September 24, 2001
Mr. H. Douglas Cox
Assistant Superintendent Division of Instructional
Commonwealth of Virginia
Department of Education
P.O. Box 2120
Richmond, Virginia 23218-2120
Dear Mr. Cox:
This is a response to your letter to JoLeta
Reynolds, Special Assistant to the Director of the Office of Special Education
Programs (OSEP), requesting clarification regarding whether a parent may
withhold or refuse consent for initial provision of special education and
related services. Although your letter uses the term placement, Dr. Reynolds'
telephone conversation with you subsequent to receiving your letter clarifies
that you intended to use the phrase consent for initial provision of special
education and related services rather than the term placement of a child
with a disability under the Individuals with Disabilities Education Act
(IDEA). Specifically, you ask two questions regarding parental consent
for initial services, which are restated below with our response to each
Part B of the IDEA requires parental consent for the initial provision of special education and related services and does not permit public agencies to override a parental refusal to consent to the initial provision of special education and related services. Part B specifically requires at 34 CFR §§300.505(a)(1) that informed parental consent must be obtained before initial evaluation, reevaluation, or the initial provision of special education and related services to a child with a disability.
Section 614(a)(1)(C)(i) of the IDEA Amendments
of 1997 states that parental consent must be obtained before an evaluation
is conducted. It further states that "parental consent for evaluation shall
not be construed as consent for placement for receipt of special education
and related services." This provision is immediately followed by section
614(a)(1)(C)(ii), which states that if the parents of such child refuse
consent for evaluation, the agency may continue to pursue an evaluation
by utilizing the mediation and due process procedures under section 615,
except to the extent inconsistent with State law relating to parental consent.
Therefore, Congress was clearly aware of the long-standing regulatory requirement
that parental consent must be obtained before the initial provision of
special education and related services and in the section immediately following
reference to that consent requirement only provided for override of consent
to evaluations. This statutory language is reflected in the regulations
at 34 CFR §§300.505(b). The IDEA regulations do not permit an
override for initial provision of special education and related services.
The IDEA does not permit public agencies to initiate a due process hearing if a parent refuses to consent to the initial provision of special education and related services. Consent means that 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 (see 34 CFR §§300.500(b)(1))). However, a public agency may offer mediation and informally attempt to explain to the parent the potential consequences to their child's education if the parent chooses not to provide consent for the initial provision of special education and related services for their child.
As an additional point of clarification,
if a State or agency adopts parent consent requirements in addition to
the consent required before initial or reevaluation and initial provision
of services as addressed in 34 CFR §§300.505(a)-(c), (for example,
consent before a change in the services provided to a student), it must
have "effective procedures to ensure that a parent's refusal of that consent
does not result in a failure to provide the child with FAPE." 34 CFR §§300.505(d).
Finally, we understand from your telephone
conversation that the State of Virginia may have State statutes and regulations
that are inconsistent with respect to this matter. If there are State statutes,
regulations, and policies that are inconsistent with the IDEA regarding
these issues, then the State must change these State-level rules so that
there is no conflict with the IDEA requirements. We hope that you find
this explanation helpful. If you need further assistance, please call Dr.
JoLeta Reynolds at 202-205-5507 or Mr. Troy Justesen at 202-205-9053.
Patricia J. Guard
Office of Special Education Programs