POLICY LETTER: August 15, 2007 to Kentucky School Boards Association Senior Attorney Teresa T. Combs

Dated August 15, 2007Teresa T. CombsSenior AttorneyKentucky School Boards Association 260 Democrat DriveFrankfort, Kentucky 40601Dear Ms. Combs:The U.S. Department of Education, Office of Special Education Programs (OSEP) is in receipt of your letter dated June 6, 2007, in which you ask: "What is OSEP's current position on whether a local school district must or may file a request for due process hearing in an attempt to force a child back into the district's special education program after a parent revokes consent for special education services?"As you know, 34 CFR 300.9 of the final Part B regulations implementing the 2004 reauthorization of the Individuals with Disabilities Education Act (IDEA) states that, regarding consent, the parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time (34 CFR 300.9(c)(1)). 34 CFR 300.9(c)(2) goes on to state that 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retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).The "action" indicated above would, in your question, refer to the provision of special education and related services pursuant to the child's individualized education program (IEP). Therefore, the revocation of consent for services does not negate the provision of services that occurred after the parent granted consent for those initial services and before the parent revoked the consent for provision of special education and related services.Under 34 CFR 300.300(b), if a parent fails to provide consent, or fails to respond to a request for consent, to the initial provision of special education and related services that are needed to provide a free appropriate public education (FAPE) to the child, the public agency may not use the procedures in subpart E of the final regulations (including the mediation procedures under 34 CFR 300.506 or the due process procedures under 34 CFR 300.507-300.516) in order to obtain agreement or a ruling that the services may be provided to the child.The final Part B regulations do not specifically address whether parents who previously consented to the initiation of special education services should have the right to subsequently remove theirWe hope this provides the information you need. If you have questions about this issue, please do not hesitate to contact Deborah Morrow at (202) 245-7456.Sincerely,/s/Patricia J. GuardActing DirectorOffice of Special Education Programs