POLICY LETTER: February 12, 2004 to individual (personally identifiable information redacted)

Dated February 12, 2004I write to respond to your initial inquiry about the alleged disclosure of child find referral information about x by the X County Hospital to X County Child Development Services (CDS) which is part of the Maine Department of Education's child find system under Part C of the Individuals with Disabilities Education Act (Part C of IDEA). The information allegedly disclosed is information to enable the Part C agency to determine whether a child aged birth to three is eligible for early intervention services under Part C. You asked, and expressed concern, about the circumstances under which such information about x could be disclosed by the hospital to the child find entity under Part C without prior parental consent under the IDEA.Under Part C of the IDEA, the State lead agency must make available to eligible infants and toddlers with disabilities and their families early intervention services to address their developmental needs. 20 U.S.C. 1432(4), 1434(1), and 1435(a)(2). As part of the mandate to make early intervention services available to eligible infants and toddlers and their families, Part C of the IDEA requires the lead agency in each State to find such children and have in place child-find policies and procedures to ensure that primary referral sources (including hospitals) refer potentially eligible children to the Part C child find program within two business days of identification. 20 U.S.C. 1435(a)(5); 34 CFR 303.321. The specific information that can be included in the referral without prior parental consent by the primary referral source for these limited child find purposes are the child's name, date of birth, and sufficient parent contact information (as determined by the lead agency) to the lead agency so that the lead agency can meet its child find responsibilities. The purpose of child find is to ensure that potentially eligible children with disabilities and their families are informed of the availability of services under the IDEA by the agency or agencies responsible for administering the IDEA in the State.In addition, under Part B of the IDEA, the State educational agency (SEA) is required to have child find policies and procedures in place to identify children with disabilities from birth through 21. 20 U.S.C. 1412(a)(3); 34 CFR 300.125. In many States where the SEA and lead agency are different agencies, the SEA, through an interagency agreement or other mechanism, may include the lead agency's participation in the SEA's child find activities for birth to three children with disabilities. However, the lead agency has an independent child find obligation for children with disabilities aged birth to three years under Part C of the IDEA. 20 U.S.C. 1435(a)(5); 34 CFR 303.320 and 303.321. In Maine, the Maine Department of Education serves as both the State educational agency under Part B and the lead agency under Part C. Thus, the Maine Department of Education is responsible for child find under both Parts B and C of the IDEA.In lieu of the required disclosure under 34 CFR 303.321(d)(2), the lead agency under Part C may, but is not required to, meet its child find obligations for children birth to three in other ways. The lead agency may require instead that the primary referral source or any agency that makes referrals under the State's child find system notify the parent that the child is being referred to the lead agency for child find purposes and allow the parent an opportunity to object. If, under these circumstances, the parent objects during the period provided for objection, then the IDEA does not require that the referral be made (and, consequently in this situation, prior parental consent may be required under other privacy laws before the referral can be made). If, under these circumstances, the parent objects to the referral, the lead agency may meet its child find obligations through other procedures, such as general public awareness campaigns. In a State that has adopted these notification procedures, if the parent objects to the referral, the IDEA does not require the referral to be made to the lead agency. See, 20 U.S.C. 1435(a)(6) and 34 CFR 303.320 and 303.321. It is our understanding that Maine does not have such notification procedures. Your initial inquiry was directed to the Family Policy Compliance Office (FPCO), the Office that administers the FLaurie Bertulli, Part C & Section 619 CoordinatorChild Development ServicesDepartment of EducationState House Station #146Augusta, ME 04333We trust this information is responsive to your inquiries. If you have further questions, please contact Dr. JoLeta Reynolds of my office at (202) 205-5507 (press 3).Sincerely,/s/ Stephanie Smith LeeDirectorOffice of Special Education Programscc:LeRoy RookerFamily Policy Compliance OfficeDavid StockfordMaine Department of Education Page PAGE 3