.154(d)(2)(iv)(A)-(B);
2) A statement of the “no cost” provisions in §300.154(d)(2)(i)-(iii);
3) A statement that the parents have the right under 34 CFR part 99 and part
300 to withdraw their consent to disclosure of their child’s personally
identifiable information to the agency responsible for the administration of the
State’s public benefits or insurance program (e.g., Medicaid) at any time; and
4) A statement that the withdrawal of consent or refusal to provide consent
under 34 CFR part 99 and part 300 to disclose personally identifiable
information to the agency responsible for the administration of the State’s
public benefits or insurance program (e.g., Medicaid) does not relieve the
public agency of its responsibility to ensure that all required services are
provided at no cost to the parents. 34 CFR §300.154(d)(2)(v).
The notification must be written in language understandable to the general public
and in the native language of the parent or other mode of communication used
by the parent, unless it is clearly not feasible to do so. 34 CFR §300.503(c). The
notification also must be provided before parental consent is obtained. 34 CFR
§300.154(d)(2)(iv).
While the new regulations require the public agency to provide the first written
notification to the parents prior to accessing the child’s or parent’s public benefits
or insurance for the first time, the regulations do not specify when the
subsequent annual written notification must be provided to the parents. This is
because public agencies need to have the flexibility to determine the timing of the
annual written notification (see Q3).

Q3.

How should a public agency provide the written notification to parents?

A3.

There are a number of ways in which the public agency may provide the required
written notification to parents.
The written notification may be:


mailed to the parents, or



e-mailed if requested by the parents, and if consistent with State or public
agency policies, or

2



provided at an IEP Team meeting if the meeting occurs prior to the first time a
public agency accesses a child’s or parent’s public benefits or insurance, or



provided through other means determined by the public agency, so long as all
of the written notification requirements in these new regulations are met. This
includes the requirement that the public agency provide written notification
before obtaining parental consent.

Q4.

What are the parental consent requirements under the new regulations?

A4.

Consistent with 34 CFR §99.30 of the regulations implementing the Family
Educational Rights and Privacy Act (FERPA) and the IDEA Part B consent
requirements in 34 CFR §300.622, a public agency must obtain parental consent
before releasing a child’s personally identifiable information from education
records for billing purposes to a public benefits or insurance program (e.g.,
Medicaid) for the first time. Under new §300.154(d)(2)(iv)(B), this consent must
also include a statement specifying that the parent understands and agrees that
the public agency may access the child’s or parent’s public benefits or insurance
to pay for services under part 300. Because this consent must be in writing, the
public agency would typically use a consent form. This parental consent form
must specify:
1) The personally identifiable information that may be disclosed (e.g., records or
information about the services that may be provided to a particular child),
2) The purpose of the disclosure (e.g., billing for services under part 300),
3) The agency to which the disclosure may be made (e.g., the State’s public
benefits or insurance program (e.g., Medicaid)). 34 CFR
§300.154(d)(2)(iv)(A), and
4) That the parent understands and agrees that the public agency may access
the child’s or parent’s public benefits or insurance to pay for services under
part 300.

Q5.

Must a public agency modify its consent forms to comply with the new
parental consent requirement?

A5.

No, not necessarily. In implementing the new parental consent requirement, a
public agency may choose either to—
1) Modify its existing forms. A public agency may add the statement that the
parent understands and agrees that the public agency may access the child’s
or parent’s public benefits or insurance to pay for services under part 300, to
the consent required under 34 CFR §99.30 and §300.622 regarding the

3

release of personally identifiable information to a public benefits or insurance
program (e.g., Medicaid) for billing purposes; or
2) Develop a new form. A public agency may develop a new consent form that
includes the statement that the parent understands and agrees that the public
agency may access the child’s or parent’s public benefits or insurance to pay
for services under part 300.

Q6.

May a public agency accept digital or electronic signatures when obtaining
consent under the new parental consent requirements?

A6.

A public agency may accept digital or electronic signatures when obtaining the
parental consent required under 34 CFR §99.30 and §300.622, as described in
new §300.154(d)(2)(iv)(A). Under 34 CFR §99.30(a), the parental consent that
must be obtained before disclosure of personally identifiable information must be
signed and dated. Under 34 CFR §99.30(d), this consent may include a record
and signature in electronic form that—
1) Identifies and authenticates a particular person as the source of the electronic
consent; and
2) Indicates such person’s approval of the information contained in the
electronic consent, i.e., disclosure of the child’s personally identifiable
information to the agency responsible for the administration of the State’s
public benefits or insurance program (e.g., Medicaid) for billing purposes to
pay for services under part 300.
Additionally, under new §300.154(d)(2)(iv)(B), the electronic consent must
include a statement that the parent understands and agrees that the public
agency may access the child’s or parent’s public benefits or insurance to pay for
services under part 300.

Q7.

Are there any situations in which a public agency is not required to obtain
a new parental consent under the new regulations?

A7.

Yes. Under these new regulations, and notwithstanding the annual written
notification requirements, a public agency is not required to obtain a new parental
consent if the following conditions are present:
1) There is no change in any of the following: the type (e.g., physical therapy or
speech therapy) of services to be provided to the child; the amount of
services to be provided to the child (frequency or duration); or the cost of the
services charged to the public benefits or insurance program (e.g., Medicaid);
and

4

2) A public agency has on file a parental consent that meets the requirements of
the prior §300.154(d)(2)(iv)(A) and 34 CFR §99.30 and §300.622. This would
include a parental consent on file that has been given directly to another
agency, such as the State Medicaid agency.

Q8.

For children with disabilities currently served under the IDEA, what must a
public agency do to implement the new parental notification and consent
requirements?

A8.

The first time after the effective date of these regulations that there is a change in
the type or amount of the services to be provided to the child or a change in the
cost of the services to be charged to the public benefits or insurance program,
the public agency must first provide the parents the written notification described
in new §300.154(d)(2)(v) before accessing the child’s or parent’s public benefits
or insurance. The public agency then must obtain parental consent, consistent
with new §300.154(d)(2)(iv)(B), stating that the parent understands and agrees
that the public agency may access the child’s or parent’s public benefits or
insurance to pay for services under part 300. The public agency must obtain a
new parental consent containing this explicit statement from the parent even if
the public agency has on file a consent provided to another agency, such as the
State Medicaid agency. Once the public agency obtains this one-time consent,
the public agency is not required to obtain parental consent before it accesses
the child’s or parent’s public benefits or insurance in the future, regardless of
whether there is a change in the type or amount of services to be provided to the
child or a change in the cost of the services to be charged to the public benefits
or insurance program (e.g., Medicaid). However, the public agency must annually
thereafter provide parents with the written notification described in new
§300.154(d)(2)(v). This annual written notification will help ensure that parents
understand their rights when a public agency uses their or their child’s public
benefits or insurance to pay for services required under the IDEA.

Q9.

What steps may a public agency take under the new regulations if parents
have previously declined to consent to the use of public benefits or
insurance to pay for services under the IDEA? If a parent continues to
refuse to consent or withdraws consent, what are a public agency’s
obligations?

A9.

If a parent previously declined to provide consent (or withdrew consent) to
disclose personally identifiable information to the State’s public benefits or
insurance program (e.g., Medicaid) for billing purposes, the public agency may
make reasonable requests, after providing the written notification described in
new §300.154(d)(2)(v), to obtain the parental consent required under new
§300.154(d)(2)(iv). However, a parent’s withdrawal of consent or refusal to
provide consent under 34 CFR part 99 and §300.622 to disclose personally

5

identifiable information to the agency responsible for the administration of the
State’s public benefits or insurance program (e.g., Medicaid) does not relieve the
public agency of its responsibility to ensure that all required services are provided
at no cost to the parents. 34 CFR §300.154(d)(2)(v)(D).

Q10. What are a public agency’s obligations to provide parental notification
when a child has an IEP but the public agency has not previously sought to
access the parent’s or child’s public benefits or insurance (e.g., Medicaid)
to pay for services under the IDEA, and the public agency seeks to access
the child’s or parent’s public benefits or insurance for the first time?
A10. Once the new regulations become effective, if a public agency seeks to access
the child’s or parent’s public benefits or insurance to pay for services under the
IDEA for the first time, the public agency must provide the parents the written
notification described in new §300.154(d)(2)(v) and then obtain parental consent
consistent with new §300.154(d)(2)(iv) before the public agency may access the
child’s or parent’s public benefits or insurance for the first time. If parental
consent is obtained, the public agency must provide the written notification to the
parents annually thereafter.

Q11. What are a public agency’s obligations to provide parental notification
when a child has an IEP and the public agency has previously billed the
child’s or parent’s public benefits or insurance program (e.g., Medicaid) to
pay for services under part 300?
A11. Even if there is no change in the type or amount of services to be provided to the
child or in the cost of the services to be charged to the public benefits or
insurance program (e.g., Medicaid), once the new regulations become effective,
the public agency must provide the written notification described in new
§300.154(d)(2)(v) to the parents before the public agency may access the child’s
or parent’s public benefits or insurance. The public agency also must provide this
written notification to the parents annually thereafter.

Q12. What are a public agency’s obligations to provide parental notification and
obtain parental consent under the new regulations in situations where a
child transfers to a new school within a new school district?
A12. The responsibility for providing written notification and obtaining parental consent
prior to the disclosure of personally identifiable information for billing purposes to
the State’s public benefits or insurance program (e.g., Medicaid) and before
accessing a child’s or parent’s public benefits or insurance for the first time rests
with the public agency responsible for providing a free appropriate public

6

education to the child, not with the individual school. Thus, if a child with an IEP
who was enrolled in a school within one public agency transfers to a school
within a new public agency, the new public agency responsible for educating the
child must provide the parents with the written notification described in new
§300.154(d)(2)(v) to inform the parents of their rights and protections when
access to their or their child’s public benefits or insurance is sought. The new
public agency then must obtain parental consent, consistent with new
§300.154(d)(2)(iv), to disclose personally identifiable information to the public
benefits or insurance program (e.g., Medicaid) for billing purposes and prior to
accessing the child’s or parent’s public benefits or insurance for the first time.
This new consent must include the statement specifying that the parent
understands and agrees that the new public agency may access the child’s or
parent’s public benefits or insurance to pay for services under part 300. Once
parental consent has been obtained for the new public agency to access the
child’s or parent’s public benefits or insurance for the first time, no additional
parental consent is required for the new public agency to bill the child’s or
parent’s public benefits or insurance program (e.g., Medicaid) in the future,
regardless of whether there is a change in the type or amount of services to be
provided to the child or in the cost of the services to be charged to the public
benefits or insurance program. However, the new public agency must provide the
written notification described in new §300.154(d)(2)(v) to the parents annually
thereafter.

Q13. What are a public agency’s obligations with respect to providing parental
notification and obtaining parental consent to access a child’s or parent’s
public benefits or insurance if the child transfers to a new school within the
same school district?
A13. If a child transfers to a different school within the same public agency, any
parental consent that the public agency previously obtained that meets the
requirements in new §300.154(d)(2)(iv) would continue to apply. The public
agency would continue to provide the parents the written notification described in
new §300.154(d)(2)(v) annually. As noted in Q12, this is because the
responsibility for providing written notification and obtaining parental consent
prior to the disclosure of personally identifiable information for billing purposes to
the State’s public benefits or insurance program (e.g., Medicaid) and before
accessing a child’s or parent’s public benefits or insurance for the first time rests
with the public agency responsible for providing a free appropriate public
education to the child, not with the individual school.

7