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 prepar ation for global competiveness by fostering educational excellence and ensuring equal access. UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES February 22 , 2019 Karen J. Olex Executive Director for Special Populations Oakland Schools 2111 Pontiac Lake Road Waterford, Michigan 48328 Dear Ms. Olex: This letter responds to your electronic correspondence (email) to me regarding the Michigan Department of Education’s policy addressing transition assessments administered under the Individuals with Disabilities Education Act ( IDEA). Specifically, you asked whether parental consent is required prior to conducting “age appropriate transition assessments” referenced in the IDEA Part B transition services provisions. We note that section 607(d) of the IDEA prohibits the Secretary from issuing policy letters o r other statements that establish a rule that is required for compliance with, and eligibility under, IDEA without following the rulemaking requirements of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as informal guidance and is not legally binding. This response represents an interpretation by the Department of the requirements of IDEA in the context of the specific facts presented, and does not establish a policy or rule that would apply in all circumstances. In brief, while there is nothing in IDEA that would prevent a State from requiring parental consent for age appropriate transition assessments related to appropriate measurable postsecondary goals, it is the pos ition of the Office of Special Education Programs that in general, IDEA does not require a public agency to obtain parental consent before conducting those assessments, unless the assessments are part of an initial evaluation or reevaluation. Our explanat ion of relevant IDEA requirements follows. Under 34 C.F.R. § 300.320(b), beginning with the first individualized education program (IEP) to be in effect when a child turns 16, or younger if determined appropriate by the IEP Team, and updated annually ther eafter, the IEP must include: (1) appropriate measurable postsecondary goals based on age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills; and (2) the transition services, incl uding courses of study, needed to assist the child in reaching those goals. The term “e valuation,” under IDEA, means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and ex tent of the special education and related services that the child needs. Once a child has been fully evaluated for the first time in a State, a decision has been rendered that a child is eligible under IDEA, and the required services have been determined, any subsequent evaluation of a child to determine whether the child is a child with a disability and the nature and extent of special education and related services that the child needs would constitute a reevaluation. 20 U.S.C. § 1414(a)(2). Page 2 – Karen J. Olex IDEA requires a public agency to obtain parental consent prior to conducting an initial evaluation or reevaluation. 20 U.S.C. §§ 1414(a)(1)(D)(i)(I) and 1414(c)(3) and 34 C.F.R. § 300.300(a) and (c). Under 34 C.F.R. § 300.300(a)(1), a public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability under 34 C.F.R. § 300.8 must, after providing notice consistent with 34 C.F.R. §§ 300.503 and 300.504, obtain informed consent, consistent with 34 C.F.R. § 300.9, from th e parent of the child before conducting the evaluation. If the parent of a child enrolled in public school, or seeking to be enrolled in public school, does not provide consent for the initial evaluation, or the parent fails to respond to a request to provide consent, the public agency may, but is not required to, pursue the initial evaluation of the child by utilizing the IDEA procedural safeguards (including the mediation procedures under 34 C.F.R. § 300.506 or the due process procedures under 34 C.F.R. § § 300.507 through 300.516). See 20 U.S.C. § 1414(a)(1)(D)(ii)(I) and 34 C.F.R. § 300.300(a)(3)(i). A public agency also must obtain informed parental consent, in accordance with 34 C.F.R. § 300.300(a)(1), prior to conducting any reevaluation of a child wit h a disability. If the parent of a child who is enrolled or seeking to be enrolled in public school refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures desc ribed in 34 C.F.R. § 300.300(a)(3). Also, the informed parental consent to conduct a reevaluation need not be obtained if the public agency can demonstrate that it made reasonable efforts to obtain such consent and the child’s parent has failed to respond. See 20 U.S.C. § 1414(c)(3) and 34 C.F.R. § 300.300(c)(1) -(2). Finally, parental consent is not required before reviewing existing evaluation data on the child as part of an evaluation or a reevaluation or administering a test or other evaluation that is a dministered to all children unless, before administration of that test or evaluation, consent is required of parents of all children. 34 C.F.R. § 300.300(d)(1). In your correspondence you state that the assessments at issue are competency-based transition assessments that are administered to all transition -aged students on a yearly basis, in order to develop postsecondary goals. If those assessments are administered to all students, both with and without disabilities, consistent with 34 C.F.R. § 300.300(d)( 1)(ii), parental consent would not be required unless it is required before the administration of the assessment to all children. Further , we believe that generally, parental consent is not required prior to conducting an age appropriate transition assessm ent because the purpose of the assessment is to develop appropriate postsecondary IEP goals and not to determine whether a child has or continues to have a disability, and the nature and extent of the special education and related services that the child n eeds. If, however, the IEP Team determines that a reevaluation of the child is warranted in order to obtain additional data, based on the student’s educational or related services needs including improved academic achievement and functional performance, th e public agency is required to obtain parental consent consistent with 34 C.F.R. § 300.300(c). See also 34 C.F.R. § 300.303(a)(1). Under 34 C.F.R. § 300.300(d)(2), a State may require parental consent for other services and activities under Part B of IDEA if it ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent’s refusal to consent does not result in a failure to provide the child with a free appropriate public education. Consequently, if a S tate chooses to require consent for transition assessments it would be required to inform its local educational Page 3 – Karen J. Olex agencies and the Secretary of Education of this State- imposed requirement. 20 U.S.C. § 1407(a)(2) and 34 C.F.R. § 300.199(a)(2). If you have any further questions, please do not hesitate to contact Ms. Pagano at 202- 245-7413 or by email at Lisa.Pagano@ed.gov . Sincerely, /s/ Laurie VanderPloeg Director Office of Special Education Programs