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fostering educational excellence and ensuring equal access.

UNITED STATES DEPARTMENT OF EDUCATION

WASHINGTON, DC 20202

OSEP POLICY SUPPORT 21-01

PROCESS AND CRITERIA USED TO EVALUATE A REQUEST BY 

STATES TO WAIVE MAINTENANCE OF 

STATE FINANCIAL SUPPORT 

REQUIREMENTS UNDER PART B OF THE 

INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

OFFICE OF SPECIAL EDUCATION PROGRAMS

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

U.S. DEPARTMENT OF EDUCATION

MARCH 2, 2021

The purpose of this document is to provide guidance to State educational 

agencies (SEAs) by describing the factors the Department considers when 

reviewing requests for waivers of the maintenance of State financial support 

(MFS) requirement under Part B of the Individuals with Disabilities Education Act 

(IDEA). This document replaces the Department’s June 2010 guidance entitled

Process and Criteria Used to Evaluate a Request by States to Waive 

Maintenance of Effort Requirements under Part B of the IDEA, which was related

to the American Recovery and Reinvestment Act of 2009 (ARRA). We have 

removed the ARRA references from this document and reorganized the 

document to reflect the criteria relevant to the specific statutory waiver 

examples.

Other than statutory and regulatory requirements included in the document, the 

contents of this guidance do not have the force and effect of law and are not 

meant to bind the public. This document is intended only to provide clarity to 

the public regarding existing requirements under the law or agency policies. In 

addition, it does not create or confer any rights for or on any person.

Process and Criteria

Under the MFS requirement, a State must not reduce the amount of State 

financial support for special education and related services for children with 

disabilities, or otherwise made available because of the excess costs of 

educating those children, below the amount of that support for the preceding 

fiscal year. 20 U.S.C. § 1412(a)(18)(A) and 34 C.F.R. § 300.163(a). The 
PROCESS AND CRITERIA USED TO EVALUATE A REQUEST BY STATES TO WAIVE MAINTENANCE OF STATE FINANCIAL SUPPORT REQUIREMENTS

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Department is authorized to waive the MFS requirement for a State, for one fiscal 

year at a time, if the Department determines that doing so would be equitable 

due to an exceptional or uncontrollable circumstance, such as a natural 

disaster or a precipitous and unforeseen decline in the financial resources of a 

State. 20 U.S.C. § 1412(a)(18)(C) and 34 C.F.R. § 300.163(c). If a waiver is 

granted, a State must continue to ensure that a free appropriate public 

education (FAPE) is made available to all children with disabilities residing in that 

State. 20 U.S.C. § 1412(a)(1) and 34 C.F.R. § 300.101. Further, if the Department 

grants a waiver, the amount of financial support required of the State in future 

years is the same amount that would have been required in the absence of the 

waiver. 20 U.S.C. § 1412(a)(18)(D) and 34 C.F.R. § 300.163(d).

As we have indicated in the preamble to the 2006 IDEA Part B regulations, the 

decision to grant or deny a waiver is made on a case-by-case basis by the

Assistant Secretary of the Office of Special Education and Rehabilitative Services

(OSERS); waivers are considered in a thorough process that takes into account 

the specific facts and circumstances of each situation being reviewed.

71 FR 46540, 46614 (August 14, 2006). As noted above, the statute includes two 

examples of exceptional or uncontrollable circumstances under which States 

may request an MFS waiver — a natural disaster or a precipitous and unforeseen 

decline in the financial resources of a State. While this document provides

specific information about the two examples included in the statute, it is

important to note that these two examples of exceptional or uncontrollable 

circumstances do not represent an exhaustive list, and that the Department 

may consider other exceptional or uncontrollable circumstances when 

considering MFS waiver requests (e.g., a public health emergency).

Precipitous and Unforeseen Decline in Financial Resources

When considering a waiver request from a State asserting a precipitous and 

unforeseen decline in financial resources, the Department prioritizes, in its 

analysis, whether the State is treating special education equitably when 

compared to other programs within the State. In reviewing waiver requests 

under IDEA Part B, the Department will, on a case-by-case basis, consider 

factors such as the following:

• The State’s revenues for the year for which a waiver is sought compared 

to the prior year and to what extent the decrease was based on 

exceptional or uncontrollable circumstances.

• The State’s total appropriations, including education and non-education 

related programs and expenditures, in the year for which a waiver is

sought and the prior year.
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• The State’s level of financial support for special education and related 

services provided to children with disabilities in the year for which a waiver 

is sought and the prior year.

• Whether the State had the financial capacity to maintain support for 

special education and related services and did not do so (e.g., whether 

the State deposited funds into a Rainy Day or Emergency Fund rather 

than allocating those funds to special education and related services).

Natural Disaster

The Department has not historically received a large number of requests for 

waivers of the MFS requirement due to a natural disaster. In addition, the 

specific scope and impacts of any given natural disaster are highly variable and 

less conducive to standard criteria and data sources. However, in evaluating 

these requests on a case-by-case basis, the Department will consider, among 

other things:1

• Natural disaster declarations by the State or Federal government.

• The geographic scope of the natural disaster.

• The State’s total emergency appropriations in the year for which the 

waiver is sought.

• The State’s total non-emergency appropriations in the year for which a 

waiver is sought and the prior year.

• The State’s level of financial support for special education and related 

services provided to children with disabilities in the year for which a waiver 

is sought and the prior year.

Other Exceptional or Uncontrollable Circumstances

When considering an MFS waiver request based on other exceptional or 

uncontrollable circumstances, such as a public health emergency, the 

Department will examine, on a case-by-case basis, any of the information 

above that may be relevant to the circumstances at hand, as well as other 

information that impacts a State’s current level of State financial support for 

special education and related services. Before applying for a waiver for other 

exceptional or uncontrollable circumstances, States are encouraged to discuss 

with their OSEP State leads what information would be most useful to provide to 

the Department.

1 Additional information about other ways the Department supports States who have 

experienced natural disasters is available on the Office of Elementary and Secondary 

Education’s Disaster Recovery Unit’s website at: 

https://oese.ed.gov/offices/disaster-recovery-unit/.
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In making a decision about a waiver under IDEA Part B, the Department may 

also consider prior results of OSERS’ monitoring of the State; after granting a 

waiver, the Department may undertake additional monitoring of the State’s 

implementation of Part B to assess such issues as whether a FAPE is being made 

available to all children with disabilities residing in the State.