Part C Procedural Safeguards in the COVID-19 Environment Q&A Document (June 30, 2020)

400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-2800 www.ed.gov The Department of Education’s mission is to p romote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access. UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES OFFICE OF SPECIAL EDUCATION PROGRAMS June 30, 2020 The Office of Special Education Programs (OSEP), within the U.S. Department of Education’s (Department) Office of Special Education and Rehabilitative Services, issues this Question and Answer (Q & A) document in response to inquiries concerning implementation of the Individuals with Disabilities Education Act (IDEA) Pa rt C procedural safeguards in the current COVID -19 environment. This Q & A document does not impose any additional requirements beyond those included in applicable law and regulations. It does not create or confer any rights for or on any person. The respo nses presented in this document generally constitute informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented here and are not legally binding and does not establish a policy or rule that would apply in all circumstances. To review other Q & A documents that OSEP has provided related to COVID -19, please visit https://sites.ed.gov/idea/topic -areas/#COVID -19 . Additional information specific to the COVID -19 pandemic may be found online at https://www.ed.gov/coronavirus . IDEA PART C PROCEDURAL SAFEGUARDS Parental Consent Q1. May a State Lead Agency (State LA) or early intervention service (EIS) provider accept an electronic or digital signature to indicate that th e parent provides consent under Part C of the IDEA (when required for screening if a State has opted to offer screening, the evaluation, assessment, provision of early intervention services, disclosure of personally identifiable information (PII), or the u se of benefits or insurance for their infant or toddler) ? Yes, so long as the State LA or EIS provider ensures there are appropriate safeguards for the parental consent required under Part C of IDEA under 34 C.F.R. § 303.7 . The lead agency may, but is not required to, accept an electronic or digital signature pr ovided it adopts the appropriate safeguards. OSEP has previously advised that t hese safeguards include that the electronic signature: 1) is signed and dated; 2) identifies and authenticates a particular person as the source of the electronic consent; 2 3) indicates such person’s approval of the information contained in the electronic consent; and 4) is accompanied by a statement that the person understands and agrees. 1 IDEA requires State LAs and EIS providers to obtain informed written consent from parents, consistent with 34 C.F.R. § 303.7 for their child’s screening (in States that have adopted screening procedures), evaluations and assessments, and before the provision of early intervention services, including before the initiation of each early intervention service. P arental consent is also required before the disclosure of PII under certain circumstances in accordance with 34 C.F.R. § 303.414 or prior to the use of public benefits or insurance or private insurance in certain circumstances in accordance with 34 C.F.R. § 303.520 and 34 C.F.R. § 303.420(a)(1) -(4) Because of social distancing and other restrictions during the pandemic, it may not be possible to obtain a parent’s signed, written consent in -person . Q2. May the State LA or EIS provider accept a parent’s electronic or digital signature as written parental consent to disclose PII from the child’s early intervention records ? Yes, so long as the safeguards described in Q1 above are applied and met. These safeguards include that the electronic signature: 1) is signed and dated; 2) identifies and a uthenticates 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 person understands and agrees. Parental consent must be obtained before PII is disclosed to parties other than authorized representatives, officials, or employees of participating agencies (which includes the State LA and EIS provider) unless a specific exception applies under 34 C.F.R. § 303.414(b) of the IDEA Part C regulations , which incorporates the exceptions under the Family Educational Right s and Privacy Act (FERPA) regulations in 34 C.F.R. Part 99.31 . 2 1 34 C.F.R. 303.7; also s ee OSEP Letter to Greer (July 19, 2013) 2 For further information regarding consent for disclosure of PII, see Understanding the Confidentiality Requirements Applicable to IDEA Early Childhood Programs Frequ ently Asked Questions (October 2016). 3 Prior Written Notice and Procedural Safeguards Notice Q3. How can a State LA or EIS provider provide the prior written notice required under 34 C.F.R. § 303.421 , while agencies and other facilities are closed due to the pandemic? If the parent has previously agreed, or agrees during the pandemic, the prior written notice and procedural safeguards notice can be provided through electronic mail (email). The State L A or EIS provider must provide parents written notice a reasonable time before it proposes or refuses to initiate or change the identification, evaluation, or placement of their infant or toddler, or the provision of early intervention services to the infa nt or toddler with a disability and his or her family. 34 C.F.R § 303.421 . The prior written notice mu st include information regarding all procedural safeguards that are available under Part C. 34 C.F.R. § 303.421 . The term “reasonable time” is not defined in the regulation. The Department believes that it would be appropriate to consider factors such as the closure of agencies and public facilities such as schools , social distancing, and other health -rel ated orders during the pandemic in determining what constitutes a reasonable time for this purpose. Nevertheless, the State LA or EIS provider should make every effort to ensure that written notice is provided as soon as possible prior to the proposed or r efused action. The determination of when prior written notice is required will depend on the particular facts and circumstances, but OSEP encourages State LAs and EIS providers to ensure that parents are fully informed of how their infant ’s or toddler’s ea rly intervention service needs are addressed during the time that IDEA Part C services are provided remotely. Access to Early Intervention Records Q4. How can a State LA or EIS provider comply with a parent’s request to inspect and review the infant’s or t oddler’s early intervention records 3 while agencies and other public facilities are closed due to the pandemic? In light of the social distancing and physical contact restrictions of many jurisdictions during the pandemic, parents and State LAs and EIS providers may identify a mutually agreeable timeframe and method for providing access to the infant’s or toddler’s early intervention records. If the parent asks to inspect and review sp ecific documents from the infant’s or toddler’s early intervention records while agencies and public facilities 3 Each participating agency must permit parents of a child referred to, or served under Part C, to inspect and review all early intervention records relating to their child and family. Under IDEA, the agency must compl y with a request without unnecessary delay, and before any i ndividualized family service plan ( IFSP) t eam meeting, or a due process hearing, or a resolution session (if the Lead Agency has adopted Part B due process hearing procedures) and, in no case more than 10 days after the request has been made. 34 C.F.R. § 303.405 . 4 are closed during the pandemic, State LA staff, EIS providers, and the parent should work together to identify mutually agreeable options to pro vide access to the early intervention records . For example, the State LA or EIS provider could provide the parent with the requested information from the infant’s or toddler’s records via email, a secure on -line portal, or postal mail until the State LA or EIS provider offices reopen. Note though, the State LA or EIS provider must use reasonable methods when transmitting PII in early intervention records through email or an on -line portal. See, FERPA and Virtual Learning During COVID -19 .