POLICY LETTER: November 17, 2008 to Harrisburg, Pennsylvania attorney Jeffrey F. Champagne

11/17/2008Jeffrey F. ChampagneMcNees, Wallace and NurickP.O. Box 1166100 Pine StreetHarrisburg, Pennsylvania 17108-1166Dear Mr. Champagne:The U.S. Department of Education, Office of Special Education Programs (OSEP) is in receipt of your letter dated July 16, 2008, inquiring about the meaning of the phrase "initial provision of special education and related services" in 34 CFR 300.300(b)(1) of the final Part B regulations implementing the 2004 reauthorization of the Individuals with Disabilities Education Act (IDEA)_ Specifically, you ask how this phrase applies to situations where preschool children receive special education and related services under Part B of the Act from entities other than a school district and then transition to kindergarten and receive special education and related services from the school district. Additionally, you ask about the applicability of that phrase to a family that moves from one school district to another, either within the State or from another State.As you know, 34 CFR 300.300(b)(1) requires a public agency that is responsible for making a free appropriate public education (FAPE) available to a child with a disability to obtain informed consent from the parent of the child before the initial provision of special education and related services to the child. "Initial," as used in 34 CFR 300.300(b)(1), "means the first time a parent is offered special education and related services after the child has been evaluated in accordance with the procedures in 300.301 through 300.111, and has been determined to be a child with a disability...." See Analysis of Comments and Changes to the Part B regulations, 71 Fed. Reg. 46540, 46633 (Aug. 14, 2006). Accordingly, "initial," in this context, relates to the provision of special education and related services under Part B of the IDEA and is not dependent upon_ the public agency that provides the services and whether or not that agency changes. Therefore, a parent's consent to special education and related services remains in effect regardless of whether a State allows entities other than a school district to provide special education and related services to preschool children. Additionally, the conseBased 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.We hope this provides the information you need. If you have questions about this issue, please do not hesitate to contact Laura Duos in the Office of Policy and Planning at (202) 245-6772.Sincerely,/s/William W. KnudsenActing DirectorOffice of Special Education Programs11/17/2008Jeffrey F. ChampagneMcNees, Wallace and NurickP.O. Box 1166100 Pine StreetHarrisburg, Pennsylvania 17108-1166Dear Mr. Champagne:The U.S. Department of Education, Office of Special Education Programs (OSEP) is in receipt of your letter dated July 16, 2008, inquiring about the meaning of the phrase "initial provision of special education and related services" in 34 CFR 300.300(b)(1) of the final Part B regulations implementing the 2004 reauthorization of the Individuals with Disabilities Education Act (IDEA)_ Specifically, you ask how this phrase applies to situations where preschool children receive special education and related services under Part B of the Act from entities other than a school district and then transition to kindergarten and receive special education and related services from the school district. Additionally, you ask about the applicability of that phrase to a family that moves from one school district to another, either within the State or from another State.As you know, 34 CFR 300.300(b)(1) requires a public agency that is responsible for making a free appropriate public education (FAPE) available to a child with a disability to obtain informed consent from the parent of the child before the initial provision of special education and related services to the child. "Initial," as used in 34 CFR 300.300(b)(1), "means the first time a parent is offered special education and related services after the child has been evaluated in accordance with the procedures in 300.301 through 300.111, and has been determined to be a child with a disability...." See Analysis of Comments and Changes to the Part B regulations, 71 Fed. Reg. 46540, 46633 (Aug. 14, 2006). Accordingly, "initial," in this context, relates to the provision of special education and related services under Part B of the IDEA and is not dependent upon_ the public agency that provides the services and whether or not that agency changes. Therefore, a parent's consent to special education and related services remains in effect regardless of whether a State allows entities other than a school district to provide special education and related services to preschool children. Additionally, the conseBased 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.We hope this provides the information you need. If you have questions about this issue, please do not hesitate to contact Laura Duos in the Office of Policy and Planning at (202) 245-6772.Sincerely,/s/William W. KnudsenActing DirectorOffice of Special Education Programs