POLICY LETTER: March 21, 2014 to Janice Breton

U NITED STATES D EPARTMENT OF EDUCATION O FFICE OF SPECIAL EDUCATION A ND REHABILITATIVE SERVICES March 21, 2014 Janice Breton, Director of Special Services Maine D epartment of Education 23 State House Station Augusta, Maine 04333 Dear Ms. Breton: This is in response to your January 16, 2014 electronic correspondence to the Office of Special Education Programs (OSEP) and phone conversations with Jennifer Wolfshe imer, OSEP Education Program Specialist, in which you ask whether a school district may use electronic mail to provide parents with their child’s individualized education programs (IEPs) and related documentation, such as progress reports. Specifically, y ou describe a situation where a Maine school district is using electronic mail to distribute IEPs and progress reports to parents who have consented to electronic delivery of such documents . You also state that the district has implemented the following s ecurity procedures when delivering such information via electronic mail: the district obtains prior signed permission from the parents; the parents provide the address of their confidential email account; a secure password is used to access documents; and the parents may request hard copies at any time and/or refuse the electronic mail option. Under Part B of the Individuals with Disabilities Education Act (IDEA) and the implementing regulations , parents may elect to receive prior written notices, procedur al safeguards notices, and due process complaint notices by an electronic mail communication, if the public agency makes that option available. 34 CFR §300.505. The IDEA statute and regulations do not explicitly address the use of electronic mail for oth er documents required under the IDEA. However, OSEP has stated that the IDEA statute and regulations do not prohibit the use of electronic mail to carry out administrative matters under section 615 of the IDEA, so long as the parent of the child with a di sability and the public agency agree. Analysis of Comments and Changes to Final Regulations Implementing 2004 IDEA, 71 Fed. Reg. 46540, 46687 (Aug. 14, 2006). In addition, OSEP has stated that States may use electronic or digital signatures for consent, provided they take the necessary steps to ensure that there are appropriate safeguards to protect the integrity of the process. That is, consistent with §300.9(b), a parent must understand and agree to the carrying out of the activity for which the parent ’s consent is sought. 71 Fed. Reg. at 46629. Further, with regards to the requirement under 34 CFR §300.320(a)(3)(ii) concerning periodic progress reports , OSEP has left the discretion with State and local officials to determine the manner and format for reporting a child’s progress toward meeting the annual goals. 71 Fed. Reg. at 46664. Therefore, in light of the IDEA statute and regulations, as well as OSEP’s prior guidance, States may permit the use of electronic mail to distribute IEPs and related documents, such as progress reports, to parents, provided that the parents and the school district agree to use the electronic Page 2 – Ms. Janice Breton mail option, and the States ta ke the necessary steps to ensure that there are appropriate safeguards to protect the integrity of the process. Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented. If you have any further questions, please do not hesitate to contact Jennifer Wolfsheimer, of my staff, at 202- 245-6090 or by email at Jennifer.Wolfsheimer@ed.gov. Sincerely, Melody Musgrove, Ed.D. Director Office of Spe cial Education Programs