Letter to Durheim


(December 30, 1997)
[Can be cited as 27 IDELR 380]
Source: Office of Civil Rights, 1997

Mary Durheim
Educational Rights Center
P.O. Box 3700
McAllen, TX 78502

During a Disability Conference presented by the Office for Civil Rights (OCR) in Dallas, Texas on November 24, 1997, you requested a written response to certain questions regarding the regulatory requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504). Some of your questions were communicated to this office earlier in your November 20, 1997, letter and others were recorded on an index card completed at the time of the conference.

As a result of our telephone discussions on December 29, 1997, and December 30, 1997, that clarified several areas of inquiry, you narrowed your current request for information to only question two of section one of your November 20, 1997 letter.

Your question and the accompanying response are provided as follows:

Question: Under the implementing regulations for Section 504, a school district is required to provide notice to a parent concerning the identification, evaluation, and placement of a child with a disability under Section 504. No mention is made of a requirement in the regulations to obtain consent from a parent for the initial evaluation and placement. In OCR’s response to Zirkel, May 15, 1995 (25 IDELR 667) attached, Anne Hoogstraten wrote: “Normally, parental consent is not necessary for evaluation and placement....” I have read the additional memorandum referred to, but due to conflicting legal opinions would like additional guidance as to whether parental consent is or is not required for initial evaluation and placement under Section 504.

Response: Although the regulations implementing Section 504 describe activities and/or practices that constitute discriminatory treatment, the regulations do not, in every instance, provide specific guidance to clarify the applicable regulatory requirement(s). The regulations do stipulate that school districts are responsible for the identification, evaluation, and, when appropriate, placement of all students with disabilities. However, they do not specifically clarify the administrative requirements necessary to comply with the overall regulatory responsibility(ies). Therefore, the Office for Civil Rights must periodically issue policy clarification for any issue and/or area in which the regulatory requirement(s) is unclear. Such is the case with your area of inquiry.

OCR has determined, through policy clarification, that the Section 504 regulation, as referenced in your November 20, 1997, letter, requires parental consent prior to the conduct of initial student evaluation procedures for the identification, diagnosis, and prescription of specific educational services. Parental discretion in matters involving student assessment/evaluation is an inherent part of the regulation and parental discretion is an appropriate and necessary policy component at the initial evaluation phase. Subsequent student evaluations, however, are not subject to parental consent.

I hope this information provides you with the desired clarification. If additional information is needed, I can be contacted at 214/880-2477.

Ted R. Crim
Office for Civil Rights
Southern Division