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

October 22, 2016

Ms. Jennifer Carroll
Law Clerk
Walsh, Gallegos, Trevino, Russo & Kyle, P.C.
Crestview Towers
105 Decker Court, #600
Irving, Texas 75062
Dear Ms. Carroll:
This is in response to your March 11, 2016 correspondence to the Office of Special Education
Programs (OSEP) requesting further clarification regarding the scope of an independent
educational evaluation (IEE) under 34 CFR §300.502 of the Individuals with Disabilities
Education Act (IDEA). Specifically, you ask whether once a district’s evaluation is complete and
the parent communicates a desire for a child to be assessed in a particular area in which they
have not previously expressed concern, would the district have the opportunity to conduct an
evaluation in the given area before a parent invokes the right to an IEE.
The evaluation procedures at 34 CFR §300.304(b)(1) require that in conducting an evaluation,
the public agency must use a variety of assessment tools and strategies to gather relevant
functional, developmental, and academic information about the child that may assist in
determining whether the child is a child with a disability and the content of the child’s
individualized education program, including information related to enabling the child to be
involved in and progress in the general education curriculum. Furthermore, the public agency
must ensure that in evaluating each child with a disability under 34 CFR §§300.304 through
300.311, the evaluation is sufficiently comprehensive to assess the child in all areas related to the
suspected disability, and must identify all of the child’s special needs, whether or not commonly
linked to the disability category in which the child has been classified. 34 CFR §300.304(c)(4)
and (6).
Under 34 CFR §300.502, parents of a child with a disability have a right to seek an IEE at public
expense, if the parents disagree with the evaluation conducted by the public agency. This is so
even if the reason for the parent’s disagreement is that the public agency’s evaluation did not
assess the child in all areas related to the suspected disability. Under 34 CFR §300.502(b)(2), if a
parent requests an IEE at public expense, the public agency must, without unnecessary delay,
either:
(i) initiate a hearing under 34 CFR §300.507 to show that its evaluation is appropriate; or
(ii) ensure that an IEE is provided at public expense, unless the agency demonstrates in a
hearing pursuant to 34 CFR §§300.507 through 300.513 that the evaluation obtained by
the parent did not meet agency criteria.
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202-2600
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competiveness
by fostering educational excellence and ensuring equal access.

The IDEA affords a parent the right to an IEE at public expense and does not condition that right
on a public agency’s ability to cure the defects of the evaluation it conducted prior to granting
the parent’s request for an IEE. Therefore, it would be inconsistent with the provisions of 34
CFR §300.502 to allow the public agency to conduct an assessment in an area that was not part
of the initial evaluation or reevaluation before either granting the parents’ request for an IEE at
public expense or filing a due process complaint to show that its evaluation was appropriate.
Under 34 CFR §300.502(b)(5), a parent is entitled to only one IEE at public expense each time
the public agency conducts an evaluation with which the parent disagrees.
The Court of Appeals’ decisions cited in your letter do not refute this interpretation. In the cases
you cite where the court affirmed the right of a school to conduct its own scheduled reevaluation
(which must occur at least once every three years, unless the parents and the public agency agree
that a reevaluation is unnecessary) and denied the parent’s request for an IEE, it was because the
parent had not presented the child for any of the scheduled reevaluations and therefore the school
was not allowed to conduct those reevaluations. In your hypothetical, however, the school
conducted an evaluation pursuant to 34 CFR §300.502, but did not fully identify all areas needed
to be evaluated. In that case, the parent has a right to ask for an IEE at public expense if the
parent disagrees with the evaluation.
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 questions, please do not hesitate to contact Lisa Pagano of my staff at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs


UNDERSTANDING THE CONFIDENTIALITY REQUIREMENTS
APPLICABLE TO IDEA EARLY CHILDHOOD PROGRAMS
FREQUENTLY ASKED QUESTIONS (FAQS)
October 2016
INTRODUCTION
The purpose of this document is to assist early childhood programs under the Individuals with
Disabilities Education Act (IDEA)—Part B section 611 (Grants to States), Part B section 619
(Preschool Grants), and Part C (Grants for Infants and Toddlers with Disabilities)—with
addressing privacy and confidentiality questions. The Office of Special Education and
Rehabilitative Services (OSERS) in the U.S. Department of Education (Department) has
received requests for clarification of the privacy and confidentiality provisions. This document is
intended to provide responses to frequently asked questions to facilitate and enhance States’
implementation of IDEA privacy and confidentiality provisions and can be used in conjunction
with the 2014 side-by-side guide of the IDEA and FERPA Confidentiality Provisions.1 The
Confidentiality of Information regulations under both Part B and Part C of the IDEA incorporate
some of the requirements under the Family Educational Rights and Privacy Act (FERPA), but
also include several provisions that are specifically related to infants, toddlers and children with
disabilities receiving services under IDEA and provide protections beyond the FERPA
requirements. When analyzing the privacy and confidentiality requirements for children with
disabilities, it is critical to begin by examining the IDEA requirements first. If you or members of
your staff have questions, please contact your State Lead in OSERS Office of Special Education
Program’s (OSEP) Monitoring and State Improvement Planning Division.
GENERAL IDEA & FERPA PRIVACY AND CONFIDENTIALITY PROVISIONS
1. What are the confidentiality provisions under IDEA?
The IDEA Part B regulations in 34 CFR §§ 300.610 through 300.626 identify the
confidentiality requirements that apply to children with disabilities under Part B of the IDEA.
These requirements apply to all children with disabilities under IDEA, as well as preschool
children with disabilities, aged three through five years. These Part B regulations protect the

1

See additional guidance from the U.S. Department of Education IDEA and FERPA Confidentiality Provisions
released in June 2014, which compares the confidentiality regulations of IDEA Part B, IDEA Part C, and FERPA
in a side-by-side table.

personally identifiable information (PII) in education records collected maintained, or used
under Part B of the IDEA.
The IDEA Part C regulations in 34 CFR §§ 303.400 through 303.417 identify the
confidentiality requirements that apply to infants and toddlers with disabilities and their
families under Part C of the IDEA. These requirements apply to children with disabilities
birth through age two and, at the State’s option, to children with disabilities ages three
through five, if the State makes Part C services available to such children. These Part C
regulations protect PII in early intervention records collected, maintained, or used under
Part C of the IDEA.
2. What is FERPA and to whom does it apply?
Section 444 of the General Education Provisions Act is commonly referred to as the Family
Educational Rights and Privacy Act. 20 U.S.C. 1232g. FERPA’s implementing regulations
are in 34 CFR Part 99. FERPA sets out requirements for the protection of students’ education
records and gives parents and eligible students2 certain rights with respect to the student’s
education records. FERPA applies to an educational agency or institution to which funds
have been made available under any program administered by the Secretary of the
U.S. Department of Education if:
1) the educational institution provides educational services or instruction, or both, to
students; or
2) the educational agency is authorized to direct and control public elementary or
secondary, or post-secondary educational institutions. 34 CFR § 99.1.
3. Do IDEA Part C and Part B preschool programs follow the IDEA confidentiality
provisions or FERPA?
The IDEA Part C and Part B preschool program must follow the applicable IDEA Part B or
Part C confidentiality provisions. While the IDEA Part B and Part C provisions are consistent
with, and incorporate protections under, FERPA, the IDEA Part B and Part C confidentiality
provisions include several provisions that are specifically related to infants, toddlers and
children with disabilities receiving services under IDEA and provide protections beyond the
FERPA requirements.

2

Eligible students are those students to whom the rights accorded to parents under FERPA have transferred.
34 CFR § 99.5(a)(1). An eligible student refers to a student who is 18 years of age or older or attends an
institution of postsecondary education. 34 CFR § 99.3.

2

Under Part B of the IDEA, a State educational agency (SEA) is required to enforce all Part B
requirements, including the Part B Confidentiality of Information regulations.
20 U.S.C. 1412(a)(8). Similarly, under Part C of the IDEA, lead agencies (LA) and early
intervention service (EIS) providers are required to comply with, and enforce, the Part C
Confidentiality of Information regulations.
The Confidentiality of Information regulations under both Part B and Part C of the IDEA
incorporate some of the FERPA requirements and include several provisions that are
specifically related to children with disabilities that provide protections beyond the FERPA
requirements. Therefore, although FERPA and IDEA intersect in many areas, it is important
that when programs have a question regarding privacy and confidentiality of a child or
student with a disability, the privacy and confidentiality provisions of IDEA are considered
first, and then the FERPA rules and regulations are reviewed, as applicable.
4. Who has to comply with the confidentiality requirements under IDEA Parts B and C
and what is a participating agency?
Under both IDEA Parts B and C, the participating agency must comply with the IDEA
confidentiality requirements. The definition of a “participating agency” is different under the
IDEA Part B and Part C regulations and applies differently in different States under IDEA
Part C depending on how the State delivers IDEA Part C services. The IDEA Part B
regulations define a “participating agency” as “any agency or institution that collects,
maintains, or uses personally identifiable information, or from which information is obtained,
under Part B of the Act.” 34 CFR § 300.611(c). The IDEA Part C regulations define a
“participating agency” as “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. A
participating agency [under Part C] includes the lead agency and EIS providers and any
individual or entity that provides any Part C services (including service coordination,
evaluations and assessments, and other Part C services), but does not include primary referral
sources, or public agencies (such as the State Medicaid or [Children’s Health Insurance
Program] (CHIP)) or private entities (such as private insurance companies) that act solely as
funding sources for [Part C] services.” 34 CFR § 303.403(c).
5. What is the personally identifiable information or PII that is protected under the IDEA
confidentiality provisions?
The IDEA Part B and Part C regulations protect the PII contained respectively in education
and early intervention records. The definition of PII under IDEA Part B and Part C is slightly
different.

3

The IDEA Part B regulations in 34 CFR § 300.32 define PII as information that contains:


The name of the child, the child’s parent, or other family member;



The address of the child;



A personal identifier, such as the child’s social security number or student number; or



A list of personal characteristics or other information that would make it possible to
identify the child with reasonable certainty.

The IDEA Part C regulations in 34 CFR § 303.29 references the FERPA definition for PII
and refers to “student” as “child” and “school” as “Early Intervention Service Provider.”
Thus under IDEA Part C, PII is defined as information that includes, but is not limited to:


The child’s name;



The name of the child’s parents or other family members;



The address of the child or child’s family;



A personal identifier, such as the child’s social security number, program
identification number, or biometric record;



Other indirect identifiers, such as the child’s date of birth, place of birth, and mother’s
maiden name; other information that, alone or in combination, is linked or linkable to
a specific child that would allow a reasonable person in the program or school
community, who does not have personal knowledge of the relevant circumstances, to
identify the child with reasonable certainty; or



Information requested by a person who the educational agency reasonably believes
knows the identity of the child to whom the education record relates. 34 CFR § 99.3.

See also the U.S. Department of Education (2014), IDEA and FERPA Confidentiality
Provisions.
6. What are “education records” and “early intervention records” under IDEA? Are these
the same as the definitions under FERPA?
Under IDEA Part B, the definition of “education records” refers to the definition in FERPA.
34 CFR § 300.611(b). FERPA defines, with a few exceptions, “education records” as those
records that:
1) contain information directly related to a student; and
2) are maintained by an educational agency or institution or by a party acting for the
agency or institution. 20 U.S.C. 1232g(a)(4)(A); 34 CFR § 99.3.

4

Among other exceptions, the term does not include records that are kept in the sole
possession of the maker, are used only as a personal memory aid, and are not accessible or
revealed to any other person except a temporary substitute for the maker of the record.
20 U.S.C. 1232g(a)(4)(B)(i); 34 CFR § 99.3.
The IDEA Part C regulations define “early intervention records” as all records regarding a
child that are required to be collected, maintained, or used under IDEA Part C. 34 CFR §
303.403(b). When applying the requirements of FERPA to Part C EIS programs and
providers, the IDEA Part C regulations in 34 CFR § 303.414(b) provide for a reference of
how the FERPA terms or definitions apply to the IDEA Part C terms of definitions including
the reference that an education record under FERPA is equivalent to the early intervention
record under the IDEA Part C regulations.
7. When do the IDEA confidentiality requirements apply?
The IDEA Part B and Part C confidentiality requirements apply from the time a child is
referred to IDEA. The IDEA Part B confidentiality regulations apply to records collected or
maintained once the child is referred to IDEA Part B. 34 CFR §300.610. The IDEA Part C
confidentiality regulations apply from when a child is referred to IDEA. 34 CFR §
303.401(c)(2).3 The Analysis of Comments and Changes included in the final publication of
the Part C 2011 regulations states, “[s]ection 303.401(c)(2) provides that the [Part C]
confidentiality procedures apply from the point in time when the child is referred for early
intervention services, and thus, do not apply prior to a referral.” 76 Fed. Reg. 60,140, 60,208
(Sept. 28, 2011).
PARENTAL CONSENT REQUIREMENTS AND EXCEPTIONS
8. What is parental consent under the IDEA Part B and Part C regulations?
The IDEA Part B regulations in 34 CFR § 300.9 define “consent” to mean that:
(a) The parent has been fully informed of all information relevant to the activity for which
consent is sought, in his or her native language, or other mode of communication;
(b) The parent understands and agrees in writing to the carrying out of the activity for which
his or her consent is sought, and the consent describes that activity and lists the records
(if any) that will be released and to whom; and

3

These regulations also provide that the confidentiality provisions continue to apply until the child’s early
intervention records are no longer maintained or required to be maintained. 34 CFR §303.401(c)(2).

5

(c) (1) The parent understands that the granting of consent is voluntary on the part of the
parent and may be revoked at any time.
(2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate
an action that has occurred after the consent was given and before the consent was
revoked).
(3) If the parent revokes consent in writing for their child's receipt of special education
services after the child is initially provided special education and related services, the
public agency is not required to amend the child's education records to remove any
references to the child's receipt of special education and related services because of
the revocation of consent.
The IDEA Part C regulations in 34 CFR § 303.7 define “consent” to mean that:
(d) The parent has been fully informed of all information relevant to the activity for which
consent is sought, in the parent’s native language, as defined in § 303.25;
(e) The parent understands and agrees in writing to the carrying out of the activity for which
the parent’s consent is sought, and the consent form describes that activity and lists the
early intervention records (if any) that will be released and to whom they will be
released; and
(f) (1) The parent understands that the granting of consent is voluntary on the part of the
parent and may be revoked at any time.
(2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not apply
to an action that occurred before the consent was revoked).
9. When is parental consent to disclose PII required for a child being served under IDEA?
In general, parental consent must be obtained before disclosing PII to a third party unless a
specific exception applies. See Question 11 for an overview of the major exceptions that
might apply to disclosure of PII for children being served under IDEA.
Specifically, under 34 CFR § 300.622(a) of the IDEA Part B regulations, parental consent
must be obtained before PII is disclosed to parties, other than officials of participating
agencies, unless the information is contained in education records and one of the FERPA
exceptions to consent (See Question 11 below) applies. Additionally, if a child is enrolled, or
going to enroll, in a private school that is not located in the local educational agency (LEA)
of the parent’s residence, parental consent must be obtained before any PII about the child is

6

released between officials of the LEA where the private school is located and officials of the
LEA of the parent’s residence. 34 CFR § 300.622(b)(3).4
Under the IDEA Part C requirements, parental consent must be obtained before PII is 1)
disclosed to anyone other than authorized representatives, officials, or employees of
participating agencies collecting, maintaining, or using the information under Part C, or 2)
used for any purpose other than meeting a requirement of Part C. 34 CFR § 303.414. In
addition, parental consent may not be needed if the PII is contained in an early intervention
record and a specific exception to consent applies. 34 CFR § 303.414(b).
10. What is the right to prior written consent under FERPA?
Under the FERPA regulations, the parent or eligible student must provide a signed and dated
written consent before an educational agency or institution discloses PII from the student’s
education records, unless an exception to the requirement of prior written consent applies.
34 CFR § 99.30(a). The FERPA regulations address the elements of the signed and dated
written consent in 34 CFR § 99.30(b), which states that the prior written consent also must:
1) specify the records that may be disclosed;
2) state the purpose of the disclosure; and
3) identify the party or class of parties to whom the disclosure may be made.
34 CFR § 99.30(b).
Further, the FERPA regulations in 34 CFR § 99.30(c) specify that when a disclosure is made
under these provisions, if a parent or eligible student requests, the educational agency or
institution shall provide him or her with a copy of the records. Under FERPA, “disclosure”
means “to permit access to or the release, transfer, or other communication of personally
identifiable information contained in education records by any means, including oral, written,
or electronic means, to any party except the party identified as the party that provided or
created the record.” 34 CFR § 99.3.
11. What are the exceptions to the general requirement to obtain prior written consent
prior to disclosing PII for a young child with a disability receiving services under IDEA
Part B or Part C?
In general, parental consent of a young child ages birth to five under IDEA Part B or Part C is
required before disclosing PII from education or early intervention records. However, there
4

This document is focused on young children served under IDEA, but please note that for older children served
under IDEA, parental consent, must also be obtained before PII is released to officials of participating agencies
providing or paying for transition services. 34 CFR § 300.622(b)(2).

7

are some instances in which parental consent does not have to be obtained before PII can be
disclosed. These are called “exceptions” to consent and are mainly found under FERPA. The
IDEA Part B regulations in 34 CFR § 300.622(a) identify specific IDEA Part B exceptions
and also indicate that FERPA exceptions to prior written consent apply to Part B, and this
includes preschool special education programs. The IDEA Part C regulations at 34 CFR §
303.414(b)(2) identify the IDEA Part C exceptions that apply (which includes the exception
for transmitting child find information when a child transitions from Part C to Part B) and
these regulations also indicate that FERPA exceptions to prior written consent apply to Part C
(as applicable). The IDEA Part C regulations also provide references to some of FERPA’s
defined terms in the context of early intervention. The FERPA “exceptions” that may apply to
IDEA early childhood programs are described in Questions 11a-d below. These FERPA
exceptions are permissive, which means that participating agencies may, but are not required
to, disclose PII without parental consent. The IDEA Part B SEA or the IDEA Part C LA may
have separate State or other policies or procedures that require parental notification or
parental consent.
11a. What is the exception to consent for school officials with a legitimate educational
interest, and is there a comparable exception to consent for children served under IDEA
Part C?
Under IDEA Part B and pursuant to the FERPA regulations at 34 CFR § 99.31(a)(1), prior
written consent is not required to disclose PII from student education records to school
officials, including teachers, within the educational agency or institution, whom the agency
or institution has determined to have legitimate educational interests.
34 CFR § 99.31(a)(1)(i)(A). School officials with legitimate educational interests may also
include a contractor, consultant, volunteer, or other party to whom an educational agency or
institution has outsourced institutional services or functions, provided the outside party:


performs an institutional service or function for which the agency or institution would
otherwise use employees;



is under the direct control of the agency or institution with respect to the use and
maintenance of education records; and



is subject to the requirements of 34 CFR § 99.33(a) governing the use and
redisclosure of personally identifiable information from education records.
34 CFR § 99.31(a)(1)(i)(B).

Under the FERPA regulations at 34 CFR § 99.7(a)(3)(iii), if an educational agency or
institution has a policy of disclosing education records to school officials, the educational
agency or institution must include in its annual notification of FERPA rights a specification
of the criteria for determining who constitutes a school official and what constitutes a
legitimate educational interest. Under the FERPA regulations at 34 CFR § 99.31(a)(1)(ii), an
8

educational agency or institution must use reasonable methods to ensure that school officials
obtain access to only those education records in which they have legitimate educational
interests. Further, an educational agency or institution that does not use physical or
technological access controls must ensure that its administrative policy for controlling access
to education records is effective and that it remains in compliance with the legitimate
educational interest requirement. 34 CFR § 99.31(a)(1)(ii).
Although the IDEA Part C regulations (pursuant to 34 CFR § 303.414(b)(2)) translates
“school official” used in FERPA to “qualified personnel or service provider” in IDEA Part C,
these qualified personnel or EIS providers generally would be working for a participating
agency under Part C and would have access to PII as part of providing services under Part C
of the IDEA. Therefore the “school officials” exception would not be as applicable under
IDEA Part C.
11b. What is the audit and evaluation exception to consent?
Prior written consent is not required under the “audit and evaluation” exception when PII
from student education records (or, under IDEA Part C, from child early intervention
records) is disclosed to “authorized representatives” of FERPA-permitted entities5 in
connection with an audit or evaluation of the Federal- or State-supported education program
(or an early childhood program such as the IDEA Part C early intervention program), or for
the enforcement of, or compliance with, Federal legal requirements that relate to those
programs. 34 CFR §§ 99.31(a)(3) and 99.35. These FERPA-permitted entities are the
Comptroller General of U.S., the U.S. Attorney General, the U.S. Secretary of Education, and
State or local educational authorities. The FERPA regulations at 34 CFR § 99.35(a)(3)
provide specific information on the written agreement requirements that must be met. Under
the audit and evaluation exception, the entity disclosing PII from education (or other early
childhood programs such as Part C early intervention) records also must use “reasonable
methods” to ensure, to the greatest extent practicable, that the “authorized representative” of
the FERPA-permitted entity uses the PII only to carry out an audit or evaluation of Federalor State-supported education programs (or other early childhood programs, such as the IDEA
Part C early intervention program or Head Start), or for the enforcement of or compliance
with Federal legal requirements related to these programs; protects the PII from further
unauthorized disclosure or unauthorized uses; and destroys the PII in accordance with
FERPA requirements. 34 CFR § 99.35(a)(2).
5

FERPA regulations define “authorized representative” as any entity or individual designated by the Comptroller
General of the United States, the Attorney General of the United States, the Secretary of Education, or a State or
local educational authority to conduct -- with respect to Federal- or State-supported education programs -- any
audit or evaluation, or any compliance or enforcement activity in connection with Federal legal requirements that
relate to these programs. 34 CFR § 99.3.

9

The “audit and evaluation” exception (34 CFR §§ 99.31(a)(3) and 99.35) may be an
appropriate mechanism under IDEA and FERPA for data sharing arrangements for the IDEA
early childhood (Part B preschool and Part C) community, provided that all other consent
requirements are met and there is a data sharing agreement when using this exception if PII is
disclosed to an “authorized representative” who is not employed by the FERPA-permitted
entity. PII must be used to audit or evaluate a Federal- or State-supported education program
(this includes Part C and 619 preschool programs and other early childhood programs
including Head Start) or to enforce or comply with Federal legal requirements that relate to
those education programs (audit, evaluation, or enforcement or compliance activity).
There are many specific requirements that have to be met under this exception when used in
conjunction with data sharing arrangements. See Data Sharing Agreement Checklist for
IDEA Part C and Part B 619 Agencies and Programs (2014) for more information about
developing data sharing agreements.
11c. What is the studies exception to consent?
Another exception to the general requirement of prior written consent in FERPA
(34 CFR § 99.31(a)(6)), permits the disclosure of PII from education records to organizations
conducting studies for, or on behalf of, educational agencies or institutions to develop,
validate, or administer predictive tests, administer student aid programs, or improve
instruction. 34 CFR § 99.31(a)(6). In the very limited instance in which IDEA Part C or
IDEA Part B section 619 agencies or programs propose to consider using this FERPA
exception, such agencies and programs will want to consult with the Department’s Office of
Special Education Programs (OSEP) and Family Policy Compliance Office (FPCO)
regarding how the proposed data sharing would meet the requirements set forth in
34 CFR § 99.31(a)(6) and 34 CFR § 303.414 (for IDEA Part C) or 34 CFR § 300.622 (for
IDEA Part B Section 619). Written agreements with the organization conducting the study
are also required under this exception. 34 CFR § 99.31(a)(6)(iii)(C).
11d. What is the Uninterrupted Scholars Act (USA) and its exception to the prior written
consent requirement in FERPA? Does USA apply to agencies administering IDEA
Part B special education preschool and IDEA Part C early intervention programs?
The Uninterrupted Scholars Act (USA), Pub. L. No. 112-278, was enacted on January 14,
2013, and added an additional exception to the general requirement of consent in FERPA.
This exception permits LEAs and schools to disclose education records of students, without
consent of the parent or eligible student, to an agency caseworker or other representative of a
State or local child welfare agency (CWA) or tribal organization authorized to access a
student’s case plan when such agency or organization is legally responsible, in accordance
with State or tribal law, for the care and protection of the student. While most of the
10

exceptions to the general consent requirement are set forth in 34 CFR § 99.31, the FERPA
regulations have not yet been amended to add the exception in the USA. However, LEAs and
schools are nevertheless permitted to use the exception to consent that the USA added to
FERPA. The USA also amended a notice requirement that generally applies when a
disclosure is made under the exception for disclosures necessary to comply with a lawfully
issued subpoena or judicial order. Specifically, while a school or LEA generally must provide
advance written notice to the parent or eligible student before making a disclosure under this
exception to consent, the USA added an exception to this notice requirement when a parent is
a party to a court proceeding involving child abuse and neglect (as defined in section 3 of the
Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 note)) or dependency matters
and the judicial order is issued in the context of that proceeding.
The USA applies to agencies administering IDEA Part B and Part C programs. Guidance on
the Amendments to the Family Education Rights and Privacy Act by the Uninterrupted
Scholars Act issued jointly in May 2014 by the Department’s Family Policy Compliance
Office and the Office of Special Education and Rehabilitative Services (OSERS) states,
“[a]lthough the exception has not been incorporated into the FERPA regulations, the
Department interprets the confidentiality provisions in IDEA Part B and Part C to also
incorporate the USA’s permissible exception to prior written consent requirements in
[34 CFR §§] 300.622(a) and 303.414(b).”
For more specific details about the Department’s guidance on the USA, we encourage you to
visit Guidance on the Amendments to the Family Education Rights and Privacy Act by the
Uninterrupted Scholars Act.
12. Can an electronic signature be used as parental consent pursuant to the IDEA and
FERPA?
Under both Parts B and C of the IDEA, States may use electronic or digital signatures for
consent, provided they take the necessary steps to ensure that there are appropriate
safeguards to protect the integrity of the process. Under Part B of the IDEA, the use of
electronic consent is consistent with 34 CFR § 300.9(b), and a parent must understand and
agree to the carrying out of the activity for which the parent’s consent is sought.6
Additionally, under Part C of the IDEA, if a State lead agency chooses to do so, prior written
consent may be provided by the parent in electronic form under IDEA Part C provided that
the State lead agency or participating agency ensures that there are appropriate safeguards

6

See OSEP Policy Letter dated March 21, 2014, available at
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acc-14-000862r-me-breton-email-3-21-14.pdf.

11

consistent with the requirements in Part B and FERPA. Under Part C of the IDEA, these
safeguards were identified to include that the electronic signature:
1) is dated;
2) identifies and authenticates a particular person as the source of the electronic consent;
3) indicates such person’s approval of the information contained in the electronic
consent; and
4) is accompanied by 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
Part C services.7
In cases where FERPA requires a signed and dated written consent, 34 CFR § 99.30(d)
specifies that “signed and dated written 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. 34 CFR § 99.30(d).
13. May the early intervention service provider accept a referral without parental consent
under IDEA Part C?
The Analysis of Comments and Changes included in the final publication of the Part C 2011
regulations states, “[s]ection 303.401(c)(2) provides that the [P]art C confidentiality
procedures apply from the point in time when the child is referred for early intervention
services, and thus, do not apply prior to a referral. Under § 303.401(c)(2), the confidentiality
provisions under [P]art C of the Act do not apply to primary referral sources. Thus, [P]art C
does not prohibit the lead agency or an EIS provider from accepting a referral of a child to
the State [P]art C system from a primary referral source. However, the primary referral
source may be required to obtain parental consent prior to making a referral under other
applicable laws (such as HIPAA, CAPTA, or State laws).” 76 Fed. Reg. 60,140, 60,208
(Sept. 28, 2011).
NOTIFICATION TO PARENTS
14. What are the IDEA requirements regarding the annual notification to parents?
Annual notification to parents must be provided to inform parents of the IDEA Part B and
Part C privacy and confidentiality requirements as required under 34 CFR § 300.123 and
7

See OSEP Policy Letter dated July 19, 2013 available at
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/12-019399r-itca-faq-final-7-19-13.pdf.

12

§ 303.402. Notification must be provided to parents at the time of referral to IDEA Part C
and at other appropriate times, and adequate notice must be provided under IDEA Part B of
the Act. This notice must include:


A description of the children on whom PII is maintained, the types of information
sought, the methods the State intends to use in gathering the information (including
the sources from whom information is gathered), and the uses to be made of the
information;



A summary of the policies and procedures that participating agencies must follow
regarding storage, disclosure to third parties, retention, and destruction of PII;



A description of all of the rights of parents and children regarding this information,
including the rights under FERPA and implementing regulations in 34 CFR Part 99
and a description of all the rights of parents and children regarding this information,
including their rights under the Part C confidentiality provisions in §§ 303.401
through 303.417; and



A description of the extent that the notice is provided in the native languages of the
population groups in the State.

See the IDEA Part B and Part C regulations for complete information at 34 CFR § 300.612
and 34 CFR § 303.404.
15. What are the FERPA requirements regarding the annual notification to parents and
eligible students under Part B?
Each educational agency and institution must annually notify parents of students currently in
attendance, or eligible students currently in attendance, of their rights under FERPA.
20 U.S.C. 1232g(e); 34 CFR § 99.7(a)(1). The notice must address the following primary
rights:


Right to inspect and review education records (34 CFR §§ 99.10-12);



Right to seek to amend education records (34 CFR §§ 99.20-22);



Right to consent to the disclosure of PII from education records, except as provided
by law (34 CFR §§ 99.30 and 99.31); and



Right to file a complaint with the Department of Education concerning the alleged
failure by the educational agency or institution to comply with the requirements of
FERPA (34 CFR §§ 99.7(a)(2) and 99.63).

The specific content required in the annual notification is addressed in 34 CFR §§ 99.7(a)(2)
and 99.7(a)(3). A model notification may be found at
http://www2.ed.gov/policy/gen/guid/fpco/ferpa/lea-officials.html.
13

These FERPA requirements do not apply to IDEA Part C.
16. Can electronic mail be used to provide parents with their child’s individualized
education programs (IEPs), and related documentation, such as progress reports under
IDEA Part B?
Under IDEA Part B, parents may elect to receive prior written notices, procedural safeguards
notices, and due process complaint notices by an electronic mail communication, if the
public agency makes that option available. Section 615(n) of the IDEA; 34 CFR § 300.505.
The IDEA statute and regulations do not explicitly address the use of electronic mail for
other documents required under the IDEA. However, OSEP has stated that the IDEA statute
and regulations do not prohibit the use of electronic mail to carry out administrative matters
under section 615 of the IDEA, and electronic mail can be used as long as the parent of the
child with a disability and the public agency both agree to this alternative method of
communication (Analysis of Comments and Changes to the 2006 Final Part B Regulations,
71 Fed. Reg. 46540, 46687 Aug. 14, 2006) and there are appropriate safeguards in place.
OSEP has indicated under IDEA Part B in a letter issued March 21, 2014, that email
communications are permitted for providing parents copies of their child’s IEP and progress
reports if a public agency has implemented the following security procedures when
delivering such information via electronic mail: the district obtains prior signed permission
from the parents; the parents provide the address of their confidential email account; a secure
password is used to access documents; and the parents may request hard copies at any time
and/or refuse the electronic mail option.
DUTY TO MAINTAIN, AND PROVISION FOR DESTRUCTION OF, RECORDS
17. What should IDEA programs know about destruction of records under IDEA and
FERPA?
IDEA affords parents with the right to request that their child’s records be destroyed once
those records are no longer required to be maintained by the IDEA Part B or Part C program
and subject to other specific conditions. The maintenance requirements vary by State and by
the type of record that contains the PII. Additionally a number of Federal and State laws
apply (including fiscal, audit, insurance, statutes of limitation, etc.) regarding how long
records must be maintained. The purpose of the destruction option is to allow parents the
opportunity to decide that records about a child’s performance, abilities and behavior (that
could be potentially stigmatizing and are highly personal) are not maintained after they are
no longer needed. OSEP discusses destruction of records under the IDEA Part B regulations
further in a November 23, 2015 policy letter.

14

Under section 300.611(a) of the IDEA Part B regulations and section 303.403 of the IDEA
Part C regulations, “destruction means to physically destroy the record or ensure that
personal identifiers are removed from a record so that the record is no longer personally
identifiable.” However, a permanent record of certain information or PII about the student (or
child) can be maintained under IDEA without limitation. 34 CFR §§ 300.624 and 303.416.
Parents must be given notice as to the State’s record retention policies and be provided notice
regarding when the records are no longer needed and can potentially be destroyed (i.e.,
typically when PII is no longer needed to provide early intervention or educational services
to the child. This notice is most frequently provided when a child exits the program or leaves
the agency.)
Under FERPA, parents do not have a right to request the destruction of their student’s
education records. However, students’ education records must be safeguarded and cannot be
destroyed if there is an outstanding request to inspect or review such records.
34 CFR § 99.10(e). FERPA’s “school official exception” also requires an educational agency
or institution to maintain “direct control” with respect to the use and maintenance of
education records by a contractor, consultant, volunteer, or other party to which the school
has outsourced institutional services of functions, which encompasses controlling their
destruction when the education records are no longer needed to perform such institutional
services or functions. 34 CFR § 99.31(a)(1)(i)(B). There are also destruction requirements
related to specific FERPA exceptions to consent in 34 CFR § 99.31(a)(6)(iii)(B) regarding
disclosures to organizations conducting studies under the studies exception and
34 CFR § 99.35(b)(2) regarding disclosures under the audit and evaluation exception to
consent in 34 CFR §§ 99.31(a)(3) and 99.35. See Question 11 for a summary of some of the
FERPA exceptions to the prior written parental consent requirements.

15


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

August 22, 2016

Perry Zirkel, Ph.D., JD
University Professor of Education and Law
Lehigh University
Mountaintop Campus
111 Research Drive
Bethlehem, Pennsylvania 18015-4794
Dear Dr. Zirkel:
This letter responds to your electronic mail (email) correspondence to Melody Musgrove, former
Director, Office of Special Education Programs (OSEP), U.S. Department of Education
(Department), and subsequently forwarded to me for response. In your emails, you asked several
questions about the implementation of certain provisions of Part B of the Individuals with
Disabilities Education Act (IDEA). We regret the delay in responding. Our answers to the
specific questions raised in your correspondence are provided below.
Question: Is an expedited due process hearing mandatory when a due process complaint is
submitted pursuant to 34 CFR §300.532(a), or may a parent or local educational agency (LEA)
request that a hearing pursuant to 34 CFR §300.532(a) not be subject to the expedited due
process timeline? May the parties waive, via mutual agreement, the “opportunity” for an
expedited hearing in a case that fits within the subject matter of 34 CFR §300.532(c)?
Answer: OSEP stated in Letter to Snyder (December 13, 2015), that there is no provision in the
IDEA Part B regulations that would give a hearing officer conducting an expedited due process
hearing the authority to extend the timeline for issuing this determination at the request of a party
to the expedited due process hearing. Under 34 CFR §300.532(c)(4), a State may establish
different procedural rules for expedited due process hearings than it has established for other due
process hearings, but except for the timelines in 34 CFR §300.532(c)(3), those rules must be
consistent with 34 CFR §§300.510-300.514. See Question E-7 of the Questions and Answers on
IDEA Part B Dispute Resolution Procedures (Q&A). 1 I have enclosed a copy of Letter to Snyder
for your convenience. A copy of this letter is also posted on the Department’s web site:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/15-012744-ca-snyder-exdueprocessclearance.pdf. Finally, there is no provision in the IDEA Part B regulations that permits the
parties to a due process complaint that involves the disciplinary issues in 34 CFR §300.532(c) to
waive the timelines in 34 CFR §300.532(c)(4).

1

Questions and Answers on IDEA Part B Dispute Resolution Procedures can be found at:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqafinalmemo-7-2313.pdf.
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202-2600
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competiveness
by fostering educational excellence and ensuring equal access.

We note that your correspondence also included a question concerning Illinois’ State regulation
pertaining to expedited due process hearing requests. Without further information, OSEP is
unable to determine whether the regulation is consistent with the IDEA. As a result of the
concern you raised, OSEP will follow-up with the Illinois State Board of Education to address
this matter.
Question: Based on the growing body of research and experience related to Response to
Intervention (RTI), does OSEP extend legal recognition to fidelity (sometimes alternatively
referred to as integrity), as an additional distinguishing and necessary core characteristic that a
few States have expressly included in their RTI laws?
Answer: The regulations implementing the 2004 Amendments to the IDEA include a provision
mandating that States allow, as part of their criteria for determining whether a child has a
specific learning disability (SLD), the use of a process based on the child’s response to scientific,
research-based intervention. See 34 CFR §300.307(a)(2). In its January 21, 2011 Memo 11-07, A
Response to Intervention (RTI) Process Cannot Be Used to Delay-Deny an Evaluation for
Eligibility under the Individuals with Disabilities Education Act (IDEA), OSEP stated that a
multi-tiered instructional framework, often referred to as RTI, is a schoolwide approach that
addresses the needs of all students, including struggling learners and students with disabilities,
and integrates assessment and intervention within a multi-level instructional and behavioral
system to maximize student achievement and reduce problem behaviors. With a multi-tiered
instructional framework, schools identify students at-risk for poor learning outcomes, monitor
student progress, provide evidence-based interventions, and adjust the intensity and nature of
those interventions depending on a student's responsiveness. OSEP noted that while the
Department does not subscribe to a particular RTI framework, there are core characteristics that
underpin all RTI models: (1) students receive high quality research-based instruction in their
general education setting; (2) continuous monitoring of student performance is performed; (3) all
students are screened for academic and behavioral problems; and (4) multiple levels (tiers) of
instruction that are progressively more intense, based on the student's response to intervention
are provided. A copy of OSEP Memo 11-07 may be viewed at:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11-07rtimemo.pdf.
To assist State educational agencies (SEAs) and local school districts with planning and
implementing RTI, OSEP provided funding to establish the National Center on Response to
Intervention (Center). The Center has completed its funding cycle but continues to make its
resources available to the public. 2 The Center’s technical assistance documents address four
essential components (i.e., core characteristics) of RTI. The Center notes that fidelity of
implementation plays an integral role within the entire RTI framework at the school and
classroom levels. The Center also provides a full description of the role monitoring fidelity plays
in RTI in a recorded webinar. 3
Neither the IDEA nor its implementing regulations identify "core characteristics" of an RTI
process or address fidelity of implementation. While OSEP has provided guidance and the
2

These resources are available at: http://www.rti4success.org/resources.

3

The webinar may be viewed at: http://www.rti4success.org/video/monitoring.

Center provides technical assistance that is designed to support SEAs and school districts in their
implementation efforts, these actions should not be viewed as requiring the use of a particular
RTI approach with specific core components or characteristics, to meet the requirement in 34
CFR §300.307(a)(2).
Question: Does the IDEA regulation in 34 CFR §300.600(e), which requires SEAs to assure
correction of noncompliance with free appropriate public education requirements and other
specified IDEA obligations within one year, apply to corrective action orders of the complaint
resolution process and to the remedies in due process hearing decisions?
Answer: As part of its general supervisory responsibilities, the State must ensure that when it
identifies noncompliance with the IDEA requirements by LEAs, the noncompliance is corrected
as soon as possible, and in no case later than one year after the State’s identification of the
noncompliance. See 34 CFR §300.600(e). With respect to implementation of State complaint
decisions, OSEP has advised that the SEA must inform the public agency that is involved in the
complaint of any findings of noncompliance and the required corrective action, and ensure that
the corrective action is completed as soon as possible, and within the timeframe specified in the
SEA’s written decision, and in no case later than one year of the State’s identification of the
noncompliance. See Q&A, Question B-31.
The one-year timeline for the correction of noncompliance in 34 CFR §300.600(e) is not
intended to limit an SEA’s authority or flexibility to determine the appropriate remedy or
corrective action necessary to resolve a complaint in which the SEA has found that the public
agency has failed to provide appropriate services to a child or group of children with disabilities.
We recognize that in some circumstances providing the remedy ordered in the SEA’s complaint
decision could take more than one year to complete (e.g., the SEA orders an action, such as
compensatory services, the provision of which, will extend beyond one year; the corrective
action timeline is extended because the parent or adult student fails to take action that is essential
to implementation of the SEA’s decision; the parties mutually agree to extend the timeline for
implementation).
Likewise, with due process hearing decisions, OSEP has advised that hearing decisions must be
implemented within the timeframe prescribed by the hearing officer, or if there is no timeframe
prescribed by the hearing officer, within a reasonable timeframe set by the State as required by
34 CFR §§300.511-300.514. The SEA, pursuant to its general supervisory responsibility under
34 CFR §§300.149 and 300.600, must ensure that the public agency involved in the due process
hearing implements the hearing officer’s decision in a timely manner, unless either party appeals
the decision. See Q&A, Question C-26.
In OSEP’s Letter to Voigt (June 2, 2014), we stated:
While the IDEA does not specifically address State-established timelines for
implementation of final administrative decisions, we would expect that all final
due process decisions are implemented within a reasonable period of time and
without undue delay so that a child with a disability receives the services
determined necessary to provide that child with the free appropriate public
education to which he or she is entitled, but has been denied, under the IDEA.

These determinations are highly factual in nature; therefore, we believe that what
constitutes a “reasonable period of time” depends in part on the circumstances
surrounding the decision.
A copy of this letter is enclosed for your convenience and may be viewed at:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acc-11-020700r-pa-voigtdueprocesshearingdecisions.pdf.
If circumstances surrounding implementation of the State complaint decision or hearing decision
require more than one year to carry out, the SEA must, consistent with its general supervisory
authority, continue to follow-up to ensure implementation of the decision, even after the oneyear timeline ends.
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 Department
of the IDEA in the context of the specific facts presented.
If you have any further questions, please do not hesitate to contact Lisa Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs
Enclosures


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

August 18, 2016

Regina Skyer
Law Offices of Regina Skyer
and Associates, L.L.P.
142 Joralemon Street, Suite 11C
Brooklyn, New York 11201
Dear Ms. Skyer:
This letter responds to your December 23, 2015 inquiry to Dr. Melody Musgrove, former
Director of the Office of Special Education Programs (OSEP), within the Office of Special
Education and Rehabilitative Services, U.S. Department of Education (Department). In your
correspondence, you requested guidance regarding multidisciplinary evaluations, eligibility, and
screening procedures under Part C of the Individuals with Disabilities Education Act (IDEA).
The IDEA Part C regulations set forth at 34 CFR §§303.1 through 303.734 require States to have
policies and procedures to provide early intervention services (EIS) to eligible infants and
toddlers with disabilities. Specifically, 34 CFR §303.300(c)(2) requires that the statewide system
to provide early intervention services must include policies and procedures for evaluations as
described in 34 CFR §303.321. OSEP’s responses to your questions are provided below. 1 For
clarity, we have addressed your multi-part inquiries as separate questions.
Question 1a: Are parents entitled to a complete multidisciplinary evaluation upon referring their
child to the early intervention program?
Response: The Part C IDEA regulations at 34 CFR §303.321(a)(1) state that lead agencies must
ensure that, subject to obtaining parental consent, each child under the age of three who is
referred for evaluation or early intervention services and suspected of having a disability,
receives a timely, comprehensive, multidisciplinary evaluation of the child unless the child’s
eligibility is established by medical or other records under 34 CFR §303.321(a)(3)(i). A child’s
medical and other records may be used to establish eligibility (without conducting an evaluation
of the child) under Part C if those records indicate that the child’s level of functioning in one or
more of the developmental areas identified in 34 CFR §303.21(a)(1) 2 constitutes a
developmental delay or that the child otherwise meets the criteria for an infant or toddler with a
disability under 34 CFR §303.21. (See 34 CFR §303.321(a)(3)(i)). OSEP notes that if the child’s

1

The responses describe the Federal IDEA Part C regulatory requirements and do not analyze New York State’s
specific policies or procedures.
2
The developmental areas specified in 34 CFR §303.21(a)(1) are: cognitive development; physical development,
including vision and hearing; communication development; social or emotional development; and adaptive
development.
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202-2600
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competiveness
by fostering educational excellence and ensuring equal access.

eligibility under Part C is established through medical or other records, the lead agency must still
ensure that an assessment of the child is conducted, which includes the identification of the
child’s needs in each of the developmental areas in 34 CFR §303.21. (See 34 CFR
§303.321(a)(3)(i) and (c)(1)(iii)).
Question 1b: What constitutes a multidisciplinary evaluation?
Response: IDEA Part C requires individual States to have policies and procedures that establish
the specific details about what constitutes a multidisciplinary evaluation, and the IDEA Part C
regulations delineate what must be addressed in such policies. Multidisciplinary is defined under
34 CFR §303.24, and means the involvement of two or more separate disciplines or professions
and with respect to evaluation of the child and assessments of the child and family, may include
one individual who is qualified in more than one discipline or profession.
Additionally, the regulation at 34 CFR §303.321(a)(2) defines evaluation to mean the procedures
used by qualified personnel to determine a child’s initial and continuing eligibility for Part C
services. An initial evaluation refers to the child’s evaluation to determine his or her initial
eligibility under Part C. All evaluations must be conducted by qualified personnel, in a
nondiscriminatory manner, and selected and administered so as not to be racially or culturally
discriminatory. (See 34 CFR §303.321(a)(4)). Unless clearly not feasible to do so, all evaluations
must be conducted in the native language of the child, in accordance with the definition of native
language. (See 34 CFR §303.321(a)(5)).
While States determine the specific procedures used in an evaluation, under 34 CFR
§303.321(b), no single procedure may be used as the sole criterion for determining a child’s
eligibility under IDEA Part C. Furthermore, evaluation procedures must include: (1)
administering an evaluation instrument; (2) taking the child’s history; (3) identifying each child’s
level of functioning in each of the developmental areas in §303.21(a)(1); (4) gathering
information from other sources as necessary; and (5) reviewing medical, educational, or other
records.
Question 1c: Who determines a child’s eligibility?
Response: As noted in the definition of “evaluation” described above, the lead agency uses
qualified personnel 3 to determine the eligibility of a child under Part C. There are multiple
factors for how a child’s eligibility is determined under Part C, including a State’s definition of
infant or toddler with a disability, the results of evaluation instruments, diagnosed physical or
mental conditions, and informed clinical opinion. Qualified personnel use the State’s procedures,
including the use of informed clinical opinion when conducting an evaluation, to determine a
child’s initial and continuing eligibility. The lead agency must ensure that informed clinical
opinion can be an independent basis for establishing eligibility, but informed clinical opinion
may not be used to negate the results of evaluation instruments used to establish eligibility. (34
CFR §303.321(a)(3)(ii)). Under 34 CFR §303.322, if, based on the evaluation, the lead agency
3

“Qualified personnel” means personnel who have met State approved or recognized certification, licensing,
registration, or other comparable requirements that apply to the areas in which the individuals are conducting
evaluations or assessments or providing early intervention services. (34 CFR §303.31).

determines that a child is not eligible under Part C, the lead agency must provide the parent with
prior written notice, and include in the notice information about the parent’s right to dispute the
eligibility determination through the IDEA’s dispute resolution mechanisms such as requesting a
due process hearing or mediation or filing a State complaint.
Question 2a: Is an early intervention official correct in telling a parent that their child will only
be “screened” to determine eligibility?
Response: Under IDEA Part C, States have the option to adopt screening procedures. Screening
procedures may be used to determine whether a child is suspected of having a disability. If a
child is suspected of having a disability, or if the parent requests an evaluation, an evaluation
must be conducted to determine eligibility, once parental consent for the evaluation is obtained.
The regulation at 34 CFR §303.320 states that the lead agency may adopt procedures to screen
children under the age of three who have been referred to the Part C program to determine
whether they are suspected of having a disability. If the lead agency or EIS provider proposes to
screen a child, it must provide the parent prior written notice of its intent to screen the child to
identify whether the child is suspected of having a disability and include in that notice a
description of the parent’s right to request an evaluation at any time during the screening process.
Additionally, the lead agency must obtain parental consent before conducting the screening
procedures.
If the parent consents to the screening and the screening or other available information indicates
that the child is suspected of having a disability, after notice is provided to the parent and once
parental consent is obtained, an evaluation of the child must be conducted. If the child is not
suspected of having a disability, the lead agency or EIS provider must ensure that notice of that
determination is provided to the parent, and that the notice describes the parent’s right to request
an evaluation. Importantly, if the parent of the child requests and consents to an evaluation at any
time during the screening process, an evaluation of the child must be conducted even if the lead
agency or EIS provider has determined that the child is not suspected of having a disability. (34
CFR §303.320(a)(3)).
A parent has the right to request an evaluation even if the screening or other available
information indicates that the child is not suspected of having a disability, instead of having to
utilize the due process procedures to appeal that decision. Parents often can identify or suspect
developmental delays in their children that may not be identified through a screening. For this
reason, parents are able to request and receive an evaluation without the potential delay and
expense of a due process hearing. As noted in the Analysis of Comments and Changes 4, we
believe this approach facilitates a comprehensive child find system tasked with identifying all
infants and toddlers with disabilities. Additionally, because a child is only eligible for Part C
services for a short period of time and providing services earlier rather than later can enhance the
development of infants and toddlers with disabilities, time is of the essence with regard to
identifying a child as an infant or toddler with a disability. Thus, it is important that parents
4

Early Intervention Program for Infants and Toddlers With Disabilities; Assistance to States for the Education of
Children With Disabilities; Final Rule and Proposed Rule, Analysis of Comments and Changes, 76 Fed. Reg. 60140,
60142-60244 (September 28, 2011).

retain the right to request an evaluation at any time during the screening process. (See 76 Fed.
Reg. 60193).
Question 2b: What constitutes a screening?
Response: Screening procedures are activities that are carried out by, or under the supervision
of, the lead agency or EIS provider to identify, at the earliest possible age, infants and toddlers
suspected of having a disability and in need of EIS; and include the administration of appropriate
instruments by personnel trained to administer those instruments. (34 CFR §303.320(b)). As
noted in the Analysis of Comments and Changes, the Department believes it is important for a
lead agency to have some flexibility in determining how best to implement screening in its State.
(See 76 Fed. Reg. 60195).
Question 3: Is an early intervention official correct in telling a parent that a child is only entitled
to be evaluated in a total of three areas of need for the child’s entire tenure under the early
intervention program?
Response: States are required to have policies and procedures for conducting timely,
multidisciplinary evaluations to determine eligibility under Part C. Under 34 CFR §303.321(b),
the State’s procedures for an evaluation of the child must include identifying the child’s level of
functioning in each of the developmental areas in 34 CFR §303.21(a)(1). Under 34 CFR
§303.21(a)(1), the developmental areas listed are: cognitive development; physical development,
including vision and hearing; communication development; social or emotional development;
and adaptive development. Therefore, an evaluation of the child must include an identification of
the child’s level of functioning in each of those developmental areas. (See also, OSEP’s letter to
Anonymous, 102 LRP 12918 (September 25, 2000) (copy enclosed), stating that the evaluation
of the child’s level of functioning must be completed in all of those developmental areas.)
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 Department
of the IDEA in the context of the specific facts presented.
If you have any further questions, please do not hesitate to contact Lisa Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs
Enclosure


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

August 5, 2016
Dear Colleague:
Over the last decade, there has been a proliferation of educational models involving varying
degrees of in-person and online instruction and practice. Many State educational agencies
(SEAs) and local educational agencies (LEAs), including charter schools that operate as LEAs,
provide a variety of Internet-based or online instruction to children, including children with
disabilities under the Individuals with Disabilities Education Act (IDEA).1 In addition, some
LEAs have begun, or are considering, offering children the opportunity to attend virtual schools.2
In 2011, the U.S. Department of Education’s (Department’s) Office of Special Education
Programs (OSEP) funded The Center for Online Learning and Students with Disabilities (Center)
to research how online learning can be made more accessible. The Center also identifies
promising practices for K-12 children with disabilities by investigating approaches that address
variations in student learning styles within the range of online learning options.3 OSEP has
received a number of questions from stakeholders, including State and school personnel and
advocacy organizations, regarding the provision of a free appropriate public education (FAPE) to
children with disabilities attending public virtual schools. Therefore, we are issuing this letter to
clarify some of the critical requirements in Part B of IDEA that apply to virtual schools.4
The Department has determined that this letter is significant guidance under the Office of
Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg.
3432 (2007),
www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf.
Significant guidance is non-binding and does not create or impose new legal requirements. The
Department is issuing this letter to provide SEAs, LEAs and other public agencies with
information to assist them in meeting their obligations under the IDEA and implementing
1

“Child with a disability” is a statutory term under IDEA and is defined in 20 U.S.C. 1401(3). See also 34 CFR §300.8.
See Keeping Pace with K-12 Online and Blended Learning: An Annual Report of Policy and Practice 2015,
Evergreen Education Group, available at http://kpk12.com/reports/.
3
In 2015, the Center published “Equity Matters: Digital and Online Learning for Students with Disabilities,” which
presents some emerging trends, outcomes, challenges, and promising practices in this developing field.
This publication is available at: http://centerononlinelearning.org/publications/annual-publication-2015. Although
this publication was funded under a grant from the Department, the conclusions are solely those of the authors.
Reference to this document is not an endorsement by the Federal government or the Department of the authors’
conclusions, and is provided for informational purposes only.
4
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794, and its implementing regulation at 34 CFR part
104) and Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12131–12134, and its implementing
regulation at 28 CFR part 35) prohibit discrimination on the basis of disability and may impose additional
requirements on SEAs and LEAs. The same nondiscrimination principles that apply to all schools under these laws
also apply to virtual schools. Within the Department of Education, these laws are enforced by the Office for Civil
Rights (OCR). This guidance does not address these laws; more information about these laws, however, is available
on OCR’s website at www.ed.gov/ocr, including a May 26, 2011 Dear Colleague Letter (with attached Frequently
Asked Questions document) addressing the use of electronic book readers and other emerging technologies,
available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201105-ese.html.
2

400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202-2500
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparedness for global competiveness by
fostering educational excellence and ensuring equal access.

Page 2—Dear Colleague: Virtual Schools
regulations (34 CFR–part 300). This guidance also provides members of the public with
information about their rights under the law and regulations. If you have questions or are
interested in commenting on this guidance, please email us your comment at
virtualschools@ed.gov or write to us at the following address:
U.S. Department of Education,
550 12th Street, S.W., Room 5122
Potomac Center Plaza
Washington, DC 20202-2641

For further information about the Department’s guidance processes, please visit
www2.ed.gov/policy/gen/guid/significant-guidance.html
Background
In January 2014, the Department began collecting information from States on the status of virtual
schools through the Annual Mandatory Collection of Elementary and Secondary Education Data,
an EDFacts information collection, to enhance its knowledge of virtual education across the
country.5 The EDFacts information collection defines “virtual school” as a public school that
offers only virtual courses: instruction in which children and teachers are separated by time
and/or location. In addition, interaction occurs via computers and/or telecommunications
technologies, and the school generally does not have a physical facility that allows children to
attend classes on-site. For the purpose of this letter, “virtual schools” refer to programs,
consistent with the EDFacts definition, that are public schools of a traditional LEA or are public
schools that operate as an LEA under State law.6 This letter does not address every IDEA
requirement. Rather, it highlights issues that OSEP believes are likely to occur when certain key
Part B requirements are implemented in a virtual school environment.
General Supervisory Responsibilities
The requirements of IDEA apply to SEAs and LEAs, regardless of whether a child is enrolled
in a virtual school that is a public school of the LEA or a public school that is constituted as an
LEA by the State.7 Each SEA must have policies and procedures in effect that are consistent
with, and implement, IDEA requirements. In turn, each LEA, in providing for the education of
children with disabilities within its jurisdiction, must have policies, procedures, and programs
that are consistent with, or adopt, the SEA’s policies and procedures in order to establish its
eligibility for a Part B subgrant from their SEA. 34 CFR-§§300.200–300.201.8 The SEA must
5

For more information on this information collection please see “Summary of Changes, Attachment C, EDFACTS”
available at: http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201302-1875-001.
6
This letter does not address children with disabilities placed in non-public virtual schools by their parents pursuant
to 34 CFR §§300.130-300.144. However, under 34 CFR 300.146, children with disabilities placed in a private
virtual school by a public agency, as a means of providing special education and related services, must be provided
with FAPE as part of their public placement at the private virtual school.
7
Letter to Barnes, 41 IDELR 35 (December 18, 2003).
8
A virtual school that is constituted as an LEA under State law, consistent with the definition of LEA in
34 CFR §300.28, may receive a subgrant of Part B funds from the SEA if that LEA establishes its eligibility under
section 613 of IDEA for use of those funds in accordance with Part B. 34 CFR §300.705(a). The LEA must submit a

Page 3—Dear Colleague: Virtual Schools
exercise general supervision over all educational programs for children with disabilities
administered within the State to ensure that the education standards of the SEA and the
requirements of Part B are met. 34 CFR-§§300.149 and 300.600. Accordingly, the SEA is
responsible for ensuring that all LEAs, including virtual schools that operate as LEAs, implement
the requirements of IDEA. If a virtual school is a public school of an LEA, the LEA is the entity
that would generally be responsible for ensuring that the requirements of Part B are met by that
virtual school for children with disabilities participating in the virtual school’s program.
Many virtual schools are also public charter schools.9 If the virtual charter school operates as an
LEA and has established its eligibility under section 613 of IDEA and receives a subgrant of Part
B funds from the SEA under 34 CFR-§300.705, the virtual charter school LEA is responsible for
ensuring that the requirements of Part B are met, unless State law assigns responsibility to some
other entity. 34 CFR-§300.209(c). Likewise, if the virtual school is a public charter school of an
LEA that receives funding under 34 CFR-§300.705 and includes other public schools, then the
LEA of which the virtual charter school is a part is responsible for ensuring that the requirements
of Part B are met, unless State law assigns that responsibility to some other entity.
34 CFR-§300.209(b)(2)(i). The SEA, however, retains ultimate responsibility for ensuring that
the requirements of Part B are met in all educational programs for children with disabilities
administered within the State. 34 CFR-§§300.149 and 300.600.
If a State has virtual schools, including virtual charter schools, that the State considers to be
LEAs, the SEA should carefully review its policies and procedures to ensure that the policies and
procedures address virtual schools. Likewise, where applicable, LEAs should carefully review
their policies and procedures to ensure that they address public virtual schools of the LEA. In
particular, SEAs and, if applicable, LEAs, should review their policies and procedures regarding:
1. monitoring to identify and correct noncompliance with Part B requirements, including the
implementation of IDEA in virtual schools (34 CFR-§§300.149 and 300.600, and
20 U.S.C. 1232d(b)(3)(E));
2. timely collection and reporting of data under section 618, and data to report on the
indicators in the State Performance Plan/Annual Performance Report, that are (a) valid
and reliable and (b) reflect actual practice and performance, including collecting and
reporting data about children with disabilities who attend virtual schools and receive
special education and related services (34 CFR-§§300.157(c), 300.601(b), and 300.640
through 300.646);
3. establishing and maintaining qualifications to ensure that personnel necessary to carry out
the purposes of IDEA, including personnel serving children with disabilities in virtual
plan to the SEA that provides assurances that the LEA meets each of the conditions in §§300.201 through 300.213.
34 CFR §300.200. Section 300.201 provides that the LEA, in providing for the education of children with
disabilities within its jurisdiction, must have policies, procedures, and programs in effect that are consistent with the
State policies and procedures established under §§300.101 through 300.163 and §§300.165 through 300.174.
9
According to the report cited here, charter schools make up less than 6 percent of total enrollment in the United
States, but full-time charter school enrollment accounted for the large majority of full-time online students and
3.3 million course enrollments. Full-time virtual charter schools operated in 25 States during School Year 2014-15
and served about 275,000 students. See Keeping Pace with K-12 Online and Blended Learning: An Annual Report of
Policy and Practice 2015, Evergreen Education Group, available at http://kpk12.com/reports/.

Page 4—Dear Colleague: Virtual Schools
schools, are appropriately and adequately prepared and trained, and that those personnel
have the content knowledge and skills to serve children with disabilities
(34 CFR-§300.156(a));
4. the availability of dispute resolution procedures to implement IDEA procedural safeguards,
including the mediation and due process hearing provisions in 34 CFR-§§300.506 through
300.518, the discipline provisions in 300.530 through 300.536, as well as the Part B State
complaint procedures in 34 CFR-§§300.151–300.153; and
5. provisions to ensure the confidentiality of personally identifiable data, information, and
records (34 CFR-§§300.611 through 300.626).10
Each SEA also must have policies and procedures that ensure that children with disabilities who
attend virtual school LEAs and virtual schools that are part of LEAs are included in all general
State and district-wide assessment programs, including assessments described in section 1111 of
the Elementary and Secondary Education Act of 1965, with appropriate accommodations and
alternate assessments, where necessary and as indicated in their respective individualized
education programs (IEPs). 34 CFR-§300.160.
Child Find Responsibilities
Each SEA must have child find policies and procedures in effect to ensure that all children with
disabilities residing in the State, including those who attend virtual schools, who are in need of
special education and related services, regardless of the severity of their disability, are identified,
located, and evaluated. 34 CFR-§300.111(a). LEAs also must have child find policies and
procedures in effect that are consistent with the State’s policies and procedures.
34 CFR-§§300.200-300.201. Therefore LEAs, including virtual schools that operate as LEAs,
should review the State’s child find policies and procedures as well as their own implementing
policies, procedures, and practices to ensure that children with disabilities who attend virtual
schools are identified, located, and evaluated. See also 34 CFR-§§300.300–300.311.
We recognize that there are some children with IEPs who may transfer to virtual schools, while
other children with disabilities may enroll in virtual schools before being identified as having a
disability under IDEA. For children who have IEPs and have been determined eligible for special
education and related services prior to their enrollment in the virtual school, child find
responsibilities also include ensuring that periodic reevaluations are conducted.
34 CFR-§300.303. Because children who attend virtual schools generally may not have the same
degree of face-to-face interactions and in-person contacts with a teacher or other school staff as
children who attend brick and mortar schools, child find for children attending virtual schools
may present unique challenges.
It is not uncommon for the child’s teacher to be the first person to suspect that the child may
have a disability and to be the person to refer that child for an evaluation. Where the practices of
the virtual school, whether it is an LEA or operated by an LEA, limit or prevent the teacher’s
interaction and contacts with a child, the SEA’s child find policies should suggest additional
10

Students with disabilities attending public virtual schools and their parents are also protected by the Family
Educational Rights and Privacy Act (FERPA). 20 U.S.C. 1232g and 34 CFR part 99. More information about
FERPA is available at: www.ed.gov/fpco

Page 5—Dear Colleague: Virtual Schools
ways that LEAs can meet this IDEA responsibility for children attending virtual schools
(e.g., screenings to identify children who might need to be referred for an evaluation and
questionnaires filled out by virtual school teachers and staff and children’s parents). In general,
reliance on referrals by parents should not be the primary vehicle for meeting IDEA’s child find
requirements.
Ensuring the Provision of a Free Appropriate Public Education
Some stakeholders report that there is confusion in the field regarding which entity is responsible
for providing FAPE to children with disabilities attending virtual schools. Generally, States
assign responsibility for making FAPE available—that is for ensuring that the requirements of
Part B are met for a particular child—to the LEA of his or her parent’s residence. Where a virtual
school is a public school operated by the LEA in which the parent resides, that LEA generally
would be responsible for making FAPE available to an eligible child with a disability. LEAs
retain this responsibility even if they choose to contract with virtual schools to provide
educational services to children with disabilities. In situations where the State designates a
virtual school as its own LEA, consistent with 34 CFR-§300.28, and the child attends that virtual
school LEA, but the child’s family resides in a different LEA in the State, the State has the
discretion to determine which LEA is responsible for ensuring that the requirements of Part B are
met with respect to the child, so long as the State designates one LEA that is responsible for
ensuring the provision of FAPE to the child.11 Similarly, if the virtual school is a public charter
school that operates as an LEA under State law and receives funding under 34 CFR-§300.705,
the virtual charter school LEA is responsible for ensuring that the requirements of Part B are met,
unless State law has assigned responsibility to some other entity for ensuring that the
requirements of Part B are met. 34 CFR-§300.209(c). This could include assignment to another
LEA in the State.
In addition to the requirements discussed above, we highlight below some particular
requirements under IDEA that responsible LEAs must meet in order to ensure the provision of
FAPE to children with disabilities in virtual schools. These LEA responsibilities include, but are
not limited to:
1. ensuring that each eligible child with a disability has FAPE available to him or her in
accordance with 34 CFR-§§300.101 and 300.17
2. implementing the evaluation and eligibility requirements in 34 CFR-§§300.300-300.311;
3. carrying out the IEP requirements in 34 CFR-§§300.320 through 300.324, including
those governing IEP content, IEP Team participants, parent participation, when IEPs must
be in effect, consideration of special factors, the development, review, and revision of
IEPs, secondary transition services and participation in State and districtwide assessment
programs; and
4. implementing the requirements in 34 CFR-§§300.114 through 300.117, regarding
education in the least restrictive environment, including ensuring the availability of a
continuum of alternative placements to provide special education and related services.

11

Letter to Lutjeharms, 16 IDELR 554 (Mar. 5, 1990).

Page 6—Dear Colleague: Virtual Schools
Conclusion
The educational rights and protections afforded to children with disabilities and their parents
under IDEA must not be diminished or compromised when children with disabilities attend
virtual schools that are constituted as LEAs or are public schools of an LEA. This letter
addresses the general responsibilities of SEAs and LEAs with regard to children with disabilities
attending virtual schools, and we intend to issue additional guidance addressing more specific
questions regarding this topic in the future. If you have questions or comments on this issue,
please email them to virtualschools@ed.gov. Thank you for your continued interest in improving
results for children with disabilities.
Sincerely,
/s/
Sue Swenson
Acting Assistant Secretary

/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs