On October 5, the U.S. Departments of Education and Justice told state attorneys general that schools offering mental health screenings without prior written parental consent are out of compliance with federal law, and that opt-out forms do not meet the standard. For districts that screen students each fall, or that are planning to, this changes the paperwork that has to be in place before a single questionnaire is handed out. In Illinois, where a state screening requirement for grades 3 through 12 is set to begin in the 2027-28 school year, the timing makes consent design a planning question this year rather than next.
What the October 5 letter says
The joint letter, signed by Education Secretary Linda McMahon and Assistant Attorney General Harmeet Dhillon, is addressed to state attorneys general and asks them to review federal student privacy guidance with educators in their states. Its central statement on screening is direct: there is "no excuse" for a school that offers or facilitates mental health screenings without prior written parental consent, and "opt-outs are not sufficient in this regard."
The letter rests on the Protection of Pupil Rights Amendment (PPRA), which bars requiring a student to take a survey, analysis, or evaluation that reveals information in eight protected areas without prior written consent from the parent of a minor. One of those eight areas is "mental or psychological problems of the student or the student's family." The others include critical appraisals of close family members, illegal or self-incriminating behavior, religious practices, and income.
The letter describes the funding conditions attached to the Family Educational Rights and Privacy Act (FERPA) and PPRA as "nonnegotiable." It does not set out specific penalties or a new enforcement procedure.
The August guidance behind it
The October letter points back to an August 26 Dear Colleague letter from the Department's Student Privacy Policy Office (SPPO), sent to chief state school officers and superintendents. It explains how the Department reads the law.
Three points in it bear directly on screening:
- Screening instruments fall within PPRA. The Department states that it considers mental health screening instruments to elicit information about "mental or psychological problems of the student or the student's family," and that written parental consent must be obtained before administration.
- Opt-out is not consent. The Department states that PPRA's opt-out provisions "do not apply as a way of securing parental consent" for these instruments.
- Parents can inspect the instrument first. Under the statute, districts must have procedures that let parents inspect a third-party survey before it is given to students, within a reasonable time after a request.
The August letter also reminds districts that PPRA requires local policies adopted in consultation with parents, with notice to families at least annually at the beginning of the school year. SPPO says clear communication of those annual notices will be a point of emphasis in its enforcement work this year. On records, it restates that FERPA gives parents the right to inspect and review education records, and that information directly related to a student and maintained by the district is part of those records. That includes screening results a district keeps.
Illinois: a screening requirement and a consent decision
Illinois shows how a state screening requirement meets the federal position. Public Act 104-0032 (SB 1560) added Section 2-3.203 to the Illinois school statutes. Beginning in the 2027-28 school year, districts must offer mental health screenings at least once a year to students in grades 3 through 12. The requirement applies only in years when the state has procured a screening tool with a student self-report option and made it available to districts at no cost to them. Districts that meet criteria set by the State Board of Education may apply for an extension.
In August 2026, the Illinois State Board of Education (ISBE) published non-regulatory guidance on universal mental health screening. It describes two participation models a district may adopt: an opt-out model, "in which screening occurs unless declined," and an opt-in model "requiring affirmative written consent." It notes that passive consent is associated with higher participation and that districts choosing active consent should watch that no student groups end up underrepresented or excluded. It also states that, "regardless of the participation model selected, districts should ensure compliance with applicable PPRA requirements."
Read together, the two documents leave Illinois districts with a practical tension. State guidance describes opt-out as one available model. The U.S. Department of Education's stated position is that opt-out does not satisfy PPRA for mental health screening. ISBE's own guidance directs districts to their legal counsel on the consent model, and that conversation now needs to account for the federal letters.
What the ISBE guidance adds on records and follow-up
The ISBE document is useful outside Illinois because it separates steps districts often bundle into one form:
- Permission to screen is not consent to act on results. The guidance treats authorization to take a screening as legally distinct from consent to use, disclose, or act on the results, including referrals.
- Age changes who controls the information. Under Illinois mental health confidentiality law, the guidance notes that students 12 and older have their own rights, and it advises seeking student assent.
- A screening is not a diagnosis. Staff should interpret scores according to the tool developer's guidance and contact families directly, without labeling a condition.
- Results can trigger other duties. The guidance notes that screening results may raise IDEA Child Find obligations, so districts need a procedure for reviewing them.
Screening without a way to respond produces identified need with no pathway, so the follow-up plan matters as much as the consent form.
What this means for district and school leaders
Whatever a district's state, the federal letters are a reason to review current practice before the next screening window. Practical steps:
- Inventory every instrument. List each screener, wellness survey, climate survey, and check-in form used in any grade, including those run by outside partners. Mark which ones ask about any of PPRA's eight protected areas.
- Review the consent model with counsel. For instruments touching mental or psychological topics, the Department's stated position is that prior written parental consent is required. Illinois districts should weigh that position alongside ISBE's guidance.
- Make instruments available for inspection. Set up a simple way for parents to review a screener before it is given, and decide how quickly requests will be answered.
- Update the annual PPRA notice. Confirm it reaches families through channels they actually use, in the languages spoken in the district, and that it names the specific activities planned for the year.
- Separate the forms. Use one document for permission to screen and a separate, specific one for sharing results or making referrals. ISBE notes that blanket or general release forms may fall short under Illinois law.
- Set records rules now. Decide where results are stored, who can see them, how long they are kept, and how parents can review them under FERPA.
- Plan for participation gaps. Active consent tends to lower participation. Track returned forms by school and student group so gaps are visible early, and plan family outreach through counselors, family liaisons, and community partners.
- Confirm the response pathway. Before screening, name the school team that reviews results within the district's MTSS structure, and the qualified mental healthcare professionals and community partners students will be connected to.
Looking ahead
The October letter says both departments offer technical assistance on compliance, and the August letter signals that annual parent notices will draw attention this year; districts that review their materials now will be working ahead of any inquiry rather than in response to one. Illinois districts should also watch for ISBE rules on extension criteria and for the state's procurement of a no-cost screening tool, since both determine when the 2027-28 requirement takes effect locally. School-Based Healthcare Solutions Network, Inc. (SBHSN), a private grant-making organization focused on access to mental health care on school campuses, publishes this weekly review to help school leaders turn national and state developments into local decisions. Schools and districts weighing campus-based mental health capacity can review the grant solicitation and its published criteria at sbhsnetwork.com/grants. Application deadlines fall on the first Monday of July, September, November, and February; questions can be sent to grants@sbhsnetwork.com.
Sources
- Joint Letter on Parental Rights to State Attorneys General (October 5, 2026) — U.S. Department of Education and U.S. Department of Justice, accessed 2026-10-08
- Back to School Dear Colleague Letter on FERPA and PPRA (August 26, 2026) — U.S. Department of Education, Student Privacy Policy Office, accessed 2026-10-08
- 20 U.S.C. § 1232h, Protection of Pupil Rights — Legal Information Institute, Cornell Law School, accessed 2026-10-08
- Public Act 104-0032 (SB 1560) — Illinois General Assembly, accessed 2026-10-08
- Universal Mental Health Screening Non-Regulatory Guidance for School Districts (August 2026) — Illinois State Board of Education, accessed 2026-10-08
Transitional Coach℠ and Coaching Model℠ are service marks of School-Based Healthcare Solutions Network, Inc. © 2026 School-Based Healthcare Solutions Network, Inc. All rights reserved. This article is provided for general informational purposes only and does not constitute clinical, legal, or financial advice.