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OSEP Clarifies: Parental Consent Not Required to Conduct Post-Secondary Transition Assessments if Child Study Team not Reevaluating

By on April 22, 2019 in Special Education/504 with 0 Comments

By: Cameron R. Morgan, Esq. and Nicole Crincoli, Law Clerk

The Individuals with Disabilities Education Act (“IDEA”) requires informed parental consent to be provided prior to a child study team performing any number of different actions in the course of the special education process.  Whether a school district needs to obtain written parental consent prior to administering postsecondary transition assessments had been a question of some debate.  In a recent guidance letter from the Office of Special Education Programs (“OSEP”), Letter to Olex, 119 L.R.P. 8445, 74 I.D.E.L.R. 22 (Feb. 22, 2019), OSEP indicated that individualized education program (“IEP”) teams generally do not need a greenlight from a parent before assessing a student’s postsecondary transition needs.

Under federal and state regulations, beginning with the IEP in place for the school year in which a special education student turns 16, the IEP team will focus its discussion to include planning for needed post-secondary transition services.  34 C.F.R. 300.320(b); N.J.A.C. 6A:14-3.7(e)12.  The IEP must begin to 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, including courses of study, needed to assist the child in reaching those goals.  Ibid.

The IDEA requires that a district obtain informed, written parental consent before conducting an assessment as part of an initial evaluation or reevaluation for special education and related services.  34 C.F.R. 300.000.  In order to be informed, the consent must be: (1) given in the parent’s native language, or another mode of communication; (2) the parent must understand and agree in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records that will be released and to whom; and (3) the parent understands that the granting of consent is voluntary on the part of the parent and the parent can revoke that consent at any time.  34 C.F.R. 300.9. 

In Letter to Olex, the assessment at issue was a competency-based transition assessment being administered to all transition-aged students on a yearly basis, in order to develop postsecondary goals.  In its interpretation, OSEP observed the language and requirements of the IDEA in the context of these informal post-secondary assessments, which are conducted not as part of an initial evaluation or reevaluation, but simply to carry out the regulatory directive to assess post-secondary transition services for the IEPs of students approaching the last several years of secondary schooling. 

OSEP has now advised that postsecondary transition assessments are not considered evaluations or reevaluations requiring formal written, informed consent from the parent.  The term “evaluation,” as defined 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 extent of the special education and related services that the child needs.  In Letter to Olex, OSEP wrote:

[W]e believe that generally, parental consent is not required prior to conducting an age appropriate transition assessment 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 needs.

OSEP added that, if the IEP team determines that a reevaluation is warranted in order to obtain additional data based on the student’s educational or related service needs, then the school district would be required to obtain written parental consent consistent with 34 C.F.R. § 300.300(c).  Yet, absent a need to conduct additional formal assessments, or absent one of the other circumstances for which informed consent is necessary under state and federal regulations, this guidance provides helpful clarification to child study teams who may be unsure whether the team is at liberty to informally assess post-secondary goals and services without first obtaining written parental consent to do so.

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Cameron R. Morgan

About the Author

About the Author:

Mr. Morgan has served the public school districts of the State of New Jersey in the specialized area of school law, representing boards of education in all aspects of their legal needs, with a focus on general counsel services, civil litigation, special education, administrative law, collective negotiations, labor and employment, and appellate practice. He has served as Board Solicitor to dozens of school districts, guiding district administrators through the diverse range of issues affecting the public schools, from personnel matters, tenure cases, and the range of issues that frequently arise at public board meetings, to student disciplinary matters, residency disputes, and homelessness issues, to complex matters involving the budgetary process or First Amendment rights.

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