POLICY LETTER: May 3, 2007 OSEP Memorandum 07-10 RESCINDED

T fttss oQ rz UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES MAY 3 2007 MEMORANDUM TO : State Directors of Special Education FROM : Alexa Posny, Ph .D . Director Office of Special Education Programs SUBJECT : Interpretation of 34 CFR §300 .154(d)(2)(iv)(A) The Office of Special Education Programs (OSEP) has received many requ ests for clarification regarding interpretation of the requirement at 34 CFR §300 .154(d)(2)(iv)(A) of the final Part B regulations implementing the Individuals with Disabilities Education Act of 2004 (IDEA) . This regulation requires that, with regard to services required to provide a free appropriate public education (FAPE) under Part B, the public agency must obtain parental consent, consistent with 34 CFR §300 .9, each time [emphasis added] that access to public benefits or insurance is sought . In this context, "parental consent" means - • The parent has been fully informed of all information relevant to the ac tivity for which the consent is sought, in his or her native language or other mode of communication ; • The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activ ity and lists the records that will be released and to whom ; • The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time ; and • If a parent revokes consent, that revocation is not retroactive (i.e.,it does not negate an action that has occurred after the consent is given and before it is revoked) . OSEP believes that permitting a public agency to obtain parental consent for a specified amount of services for a specified period of time would be sufficient to enable parents to make an informed decision as to whether to provide consent for a public agency t o access their or their child's public benefits or other public insurance . 400 MARYLAND AVE .,S .W .,WASHINGTON, D .C. 20202 www .ed .go v Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation . Contact Persons Name : Ruth Ryder Telephone : Name : Telephone : (202)245-7513 Deborah Morrow (202)245-7456 OSEP 07 -10 Page 2 -State Directors of Special Education This consent may be obtained one time for the specific services, and dur ation of services identified in a child's individualized education program (IEP), and a local educational agency (LEA) would not be required to obtain a separate consent each time a M edicaid agency or other public insurer or public program is billed for the provision of required services . For example, if it is known that a child is to receive three hours per week of occupatio nal therapy (OT) for 36 weeks, parents could be asked to give consent to the public agency's bil ling of the parent's public benefits or insurance for 108 hours of service for the 36-week pe riod .(The amount billed would depend on the amount of OT service that was actually provided .) While this type of consent may be obtained at an IEP meeting, it could also be obtained at some point after the IEP is developed . However, if the public agency seeks to use the child's or parents' publi c benefits or public insurance to pay for additional hours of service (due to the IEP being revised or extended) or the public agency is charging different amounts for such services, and would like to access the child's or parents' benefits or insurance for those costs, the public ag ency must obtain parental consent, covering the additional amount of service or costs to be charge d to the child's or parents' public benefits or public insurance .The Part B provisions in 34 CFR §300 .154(d)(2) are intended to ensure that the parent is fully informed of a public age ncy's proposed access of the child's or parents' benefits under a public benefits or public insur ance program and provide written parental consent prior to the public agency's access to those pu blic benefits or public insurance . If parental consent is given directly to another agency, such as the Sta te Medicaid agency, the LEA does not have to independently obtain a separate parental consent, a s long as the parental consent provided to the other agency meets the requirements of 34 CFR § §300 .9 and 300 .154(d) . The public agency seeking parental consent to access public benefits or public insurance programs is also obligated, under 34 CFR §300 .154(d)(2)(iv), to notify the parent that the parent's refusal to allow access to their public benefits or public insu rance does not relieve the public agency of its responsibility to ensure that all required FAPE ser vices are provided at no cost to the parent . If another agency obtains the parental consent required by 34 CFR § §300 .9 and 300 .154(d)(2), the LEA must maintain a copy of the parental consent to both demonstrate its compliance under Part B of the IDEA and to ensure that it is available f or the parent or child to review . Based on section 607(e) of the IDEA, we are informing you that our res ponse is provided as informal guidance and is not legally binding, but represents an interpre tation by the U .S. Department of Education of the IDEA . cc : CSSOs Part C Lead Agency Directors Part C Coordinators PTI Directors P&A Directors RRCs NECTAC