UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

OSEP QA 21-06

RETURN TO SCHOOL ROADMAP:

DEVELOPMENT AND IMPLEMENTATION OF INDIVIDUALIZED
EDUCATION PROGRAMS IN THE LEAST RESTRICTIVE ENVIRONMENT
UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
September 30, 2021
The U.S. Department of Education (Department), Office of Special Education and Rehabilitative
Services (OSERS) has received requests from a diverse group of stakeholders asking that the
Department issue new guidance interpreting requirements of the Individuals with Disabilities
Education Act (IDEA) in light of the many challenges of the COVID-19 pandemic and as more
schools and programs are returning to in-person services. Topics include meeting timelines,
ensuring implementation of initial evaluation and reevaluation procedures, determining eligibility
for special education and related services, and providing the full array of special education and
related services that children with disabilities need in order to receive a free appropriate public
education (FAPE). 1 In addition, stakeholders have inquired about the implications of delayed
evaluations and early intervention services to infants and toddlers with disabilities and their
families served under IDEA Part C. 2 The purpose of the Return to School Roadmap IDEA
guidance documents, 3 which focus on school reopening efforts, is to support the full
implementation of IDEA requirements. The documents also serve to clarify that, regardless of the
COVID-19 pandemic, or the mode of instruction, children with disabilities are entitled to FAPE,
and infants and toddlers with disabilities and their families to appropriate IDEA Part C services.
The Department recognizes that some parents may have specific health and safety concerns
about sending their children back to in-person instruction because of the health risk to the
student, the student’s immediate family, and to other household members — even as parents are
also concerned about their child missing the instructional and social and emotional opportunities
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Free appropriate public education or FAPE means special education and related services that (1) are provided at public expense, under
public supervision, and without charge; (2) meet the standards of the State educational agency (SEA), including the requirements of
IDEA; (3) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (4) are
provided in conformity with an individualized education program that meets the requirements of 34 C.F.R. §§ 300.320 through
300.324. 34 C.F.R. § 300.17.
Additional guidance, including requirements of Part C of IDEA, will be forthcoming.
Other than statutory and regulatory requirements included in this Q&A 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. The questions and answers in this document are not intended to be a
replacement for careful study of IDEA and its implementing regulations. The IDEA, its implementing regulations, and other important
documents related to IDEA and the regulations are found at: https://sites.ed.gov/idea/.
400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-2600
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal access.

RETURN TO SCHOOL ROADMAP: DEVELOPMENT AND IMPLEMENTATION OF IEPS

that come with in-person learning. 4 Therefore, reopening schools safely is of utmost importance.
State educational agencies (SEAs) and local educational agencies (LEAs) 5 should put in place
layered prevention strategies, including promoting vaccination and universal and correct maskwearing in schools. The Centers for Disease Control and Prevention (CDC) recommends that
everyone in K through 12 schools wear a mask indoors, including teachers, staff, students, and
visitors, regardless of vaccination status. 6

CONTENTS
Introduction ..................................................................................................................................... 3
A.

Ensuring IEPs Are in Effect at the Start of the School Year ................................................. 5

B.

Convening the IEP Team ..................................................................................................... 10

C.

Consideration of Special Factors ......................................................................................... 13
•

Considering the Assistive Technology Needs of a Child with a Disability ............. 13

•

Addressing the Social, Emotional, Behavioral, and Mental Health Needs of
Children with Disabilities ........................................................................................ 15

•

Addressing the School-Related Health Needs of Children with Disabilities with
Underlying Medical Conditions............................................................................... 19

D.

Determining Appropriate Measurable Annual Goals & Considering the Child’s Need
for Compensatory Services .................................................................................................. 24

E.

Making Extended School Year (ESY) Services Determinations ......................................... 32

F.

Considering Secondary Transition Services ........................................................................ 34

G.

Making Educational Placement Decisions........................................................................... 37

H.

Resolving Disagreements Regarding a Child’s Educational Program ................................ 40

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5

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ED COVID-19 Handbook Volume 1: Strategies for Safely Reopening Elementary and Secondary Schools.
To increase readability, the Department has used the term “LEA” in place of “public agency.” Public agency is defined in 34 C.F.R. § 300.33
to include the SEA, LEAs, educational services agencies (ESAs), nonprofit public charter schools that are not otherwise included as LEAs or
ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to
children with disabilities.
Under Federal disability laws, exceptions can be made on an individual basis for a person who cannot wear a mask or cannot safely wear a
mask because of a disability as defined by the Americans with Disabilities Act (42 U.S.C. 12101 et seq.). See CDC’s Guidance for COVID-19
Prevention in K-12 Schools, https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html; See also, the
Department’s Vol. 1, ED COVID-19 Handbook, Strategies for Safely Reopening Elementary and Secondary Schools.
https://www2.ed.gov/documents/coronavirus/reopening.pdf.

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INTRODUCTION
The Department is committed to ensuring that children with disabilities receive the services and
supports they are entitled to under IDEA so that they have successful educational experiences. For
more than a year, educators across the country have provided services and supports to children
with disabilities in ways never anticipated prior to the COVID-19 pandemic. The Department
recognizes that SEAs and LEAs have worked hard to meet children’s needs and provide required
services, given the unprecedented educational disruptions and other challenges resulting from the
pandemic. 7 Even with these efforts, some children with disabilities were unable to receive
appropriate services to address their needs so that they could make progress toward achieving the
functional and academic goals included in their individualized education programs (IEPs).
Therefore, the Department repeats and emphasizes that, notwithstanding the challenges associated
with the COVID-19 pandemic, families and children retained their rights to receive appropriate
services under IDEA. 34 C.F.R. § 300.101. In this document, the Department highlights certain
IDEA requirements related to the development and implementation of IEPs and other information
that SEAs, LEAs, regular and special education teachers, related services providers, and parents
should consider.
Parents who would like to request additional support in understanding IDEA’s requirements may
wish to contact their local regional parent training and information centers (PTIs) for direct
assistance and referrals to other organizations and to gain skills to effectively participate in the
education and development of their children. There are over 100 PTIs and Community Parent
Resource Centers in the United States and Territories that provide training, resources, and
support on a wide variety of topics. Parents can locate the appropriate PTI for their area at
https://www.parentcenterhub.org/find-your-center/. 8
Although it is beyond the scope of this document, recipients of Federal financial assistance from
the Department (e.g., public agencies receiving IDEA funding) are reminded of their obligation

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States have reported that these difficulties include challenges with providing the equipment and technology, including Wi-Fi access, needed for
children to participate in virtual learning; having adequate personnel to provide early intervention, special education, and related services due
to COVID-related illness and employees’ concerns for their safety and the safety of their families; and taking the necessary health and safety
precautions required for public facilities to reopen.
This document contains examples of resources that are provided for the user’s convenience. The inclusion of these resources is not intended to
reflect their importance, nor is it intended to endorse any views expressed, or products or services offered, by these entities. These resources
may include materials that contain the views and recommendations of various subject-matter experts as well as hypertext links, contact
addresses, and websites to information created and maintained by other public and private organizations. The opinions expressed in any of
these materials do not necessarily reflect the positions or policies of the Department. The Department does not control or guarantee the
accuracy, relevance, timeliness, or completeness of any outside information included in the materials that may be provided by these resources.

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to comply with Section 504, 9 which prohibits discrimination on the basis of disability. 10 For
example, in providing any aid, benefit, or service, a recipient may not, directly or through
contractual, licensing, or other arrangements, deny a student with a disability an equal
opportunity to participate in or benefit from the aid, benefit, or service. 34 C.F.R. § 104.4(b)(1).
This is especially relevant where States or school districts, as a result of the pandemic, make
available to all students additional educational programming or services, and choices for
instructional delivery or program participation.

Children with disabilities also have rights under two civil rights laws that prohibit discrimination on the basis of disability—Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794; 34 C.F.R. Part 104 (Section 504) and Title II of the Americans with Disabilities Act
42 U.S.C. §§ 12131-12134; 28 C.F.R. Part 35 (Title II). Section 504 prohibits disability discrimination by recipients of Federal financial
assistance, such as SEAs and LEAs. Title II prohibits discrimination by public entities, including SEAs and LEAs, regardless of receipt of
Federal financial assistance. The Office for Civil Rights (OCR) in the U.S. Department of Education enforces Section 504 in public elementary
and secondary schools. Also, in this context, OCR shares in the enforcement of Title II with the U.S. Department of Justice (DOJ). DOJ is
responsible for interpreting and providing technical assistance about the requirements of Title II. More information about these laws is
available at: www.ed.gov/ocr and www.ada.gov.
10
See, Questions and Answers on Civil Rights and School Reopening in the COVID-19 Environment
https://www2.ed.gov/about/offices/list/ocr/docs/qa-reopening-202105.pdf.
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A. ENSURING IEPS ARE IN EFFECT AT THE START OF THE

SCHOOL YEAR

The cornerstone of IDEA is the entitlement of each eligible child with a disability to FAPE that
emphasizes special education and related services designed to meet the child’s unique needs and
that prepares the child for further education, employment, and independent living. Under IDEA,
the vehicle for providing FAPE is through an appropriately developed IEP based on the individual
needs of the child. An IEP must include a child’s present levels of academic achievement and
functional performance, and the impact of a child’s disability on their involvement and progress in
the general education curriculum. IEP goals must be aligned with grade-level content standards
for all children with disabilities. 11 The child’s IEP must be developed, reviewed, and revised in
accordance with the requirements outlined in IDEA in 34 C.F.R. §§ 300.320 through 300.328.
No matter what primary instructional delivery approach 12 is used, SEAs and LEAs remain
responsible for ensuring that FAPE is available to all children with disabilities. Therefore,
before, during, and after the COVID-19 pandemic, the LEA must ensure that each child with a
disability has access to educational opportunities, including all special education and related
services, necessary to receive FAPE.
Question A-1: Must an LEA ensure each child with a disability has an IEP in effect at the
start of each school year?
Answer:

Yes. Under 34 C.F.R. § 300.323(a), at the beginning of each school year, each
LEA must have an IEP in effect for each child with a disability within its
jurisdiction. To ensure that an appropriate IEP is in place, the LEA may need to
convene a meeting of the child’s IEP Team prior to the start of the school year to
determine whether any revisions to the IEP are needed.
34 C.F.R. § 300.324(b)(1). A parent may request, and an LEA may propose to
conduct, IEP Team meetings at any time during the year. For example, if the
LEA conducts the IEP Team meeting prior to the beginning of a school year, it
must ensure that the child’s IEP contains the necessary special education and
related services and supplementary aids and services to ensure that the IEP can
be appropriately implemented once the school year begins.

States are permitted to define alternate academic achievement standards for children with the most significant cognitive disabilities, provided
those standards are aligned with the State’s academic content standards, promote access to the general curriculum, and reflect professional
judgment of the highest achievement standards possible, in accordance with 34 C.F.R. § 200.1(d). 34 C.F.R. § 300.160(c)(2)(i).
12
As used in this document, “service delivery approach,” “instructional delivery approach,” and “instructional methodology” include the
provision of services to a child with a disability in-person, virtually, or a hybrid of in-person and virtual instruction.
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Question A-2: Are LEAs required to convene an IEP Team meeting prior to the beginning
of the school year to review the IEP of every child with a disability in its
jurisdiction?
Answer:

Generally, no. Under 34 C.F.R. § 300.324(b), each LEA must ensure that the
IEP Team reviews the child’s IEP periodically, but not less than annually, to
determine whether the annual goals for the child are being achieved; and revises
the IEP, as appropriate, to address any lack of expected progress toward the
annual goals and in the general education curriculum, if appropriate; the results
of any reevaluation; information about the child provided to, or by the parents;
the child’s anticipated needs; or other matters. Therefore, if the child’s IEP has
been reviewed at least annually and neither the LEA nor the parent believes it is
necessary to review those decisions prior to the start of the school year, the LEA
would not need to convene another IEP Team meeting prior to the start of the
school year.
However, it will be important for LEAs and parents to consider whether there
are circumstances, such as an IEP that was developed that includes special
education and related services to be delivered solely through virtual instruction,
that cannot be modified to reflect in-person services for the upcoming school
year. In these circumstances, the IEP Team would need to convene as soon as
possible to determine what revisions to the child’s IEP are necessary to ensure
FAPE. 13

Question A-3: When reviewing and revising a child’s IEP, can the IEP Team also discuss
how special education and related services could be provided if
circumstances require a change in the service delivery approach, such as
from in-person instruction to virtual learning or hybrid instruction?
Answer:

13
14

Yes. To help ensure the continued provision of FAPE, IEP Teams can identify
how the special education and related services included in a child’s IEP can be
provided if circumstances require a change from in-person learning. A proactive
method that an IEP Team may implement as a strategy for preparedness in the
event of future long-term school closures is developing a contingency plan. 14 As
part of a child’s annual IEP Team meeting, developing a contingency plan
would address the provision of service delivery to account for virtual learning or
hybrid instruction. It would also include a description of a child’s specific
services, frequency, type, and duration. Developing a contingency plan before
circumstances require a change in the service-delivery approach also gives the

Implementation of IDEA Part B Provision of Services in the Current COVID-19 Environment (Sept. 28, 2020).
See also Question A-4 in Questions and Answers on Providing Services to Children with Disabilities During an H1N1 Outbreak (Dec. 2009).

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child’s service providers and the child’s parents an opportunity to reach
agreement as to what circumstances would trigger the use of the child’s
contingency plan and the contingency services that would be provided. As
schools navigate virtual learning, a hybrid service delivery approach, or full
reopening for in-person learning, they should prioritize equity, exercise
flexibility, think creatively, collaborate with parents to respond to children’s
emerging needs, and must comply with applicable civil rights laws. 15 See also
Q1 in Implementation of IDEA Part B Provision of Services in the Current
COVID-19 Environment (Sept. 28, 2020).
Question A-4: How can LEAs ensure that children who have moved between jurisdictions
in the same State during the school year continue to receive FAPE?
Answer:

If a child with a disability who had an IEP in effect transfers to a new LEA in
the same State and enrolls in a new school within the new LEA in the same
school year, the new LEA, in consultation with the parents, must provide FAPE
to the child. This includes providing services comparable to those described in
the child’s IEP from the previous LEA, until the new LEA either: (1) adopts the
child’s IEP from the previous LEA; or (2) develops, adopts, and implements a
new IEP that meets the applicable requirements in 34 C.F.R. §§ 300.320 through
300.324. Thus, the new LEA must provide FAPE to the child with a disability
when the child enrolls in the new LEA’s school within the same school year and
may not deny special education and related services to the child.
The new LEA in which the child enrolls must take reasonable steps to promptly
obtain the child’s records, including the IEP and supporting documents and any
other records relating to the provision of special education or related services to
the child, from the previous LEA in which the child was enrolled, pursuant to
34 C.F.R. § 99.31(a)(2); and the previous LEA in which the child was enrolled
must take reasonable steps to promptly respond to the request from the new
LEA. 34 C.F.R. § 300.323(g).

Question A-5: What is the LEA’s obligation if a child with a disability moves into its
jurisdiction from an LEA that is located outside of the State within the
same school year?
Answer:

15

In this circumstance, the new LEA (in consultation with the parents) must
provide the child with FAPE (including services comparable to those described
in the child’s IEP from the previous LEA) until the new LEA: (1) conducts an

See the discussion on pages 3–4, including footnote 9, about Section 504 and Title II.

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evaluation pursuant to 34 C.F.R. §§ 300.304 through 300.306 (if determined to
be necessary by the new LEA); and (2) develops, adopts, and implements a new
IEP, if appropriate, that meets the applicable requirements in
34 C.F.R. §§ 300.320 through 300.324. Thus, the new LEA must provide FAPE
to the child with a disability when the child enrolls in the new LEA’s school in
the new State within the same school year and may not deny special education
and related services to the child pending the development of a new IEP.
The new LEA in which the child enrolls must take reasonable steps to promptly
obtain the child’s records, including the IEP and supporting documents and any
other records relating to the provision of special education or related services to
the child, from the previous LEA in which the child was enrolled, pursuant to
34 C.F.R. § 99.31(a)(2); and the previous LEA in which the child was enrolled
must take reasonable steps to promptly respond to the request from the LEA.
34 C.F.R. § 300.323(g). See also Question A-2, Questions and Answers on
Individualized Education Programs (IEPs), Evaluations, and Reevaluations
(Sept. 2011).
Question A-6: What is the LEA’s obligation if a child with a disability moves into its
jurisdiction from another LEA between school years, i.e., during the
summer break?
Answer:

IDEA and its implementing regulations require that, at the beginning of each
school year, each LEA must have an IEP in effect for each child with a
disability. 34 C.F.R. § 300.323. Therefore, LEAs must ensure that an IEP is in
effect at the beginning of the school year for children with disabilities who
move into, and enroll in, a new LEA during the summer. How an LEA meets
this requirement is a matter to be decided by each individual new LEA. The new
LEA could decide to adopt and implement the IEP developed for the child by
the previous LEA, unless the new LEA decides that an evaluation is needed.
Otherwise, the newly designated IEP Team for the child in the new LEA could
develop, adopt, and implement a new IEP for the child that meets the applicable
requirements in 34 C.F.R. §§ 300.320 through 300.324. Analysis of Comments
and Changes accompanying the final 2006 IDEA Part B regulations, 71 Fed.
Reg. 46540, 46682 (Aug. 14, 2006).
If the parent requests that the new LEA convene the IEP Team prior to the start
of the school year and the LEA refuses to do so, the LEA must provide written
notice to the parent of the refusal. The prior written notice must include, among
other content, an explanation of why the LEA determined that conducting the
meeting prior to the beginning of the school year is not necessary to ensure the

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provision of appropriate services to the child. 34 C.F.R. § 300.503. See also
Analysis of Comments and Changes accompanying the final 1999 IDEA Part B
regulations. 64 Fed. Reg. 12406, 12476-12477 (Mar. 12, 1999).

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B.

CONVENING THE IEP TEAM

IEP Teams 16 are required to meet periodically, but at least annually, to review and revise, as
appropriate, a child’s IEP, and address the results of any reevaluation or any other data that
describes the child’s needs. The Department understands that, during the COVID-19 pandemic,
it is often difficult for IEP Teams to find effective ways to meet and obtain the information
necessary to develop IEPs that fully addressed the unique needs of each child with a disability.
Although in-person attendance at IEP Team meetings may be preferable, IDEA provides
flexibility for participation using alternate methods, as well as permitting some members of the
IEP Team to be excused under certain circumstances. Further, a parent and the LEA may agree
to amend a child’s IEP without convening the full IEP Team, but not as a substitute for the
annual review.
Question B-1: Does IDEA require a child’s IEP Team to meet more than one time
each year?
Answer:

16
17

It will depend on the child-specific circumstances and whether the parent and
LEA agree to change the IEP without a meeting. Under
34 C.F.R. § 300.324(a)(5), to the extent possible, the LEA must encourage the
consolidation of reevaluation meetings and other IEP Team meetings for the
child. However, this should not be read to discourage an IEP Team from
reconvening, if appropriate. An LEA must initiate and conduct meetings
periodically, but at least once every twelve months, to review a child’s IEP, in
order to determine whether the annual goals for the child are being achieved,
and to revise the IEP, as appropriate. 17 Although the LEA is responsible for
determining when it is necessary to conduct an IEP Team meeting, the parents
of a child with a disability have the right to request an IEP Team meeting at any
time. If the LEA refuses the parent’s request to reconvene the IEP Team, it must
provide written notice to the parents of the refusal, including an explanation of
why the LEA has determined that conducting the meeting is not necessary to
ensure the provision of FAPE to the child. 34 C.F.R. § 300.503. If a child’s
teacher feels that the child’s IEP or educational placement is not appropriate for
the child, the teacher should follow the LEA’s procedures with respect to (1)
calling or meeting with the parents; or (2) requesting that the LEA hold another
IEP Team meeting to review the child’s IEP.

The requirements for participants at IEP Team meetings are found in 34 C.F.R. § 300.321.
In accordance with 34 C.F.R. § 300.324(b), the IEP Team must meet periodically to review and revise the child’s IEP, as appropriate, to
address any lack of expected progress toward the annual goals described in § 300.320(a)(2), and in the general education curriculum, if
appropriate; the results of any reevaluation conducted under § 300.303; information about the child provided to, or by, the parents; the child’s
anticipated needs; or other matters.

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IDEA also allows the parent of a child with a disability and the LEA to agree
not to convene an IEP Team meeting for the purpose of making changes to the
IEP after the annual IEP Team meeting for a school year, and instead develop a
written document to amend or modify the child’s current IEP.
34 C.F.R. § 300.324(a)(4). It is important to note that an amendment to an IEP
cannot take the place of an annual IEP Team meeting. For more information
about the IEP amendment process, see Q3 of Implementation of IDEA Part B
Provision of Services in the Current COVID-19 Environment (Sept. 28, 2020),
and Questions C-8 through C-10 in Questions and Answers on Individualized
Education Programs (IEPs), Evaluations, and Reevaluations (Sept. 2011).
Question B-2: Are all IEP Team members required to attend all IEP Team meetings in
their entirety?
Answer:

No. The IEP Team members referenced in 34 C.F.R. § 300.321(a) are generally
required to participate in meetings to develop, review, and revise a child’s IEP.
The IEP Team includes, among other participants, the parents of the child; not
less than one regular education teacher of the child (if the child is, or may be,
participating in the regular education environment); and not less than one special
education teacher of the child or, where appropriate, not less than one special
education provider of the child. However, under 34 C.F.R. § 300.321(e), it is
permissible for certain members to be excused from attending the IEP Team
meeting, in whole or in part, if the parent of a child with a disability and the LEA
agrees, in writing, that the attendance of the member is not necessary because the
member’s area of the curriculum or related services is not being modified or
discussed in the meeting. If the IEP Team meeting involves a modification to or
discussion of the member’s area of the curriculum or related services, the member
may be excused from attending an IEP Team meeting, in whole or in part, if the
parent, in writing, and the LEA consent to the excusal; and the member submits,
in writing to the parent and the IEP Team, input into the development of the IEP
prior to the meeting. There is nothing in IDEA or its implementing regulations
that would limit the number of IEP Team members who may be excused from
attending an IEP Team meeting, so long as the LEA meets the requirements of
34 C.F.R. § 300.321(e) that govern when IEP Team members can be excused
from attending IEP Team meetings in whole or in part. See Analysis of Comments
and Changes accompanying the final IDEA Part B regulations. 71 Fed. Reg.
46650, 46675 (Aug. 14, 2006).
For more information about the excusal of IEP Team members from IEP Team
meetings, see Q2 of Implementation of IDEA Part B Provision of Services in
the Current COVID-19 Environment (Sept. 28, 2020), and Questions C-1

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through C-5 in Questions and Answers on Individualized Education Programs,
Evaluations, and Reevaluations (Sept. 2011).
Question B-3: May LEAs continue to hold IEP Team meetings virtually after school
buildings reopen for in-person instruction or must these meetings be
conducted face-to-face?
Answer:

LEAs may continue to hold IEP Team meetings virtually after school buildings
reopen if the parent agrees to a virtual meeting or if continued COVID-19
prevention practices necessitate it. Parents and schools are encouraged to work
collaboratively, to find solutions to meeting IEP Team requirements. LEAs must
take steps to ensure that one or both parents attend, or are afforded the
opportunity to participate in, an IEP Team meeting by notifying them of the
meeting early enough to ensure that they can attend and by scheduling the
meeting at a mutually agreed upon time and place. Moreover, the parents and
the LEA can agree to participate in IEP Team meetings through alternate means
such as telephone conference calls or video conferences for any reason.
34 C.F.R. § 300.328. Therefore, LEAs may continue to convene IEP Team
meetings virtually, as appropriate.

Question B-4: Is it permissible for the LEA to hold an IEP Team meeting without the
child’s parent?
Answer:

In most cases, no. IDEA and its implementing regulations require that IEP Team
meetings be scheduled at a mutually agreed on time and place.
34 C.F.R. § 300.322(a)(2). IDEA does not address the specific times when LEAs
can schedule IEP Team meetings. LEAs should be flexible in scheduling IEP Team
meetings to accommodate reasonable requests from parents. Where LEAs and
parents cannot schedule meetings to accommodate their respective scheduling
needs, LEAs must take other steps to ensure parent participation, consistent with
34 C.F.R. § 300.322(c). These steps could include individual or conference
telephone calls or videoconferencing, consistent with 34 C.F.R. § 300.328 (see
Question B-3 above, regarding alternative means of participating in IEP meetings).
IDEA does permit an IEP Team meeting to be conducted without a parent in
attendance if the LEA is unable to convince the parents that they should attend.
In this case, the LEA must keep a record of its attempts to arrange a mutually
agreed on time and place. 34 C.F.R. § 300.322(d). This practice is permissible
only if the LEA is unable to convince the parents that they should attend an IEP
Team meeting for their child regardless of the LEA’s efforts to schedule the
meeting at a mutually convenient time and place.

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C. CONSIDERATION OF SPECIAL FACTORS
When developing, reviewing, or revising a child’s IEP, the IEP Team must consider a variety of
special factors, including, but not limited to, the communication needs of the child and whether
the child needs assistive technology devices and services. 34 C.F.R. § 300.324(a)(2)(iv) and (v).
For a child with behaviors that interfere with the child’s learning or that of others, the IEP Team
must consider the use of positive behavioral interventions and supports, and other strategies, to
address that behavior. 34 C.F.R. § 300.324(a)(2)(i). In addition to the required factors that must
be considered under 34 C.F.R. § 300.324(a)(2), as a result of the COVID-19 pandemic, many
children have experienced increased stress, anxiety, depression, fear, and physical isolation.
Some children have contracted COVID-19 and experience post-COVID conditions. 18 Some were
displaced from their homes when a parent lost employment and even lost family members and
friends to COVID-19. These circumstances can impact a child’s ability to engage in their
education, develop and re-establish social connections with peers and school personnel, and
adapt to the structure of in-person learning. IEP Teams should carefully discuss these difficult
issues with a child’s parents, when appropriate, gather updated information as necessary, and
address any new or changed needs to ensure FAPE to the child.
•

Considering the Assistive Technology Needs of a Child with a Disability

When developing, reviewing, or revising a child’s IEP, the IEP Team must consider whether the
child needs assistive technology devices and services. 34 C.F.R. § 300.324(a)(2)(v). As a result
of the COVID-19 pandemic, some children with disabilities and their families may have, for the
first time, used assistive technology devices and services as part of the child’s access to FAPE.
Challenges with ensuring equitable access to technology and Wi-Fi connectivity during this time
may have affected whether and how the child received appropriate services to support skill
development and progress toward attaining the child’s IEP annual goals.
Question C-1: For LEAs that provided laptops or other technology devices or services to
some or all children to facilitate virtual instruction, must they continue to
provide such devices or services for a child with a disability who is
returning to school for in-person instruction?
Answer:

18

It will depend on the child’s needs. As noted above, each child’s IEP Team must
consider whether the child needs assistive technology devices and services as
part of the determination of special education, related services, and
supplementary aids and services that are needed to enable the child to receive
FAPE. 34 C.F.R. § 300.324(a)(2)(v). For some children with disabilities, the

See Long COVID under Section 504 and the IDEA: A Resource to Support Children, Students, Educators, Schools, Service Providers, and
Families. (July 2021).

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continued provision of these devices or services will be appropriate to ensure
the provision of FAPE.
Under IDEA, an assistive technology device means any item, piece of
equipment, or product system, whether acquired commercially off the shelf,
modified, or customized, that is used to increase, maintain, or improve the
functional capabilities of a child with a disability. 34 C.F.R. § 300.5. In this
circumstance, the IEP Team should review the child’s use of the laptop
computer or other such device that was provided for virtual instruction, along
with information provided by the parent and others, including the child, as
appropriate. If the IEP Team determines that the laptop or other technology
device is an assistive technology device that the child requires in order to
receive FAPE, the LEA must provide the necessary assistive technology device.
The IEP Team has discretion in determining the type of assistive technology that
the child needs in order to receive meaningful educational benefit. In addition,
the IEP Team may consider the need for other devices that were not previously
provided, if they are needed to ensure FAPE.
The IEP Team also must consider whether the child requires assistive
technology services as defined under 34 C.F.R. § 300.6. Generally, the assistive
technology service directly assists a child with a disability in the selection,
acquisition, or use of an assistive technology device.
This could include evaluating the child’s needs, including a functional
evaluation of the child in the child’s customary environment; purchasing,
leasing, or otherwise providing the necessary assistive technology device(s);
selecting, designing, fitting, customizing, adapting, applying, maintaining,
repairing, or replacing assistive technology devices; and coordinating and using
other therapies, interventions, or services with assistive technology devices,
such as those associated with existing education and rehabilitation plans and
programs. One component of assistive technology services is training or
technical assistance for a child with a disability or, if appropriate, that child’s
family. The IEP Team could also consider whether parent counseling and
training should be provided as a related service under IDEA to help the child’s
parent acquire the necessary skills that will allow them to support the
implementation of the IEP, including the assistive technology device.
34 C.F.R. § 300.34(c)(8).

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Question C-2: What steps can SEA and LEA leaders take to ensure equitable access to
assistive technology devices, services, and connectivity to Wi-Fi to support
the learning of children with disabilities?
Answer:

Circumstances related to the COVID-19 pandemic exacerbated existing
difficulties with equitable access to technology and digital learning for all
learners. Barriers to access include factors such as the price of procuring
services and devices privately (e.g., home internet service and mobile data);
lack of broadband access in rural areas; and lack of parent understanding and
familiarity with use of technology, including assistive technology to support
their child’s learning.
With the recent influx of Federal funds, particularly those under the American
Rescue Plan Act of 2021 (ARP Act), Congress specifically authorizes SEAs and
LEAs to purchase educational technology (including hardware, software, and
connectivity) for children who are served by the LEA that aids in regular and
substantive educational interaction between children and their classroom
instructors, including low-income children and children with disabilities, which
may include assistive technology or adaptive equipment. Section 2001(e)(2)(K)
of the ARP Act. See also Question C-19 of the Department’s Frequently Asked
Questions on the Elementary and Secondary School Emergency Relief (ESSER)
Programs and Governor’s Emergency Education Relief (GEER) Programs (May
2021 FAQ). Additionally, under Section 2014(a) of the ARP Act, Congress
provided supplemental IDEA Part B and Part C funds for Fiscal Year 2021 to
States and LEAs. These funds may also be used to address technology needs of
children with disabilities. 19

•

Addressing the Social, Emotional, Behavioral, and Mental Health Needs of Children
with Disabilities

Many children have been exposed to trauma, disruptions in learning, physical isolation, and
disengagement from school and peers, negatively affecting their mental health. Children learn,
take academic risks, and achieve at higher levels in safe and supportive learning environments
and in the care of responsive adults they can trust. However, the ongoing impact of the
COVID-19 pandemic has contributed to child experiences that are far from universal — with
underserved children experiencing a disproportionate burden of the pandemic. As a result, many
children might require additional support and interventions to take risks in their learning to
achieve at higher levels.

19

See IDEA American Rescue Plan Funds.

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A child whose behavior impedes their learning may need new or increased services and supports
for the child to receive FAPE. These increased services and supports may include new or
adjusted specially designed instruction, academic supports, positive behavioral interventions,
and other supports such as counseling, psychological services, school health services, and social
work services.
IEP Teams are encouraged to review the pre-pandemic services required to provide FAPE to the
child and determine if the child did or did not receive them during the school closure and other
disruptions in service. IEP Teams are also encouraged to make general observations about the
child’s attendance, engagement, attention, behavior, progress, and home experience during the
COVID-19 pandemic.
Question C-3: When should social, emotional, behavioral, or mental health supports be
included in a child’s IEP?
Answer:

20
21

As with other special education and related services, the IEP Team makes the
determination of whether, and if so which, social, emotional, behavioral, or
mental health supports specific to conditions arising from COVID-19 or other
situations should be included in a child’s IEP. The child’s need for such services
may be detected during an initial evaluation or reevaluation process through the
use of technically sound assessment instruments to assess the relative
contribution of cognitive and behavioral factors towards educational
performance (and other information provided by the child, parents, caregivers,
educators, and related service providers (e.g., observations, informal
assessment)). 34 C.F.R. § 300.304(b)(3). For a child already eligible under
IDEA, these concerns can be addressed by reconvening the IEP Team to
determine whether the current IEP requires revision to include specific social,
emotional, behavioral, or mental health supports to ensure FAPE to the child. As
part of their programs of FAPE, mental health-related services, such as
counseling services, psychological services, and social work services in schools,
could be included in a child’s IEP, as appropriate. 20 See the response to
Question C-5, below, for additional examples. Schools should avoid routinely
using discipline to address a child’s behaviors that may arise when students
return to school and consider developing or revising, or ensuring the provision
of, positive behavioral interventions and supports and other strategies, as
appropriate. 21

See also ED COVID-19 Handbook Roadmap to Reopening Safely and Meeting All Students’ Needs (Apr. 2021).
See Center on Positive Behavioral Interventions and Supports.

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Question C-4: Who can provide social, emotional, behavioral, or mental health supports
to a child when the services are included in the child’s IEP?
Answer:

IDEA requires States and LEAs to ensure that all personnel necessary to carry
out the purposes of Part B of IDEA are appropriately and adequately prepared
and trained to provide the necessary support. 34 C.F.R. §§ 300.156(a) and
300.207. Related services, which include social, emotional, behavioral, and
mental health supports, must be carried out by a qualified professional who
holds State-approved or State-recognized certification, licensing, registration, or
other comparable requirements that apply to the professional discipline in which
those personnel are providing special education or related services.
34 C.F.R. § 300.156(b)(2)(i). This responsibility includes ensuring that teachers
and other school personnel have the training and experience necessary to
provide required social, emotional, behavioral, and mental health supports to
children with disabilities that meet the State’s standards. 22 Paraprofessionals and
assistants who are appropriately trained and supervised, in accordance with
State law, regulation, or written policy, can assist in the provision of special
education and related services to children with disabilities.
34 C.F.R. § 300.156(b)(2)(iii).

Question C-5: What are some examples of social, emotional, behavioral, and mental
health supports related to the COVID-19 pandemic that could be included
in a child’s IEP?
Answer:

The IEP Team may address the child’s social, emotional, behavioral, or mental
health needs, through special education and related services, supplementary aids
and services provided to the child, and/or program modifications or supports for
school personnel.
Special education and related services are provided to assist the child to make
appropriate progress toward attaining the annual goals specified in the IEP and
to be involved in and make progress in the general education curriculum, and to
participate in extracurricular and other nonacademic activities.
34 C.F.R. § 300.320(a)(4)(i) and (ii). These services and supports may include
counseling services for mental health needs (e.g., anxiety, depression, etc.),
social skill instruction, explicit reinforcement of positive behavior, and explicit
instruction in stress, anxiety, and depression management.

22

Ibid.

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Supplementary aids and services are defined to include aids, services, and
other supports that are provided in regular education classes, other educationrelated settings, and in extracurricular and nonacademic settings, to enable
children with disabilities to be educated with nondisabled children to the
maximum extent appropriate in accordance with 34 C.F.R. §§ 300.114 through
300.116. Supplementary aids and services may include consultation with a
professional with expertise in behavioral interventions to create a positive
behavioral support plan, access to counselors, and access to targeted strategies
supported by peer-reviewed research to support social, emotional, behavioral, or
mental health needs (e.g., anxiety scaling, mindfulness exercises).
Program modifications or supports for school personnel provided on behalf
of the child, may also be necessary to support the child’s involvement and
progress in the general education curriculum, appropriate advancement toward
attaining the annual goals specified in the IEP, and participation in
extracurricular and other nonacademic activities. 34 C.F.R. §§ 300.320(a)(4)(i)–
(ii) and 300.324(a)(3)(ii). Usually, a modification means a change in what is
being taught to or expected from the student. 23 Program modifications could
include adapting a homework assignment or adjusting a reading passage to
reflect the child’s reading comprehension level, while supports for school
personnel may include training on additional positive behavioral supports and
universal design for learning and access to consultation with related service
providers and others with specialized expertise.
Question C-6: What steps should the IEP Team take when considering behavioral
supports for children with disabilities as they return to in-person
instruction?
Answer:

23

Children who return to school, including those with disabilities and those who
demonstrate challenges that were not evident before the school closure, may
have new disability-related needs, regression of skills or a lack of expected
progress toward attaining the child’s annual IEP goals, or social, emotional,
behavioral, or mental health needs due to the impact of the COVID-19
pandemic. If new or different social, emotional, behavioral, or mental health
needs arise after a child has been determined to be eligible for special education
and related services and an IEP has been developed, the IEP Team must
reconvene to consider these needs, including whether there is a need for
additional related services and positive behavioral interventions and supports to

See Center for Parent Information and Resources: Supports, Modifications, and Accommodations for Students (Mar. 2020) available at:
https://www.parentcenterhub.org/accommodations/.

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ensure the child’s access to FAPE. In the alternative, the parent and the LEA
may agree in writing to amend the IEP to address the child’s needs through the
addition of such interventions and supports. 34 C.F.R. § 300.324(a)(2) and
(a)(4)(i). The LEA also may conduct or update a functional behavioral
assessment (FBA). Although IDEA and its implementing regulations do not
prescribe the components of an FBA, an FBA is generally understood as the
process to identify the function or purpose behind a child’s behavior. Typically,
the process involves looking closely at a wide range of child-specific factors
(e.g., social, affective, environmental). Knowing why a child behaves is directly
helpful to the IEP Team in developing a behavioral intervention plan that will
reduce or eliminate the behavior. 24 The process generally involves qualified
school personnel and the child’s parent, and/or the IEP Team (including the
child’s parent), systematically analyzing a wide range of child-specific factors.
The results of the FBA generally are used to guide the development of a
behavioral intervention plan to reinforce positive behaviors and prevent
behavior that interferes with the child’s learning and that of others. Resources
are available to provide training for school personnel to conduct systematic
FBAs and behavioral intervention plans 25 and ensure FAPE by providing
appropriate behavioral supports to children with disabilities. 26 School personnel
and IEP Teams are encouraged to use evidence-based decision-making to select,
implement, and closely monitor the effectiveness of behavioral and academic
intervention. 27, 28
•

Addressing the School-Related Health Needs of Children with Disabilities with
Underlying Medical Conditions

Some children with disabilities have underlying medical conditions, such as genetic, neurologic,
or metabolic conditions, or congenital heart disease, that place them at increased risk of severe
illness if they contract COVID-19. 29 Parents have raised questions about whether and how IEP
Teams should consider school-related health or medical information for children with
disabilities. This is especially the case in States or local jurisdictions that have enacted State or
local laws, rules, regulations, or policies that are inconsistent with CDC’s COVID-19 prevention
and risk reduction strategies. Therefore, in the questions and answers below, the Department
reaffirms IDEA’s requirements that IEP Teams are responsible for identifying the services,
See Question E-4 Questions and Answers On Discipline Procedures (Jun. 2009).
For more information see: Iris Center FBA Module, Autism Focused Intervention and Resource Modules FBA.
26
Yell, M. L., Bateman, D., & Shriner, J. (2020). Developing and Implementing Educationally Meaningful and Legally Sound IEPs: Bringing It
All Together. Teaching Exceptional Children, 52(5), 344-347.
27
Torres, C., Farley, C. A., & Cook, B. G. (2014). A special educator’s guide to successfully implementing evidence-based practices. Teaching
Exceptional Children, 47(2), 85-93.
28
For more information see: IRIS Center EBP Module, National Clearinghouse on Autism Evidence and Practice, National Center on Intensive
Intervention.
29
See CDC web site on People with Certain Medical Conditions and their risk of contracting COVID-19.
24
25

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supports, and program modifications that are necessary to provide a child with a disability
FAPE in the least restrictive environment (LRE). Likewise, the group of knowledgeable persons
making the placement decision is responsible for proposing an appropriate educational
placement in the LRE that meets the child’s school-related health needs.
Question C-7: Who should be included on a child’s IEP Team when a child with a
disability has one or more underlying medical conditions that puts them at
increased risk of severe illness if they contract COVID-19?
Answer:

In such situations, the IEP Team should include a team member who knows
about the health needs of the child, including whether COVID-19 prevention
and risk reduction strategies may be needed. As with other children with
disabilities, the IEP is developed at a meeting of the IEP Team, which includes
the child’s parents and relevant school officials, including related service
providers and, whenever appropriate, the child. 34 C.F.R § 300.321(a). The IEP
Team could include, at the discretion of the parent or the LEA, individuals such
as school health service staff, school nurses, and the child’s health care
professional, as appropriate, if the party inviting them determines that they have
knowledge or special expertise regarding the child. See
34 C.F.R. § 300.321(a)(6) and (c). Such individuals can also be part of the group
of knowledgeable persons making decisions about the child’s educational
placement. 30

Question C-8: Are the child’s IEP Team and the group of knowledgeable persons making
educational placement decisions responsible for addressing the schoolrelated health needs of a child with a disability in the context of
COVID-19?
Answer:

Yes. As set out by the U.S. Supreme Court in Irving Independent School District
v. Tatro, 468 U.S. 883 (1984), eligible children with disabilities who need
school-related health services are entitled to them as part of FAPE. Accordingly,
LEAs must address the school-related health needs of eligible children with
disabilities who are at increased risk of severe illness from COVID-19 infection.
Current evidence suggests that children with medical complexity, genetic,
neurologic, or metabolic conditions, or with congenital heart disease can be at
increased risk for severe illness from COVID-19. Similar to adults, children

30

Under 34 C.F.R. § 300.116(a), in determining the educational placement of a child with a disability, including a preschool child with a
disability, each LEA must ensure that the placement decision is made by a group of persons that includes the parents and other persons
knowledgeable about the child, the meaning of the evaluation data, and the placement options, and is made in conformity with the “least
restrictive environment” provisions, including 34 C.F.R. §§ 300.114 through 300.118.

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with obesity, diabetes, asthma or chronic lung disease, sickle cell disease, or
immunosuppression can also be at increased risk for severe illness from
COVID-19. 31 If a parent or other member of the IEP Team believes that
COVID-19 prevention strategies are necessary for the provision of FAPE to the
child, the IEP Team must consider whether and to what extent such measures
are necessary, based on child-specific information, which may include medical
or health records, diagnostic or other evaluative data, or information
documented by medical or health professionals. 32 If the IEP Team determines
that COVID-19 prevention and risk reduction measures are necessary in order
for a child with a disability to receive FAPE — where the prevention measures
constitute special education, related services, supplementary aids and services, 33
or program modifications and supports for school personnel — the Team must
include these in the child’s IEP consistent with 34 C.F.R. § 300.320(a)(4).
For example, the provision of FAPE in the LRE for some children with
disabilities may require that the IEP address, and educational placement include,
appropriate preventative and risk-reducing strategies, such as wearing masks or
other personal protective equipment, and sanitizing; or, when necessary,
avoiding shared use of personal and educational items, such as markers, rulers,
and classroom materials. See 34 C.F.R. § 300.116(d). As with eligible children
with disabilities who have severe food allergies, health plans may be included as
part of the child’s IEP to ensure that the health and safety of the child in the
school environment is properly addressed. When health plans are included in the
child’s IEP, it is especially important that the IEP be accessible to each regular
education teacher, special education teacher, related services provider, and any
other service provider who is responsible for its implementation, consistent with
IDEA requirements. Further, LEA staff responsible for implementing the IEP
must be informed of the specific accommodations, modifications, and supports
to be provided for the child in accordance with the child’s IEP.
34 C.F.R. § 300.323(d).
State or local laws, rules, regulations, or policies relating to IDEA and its
regulations must allow IEP Teams and the group of knowledgeable persons
making educational placement decisions to make individualized determinations
under IDEA by ensuring that each eligible child with a disability has available
FAPE in the LRE. Therefore, State or local laws, rules, regulations, or policies
that have the effect of improperly limiting the ability of the IEP Team to address
See CDC web site on People with Certain Medical Conditions and their risk of contracting COVID-19.
See Pages 2 and 4 of OSERS’ Dear Colleague Letter on Children in Nursing Homes, April 26, 2016.
33
Supplementary aids and services mean aids, services, and other supports that are provided in regular education classrooms, other educationrelated settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with non-disabled children
to the maximum extent appropriate in accordance with §§ 300.114 through 300.116. 34 § C.F.R. 300.42.
31
32

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the school-related health needs of a child with a disability, or the ability of the
group of knowledgeable persons to propose an appropriate placement in the
least restrictive environment for children with disabilities who have schoolrelated health needs, would be a violation of IDEA. See IDEA Section
608(a)(1), 613(a)(1), 34 C.F.R. §§ 300.199, and 300.201.
Question C-9: What steps could a parent of a child with a disability take if the IEP Team,
or if the group of knowledgeable persons making a placement decision, is
unable or unwilling to address the health and safety of their child due to
State or local prohibitions on the use of masks, personal protective
equipment, or other COVID-19 prevention and risk reduction measures?
Answer:

Consistent with 34 C.F.R. § 300.503, before an LEA proposes or refuses to
initiate or change the identification, evaluation, or educational placement of the
child or the provision of FAPE, the LEA must provide the child’s parents with
prior written notice, which includes an explanation of why the LEA is proposing
or refusing to take the action. If the IEP Team or group of knowledgeable
persons making a placement decision is unable or unwilling to address the
school-related health needs of an eligible child with a disability who is at
increased risk of severe illness from COVID-19, the parent may utilize IDEA’s
dispute resolution procedures and mechanisms as discussed in Question H-1
below.

Question C-10: Could a State or local law, regulation, rule, or policy that prohibits or limits
COVID-19 prevention and risk reduction strategies in the regular
education classroom or other settings where the child with a disability
could interact with nondisabled peers be inconsistent with IDEA’s
requirement to ensure a continuum of educational placements related to
placement in the LRE in 34 C.F.R. § 300.115?
Answer:

Yes. Congress specifically enacted IDEA in part to rectify the exclusion of
children with disabilities from public school classrooms. See section 601(c)(2)
of IDEA (P.L. 108-446).
Under 34 C.F.R. § 300.115, LEAs must make available a continuum of
alternative placements to meet the needs of children with disabilities consistent
with their IEPs. The continuum must include instruction in regular classes,
special classes, special schools, home instruction, and instruction in hospitals
and institutions. Likewise, the regulation requires that the continuum include
supplementary services (e.g., school-related health services) provided in
conjunction with the regular class placement. As noted above, State or local

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laws, regulations, rules, or policies related to IDEA must conform to its
purposes. Therefore, they may not result in the exclusion of, or prevention of, an
eligible child with a disability from being educated in the regular classroom
with appropriate supplementary services and with their nondisabled peers when
such educational placement is appropriate to that child’s individual needs. State
or local laws, regulations, rules, or policies that prevent or improperly limit the
IEP Team or the group of knowledgeable persons that decide a child’s
educational placement from making individualized decisions under IDEA or
that effectively prohibit the provision of needed supplementary aids and services
generally would not conform to the purposes of IDEA. That is, IEP Teams and
the group deciding the educational placement must be able to appropriately
address the in-person school-related health needs of a child with a disability
with underlying medical conditions, including using COVID-19 prevention and
risk reduction strategies. Otherwise, the child’s parent is left with two equally
unacceptable choices. The first, an in-person educational placement that puts
their child at increased risk of severe illness, and the second, the exclusion of
their child from school. In such scenarios, some children with disabilities for
whom an in-person regular classroom setting with appropriate supplementary
services is appropriate to their needs would be effectively precluded from
receiving FAPE in their LRE.
Question C-11: In what ways can the Department ensure that children with disabilities who
require school-related health services receive them in the LRE?
Answer:

Under its monitoring authority, the Department intends to review publicly
available information and stakeholder input, including concerns shared by
parents and other stakeholders, and based on this may conduct additional
monitoring to determine whether specific States are complying with IDEA in
addressing the school-related health care needs of children with disabilities
during the COVID-19 pandemic. The Department will provide technical
assistance where needed. In situations where the Department finds
noncompliance and voluntary compliance cannot be readily achieved, the
Department will consider all its enforcement options, including a referral to the
United States Department of Justice. See, e.g., IDEA Section 616(e) and
34 C.F.R. § 300.604.

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D. DETERMINING APPROPRIATE MEASURABLE ANNUAL GOALS &

CONSIDERING THE CHILD’S NEED FOR COMPENSATORY
SERVICES

Each child’s IEP must include a statement of measurable annual goals, including academic and
functional goals designed to (1) meet the child’s needs that result from the child’s disability to
enable the child to be involved in and make progress in the general education curriculum; and
(2) meet each of the child’s other educational needs that result from the child’s disability. For
children with disabilities who take alternate assessments aligned to alternate academic
achievement standards, the IEP must also include a description of benchmarks or short-term
objectives.
During the COVID-19 pandemic, some LEAs report having difficulty consistently providing the
services determined necessary to meet the child’s needs and address each of the goals in a
child’s IEP. As a result, some children may not have received appropriate services to allow them
to make progress anticipated in their IEP goals. It will be critically important for IEP Teams to
make individualized decisions about each child’s present levels of academic achievement and
functional performance and determine whether, and to what extent, compensatory services may
be necessary to mitigate the impact of the COVID-19 pandemic on the child’s receipt of
appropriate services.
Overall, the Department encourages IEP Teams to focus on the individual needs of the child,
whether the child received appropriate services, and how additional services may support the
child to make progress in light of the child’s unique circumstances. This includes ensuring that
the instructional methodology for delivery (e.g., in-person, virtual, hybrid), timing, frequency,
service setting, and location of such services, including any necessary transportation services,
appropriately support the child with a disability under Part B of IDEA in achieving the
functional and academic goals set out in the child’s IEP.
Question D-1: How should an IEP Team address the adverse impact of educational
disruptions caused by the COVID-19 pandemic when developing,
reviewing, or revising a child’s IEP for the 2021–2022 school year?
Answer:

With so many children receiving special education and related services through
a variety of modalities during the 2020–2021 school year, it is critically
important that the IEP Team also consider any adverse impacts of the
COVID-19 pandemic on each child with a disability. This includes a discussion
of whether the child may have new or different needs than had been determined
prior to the pandemic. Other considerations could include, but are not limited to,
revising the IEP to address (1) lost skills or a lack of expected progress toward
attaining the child’s annual IEP goals and in the general curriculum at the end of

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the 2020–2021 school year; (2) updated data (e.g., information gathered from
formal and informal assessments, parent input) that reflect the child’s present
levels of academic achievement and functional performance following the
extended time without face-to-face, in-person special education and related
services; (3) all areas of need, whether or not commonly related to the child’s
disability category, or if the child may require different or other services to
address new areas of need (e.g., behavioral, social, emotional, and mental health
needs, needs that arose during the pandemic); and (4) implementing COVID-19
prevention measures such as wearing a face covering/mask or practicing social
distancing to provide a safe and healthy school environment and safe
participation in the community.
Question D-2: May an IEP Team revise the measurable annual IEP goals to reflect a
decline in the child’s knowledge and skills resulting from the disruption in
instruction as a result of the COVID-19 pandemic?
Answer:

Yes. When developing, reviewing, and revising the child’s IEP, the IEP Team,
which includes the child’s parents, must give “careful consideration of the
child’s present levels of achievement, disability, and potential for growth.”
Endrew F. v. Douglas County School District Re-1, 137 S. Ct. 988, 999 (2017)
(citing 20 U.S.C. 1414(d)(1)(A)(i)(I)–(IV) and (d)(3)(A)(i)–(iv)). See also
Questions and Answers on U. S. Supreme Court Case Decision Endrew F. v.
Douglas County School District Re-1 (Dec. 7, 2017). The essential function of
an IEP is to provide meaningful opportunities for appropriate academic and
functional progress, and to enable the child to make progress appropriate in light
of the child’s circumstances. Each child’s IEP must include, among other
information, an accurate statement of the child’s present levels of academic
achievement and functional performance and measurable annual goals,
including academic and functional goals. The IEP Team’s effectiveness in
gathering and interpreting this information will ensure that, in establishing IEP
goals, the IEP Team has appropriately determined the individualized needs of
the child and that it can develop measurable IEP goals that provide the child
with the opportunity to meet challenging objectives.

Question D-3: What are compensatory services?
Answer:

Under IDEA, courts have recognized compensatory services as an equitable
remedy to prospectively address the past failure or inability of the LEA to
provide appropriate services, including those that were identified on the child’s

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IEP. 34 That is, courts have ordered such services to address the child’s needs
after a failure or inability to provide FAPE over a given period of time. 35
Likewise, the State complaint procedures provide for compensatory services as
an available remedy when the SEA has found a failure or inability to provide
appropriate services under IDEA in order to address the needs of the child.
34 C.F.R. § 300.151(b)(1).
Question D-4: Who should make the determination as to whether and to what extent
compensatory services are needed?
Answer:

Neither IDEA nor its implementing regulations expressly address who must
make the determination of whether—and if so, what—compensatory services
are necessary. The Department notes, however, that case law or other judicially
established criteria (e.g., consent decrees) may be applicable. Therefore, LEAs
may need to consult with their attorneys and should be transparent about the
relevant legal standards that IEP Teams must use to determine a child’s need for,
and the extent of, compensatory services (see question D-5, below, for guidance
on how to use relevant data about a child to inform these decisions). It is the
Department’s position that, generally, many of the same types of individualized
and child-centered deliberations that are appropriate for an IEP Team meeting
discussing the child’s IEP, would be appropriate when considering the need for,
and extent of, compensatory services. The Department also encourages IEP
Teams to consider input from, or encourage participation by, previous teachers
and service providers, as appropriate, so that the other IEP Team members can
benefit from their knowledge of the child’s skills and progress levels before the
onset of, or during, the pandemic. Further, IEP Teams should consider how any
additional services determined necessary can be delivered in a manner that does
not diminish the child’s opportunities to interact with nondisabled peers to the
maximum extent appropriate, and to participate in extracurricular and other
nonacademic activities.

Question D-5: How can the IEP Team use available data about the child to inform
decisions about compensatory services?
Answer:

In the absence of controlling Federal or State law, including case law, or specific
SEA or LEA guidance, IEP Teams could consider the following factors, among
others: 36 (1) the child’s present levels of academic achievement and functional

See, for example, Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 522 (D.C. Cir. 2005) (holding that compensatory services to remedy
a previous denial of FAPE may be an appropriate equitable award).
35
See, for example, G ex rel. RG v. Fort Bragg Dependent Schools, 343 F.3d 295, 309 (4th Cir. 2003).
36
Adapted from Washington’s Roadmap to Special Education Recovery Services: 2021 & Beyond.
34

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performance; (2) the child’s previous rate of progress toward IEP goals; and
(3) documented frequency and duration of special education and related services
provided to the child prior to the service disruptions caused by the COVID-19
pandemic.
The child’s present levels of academic achievement and functional
performance can include concerns raised by parents, the child, and outside
service providers, as well as reviewing present levels of performance in light of
the anticipated levels of performance without service disruption due to the
COVID-19 pandemic. 37
Previous rates of progress may be determined by considering if the child’s
progress toward IEP goals has slowed or decreased and projecting if the child's
current rate of progress will allow the child to attain their goals.
Frequency and duration of special education and related services may be
determined by reviewing the previously agreed upon IEP compared with the
actual services provided while the IEP was in effect.
These considerations could guide IEP Team decisions on whether, how, and
when the child will access individualized compensatory services, including the
time, location, and format of the services needed to achieve the appropriate
level of progress. Further, the IEP Team could determine the appropriate
timeline for the child to achieve the expected progress toward IEP goals
addressed through the provision of compensatory services.
Question D-6: What are some situations in which it may be necessary to provide
compensatory services to a child with a disability?
Answer:

37

A child’s IEP Team may determine that compensatory services are necessary to
mitigate the impact of disruptions and delays in providing appropriate services
to the child. Some examples of situations that might require consideration of
whether, and what, compensatory services are necessary include: (1) if the
initial evaluation, eligibility determination, and identification, development and
implementation of the IEP for an eligible child were delayed; (2) if the special
education and related services that were provided during the pandemic through
virtual, hybrid, or in-person instruction were not appropriate to meet the child’s
needs; (3) if some or all of the child’s IEP could not be implemented using the
methods of service delivery available during the pandemic (for example, if the

Goran, L., Harkins Monaco, E. A., Yell, M. L., Shriner, J., & Bateman, D. (2020). Pursuing academic and functional advancement: Goals,
services, and measuring progress. Teaching Exceptional Children, 52(5), 333–343.

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physical therapy and behavioral intervention strategies included in the child’s
IEP could not be provided through virtual means); and (4) if meaningful
services to facilitate the transition from secondary school to activities such as
postsecondary education, vocational education, integrated employment
(including supported employment), continuing and adult education, adult
services, independent living, or community participation were not provided due
to the pandemic. These examples are not meant to be exhaustive and are
provided to illustrate various situations that could require consideration of
whether, and to what extent, compensatory services are needed to address the
child’s needs and mitigate the adverse impact of the COVID-19 pandemic.
Question D-7: Must States ensure that compensatory services are available for all IDEAeligible children who need them because they did not receive appropriate
services under Part B of IDEA due to pandemic-related closures and other
service disruptions?
Answer:

Generally, yes. States must ensure FAPE is available to all children residing in
the State between the ages of 3 and 21, 38 inclusive, including children with
disabilities who have been suspended or expelled from school.
34 C.F.R. § 300.101.
The Department’s longstanding position has been that IEP Teams are the
appropriate vehicle for addressing the need for, and extent of, compensatory
services to address the child’s needs based on any failure or inability to provide
appropriate services due to circumstances such as teacher strikes, natural
disasters, and pandemics. 39 The Department believes that IEP Teams are already
empowered under IDEA to make individualized determinations regarding the
special education and related services that a child needs. 40 The consideration of
compensatory services is just one subset of the IEP Team’s responsibility to
address the child’s needs and would arise, for example, due to the impact of the
pandemic. 41 A determination of compensatory services by the child’s IEP Team
is an appropriate proactive mitigating measure intended to address the needs of
the child due to the LEA’s failure or inability to provide appropriate services.

Based on State law governing the education of all children, some States do not provide public education to children through age 21. IDEA
does not require the provision of FAPE to children with disabilities aged 3, 4, 5, 18, 19, 20, or 21 to the extent those ages are outside the public
education age limit under State law or practice, or the order of any court. See 34 C.F.R. § 300.102(a)(1).
39
See, for example, OSEP’s Letter to Pergament (Dec. 20, 2013); Questions and Answers on Providing Services to Children with Disabilities
During an H1N1 Outbreak (Dec. 2009); Non-Regulatory Guidance on Flexibility and Waivers for Grantees and Program Participants
Impacted by Federally Declared Disasters (Sept. 2017).
40
See Questions and Answers on IDEA Part B Dispute Resolution Procedures, Question B-8 (Jul. 23, 2013).
41
See Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak: “If a child
does not receive services during a closure, a child’s IEP team (or appropriate personnel under Section 504) must make an individualized
determination whether and to what extent compensatory services may be needed, consistent with applicable requirements, including to make
up for any skills that may have been lost. Question A-3 (Mar. 12, 2020).
38

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If challenged, such determinations may receive deference from a court if arrived
at consistent with IDEA requirements and based on the expertise of, and the
exercise of judgment by, school authorities. 42
Question D-8: Does the SEA have a role in ensuring that compensatory services needs are
considered and addressed?
Answer:

Yes. Although decisions about compensatory services generally should be made
by each child’s IEP Team, the SEA, through its general supervisory
responsibilities, must ensure that its LEAs take appropriate action to mitigate
the adverse impact of any failure to provide appropriate services, such as lost
skills and lack of progress, for children with disabilities. 34 C.F.R. §§ 300.149
and 300.600. To ensure appropriate individualized determinations of the need
for, and extent of, compensatory services are made, SEAs can provide guidance
to support LEAs and IEP Teams in determining the frequency, location, and
duration of services that may be appropriate to address the unique needs of each
child with a disability. Likewise, if there is applicable case law or a consent
decree that impacts how compensatory services are identified and determined,
the SEA can ensure that IEP Teams are appropriately aware of those
requirements. Any such guidance could assist LEAs and IEP Teams to identify
the types of information they may need to assess the impact of service
disruptions on individual children and should emphasize the IEP Team’s
responsibility to make individualized determinations based on the individual
facts and circumstances for each child.

Question D-9: Some States are using terms such as “recovery services” or “COVID
mitigation services.” Are these terms synonymous with compensatory
services as defined by the Department?
Answer:

42

It will depend on how these terms are defined, determined, and implemented.
The Department acknowledges that some States are using the terms “recovery
services” or “COVID-19 mitigation services” as a broad category of educational
and support services intended to mitigate or address the negative impact of
pandemic-related limitations. Some States are offering these services to all
children (i.e., not based on individualized determinations), while others focus
primarily on children with disabilities or at-risk children with other specific
needs. For States and LEAs that do not utilize a process identified under IDEA
for making individualized determinations about these services based on each

See, Endrew F. v. Douglas County School District Re-1, 137 S. Ct. 988 (2017).

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child’s unique needs and circumstances, such services likely would not be
considered compensatory services.
Question D-10: Can compensatory services be provided to children who have graduated
with a regular high school diploma or exceeded the age of eligibility for
IDEA services?
Answer:

Yes. Because the purpose of compensatory services is to remedy a failure to
provide FAPE in order to address the needs of the child, for children who are
beyond the period of eligibility for IDEA services, compensatory services could
take the form of an additional period of eligibility. In fact, some Federal courts
have expressly addressed this issue. See generally, Bd. of Educ. of Oak Park &
River Forest High Sch. Dist. 200 v. Ill. State Bd. of Educ., 79 F.3d 654, 660 (7th
Cir. 1996) (noting “[c]ompensatory education is a benefit that can extend
beyond the age of 21 [the terminating FAPE age in Illinois]”); Murphy v.
Timberlane Reg’l Sch. Dist., 22 F.3d 1186 (lst Cir. 1994) (affirming award of
two years of compensatory education to former student after student had
reached the [otherwise terminating-FAPE] age of 21 given finding that FAPE
had been denied to student), cert. denied, 115 S.Ct. 484 (1994); Pihl v. Mass.
Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993) (noting that, if the former student “can
prove that the school district denied him his right to an appropriate education
under the IDEA during the challenged period, he could claim relief in the form
of compensatory education, notwithstanding the fact that he is now twentyseven years old”); and Lester H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990), cert.
denied, 499 U.S. 923 (1991) (finding that the student was entitled to 30 months
of compensatory education because of the district’s failure to provide an
appropriate educational placement for that period of time). See also, School
Comm. of Town of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 369–70,
105 S.Ct. 1996, 2002–03 (1985).

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Question D-11: What funds can be used to pay for compensatory services?
Answer:

IDEA Part B funds (both the regular IDEA Part B funds and the additional
IDEA Part B funds appropriated under section 2014 of the ARP Act), as well as
funds provided to States and LEAs through the ESSER Fund and the GEER
Fund, may be used for compensatory services. See Question C-5 of the
Frequently Asked Questions on the Elementary and Secondary School
Emergency Relief (ESSER) Programs and Governor’s Emergency Education
Relief (GEER) Programs (May 2021) (May 2021 FAQ). However, if an LEA
uses ESSER, GEER, or IDEA Part B funds (either the regular IDEA Part B
funds or the additional IDEA Part B funds appropriated under section 2014 of
the ARP Act) to replace State and/or local funding for the education of children
with disabilities, this may result in a failure of the LEA to meet the budget
and/or expenditure requirements for LEA maintenance of effort (MOE) under
IDEA Part B. See Question E-12 of the May 2021 ESSER GEER FAQs. In
addition, if an LEA elects to use State and/or local funds for compensatory
services, the LEA should consider the impact this may have on the LEA’s
required level of effort to meet the MOE requirement under IDEA Part B in
future years. See 34 C.F.R. § 300.203; and Q2 of the Question and Answer
Document on Flexibility on IDEA Part B Fiscal Requirements (Jun. 26, 2020).

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E.

MAKING EXTENDED SCHOOL YEAR (ESY) SERVICES
DETERMINATIONS

A child’s entitlement to ESY services needed for FAPE continues to apply even if schools do not
provide other educational services during school breaks. It is important to remember that IEP
Team determinations regarding ESY services are prospective and not intended to make up for
past denials of FAPE. The specific analysis and standards that an IEP Team may use to
determine whether a child requires ESY services in order to receive FAPE are left to States to
determine. However, the determination must be based on the individual needs of the child, and
not on the category of the child’s disability. See Question 4 in Implementation of IDEA Part B
Provision of Services in the Current COVID-19 Environment (Sept. 28, 2020).
Question E-1: If an LEA provides additional services for all students during the summer
to address lost instruction due to the pandemic, do IEP Teams need to
consider ESY services?
Answer:

Yes. ESY services are defined as special education and related services that are:
(1) provided to a child with a disability beyond the normal school year of the
LEA; (2) provided in accordance with the child’s IEP; (3) provided at no cost to
the parents of the child; and (4) meet the standards of the SEA. Each LEA must
ensure that ESY services are available as necessary to provide FAPE to a child
with a disability. 34 C.F.R. § 300.106. Individualized determinations about the
need of each child with a disability for ESY services are made through the IEP
process and must be made annually. The IEP Team could determine that a
child’s ESY service needs could be met through participation, with appropriate
supports, in some or all of the additional services the LEA provides to all
students.
Typically, ESY services are provided during the summer months. However,
there is nothing that limits the ability of an LEA to provide ESY services to a
child with a disability during times other than the summer, such as during
school breaks or vacations, where appropriate to the child’s needs and consistent
with applicable standards.

Question E-2: Could a child be eligible for both ESY and compensatory services?
Answer:

Yes. These services have different standards and purposes and are not mutually
exclusive. ESY services are: (1) provided to a child with a disability beyond the
normal school year of the LEA; (2) provided in accordance with the child’s IEP;
(3) provided at no cost to the parents of the child; and (4) meet the standards of
the SEA. 34 C.F.R. § 300.106.

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Compensatory services are additional special education and related services to
address the needs of the child that are intended to remedy a failure or inability to
provide appropriate services. These would generally be additional services to
those that the child would be receiving during the child’s school attendance
(including ESY services) or as an additional period of eligibility for IDEA
services. See Question D-10, above. Therefore, a child who requires ESY
services could also receive compensatory services.

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F.

CONSIDERING SECONDARY TRANSITION SERVICES

Due to the circumstances of the COVID-19 pandemic, some children with disabilities did not
receive appropriate or meaningful services to facilitate transition from secondary school to
activities such as postsecondary education, vocational education, integrated employment
(including supported employment), continuing and adult education, adult services, independent
living, or community participation. As students return to school for the 2021–2022 school year
and States and LEAs consider options for delivering quality transition services, they must ensure
that children with disabilities receive the appropriate services, supports, and opportunities to
achieve their desired post-school education and career goals. In the provision of services to
children with disabilities remotely, in-person, or through a hybrid option, SEAs, LEAs, and IEP
Teams remain responsible for ensuring that all children with disabilities receive transition
services necessary for FAPE in accordance with 34 C.F.R. § 300.320(b). The Department
recognizes that some children with disabilities, including children of color and those living in
less-resourced or rural communities, face greater and more complex challenges during the
COVID-19 pandemic. Providing the necessary services and supports so that these children can
transition to the next step in their lives will benefit them, their families, and the communities in
which they live and work.
Question F-1: What should IEP Teams consider for a child with a disability whose
transition services or pre-employment transition services may have been
disrupted by the COVID-19 pandemic?
Answer:

Following the return to school and reconvening the IEP Team meeting, the IEP
Team must consider whether the child’s transition needs have changed, taking
into account the child’s strengths, preferences, and interests; and develop
measurable goals that are focused on the child’s life after high school,
specifying the transition services needed to help the child reach those goals. The
IEP Team should discuss transition services and pre-employment transition
services in light of the child’s unique circumstances and experiences during the
pandemic. IEP Teams should address any need for compensatory services
related to school closure or an inability to fully implement a child’s transition
plan. If the child is not making expected progress toward their annual transition
goals in order to meet their post-school goals, the IEP Team should revise, as
appropriate, the IEP to address the lack of progress.
Pre-employment transition services are available only to “students with
disabilities,” as defined in Section 7(37) of the Rehabilitation Act of 1973, as

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amended (Rehabilitation Act), and 34 C.F.R. § 361.5(c)(51). 43 So long as a
student who was slated to graduate from secondary school at the end of the
2019–2020 or 2020–2021 school year continues to participate in an educational
program, including postsecondary education or another recognized educational
program, that student would be able to continue receiving pre-employment
transition services. Under the unprecedented circumstances caused by the
COVID-19 pandemic, many students with disabilities, including those who
were slated to graduate at the end of the 2019–2020 or 2020–2021 school year,
were participating in a variety of recognized educational programs, such as
remote learning and home schooling. Participation in any of these educational
programs would qualify for the receipt of pre-employment transition services. A
graduating student with a disability who took summer school classes would still
be participating in an educational program. As such, the student would be able
to receive any pre-employment transition services provided while participating
in summer school classes, through virtual and other remote strategies or inperson pre-employment transition services, to the extent available. The same
would be true for a graduating student with a disability who enrolled in a
postsecondary education program that started in the fall or later as part of a
“gap-year” program. For more information, see Question 14 of the
Rehabilitation Services Administration’s (RSA) Questions and Answers
(Oct. 16, 2020).
Question F-2: May pre-employment transition services be repeated for a student with a
disability in the event the provision of those services was interrupted?
Answer:

43

Vocational rehabilitation (VR) agencies must continue to make good faith and
reasonable efforts to provide pre-employment transition services to each student
with a disability based on the student’s needs, and consistent with the health,
safety, and welfare of both individuals with disabilities and those providing
services. This means that a VR agency may need to repeat the provision of preemployment transition services to a student with a disability in the event the
provision of those services was interrupted, if doing so is necessary to meet the

“Student with a disability” in the Rehabilitation Act means, in general, an individual with a disability in a secondary, postsecondary, or other
recognized education program who—
(A)(1) Is not younger than the earliest age for the provision of transition services under Section 614(d)(1)(A)(i)(VIII) of the Individuals with
Disabilities Education Act (20 U.S.C. 1414(d)(1)(A)(i)(VIII)); or
(2) If the State involved elects to use a lower minimum age for receipt of pre-employment transition services under this Act, is not younger
than that minimum age; and
(B)(1) Is not older than 21 years of age; or
(2) If the State law for the State provides for a higher maximum age for receipt of services under the Individuals with Disabilities Education
Act (20 U.S.C. 1400 et seq.), is not older than that maximum age; and
(C)(1) Is eligible for, and receiving, special education or related services under Part B of the Individuals with Disabilities Education Act
(20 U.S.C. 1411 et seq.); or
(2) Is a student who is an individual with a disability, for purposes of Section 504.

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needs of the student. This would be true whether the interruption is due to the
COVID-19 pandemic, a student’s illness, or another reason. Pursuant to Section
113(a) of the Rehabilitation Act and 34 C.F.R. § 361.48(a), VR agencies, in
coordination with LEAs, must provide, or arrange for the provision of, preemployment transition services to all students with disabilities in need of such
services. Neither the Rehabilitation Act nor its implementing regulations impose
any limitations on the number or frequency of these services; however, the VR
agency should make the determination to repeat services that have been
disrupted on a case-by-case basis, considering the resources of the VR agency
allocated for this purpose and the reasonable expenditure of funds. See Question
7 of RSA’s Questions and Answers (May 14, 2020).

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G. MAKING EDUCATIONAL PLACEMENT DECISIONS
After the child’s IEP has been developed, the placement in which the IEP will be implemented is
determined. The LEA must ensure that the placement decision for each child is made by a group
of persons, including the parents, who are knowledgeable about the child, the meaning of the
evaluation data, and the placement options; and that placement is decided in conformity with the
least restrictive environment (LRE) provisions in 34 C.F.R. §§ 300.114 through 300.118. The
child’s placement must be based on the child’s IEP and determined at least annually.
34 C.F.R. § 300.116(b)(1) and (2).
Each LEA must ensure that— (i) To the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care facilities, are educated with
children who are nondisabled; and (ii) Special classes, separate schooling, or other removal of
children with disabilities from the regular educational environment occurs only if the nature or
severity of the disability is such that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily. 34 C.F.R. § 300.114(a)(2). The LEA
responsible for providing FAPE to a child with a disability must make available the full
continuum of alternative placements, including instruction in regular classes, including
accelerated classes, special classes, special schools, home instruction, and instruction in
hospitals and institutions, to meet the needs of all children with disabilities for special education
and related services. 34 C.F.R. § 300.115. In selecting the LRE, consideration also must be given
to any potential harmful effect on the child or on the quality of services that the child needs.
34 C.F.R. § 300.116(d). As a result of disruptions arising from the COVID-19 pandemic and
many children receiving instruction through hybrid or virtual approaches, LEAs and parents will
likely need to review the appropriateness of the child’s current educational placement for the
2021–2022 school year.
Question G-1: What is the State’s obligation to ensure that its LEAs meet IDEA’s LRE
requirements?
Answer:

IDEA requires that SEAs have in effect policies and procedures to ensure that
LEAs in the State meet the LRE requirements. 34 C.F.R. § 300.114(a)(1). To the
maximum extent appropriate, children with disabilities, including children in
public or private institutions or other care facilities, are to be educated with
children who are nondisabled; and special classes, separate schooling, or other
removal of children with disabilities from the regular educational environment
occurs only if the nature or severity of the disability is such that education in
regular classes with the use of supplementary aids and services cannot be
achieved satisfactorily. 34 C.F.R. § 300.114(a)(2). SEAs are required to:
(1) carry out activities to ensure that teachers and administrators in all LEAs are
fully informed about their responsibilities for implementing the LRE

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requirements cited above; (2) provide technical assistance and training
necessary to assist LEAs in meeting the LRE requirements; and (3) monitor
LEAs for their compliance with the LRE requirements. 34 C.F.R. §§ 300.119–
300.120. As a result of the changes in instructional delivery approaches for
children with disabilities caused by the COVID-19 pandemic and the potential
impact on ensuring LRE, the Department recommends that SEAs review their
existing policies, technical assistance activities, and procedures for monitoring
their LEAs’ compliance with IDEA’s LRE requirements to ensure they are
sufficient in scope and include information on instructional delivery approaches
that were not typically contemplated prior to the COVID-19 pandemic and the
potential impact on providing FAPE in the LRE.
Question G-2: Under IDEA, is an LEA obligated to provide special education and related
services through virtual instruction upon the parent’s request?
Answer:

It will depend on whether virtual instruction, in-person attendance, or a hybrid
approach are available to all students. These decisions are made by State and
local education leaders. 44 If virtual instruction is available to all students in an
LEA, the LEA must ensure that a child with a disability whose needs can be met
through virtual learning has an IEP implemented that provides all the services
and supports necessary for the child to receive FAPE through such service
delivery. IDEA also includes “home instruction” in the continuum of alternative
placements an LEA must make available to ensure FAPE is available to children
with disabilities. 34 C.F.R. § 300.115(b). Home instruction also could be
delivered through a virtual, in-person, or hybrid approach. For more information
about online instruction for children with disabilities, see OSERS’ Dear
Colleague Letter on Virtual Schools (Aug. 5, 2016).

Question G-3: How does the Department view virtual instruction under the IDEA’s
continuum of educational placements for children with disabilities?
Answer:

44

Congress has previously expressed concerns about children with disabilities
being excluded entirely from the public school system and about not being able
to participate in the general curriculum with their nondisabled peers. Section
601(b)(4) of the Education for All Handicapped Children Act of 1975
(P.L. 94-142); Section 601(c)(2) of IDEA (P.L. 108-446). IDEA has continually
reflected a strong preference for educating children with disabilities in regular
classes with appropriate aids and supports. See Section 601(c)(5) of IDEA

State and local leaders must make these decisions consistent with Section 504 and Title II. See the discussion in the response to Question A-3
above.

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(P.L. 108-446). Specifically, 34 C.F.R. § 300.114 provides that States must have
in effect policies and procedures ensuring that LEAs meet the LRE
requirements of IDEA by ensuring, to the maximum extent appropriate, children
with disabilities, including children in public or private institutions or other care
facilities, are educated with children who are nondisabled, and that special
classes, separate schooling, or other removal of children with disabilities from
the regular educational environment occurs only if the nature or severity of the
disability is such that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily.
Prior to the COVID-19 pandemic, for schools that did not offer virtual
instruction to all children, special education and related services provided
virtually in the child’s home was generally considered one of the most
restrictive environments, as it typically provided little or no opportunity for the
child to be educated with nondisabled peers. Virtual learning provided during
the pandemic may be deemed less restrictive if it is available to all children and
provides the child with a disability, meaningful opportunities to be educated and
interact with nondisabled peers in the regular education environment.

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H. RESOLVING DISAGREEMENTS REGARDING A CHILD’S

EDUCATIONAL PROGRAM

The Department encourages parents and LEAs to work collaboratively, in the best interests of
children, to resolve any disagreements that may occur when working to provide a positive
educational experience for all children, including children with disabilities, especially in light of
the COVID-19 pandemic. To this end, IDEA and its implementing regulations provide specific
options for resolving disputes between parents and public agencies, which can be used in a
manner consistent with our shared goals of improving results and achieving better outcomes for
children with disabilities. Part B of IDEA provides parents with the following options for
resolving disagreements about their child’s education program: State complaints, mediation,
and due process complaints. Any individual or organization, including one from another State,
may file a State complaint to resolve allegations that an LEA or SEA has violated a requirement
of Part B of IDEA.
Question H-1: If a parent disagrees with the IEP Team’s decision regarding compensatory
services, can they still file a due process complaint or State complaint?
Answer:

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Generally, yes. Although the use of IEP Teams to reach decisions regarding
compensatory services is intended to remedy the failure to provide appropriate
services in order to address the needs of the child and to mitigate the need for
additional dispute resolution procedures, like any other IEP Team decision or
proposal, the parent has a right to disagree with the IEP Team’s decision and to
use IDEA’s dispute resolution procedures. These include the State complaint
procedures pursuant to 34 C.F.R. §§ 300.151 through 300.153; mediation
procedures pursuant to 34 C.F.R. § 300.506; and the due process complaint and
due process hearing procedures under 34 C.F.R. §§ 300.507 through 300.516. 45
IDEA establishes specific timelines, or permits States to establish timelines, for
filing a due process complaint to request a due process hearing or for filing a
State complaint. It is important that parents review the State’s procedural
safeguards notice to ensure they understand the applicable timelines for using
these dispute resolution procedures.

Also, see Questions and Answers on IDEA Part B Dispute Resolution Procedures (July 2013). The Center for Appropriate Dispute Resolution
in Special Education (CADRE), an OSEP-funded technical assistance center, has developed a series of guides and companion videos to assist
parents in understanding IDEA’s dispute resolution procedures. These materials are available on CADRE’s web site.

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Question H-2: May States continue to convene mediation sessions, resolution meetings,
and due process hearings virtually, even when schools return to in-person,
face-to-face instruction?
Answer:

While a face-to-face meeting may be preferable when attempting to resolve
disputes that may arise regarding the education of a child with a disability,
IDEA and its implementing regulations permit alternative means of
participation, upon agreement by the parties. 34 C.F.R. § 300.328. Thus, a State
may continue to conduct mediation sessions, subject to the parties’ agreement,
through alternative means, such as video conferences or conference calls, if the
State’s procedures do not prohibit mediations from occurring in this manner.
Similarly, an LEA may continue to offer to use alternative means for the parties’
participation in a resolution meeting, such as video conferences or conference
calls, subject to the parties’ agreement. With respect to due process hearings on
due process complaints, a State could continue to allow video conferences or
conference calls to be used, if a hearing officer concludes that such procedures
are consistent with legal practice in the State. 34 C.F.R. § 300.511(c)(1)(iii). A
hearing conducted virtually must ensure a parent’s right to an impartial due
process hearing consistent with all requirements in
34 C.F.R. §§ 300.511 through 300.515. This includes the parent’s right to open
the hearing to the public consistent with 34 C.F.R. § 300.512(c)(2). If
applicable, a State-level review of a hearing decision can continue to be
conducted virtually if consistent with State procedures. See IDEA Part B
Dispute Resolution in COVID-19 Environment (June 22, 2020).

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