POLICY LETTER: July 19, 2004 to Washington, D.C. Attorney Leigh M. Manasevit
Home » Policy Documents » POLICY LETTER: July 19, 2004 to Washington, D.C. Attorney Leigh M. Manasevit
July 19, 2004 to Washington, D.C. Attorney Leigh M. Manasevit (MS Word)
MS WORDJuly 19, 2004 to Washington, D.C. Attorney Leigh M. Manasevit (PDF)
PDFView File
July 19, 2004 to Washington, D.C. Attorney Leigh M. Manasevit (MS Word)
Dated July 19, 2004Leigh M. ManasevitAttorney at LawBrustein and Manasevit3105 South Street, NWWashington, DC 20007Dear Mr. Manasevit:This is in response to your letter on behalf of the North Carolina Department of Education to the Office of Special Education Programs (OSEP) regarding OSEP's December 24, 2003 letter to you. Your inquiries raise additional issues related to the requirement under Part B of the Individuals with Disabilities Education Act (IDEA) for parent consent to the initial provision of special education and related services. As you noted in your letter, school districts may not use the Part B due process hearing procedures to seek an override of the parental refusal to provide the requisite consent under 34 CFR 300.505(a)(1)(ii) to the initial provision of special education and related services. In your letter, you raise questions regarding the impact of IDEA on settlement agreements between parents and local educational agencies. The Department continues to review this issue and will respond to your question regarding settlement agreements in a separate letter. The remaining issues raised in your letter are restated below along with our responses.Public agency's obligation to provide FAPE and any protections for the public agency when parents refuse to consent to the initial provision of special education and related services.Under the IDEA, an individual parent's refusal to consent to the initial provision of special education and related services relieves the school district of the obligation to provide a free appropriate public education (FAPE) to that child until the parent provides that consent. However, in order for the school district to meet its obligation to make FAPE available to that child, it must ensure it has met its obligations under the IDEA to (1) make FAPE available to the child with disabilities (34 CFR 300.300(a)(1)); (2) attempt to obtain parent consent prior to conducting an initial evaluation or reevaluation and prior to the initial provision of special education and related services (34 CFR 300.505(a)); and (3) fully inform the parent of all information relevant to the activity for which consent is sought, which for the initial provision of special education and related services includes information enabling the parent to determine the appropriateness of the services to be provided and the fact that FAPE services and IDEA protections are not available to the child if consent is not provided (34 CFR 300.500(b)(1)). If North Carolina is concerned that school districts may not be protected from future liability or later questions as to whether the school district met its obligation to fully inform parents and offer FAPE to the child, it may wish to encourage school districA student with a disability who is not receiving special education and related services because his or her parent has refused to provide consent to the initial provision of special education and related services does not have the discipline protections of 34 CFR 300.520300.529 and, therefore, may be disciplined in the same manner as nondisabled students. This means if nondisabled students are long-term suspended or expelled for a particular violation of school rules, a student with a disability whose parent has refused to consent to the initial provision of special education and related services also may be long-term suspended or expelled. Finally, school officials can report crimes committed by children with disabilities to appropriate law enforcement authorities to the same extent as they do for crimes committed by nondisabled students.I hope you find this explanation helpful. If you would like further assistance, please contact Dale King at (202) 245-7405.Sincerely,/s/ Patricia J. Guard forStephanie Smith LeeDirectorOffice of Special Education Programscc:Ms. Mary N. Watson, Director, Exceptional Children DivisionNorth Carolina Department of Public InstructionPage PAGE 2 Leigh M. Manasevit, Esq.
View PDF
July 19, 2004 to Washington, D.C. Attorney Leigh M. Manasevit (PDF)
a
z
Leigh M
. Manasevit
Attorney at Law
Brustein and Manasevit
3105 South Street, NW
Washington, DC 20007
Dear Mr
. Manasevit
:
This is in response to your letter on behalf of the North Carolina Department of Education to the
Office of Special Education Programs (OSEP) regarding OSEP's December 24, 2003 letter to
you
. Your inquiries raise additional issues related to the requirement under Part B of the
Individuals with Disabilities Education Act (IDEA) for parent consent to the initial provision of
special education and related services . As you noted in your letter, school districts may not use
the Part B due process hearing procedures to seek an override of the parental refusal to provide
the requisite consent under 34 CFR §300
.505(a)(1)(ii) to the initial provision of special education
and related services
. In your letter, you raise questions regarding the impact of IDEA on
settlement agreements between parents and local educational agencies
. The Department
continues to review this issue and will respond to your question regarding settlement agreements
in a separate letter
. The remaining issues raised in your letter are restated below along with our
responses
.
Public agency's obligation to provide FAPE and any protections for the public agency
when parents refuse to consent to the initial provision of special education and related
services
.
Under the IDEA, an individual parent's refusal to consent to the initial provision of special
education and related services relieves the school district of the obligation to provide a free
appropriate public education (FAPE) to that child until the parent provides that consent
.
However, in order for the school district to meet its obligation to make FAPE available to that
child, it must ensure it has met its obligations under the IDEA to (1) make FAPE available to the
child with disabilities (34 CFR §300
.300(a)(1))
; (2) attempt to obtain parent consent prior to
conducting an initial evaluation or reevaluation and prior to the initial provision of special
education and related services (34 CFR §300
.505(a))
; and (3) fully inform the parent of all
information relevant to the activity for which consent is sought, which for the initial provision of
special education and related services includes information enabling the parent to determine the
appropriateness of the services to be provided and the fact that FAPE services and IDEA
protections are not available to the child if consent is not provided (34 CFR §300 .500(b)(1))
.
If North Carolina is concerned that school districts may not be protected from future liability or
later questions as to whether the school district met its obligation to fully inform parents and
offer FAPE to the child, it may wish to encourage school districts to maintain written
400 MARYLAND AVE
., S
.W
. WASHINGTON, D
.C
. 20202
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
JUL
1 9 2004
Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation
Page 2 -
Leigh M
. Manasevit, Esq
.
documentation of their efforts in meeting the obligations under IDEA and the parents' refusal to
consent to the initial provision of special education and related services
. North Carolina also
may wish to advise school officials to consider the measures used to document attempts to obtain
consent for reevaluations, such as (1) detailed records of telephone calls made or attempted and
the results of those calls
; (2) copies of correspondence sent to parents and any responses
received
; and (3) detailed records of visits to the parent's home or place of employment
.
Effect of parental refusal to consent to the initial provision of special education and
related services on the right of a student with disabilities to receive compensatory
services
.
As stated above, where a public agency has offered a student with a disability FAPE and the
parent of the student with a disability refuses consent for the initial provision of special
education and related services, the parent is considered to have refused on behalf of the child the
right to the benefits of FAPE and the IDEA's protections, including the right to compensatory
services under the IDEA
. A parent may still request a new evaluation be conducted or challenge
the appropriateness of the services that are offered as FAPE by the school district
.
Applicability of IDEA disciplinary protections to children with disabilities whose
parents refuse consent to the initial provision of special education and related services
.
A student with a disability who is not receiving special education and related services because
his or her parent has refused to provide consent to the initial provision of special education and
related services does not have the discipline protections of 34 CFR §§300
.520-300
.529 and,
therefore, may be disciplined in the same manner as nondisabled students
. This means if
nondisabled students are long-term suspended or expelled for a particular violation of school
rules, a student with a disability whose parent has refused to consent to the initial provision of
special education and related services also may be long-term suspended or expelled
. Finally,
school officials can report crimes committed by children with disabilities to appropriate law
enforcement authorities to the same extent as they do for crimes committed by nondisabled
students
.
I hope you find this explanation helpful . If you would like further assistance, please contact Dale
King at (202) 245-7405
.
Sincerely,
Stephanie Smith Lee
Director
Office of Special Education Programs
cc
:
Ms
. Mary N
. Watson, Director, Exceptional Children Division
North Carolina Department of Public Instruction
TOPIC ADDRESSED: Evaluations and Reevaluations |
SECTION OF IDEA: Part B—Assistance for Education of All Children With Disabilities; Section 614—Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements
idea_file-template-default single single-idea_file postid-46828 wp-custom-logo wp-embed-responsive with-font-selector no-anchor-scroll footer-on-bottom animate-body-popup social-brand-colors hide-focus-outline link-style-standard has-sidebar content-title-style-normal content-width-normal content-style-boxed content-vertical-padding-show non-transparent-header mobile-non-transparent-header kadence-elementor-colors elementor-default elementor-kit-82278
Last modified on April 27, 2017