UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND
REHABILITATIVE SERVICES
January 7, 2015
Ms. Margaret O’Sullivan Kane
Kane Education Law
1032 Grand Avenue, Suite 202
St. Paul, Minnesota 55105
Dear Ms. Kane:
This letter is in response to your correspondence addressed to Secretary Arne Duncan, United
States Department of Education (Department), requesting guidance and assistance regarding
“special education administrative hearings” in Minnesota. Upon review by Secretary Duncan's
office, your correspondence was forwarded to the Office of Special Education Programs (OSEP),
Office of Special Education and Rehabilitative Services, within the Department, for reply. We
carefully reviewed and considered all of the information that you provided.
OSEP is responsible for administering the Individuals with Disabilities Education Act (IDEA),
which provides assistance to State educational agencies (SEAs), and through SEAs, to local
educational agencies (LEAs), to help meet the unique educational needs of eligible children with
disabilities, as defined in 34 CFR §300.8 of the Federal regulations implementing Part B of
IDEA (Part B). Among the Part B provisions is one ensuring that a parent or a public agency
may file a due process complaint to request a due process hearing on any of the matters
described in 34 CFR §300.503(a)(1) and (2) relating to the identification, evaluation, or
educational placement of a child with a disability, or the provision of FAPE (free appropriate
public education) to the child, and on matters described in 34 CFR §300.532 related to discipline
procedures. The requirements for due process complaints and due process hearings are found in
34 CFR §§300.507-300.518.
In your letter you identified two issues, as follows, and asked the Department to review these
issues: (1) “Location of Administrative Hearing as [a] Jurisdictional Bar to [an] Administrative
Hearing”; and, (2) “Time Limit Restrictions on Special Education Hearings”. OSEP’s responses
and analyses follow.
Issue 1
Regarding the first issue, you state your objections to the conclusions in OSEP’s letters dated
October 4, 2010 and February 9, 2012 to Amy Goetz and Atlee Reilly. As noted in OSEP’s
letters, Minnesota State law requires that the due process hearings conducted by the State be held
in the local educational agency (LEA) responsible for the provision of FAPE to the child at the
time the hearing is conducted. See Minn. Stat. §125A.091. As OSEP further stated in the
February 9, 2012 letter, the United States Court of Appeals for the Eighth Circuit (Eighth
Circuit) has concluded that, due to this State statute, if “a student changes school districts and
does not request a due process hearing, his or her right to challenge prior educational services is
not preserved.” Thompson v. Bd. of Special Sch. Dist. No 1, 144 F.3d 574, 579 (8th Cir. 1998).
As you note, in the February 9, 2012 letter, OSEP concluded that the Minnesota statute - as
interpreted by the Eighth Circuit Court of Appeals to deny parents the right to file a due process

Page 2 – Ms. Margaret O’Sullivan Kane
complaint against an LEA that their child previously attended, provided that the violation
occurred within two years of the date when the parents file the complaint - limits the parents’
rights under the IDEA and is inconsistent with the provisions of 34 CFR §§300.507-300.518.
OSEP also believes that the section of the State Department of Education’s Notice of Procedural
Safeguards1
is . . . not consistent with the IDEA. However, decisions by the Eighth Circuit Court of
Appeals are controlling on this point in the State of Minnesota. Accordingly, since this
section of the State’s Notice of Procedural Safeguards appears to be consistent with the
Eighth Circuit precedent, this office cannot require the Minnesota State Department of
Education to amend its Notice of Procedural Safeguards or otherwise require the State to
amend its statute.
In your inquiry you cite to decisions from a number of other courts rejecting the Eighth Circuit’s
reasoning in the Thompson decision. However, as you are aware, decisions from Federal
appellate and district courts outside of the Eighth Circuit are not binding on Minnesota. Further,
we have conducted research on Eighth Circuit and Supreme Court decisions issued since our
February 9, 2012 letter to Amy Goetz and Atlee Riley, and have not identified any controlling
decisions overruling the holding in Thompson. Therefore, OSEP finds no basis to alter our
position on this matter.
You also call our attention to two prior OSEP letters to former New Jersey Commissioner of
Education William L. Librera, dated May 26, 2004 and December 20, 2004. In those letters,
OSEP required New Jersey to change a provision of a contractual arrangement that would have
precluded parents whose children were publicly-placed in certain New York State school
districts from using New Jersey’s due process procedures. These letters are examples of
situations where OSEP has required a State to take specific actions when OSEP determined that
the State’s laws or policies were inconsistent with Part B where there was no controlling case
law covering New Jersey’s procedures. This situation is different from the one in Minnesota,
however, where there is controlling case law. Therefore, the situation prompting OSEP’s
responses to former Commissioner Librera is easily distinguishable from the circumstances
giving rise to your inquiry and the prior inquiries from Amy Goetz and Atlee Riley.
We do note, however, that under IDEA Section 615(l), children with disabilities and their parents
are not restricted or limited in the rights, procedures and remedies available under the
Constitution, the Americans with Disabilities Act of 1990 (ADA), title V of the Rehabilitation
Act of 1973 (Section 504), or other Federal laws protecting the rights of children with
disabilities, except that IDEA’s administrative procedures must be exhausted before filing a civil
action seeking relief that is also available under the IDEA. For the students noted in your letter,
because Eighth Circuit case law denies them all relief under the IDEA by denying them a
hearing, administrative exhaustion under the IDEA would not be required. Therefore, if timely,

1

Minnesota’s Procedural Safeguards Notice provides in relevant part:
Loss of Right to a Due Process Hearing
NOTE: Due to an interpretation of state law by the 8th Circuit Court of Appeals, if your child changes
school districts and you do not request a due process hearing before your child enrolls in a new district, you
may lose the right to have a due process hearing about any special education issues that arose in the
previous district.
http://education.state.mn.us/MDE/SchSup/ComplAssist/ProcSafe/

Page 3 – Ms. Margaret O’Sullivan Kane
these students and their parents may be able to file a civil action seeking appropriate relief under
the above-referenced Federal laws and the Constitution.2
ISSUE 2
The second issue identified in your letter relates to a “best practice” suggested by Minnesota’s
Office of Administrative Hearings, which states that, “[i]n all but exceptional circumstances,
evidentiary hearings should be concluded within three hearing days of six hours each.” You
described in your letter a hearing during which the Administrative Law Judge (the impartial
hearing officer) informed participants in advance of the hearing and at regular intervals
throughout the hearing that each party would be granted nine hours of hearing time to present
testimony and conduct cross-examination. You allege that the effect of the time limitation to
eighteen hours (total) was that parents were deprived of the opportunity to present testimony in
support of their claims and counsel was not permitted to cross-examine any of the other party’s
witnesses.
Any party to a hearing conducted pursuant to 34 CFR §§300.507-300.513 or §§300.530-300.534
has the right to present evidence and confront, cross-examine, and compel the attendance of
witnesses. 34 CFR §300.512(a)(2). The SEA is responsible for ensuring that impartial due
process hearings are conducted in a manner that is consistent with these requirements. 34 CFR
§§300.121 and 300.149. The IDEA is silent on procedures related to the timing for presentation
of evidence and regarding confrontation, cross-examination, and compelling the attendance of
witnesses in a due process hearing. In general, hearing officers have authority to determine
procedural matters not specifically addressed in Part B and its implementing regulations,
consistent with a party’s enumerated rights and general due process requirements. States also
have some flexibility in establishing rules for conducting due process hearings, as long as the
State’s rules are consistent with Part B and the requirements of due process.
We note that the guideline you cite appears, on its face, to be consistent with the requirements of
Part B because it permits a hearing officer to extend the 18-hour time limitation for evidentiary
hearings under exceptional circumstances. Further, if a party to a hearing believes that their
hearing rights have been violated, the party has the right to appeal the decision to court.
Minnesota implements the IDEA through a one-tier due process system. This means that an
aggrieved party has the right to bring a civil action with respect to the due process hearing
complaint brought under §§300.507 through 300.513 or §§300.530 through 300.534, in a State
court of competent jurisdiction or in a district court of the United States. 34 CFR §300.516(a).
On appeal, IDEA, section 615(h)(2)(C) and 34 CFR §300.516(c) provide that the court shall
receive the records of the administrative proceedings, shall hear additional evidence at the
request of a party, and basing its decision on the preponderance of the evidence, shall grant such
relief as the court determines is appropriate. Therefore, in the situation that you describe in your
letter, an appropriate course of action would be to appeal the matter to a court, challenging the
hearing officer’s decision that allegedly limited the parent’s ability to present evidence and
cross-examine witnesses because it was inconsistent with the IDEA’s due process protections.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.

2

For a discussion of the federal government's view of exhaustion, generally, see United States' Brief as Amicus
Curiae in Payne v. Peninsula Sch. District, (9th Cir. 2011), available at
http://www.justice.gov/crt/about/app/briefs/paynebr.pdf.

Page 4 – Ms. Margaret O’Sullivan Kane
Thank you for sharing your concerns with Secretary Duncan. If this Office can be of any further
assistance regarding this matter, or in the future, please feel free to contact Susan Murray,
OSEP’s Minnesota Part B State contact, at (202) 245-8247.
Sincerely,
/s/ Melody Musgrove
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
cc:

Dr. Barbara Troolin, Minnesota Department of Education


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

Dec 05, 2014

Dear Colleague:
We are writing to focus your attention on the educational needs of students with disabilities who
are in correctional facilities1 and the requirements of Part B of the Individuals with Disabilities
Education Act (IDEA or IDEA, Part B) as they apply to States, State educational agencies
(SEAs), and public agencies (including local educational agencies (LEAs), and responsible
noneducational public agencies2) in educating these students. Absent a specific exception, all
IDEA protections apply to students with disabilities in correctional facilities and their parents.3
Supporting effective and accountable education for incarcerated and at-risk youth can result in
cost savings to the public and enable troubled youth to obtain an education and enhance their
future employment options and life choices. As the U.S. Departments of Education
(Department) and Justice recently stated, the fact that a student has been charged with or
convicted of a crime does not diminish his or her substantive rights or the procedural safeguards
and remedies provided under the IDEA to students with disabilities and their parents.4 This letter
also provides information regarding technical assistance and other relevant resources to enhance
students’ reintegration into the school setting or participation in programs.
Students with disabilities represent a large portion of students in correctional facilities, and it
appears that not all students with disabilities are receiving the special education and related
services to which they are entitled. National reports document that approximately one third of
students in juvenile correctional facilities were receiving special education services, ranging

1

The definition of a correctional facility varies from State to State. For the purposes of this letter, “correctional
institution” or “correctional facility” refers to juvenile justice facilities, detention facilities, jails, and prisons where
students with disabilities are, or may be, confined. In addition, this letter uses the term “students with disabilities” to
refer to children with disabilities, as that term is defined in 34 CFR §300.8.
2
The requirements in 34 CFR §300.2(b)(1)(iv) and (2) and 34 CFR §300.154 govern the responsibilities of
noneducational public agencies for the education of students with disabilities in correctional facilities.
3
The rights of students with disabilities in correctional facilities are also protected by two other Federal laws:
Section 504 of the Rehabilitation Act of 1973 (Section 504), which prohibits disability discrimination in programs or
activities of entities, such as public schools and correctional agencies, that receive Federal financial assistance (29
U.S.C. §794, 34 CFR part 104); and Title II of the Americans with Disabilities Act of 1990 (Title II), which
prohibits disability discrimination by public entities, including public schools and correctional agencies, regardless
of whether they receive Federal financial assistance (42 U.S.C. §§12131-12134, 28 CFR part 35). For more
information about these civil rights laws, see the OCR Dear Colleague Letter (dated June 9, 2014), available at
http://www.ed.gov/blog/wp-content/uploads/2014/06/doj-dod-ltr.pdf
4
Statement of Interest for the United States, G.F. v. Contra Costa County, No. 3:13-cv-03667-MEJ (N.D. Cal.)
(filed Feb. 13, 2014), available at http://www.justice.gov/crt/about/spl/documents/contracosta_soi_2-13-14.pdf.

from 9 percent to 78 percent across jurisdictions.5 States reported that in 2012–2013, of the
5,823,844 students with disabilities, ages 6 through 21, served under IDEA, Part B, 16,157
received special education and related services in correctional facilities.6 Evidence suggests that
proper identification of students with disabilities and the quality of education services offered to
students in these settings is often inadequate.7 Challenges such as overcrowding, frequent
transfers in and out of facilities, lack of qualified teachers,8 inability to address gaps in students’
education, and lack of collaboration with the LEA contribute to the problem.9 Providing the
students with disabilities in these facilities the free appropriate public education (FAPE) to which
they are entitled under the IDEA should facilitate their successful reentry into the school,
community, and home, and enable them to ultimately lead successful adult lives.
This letter is organized into three main areas. The first summarizes the key points in the letter.
The second addresses States’ and SEAs’ responsibilities to students with disabilities in
correctional facilities. The third addresses the responsibilities of public agencies, including
LEAs, and correctional facilities that operate as LEAs, and noneducational public agencies that
are responsible for providing education to students with disabilities in correctional facilities to
carry out IDEA requirements. Because the responsibilities of these entities in certain areas
overlap, some matters are discussed more than once.
The following are the key points made in this letter regarding IDEA, Part B requirements, as they
pertain to students with disabilities:


Absent a specific exception, all IDEA protections apply to students with disabilities in
correctional facilities and their parents.

Shared Responsibility to Provide FAPE


Every agency at any level of government that is involved in the provision of special
education and related services to students in correctional facilities must ensure the
provision of FAPE, even if other agencies share that responsibility.

5

Quinn, M., Rutherford, R., Leone, P., Osher, D., & Poirier, J. (2005); Center for Juvenile Justice Reform,
Georgetown University, Addressing the Unmet Educational Needs of Children and Youth in the Juvenile Justice and
Child Welfare Systems 2012 Edition http://cjjr.georgetown.edu/resources2/cjjrpublications/educationpaper.html
6

U.S. Department of Education, EDFacts Data Warehouse (EDW), OMB # 1875-0240: “IDEA, Part B Child Count
and Educational Environments Collection,” 2012. The definition of “correctional facilities” for this data collection is
“children who received special education in correctional facilities. These data are intended to be an unduplicated
count of all children receiving special education in short-term detention facilities (community-based or residential)
or correctional facilities.”
7
Richard A. Mendel, No Place for Kids: The Case for Reducing Juvenile Incarceration, Annie E. Casey Foundation
(2011).
8
Mary M. Quinn, Robert B. Rutherford, Peter E. Levine, David M. Osher, and Jeffrey M. Poirier, Youth with
Disabilities in Juvenile Corrections: A National Survey, Exceptional Children, Vol 71, No. 3, pp. 339-345 (2005).
9
Robert Balfanz, Kurt Spiridakis, Ruth C. Neild, and Nettie Legters, High-Poverty Secondary School and Juvenile
Justice Systems: How Neither Helps the Other and How That Could Change, 99 New Directions for Youth
Development 71-89 (2003).

2



States must have interagency agreements or other methods for ensuring interagency
coordination in place so that it is clear which agency or agencies are responsible for
providing or paying for services necessary to ensure FAPE for students with disabilities
in correctional facilities.

SEA Responsibility and Personnel Qualifications


SEAs must exercise general supervision over all educational programs for students with
disabilities in correctional facilities (unless covered by an exception) to ensure that their
educational programs meet State education standards and IDEA, Part B requirements.
This responsibility includes monitoring public agencies that are responsible for providing
FAPE to students with disabilities in correctional facilities.



SEAs must make annual determinations on the performance of correctional facilities in
their State if those facilities operate as their own LEAs.



SEAs must ensure that students with disabilities, including those in correctional facilities,
are appropriately included in general State and districtwide assessments, including
assessments conducted under section 1111 of the Elementary and Secondary Education
Act of 1965, as amended (ESEA), to the extent that the ESEA requires that those students
be included in those assessments.



The State Advisory Panel must include representatives from the State juvenile and adult
corrections agencies, and include other agencies involved in the financing or delivery of
services to students with disabilities.



States and their public agencies must establish and maintain qualifications to ensure that
personnel providing special education and related services, including those serving
students with disabilities in correctional facilities, are appropriately and adequately
prepared and trained. Public school special education teachers in correctional facilities
must be “highly qualified,” as defined by IDEA and its implementing regulations, and
related services personnel and paraprofessionals in correctional facilities must meet State
qualifications for those personnel, as described in IDEA and its implementing
regulations. SEAs must monitor to ensure that there are appropriate special education
teachers in schools and education programs within correctional facilities.

Child Find and Evaluation


States and their public agencies must have child find policies and procedures in place to
identify, locate, and evaluate students who are in correctional facilities who may have a
disability under the IDEA and are in need of special education and related services,
regardless of the severity of their disability and consistent with the State’s child find and
eligibility standards. This responsibility includes students who have never been
identified as a student with a disability prior to their entry into the facility.



Students suspected of having a disability who need special education and related services
must be evaluated, subject to applicable parental consent requirements, in a timely manner,
3

even if the student will not be in the facility long enough to complete the evaluation. If a
student transfers from an LEA to a correctional facility in the same school year after the
evaluation has begun, and the responsibility for FAPE transfers as well, both agencies must
coordinate assessments to ensure that a timely evaluation occurs.
FAPE in Least Restrictive Environment


When a student with an individualized education program (IEP) transfers to a
correctional facility in the same State in the same school year, the new public agency (in
consultation with the parents) must provide the student with FAPE through services that
are comparable to those described in the student’s IEP from the previous public agency
until the new public agency either adopts the previous agency’s IEP, or develops and
implements a new IEP for the student.



Unless there is a specific exception, all IEP content requirements apply to students with
disabilities in correctional facilities, including, but not limited to, a statement of: (1) the
student’s present levels of academic achievement and functional performance;
(2) measurable annual academic and functional goals; and (3) the special education and
related services and supplementary aids and services that will be provided to the student
to enable him or her to advance appropriately toward attaining his or her IEP goals and to
be involved in and make progress in the general education curriculum—that is, the same
curriculum as for nondisabled students.



To ensure that students with disabilities in correctional facilities continue to receive
FAPE, public agencies must have policies and procedures to ensure that the relevant
records of students with disabilities who move to, and from, correctional facilities are
transferred as expeditiously as possible,” and also must take reasonable steps to
appropriately transmit those records to facilitate the student’s transition to or from the
correctional facility.



The IDEA requirements related to least restrictive environment (LRE) apply to the
education of students with disabilities in correctional facilities. IEP teams or placement
teams must make individualized placement decisions, and may not routinely place all
students with disabilities in correctional facilities in classes that include only students
with disabilities, even if this means creating placement options or using other
arrangements, to the maximum extent appropriate to the student’s needs. This may
include, for example, having special education and general education teachers co-teach in
the regular classroom.



Public agencies must comply with all applicable IDEA secondary transition requirements
to facilitate eligible students’ movement from secondary education in the correctional
facility to appropriate post-school activities.

Due Process and Discipline


The IDEA due process protections apply to students in correctional facilities and their
parents, including requirements related to providing any required written notices in
4

language understandable to the general public and in the native language of the parent or
other mode of communication used by the parent, unless it is clearly not feasible to do so.


Any exclusion from the classroom is particularly harmful for students with disabilities in
correctional facilities. In general, even in the presence of disciplinary concerns, because
correctional facilities are run by public entities, their obligation to ensure that special
education and related services are provided to eligible students with disabilities continues.



A student with a disability in a correctional facility who violates a code of student conduct
is entitled to the protections in the IDEA discipline procedures that must be afforded to all
students with disabilities. These protections apply regardless of whether a student who
violates a code of student conduct is subject to discipline in the facility or removed to
restricted settings, such as confinement to the student’s cell or “lockdown” units. In any
event, a removal from the current educational placement that results in a denial of
educational services for more than 10 consecutive school days, or a series of removals that
constitute a pattern that total more than 10 school days in a school year is a change in
placement, which, in turn, requires a manifestation determination under the IDEA.

States’ and State Educational Agencies’ Responsibilities
Responsibility for Ensuring FAPE in Correctional Facilities
Every agency at any level of government that is involved in the provision of special education
and related services to students with disabilities in correctional settings must ensure the provision
of FAPE, even if other agencies share that responsibility (34 CFR §300.2(b)(1)(iv)).10
10

There are some provisions of the IDEA that are not applicable to certain students with disabilities in correctional
facilities. With respect to students with disabilities aged 18 through 21 in adult correctional facilities, the obligation to
make FAPE available does not apply to the extent that State law does not require that special education and related
services be provided to students with disabilities who, in the last educational placement prior to their incarceration in an
adult correctional facility were not actually identified as being a student with a disability under the IDEA and did not have
an IEP under the IDEA (34 CFR §300.102(a)(2)(i)). However, this exception does not apply where: (1) the student with a
disability, aged 18 through 21, had been identified as a student with a disability and had received services in accordance
with an IEP, but left school prior to his or her incarceration, or (2) did not have an IEP in his or her last educational setting,
but had been actually identified as a student with a disability (34 CFR §300.102(a)(2)(ii)).
In addition, under 34 CFR §300.324(d), for otherwise eligible students with disabilities who have been convicted as adults
under State law and incarcerated in adult prisons: (1) States and LEAs are not required to include such students in State
and districtwide assessments under section 612(a)(16) of the IDEA and §300.320(a)(6); (2) the requirements in
§300.320(b) (relating to transition planning and transition services) do not apply with respect to the students whose
eligibility under IDEA, Part B will end, because of their age, before they will be eligible to be released from prison based
on consideration of their sentence and eligibility for early release; and (3) the IEP Team of a student with a disability may
modify the student’s IEP or placement if the State has demonstrated a bona fide security or compelling penological
interest that cannot otherwise be accommodated including the requirements of §§300.320 (relating to IEPs) and 300.112
(relating to LRE).
As referenced above, under 34 CFR §300.324(d), the requirements in §300.320(b) (relating to transition planning and
transition services) do not apply with respect to the students whose eligibility under IDEA, Part B will end, because of
their age, before they will be eligible to be released from prison based on consideration of their sentence and eligibility for
early release that apply to otherwise eligible students with disabilities who have been convicted as adults under State law
and incarcerated in adult prisons. In addition, the IDEA makes no specific provision for funding educational services for
individuals with disabilities incarcerated in a Federal prison. See Letter to Yudien, (August 19, 2003).
https://www2.ed.gov/policy/speced/guid/idea/letters/2003-3/yudien081903fape3q2003.pdf

5

Regardless of the structure in a State, the State, as the IDEA, Part B grantee, has ultimate
responsibility for ensuring FAPE is made available to all eligible students with disabilities
residing in State and local juvenile and adult correctional facilities. This responsibility applies to
correctional facilities with which the State contracts to provide education, including special
education and related services (34 CFR §§300.2(b)(1)(iv), 300.101, and 300.149(a)). Indeed, the
requirements in IDEA, Part B apply to all political subdivisions of a State11 that provide special
education and related services to students with disabilities, including State and local juvenile and
adult correctional facilities, regardless of whether that agency receives funds under Part B
(34 CFR §300.2(b)(1)(iv) and (2)).
States have different administrative structures or arrangements for providing education, including
special education and related services, to students with disabilities in correctional facilities.
These arrangements include assigning the responsibility for providing special education and
related services in correctional facilities to: (1) the SEA; (2) the correctional facility as an LEA;
(3) the LEA where the correctional facility is located or another LEA; (4) a noneducational
public agency12 through an interagency agreement or other mechanism for interagency
coordination that meets the requirements in 34 CFR §300.154; and (5) a transfer of authority
pursuant to 34 CFR §300.149(d).13
When the State assigns responsibility for providing FAPE to a noneducational public agency, the
IDEA expressly requires the Chief Executive Officer of a State, or his or her designee, to ensure
that an interagency agreement or other mechanism for interagency coordination is in effect
between each noneducational public agency and the SEA (34 CFR §300.154(a)). The purpose of
this requirement is to ensure that the responsibility for the provision of FAPE for all students
with disabilities is clear and that services necessary to ensure FAPE are provided in a timely and
appropriate manner. This is particularly important in the context of correctional facilities, where
it is not uncommon for multiple agencies to share responsibility for the operation of distinct
functions within the same facility. The State may meet this requirement through a contract, or
other methods, such as a State statute or regulation, or a signed interagency agreement, between

11

The definition of “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and each of the
outlying areas (34 CFR §300.40).
12
Under 34 CFR §300.154(b)(1)(i), a “noneducational public agency” is described as “any public agency that is
otherwise obligated under Federal or State law, or assigned responsibility under State policy, or pursuant to
[§300.154(a) ] to provide or pay for any services that are also considered special education or related services.”
13
The Governor, or another individual pursuant to State law, may assign to any public agency in the State the
responsibility for ensuring that the requirements of IDEA are met with respect to students with disabilities who are
convicted as adults under State law and incarcerated in an adult prison (34 CFR §300.149(d)). However, such an
assignment does not relieve the State, or the assigned public agency, of its responsibility to meet all the requirements
of IDEA, even if the public agency does not receive IDEA, Part B funds (34 CFR §300.2(b)(2)). This letter does not
address the circumstances covered by 34 CFR §300.149(d).

6

respective agency officials that clearly identifies the responsibilities of each agency14
(34 CFR §300.154(b) and (c)(1) and (2)).
Interagency agreements, or other mechanisms for interagency coordination, must include
provisions relating to: (1) the financial responsibility of each agency for providing special
education and related services,15 including reimbursement terms;16 (2) the resolution of
interagency disputes; and (3) the coordination and delivery of special education and related
services (34 CFR §300.154(a)). In addition to these required provisions, as a best practice,
States are encouraged to include additional provisions in their interagency agreements or other
mechanisms to ensure that the needs of students with disabilities will be properly identified and
appropriately addressed so that these students timely receive the special education and related
services to which they are entitled under the IDEA. For example, States should consider
including provisions that identify the: (1) location of IEP Team meetings and, if not within the
correctional facility, the responsibility for ensuring that the student is transported to the meeting,
if appropriate for the student to attend17; and (2) where applicable, the responsibility of the
correctional facility to ensure that it grants appropriate access to facilities to all personnel
necessary to implement the IDEA requirements. Granting appropriate access may be essential to
ensure that evaluations (including the administration of any necessary assessments or other
evaluation materials), IEP Team meetings, and the provision of required special education and
related services occur in a timely manner.
Accountability, Data Collection, and Reporting
SEAs must ensure that all students with disabilities, including those in correctional facilities, are
appropriately included in all general State and districtwide assessment programs, including
assessments described in section 1111 of the ESEA, to the extent that the ESEA requires that
students in correctional facilities be included in those assessments.18 Students with disabilities
14

A State may also meet this requirement through other appropriate written methods, as approved by the Chief
Executive Officer of a State, or his or her designee and approved by the U.S. Department of Education (34 CFR
§300.154(c)(3)).
15
Under 34 CFR §300.154(b)(1)(i), a noneducational public agency, including the State Medicaid agency and other
public insurers of children with disabilities, may be assigned the responsibility to pay for special education and
related services. In that case, the financial responsibility of the noneducational public agency precedes the financial
responsibility of the LEA (or the State agency responsible for developing the child’s IEP) (34 CFR §300.154(a)(1)).
Even though these statutory and regulatory provisions specifically refer to the State Medicaid agency or other public
insurers of students with disabilities, they are equally applicable to any noneducational public agency that is
otherwise obligated under State or Federal law to provide or pay for special education and related services. This
requirement includes the corrections context where an agency other than an SEA or LEA is responsible for
providing or paying for special education and related services.
16
If a noneducational public agency fails to provide or pay for special education and related services, the LEA (or, if
applicable, the State agency) responsible for developing the student’s IEP must provide or pay for these services in a
timely manner. The LEA or State agency may then claim reimbursement pursuant to the terms of the interagency
agreement or other mechanism for interagency coordination (34 CFR §300.154(b)(2)).
17
A parent and a public agency may agree to use alternative means of satisfying the IEP Team meeting participation
requirements, such as through video conferences and conference calls. (34 CFR §300.328).
18
This requirement does not apply to students in correctional facilities who have been convicted as adults under
State law and incarcerated in adult prisons.

7

who are required to take any general State assessment during the time that they are confined to a
correctional facility must be provided appropriate accommodations on the State assessment, or
administered an appropriate alternate assessment, if determined to be necessary for the student
by the student’s IEP Team (34 CFR §§300.160(a) and 300.320(a)(6)). The SEA must also
exercise general supervision over all educational programs for students with disabilities in
correctional facilities (34 CFR §300.149) to ensure that such programs meet the education
standards of the SEA and IDEA requirements. As part of this responsibility, the SEA must
monitor public agencies that are responsible for providing FAPE in correctional facilities
(34 CFR §300.149)).19 Furthermore, SEAs must make annual determinations about the
performance of each correctional facility that is its own LEA (34 CFR §300.600(a)(2)). States
must include students with disabilities in correctional facilities when collecting and reporting
data, including data reported in connection with IDEA section 618 data submissions and in the
State’s Annual Performance Report.
Personnel Qualifications
The IDEA personnel qualifications requirements continue to apply even though personnel are
providing special education and related services to students with disabilities in a correctional
facility. Accordingly, the SEA must: (1) establish and maintain qualifications to ensure that those
personnel necessary to carry out the purposes of the IDEA are appropriately and adequately
prepared and trained, including that those personnel have the content knowledge and skills to
serve students with disabilities (34 CFR §300.156(a)); (2) ensure that qualifications of related
services personnel and paraprofessionals are consistent with any State-approved or Staterecognized 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 CFR §300.156(b)); and (3) ensure that each person employed as a public school
special education teacher in the State is “highly qualified” (34 CFR §§300.18 and 300.156(c)).
Child Find
The SEA must have child find policies and procedures in effect that ensure that all age-eligible
students with disabilities, including those in correctional facilities, who are in need of special
education and related services, are identified, located, and evaluated, regardless of the severity of
their disability (34 CFR §300.111(a)(1)(i)).20 To meet these requirements, we strongly encourage
SEAs to develop child find policies and procedures that address the unique challenges associated
with identifying students with disabilities in correctional facilities. For example, State child find
policies and procedures frequently focus on teachers and staff in traditional schools, as well as
the local medical community. State child find policies and procedures should also include those
19

In addition, as the IDEA, Part B grantee, each State must provide auditors and Department officials with access to
financial and programmatic records, supporting documents, statistical records, and other records under program
regulations or the grant agreement, and maintain such records and documents to facilitate an audit and to
demonstrate compliance with program requirements (34 CFR §§76.730 through 76.731). See also 2 CFR
200.302(b)(3).
20
However, there is no obligation for States to identify and evaluate those students with disabilities in adult
correctional facilities for whom the State is otherwise not required to provide FAPE.

8

individuals in the community who come in contact with students in the juvenile justice system,
including intake staff, social workers, probation officers, truant officers, police, and medical and
mental health professionals who treat students in correctional facilities, as well as other staff in
the juvenile justice system and in correctional facilities.
Surrogate Parents
In circumstances where the appointment of a surrogate parent is necessary, as described in
34 CFR §300.519(a), the SEA must make reasonable efforts to ensure the assignment of a
qualified surrogate parent not more than 30 days after a public agency determines that the
student needs a surrogate parent. The surrogate parent may represent the student in all matters
relating to the identification, evaluation, and educational placement of the student, and the
provision of FAPE. The surrogate parent must meet the knowledge, skills, impartiality, and other
required criteria described in the IDEA and its implementing regulations. 34 CFR §300.519(d),
(g), and (h).
Transfer of Parental Rights at Age of Majority
The IDEA permits, but does not require, a State to transfer all rights accorded to parents under
the IDEA to students who are in an adult or juvenile, State or local correctional facility when the
student with a disability reaches the age of majority under State law, unless the student has been
determined to be incompetent under State law (34 CFR §300.520). Once a student reaches the
age of majority, questions regarding guardianship as an adult may arise. As a best practice, it is
advisable for students, families, and the IEP Team to consider alternatives to guardianship first,
in order to preserve a young person’s legal independence to the maximum extent possible.
State Advisory Panel
To implement the supports and interventions needed by students with disabilities entering,
attending classes, and exiting the corrections system, requires significant collaboration and
communication across agencies. The State Advisory Panel (SAP) is in a position to advise on
such matters, particularly since it must include representatives from the State juvenile and adult
corrections agencies, and other agencies involved in the financing or delivery of services to
students with disabilities (34 CFR §300.168). As an advisory body, the SAP can work to address
concerns regarding interagency record sharing, coordinated efforts between agencies, shared
databases, and other related activities.21
Responsibilities of Public Agencies, Including LEAs, Correctional Facilities, and
Noneducational Public Agencies, to Ensure a Free Appropriate Public Education
As noted above, in Responsibility for Ensuring FAPE in Correctional Facilities, States have
different methods for assigning responsibility for FAPE for students with disabilities in
21

For further information regarding collaborative efforts to support youth with disabilities in the juvenile justice
system, see http://csgjusticecenter.org/youth/publications/addressing-the-unmet-educational-needs-of-children-andyouth-in-the-juvenile-justice-and-child-welfare-systems-2/

9

correctional facilities. In some cases, the correctional facility is itself an LEA or is a
noneducational public agency with the responsibility for FAPE. For the purposes of this letter,
we refer to public agency or LEA interchangeably when discussing specific responsibilities.
However, these requirements apply to any public agency, LEA, correctional facility, and
noneducational public agency responsible for providing FAPE to children with disabilities in
correctional facilities.
FAPE and Transfer of Records
The rules governing the responsibility for FAPE in connection to students with IEPs who transfer
from one public agency to another apply when a student with a disability is in a correctional
facility and the responsibility for the provision of FAPE transfers from one public agency
(generally an LEA) to another public agency (generally another LEA that is, or includes, the
correctional facility).22 All agencies involved must have policies and procedures that ensure that
the education records of students with disabilities who move to, and from, correctional facilities
are transferred as expeditiously as possible.
The failure of a public agency to obtain educational records promptly can interfere with the
student’s ability to receive FAPE and to receive credits towards graduation. Therefore, it is
critical that public agencies and correctional facilities have systems in place to ensure
compliance with the transmittal of records requirements in 34 CFR §300.323(g). Public agencies
are encouraged to assign specific staff the responsibility to work with correctional staff to
promptly transfer education records to facilitate the student’s timely connection to educational or
training activities.
The new public agency in which the student enrolls must take reasonable steps to promptly
obtain the student’s records (including the IEP and supporting documents and any other records
relating to the provision of special education or related services to the student) from the previous
public agency in which the student was enrolled, pursuant to the Family Educational Rights and
Privacy Act (FERPA)23 (34 CFR §300.323(g)). The previous public agency in which the student
22

If a student with a disability (who had an IEP that was in effect in a previous public agency in the same State)
transfers to a new public agency in the same State, and enrolls in a new school within the same school year, the new
public agency (in consultation with the parents) must provide FAPE to the student (including services comparable to
those described in the student’s IEP from the previous public agency), until the new public agency either: (1) adopts
the student’s IEP from the previous public agency; or (2) develops, adopts, and implements a new IEP that meets the
applicable requirements in 34 CFR §§300.320 through 300.324 (34 CFR §300.323(e)). If a student with a disability
(who had an IEP that was in effect in a previous public agency in another State) is moved to a correctional facility in
a new State within the same school year, the new public agency (in consultation with the parents) must provide the
student with FAPE (including services comparable to those described in the student’s IEP from the previous public
agency), until the new public agency: (1) conducts an evaluation pursuant to 34 CFR §§300.304 through 300.306 (if
determined to be necessary by the new public agency); and (2) develops, adopts, and implements a new IEP, if
appropriate, that meets the applicable requirements in 34 CFR §§300.320 through 300.324 (34 CFR §300.323(f)).
23
The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g; 34 CFR part 99, generally requires
that school districts and schools obtain the prior written consent of a parent or eligible student (i.e., a student 18
years of age or older or enrolled in a postsecondary institution) before disclosing personally identifiable information
from education records; however, there are a number of exceptions to this prior consent requirement. The IDEA also
contains confidentiality of information provisions that require prior written consent for disclosure of personally

10

was enrolled must take reasonable steps to promptly respond to the request from the new public
agency (34 CFR §300.323(g)(2)).24 In addition, the parent of a student with a disability may
provide a copy of the IEP directly to the new public agency.
However, if, after taking reasonable steps, the new public agency is not able to obtain the IEP from
the parent or from the previous public agency, the new public agency must, at a minimum, place
the student in the regular school program, conduct an evaluation, and make an eligibility
determination pursuant to 34 CFR §§300.304 through 300.306, if the new public agency
determines an evaluation is necessary (34 CFR §300.323(f)(1)). Although the new public agency
is not required to provide special education and related services to the student because it would be
unable to determine what constitutes comparable services for the student without an IEP from the
previous public agency, excluding the student from all educational services is not permissible.
Moreover, even if the new public agency is unable to obtain the student’s IEP from the previous
public agency, if the new public agency decides that an evaluation is necessary because it has
reason to suspect that the student has a disability, nothing in the IDEA or its implementing
regulations would prevent the agency from providing special education services to the student
while the evaluation is pending, subject to an agreement between the parent and the agency.25
Child Find and Evaluations
LEAs are responsible for implementing the SEA’s child find policies. It is not sufficient to
assume that a student that enters a correctional facility is not a student with a disability simply
because he or she has not yet been identified as such. Therefore, LEAs should work with
individuals who are most likely to come into contact with students in the juvenile justice system
(see Child Find above) to identify students suspected of having a disability and ensure that a
timely referral for an evaluation is made. To determine if a student has a disability, a parent or a
public agency may initiate a request for an evaluation. Moreover, the evaluation of a student
suspected of having a disability must occur once parental consent has been obtained even if the
student will not be in the facility long enough to complete the process.
Generally, the IDEA requires completion of initial evaluations within 60 days of receiving
parental consent for the evaluation or within the State-established time frame
identifiable information from education records and that generally incorporate the FERPA exceptions to the prior
consent requirement. 20 U.S.C. 1417(c) and 34 CFR §300.622. The FERPA exception to the prior consent
requirement that would be most relevant to a school district’s or school’s disclosure of education records of students
who are entering a correctional facility is in 34 CFR §§99.31(a)(2) and 99.34 of FERPA regulations, which permits
schools and school districts that are subject to FERPA to disclose personally identifiable information from education
records without prior written consent to officials of another school or school district, including a school or school
district run by a juvenile justice agency, where a student is enrolled, or seeks or intends to enroll, so long as the
disclosure is for purposes related to the student’s enrollment or transfer. See
http://www2.ed.gov/policy/gen/guid/ptac/pdf/idea-ferpa.pdf for further clarification regarding the IDEA and FERPA
confidentiality provisions and the transmission of education records to the correctional facility.
24
See Reentry Myth Buster on Student Records, Federal Interagency Reentry Council, June 2013.
http://csgjusticecenter.org/wp-content/uploads/2013/06/Student-Records.pdf
25

See Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations.
Retrieved July 11, 2014, from http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C3%2C

11

(34 CFR §300.301(c)(1) (procedures for initial evaluation) and 34 CFR §300.9 (definition of
consent)). In addition, it is important to note that assessments and other evaluation materials
used to assess a student must be selected and administered so as not to be discriminatory on a
racial or cultural basis and must be provided and administered in the student’s native language or
other mode of communication and in the form most likely to yield accurate information, unless it
is clearly not feasible to so provide or administer (34 CFR §300.304(c)(1)(i) and (ii)).
If the student is transferred to a correctional facility in the same school year, in the same State or
in a different State, after the previous LEA has begun but has not completed the evaluation, both
public agencies must ensure that assessments are coordinated to ensure completion of the
evaluation. This must occur as necessary and as expeditiously as possible
(34 CFR §300.304(c)(5)). However, the relevant time frame does not apply when the following
two conditions are present: (1) the new school district is making sufficient progress to ensure
prompt completion of the evaluation; and (2) the parent and new school district agree to a
specific time when the evaluation will be completed (34 CFR §300.301(d)(2) and (e)). As noted
in FAPE and Transfer of Records above, 34 CFR §300.323(g) requires public agencies to take
reasonable steps to promptly exchange relevant records when a child transfers to a new public
agency and enrolls in a new school in the same school year, subject to FERPA. Relevant records
could include existing evaluation data on the child, consistent with 34 CFR §300.305. Prompt
exchange of any relevant records avoids duplicating previously conducted evaluations, and
provides critical data to the new public agency to ensure the timely completion of the
evaluation.26
Personnel Qualifications and Training
The public agency must ensure that all personnel necessary to fulfill the requirements of the
IDEA are appropriately and adequately prepared, subject to the requirements of
34 CFR §300.156, relating to personnel qualifications (34 CFR §300.207).27 Public agencies
should consider including noneducational correctional staff in professional development
activities regarding the IDEA, including positive behavioral interventions and supports and
discipline procedures, and provide opportunities for discussions across agency staff regarding
any problems students with disabilities may experience in correctional facilities.
Individualized Education Programs
All of the IEP content requirements apply to students with disabilities in correctional facilities
(34 CFR §300.320),28 including, but not limited to, a statement of: (1) the student’s present levels
26

See Office of Special Education Programs’ Dear Colleague Letter on Education for Highly Mobile Children, July
19, 2013, for a more thorough discussion of IDEA requirements applicable when students transfer.
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/12-0392dclhighlymobile.pdf
27
See the Personnel Qualifications section discussed above.
28
In States that have opted to make available FAPE to students with disabilities convicted as an adult under State
law and incarcerated in an adult prison, the LEA may modify an IEP for such a student if the State has demonstrated
a bona fide security or compelling penological interest that cannot otherwise be accommodated (34 CFR
§300.324(d)(2)).

12

of academic achievement and functional performance (IEP Teams need to have the student’s
academic and other school records in order to determine the student’s present levels of
achievement and performance); (2) measurable annual academic and functional goals; and (3) the
special education and related services and supplementary aids and services that will be provided to
the student to enable him or her to advance appropriately toward attaining his or her IEP goals and
to be involved in and make progress in the general education curriculum (the general education
curriculum is the same curriculum provided to students without disabilities in the State).
When a student with an existing IEP from another public agency arrives in a correctional facility
in the same State, the facility either must implement the existing IEP or hold an IEP Team
meeting to modify the contents of the IEP (34 CFR §300.323(e)). If a student with an existing
IEP from another public agency arrives in a correctional facility in a different State, the new
public agency either must conduct its own evaluation and make a new eligibility determination
pursuant to 34 CFR §§300.304-300.306, if determined to be necessary by the new public agency,
or develop and implement a new IEP for the student (34 CFR §300.323(f)). However, as an
initial matter, the new public agency, in consultation with the parents, must provide the student
FAPE (including services comparable to those described in the student’s IEP from the prior
public agency) in accordance with 34 CFR §300.323(e) or (f), as appropriate.
When developing or modifying an IEP for a student in a correctional facility, IEP Teams should
consider whether there has been an interruption in the provision of special education and related
services during the student’s transfer to the correctional facility, and how the break in services
has affected the type or amount of special education and related services needed to provide FAPE
to the student. In addition, the special factors that the IEP Team must consider in developing,
reviewing, and revising the IEP of each student with a disability are particularly relevant to
students with disabilities in correctional facilities. Among these special factors is the
requirement for the IEP Team to consider the use of positive behavioral interventions and
supports and other strategies to address behavior in the case of a student whose behavior impedes
his or her learning or the learning of others (34 CFR §300.324(b)(2)). Appropriate
implementation of these positive behavioral interventions and supports and other strategies to
address behavior should ensure that the student is able to benefit from his or her educational
program in the correctional facility, and hasten the student’s transition from the facility and reentry into the community.
Students identified with a disability either before or during incarceration in a correctional facility,
who: (1) did not transfer to the correctional facility with an IEP; or (2) were not attending or
enrolled in school at the time of incarceration, must have a meeting to develop an IEP within 30
days of the determination that the student needs special education and related services
(34 CFR §300.323(c)(1)).29 As soon as possible following the development of the IEP, the public
agency must make available special education and related services to the student
29

Please see fn. 11 for a discussion of the responsibility to make FAPE available to students with disabilities aged
18 through 21 in adult correctional facilities

13

(34 CFR §300.323(c)(2)). IEP Teams should pay particular attention to those related services
that are likely to be required for students in correctional facilities -- for example, counseling,
parent counseling and training, psychological services, transportation, and social work services
in schools (34 CFR §300.34(c)(2), (c)(8), (c)(10), (c)(14), and (c)(16)).
Least Restrictive Environment
The IDEA emphasizes the importance of educating students with disabilities in regular classes
and in extracurricular and other nonacademic activities with nondisabled students to the
maximum extent appropriate (34 CFR §§300.114, 300.117, and 300.320(a)(4) and (5)).
Therefore, each public agency must ensure that special classes, separate schooling, or other
removal of students with disabilities from the regular education environment occurs only when
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 CFR §300.114(a)(2)). If a
determination is made that a student with a disability cannot be educated satisfactorily in the
regular educational environment, even with the provision of appropriate supplementary aids and
services, that student then could be placed in a setting other than the regular educational setting.
Placement decisions must be made on an individual basis by a group of persons, including the
parents, and other persons knowledgeable about the child, the meaning of the evaluation data,
and the placement options (34 CFR §300.116(a)). In addition, the IEP must also include an
explanation of the extent, if any, to which the student will not participate with nondisabled
students in the regular classroom or in extracurricular or other nonacademic activities
(34 CFR §300.320(a)(5)).
Each public agency must ensure that a continuum of alternative placements is available to meet
the needs of students with disabilities for special education and related services
(34 CFR §300.115). These options must be available to the extent necessary to implement the
student’s IEP. Any alternative placement selected for the student outside of the regular education
environment (education with nondisabled peers) must maximize opportunities for the student to
interact with nondisabled peers, to the extent appropriate to the needs of the student.
Accordingly, IEP Teams must make individualized placement decisions, and may not routinely
place all students with disabilities in correctional facilities in classes that include only students
with disabilities, even if this means creating a placement that is appropriate for the student,
through methods such as having special education and general education teachers co-teach in the
regular classroom (34 CFR §§300.116(a) and (b)).
Secondary Transition
There are inherent difficulties associated with reentry from a correctional facility to home or
another community environment. Therefore, it is particularly important that public agencies
comply with the IDEA requirements related to secondary transition (34 CFR §300.320(b)).30
30

Transition services requirements are not applicable to students with disabilities in adult prisons and to students
whose eligibility for IDEA services will end, because of their age, before they will be eligible to be released from
prison based on consideration of their sentence and eligibility for early release (34 CFR §300.324(d)(1)(ii)).

14

Accordingly, beginning no later than the first IEP to be in effect when the student turns 16 (or
younger if determined appropriate by the IEP Team), and updated annually thereafter, the IEP
must include: (1) appropriate measurable postsecondary goals based upon age appropriate
transition assessments related to training, education, employment, and, where appropriate,
independent living skills; and (2) the transition services (including courses of study) needed to
assist the student in reaching those goals. In addition, the public agency must invite the student
with a disability to attend the student’s IEP Team meeting if a purpose of the meeting will be the
consideration of the postsecondary goals for the student and the transition services needed to
assist the student in reaching those goals, as required in 34 CFR §300.321(b).31 If the student
does not attend the IEP Team meeting, the public agency must take other steps to ensure that the
student's preferences and interests are considered. Moreover, to the extent appropriate, with the
consent of the parents or a student who has reached the age of majority, the public agency must
invite a representative of any participating agency that is likely to be responsible for providing or
paying for transition services (34 CFR §300.321(b)(1)–(3)). Finally, beginning not later than one
year before the student reaches the age of majority under State law, the IEP must document that
the student has been informed of the student's rights under the IDEA, if any, that will transfer to
the student on reaching the age of majority under 34 CFR §300.520 (34 CFR §300.320(c)).
Due Process Protections
All of the due process protections under the IDEA extend to eligible students with disabilities in
correctional facilities and their parents. Parents remain required members of the IEP and
placement teams and retain all rights under IDEA, Part B unless a court has limited their rights or
parental rights have transferred to the student at the age of majority. A parent who disagrees with
the public agency on matters arising under the IDEA, including matters arising prior to the filing
of a due process complaint, must have the opportunity to resolve the dispute through the
mediation process described in 34 CFR §300.506 (34 CFR §300.500). In addition, a parent has
the right to file a due process complaint to request a due process hearing on any matter relating to
the identification, evaluation, or educational placement of the student, or the provision of FAPE
to the student, in accordance with procedures in 34 CFR §§300.507 through 300.518
(34 CFR §300.507(a)(1)). If a student has been assigned a surrogate parent, the due process
rights that are available to parents are afforded to the surrogate parent, and the prior written
notice and procedural safeguards notice must be provided to the surrogate parent (34 CFR
300.519(g)). Similarly, the surrogate parent may utilize mediation or exercise due process rights
on behalf of the student or themselves. (See Parental Engagement below for a discussion of
affording parents prior written notices in the native language of the parent or other mode of
communication used by the parent, unless it is clearly not feasible to do so.)

31

Students with disabilities in correctional facilities should already be participating as a member of the IEP Team,
where appropriate (34 CFR §300.321(a)(7)). Because students with disabilities in a correctional facility are
physically in the facility where the IEP Team is likely to be meeting, absent a significant medical or security
concern that cannot be accommodated, the student should be participating as a member of the IEP Team, as such
participation is likely to improve the student’s cooperation and should assist the IEP Team in identifying the special
education and related services that must be included in the IEP.

15

Discipline Procedures
Any exclusion from the classroom is particularly harmful for students with disabilities in
correctional facilities because they often have already lost instructional time due to their
involvement in the juvenile justice system. Collaboration between the correctional facility and
the public agency responsible for FAPE, if different, is essential to minimize behavioral incidents
and avoid disciplinary exclusions from school. For students whose behavior impedes the
student’s learning, or that of others, the IEP Team must consider, behavioral intervention
strategies, including the use of positive behavioral interventions and supports, when developing
the initial IEP, or modifying an existing IEP, so as to reduce the need for discipline of students
with disabilities (34 CFR §300.324(a)(2)(i)). Public agencies cannot avoid their IDEA
obligations, including the discipline procedures, by contracting, transferring them to, or sharing
them with another agency.32 Therefore, we expect that correctional facilities will not use
discipline methods that deprive eligible students with disabilities of FAPE.
A student with a disability in a correctional facility who violates a code of student conduct is
entitled to the protections that must be afforded to all students with disabilities related to
discipline procedures, including those related to a change of placement, manifestation
determination, and provision of services beginning with the 11th cumulative day of removal in a
school year (34 CFR §§300.530 through 300.536).33 These disciplinary protections apply
regardless of whether a student is subject to discipline in the facility or removed to restricted
settings, such as confinement to the student’s cell or living quarters or “lockdown” units. In any
event, a removal that results in a denial of educational services for more than 10 consecutive
school days, or a series of removals that constitute a pattern that total more than 10 school days
in a school year, is a change in placement, which, in turn, requires a manifestation determination
in accordance with 34 CFR §300.530(e).34
32

Statement of Interest for the United States, G.F. v. Contra Costa County, No. 3:13-cv-03667-MEJ (N.D. Cal.)
(filed Feb. 13, 2014), available at http://www.justice.gov/crt/about/spl/documents/contracosta_soi_2-13-14.pdf.
33
Honig v. Doe, 484 U.S. 305 (1988); see also Office of Special Education and Rehabilitative Services, Questions
and Answers on Discipline Procedures, June 2009,
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C7%2C for a detailed discussion of the
discipline procedures applicable to children with disabilities, including the requirements related to functional
behavioral assessments in 34 CFR §300.530(d)(1)(ii) and (f)(1)(i).
34
Under 34 CFR §300.536, a change of placement because of disciplinary removals occurs if the removal from the
child’s current educational placement is for more than 10 consecutive school days, or if the public agency
determines, on a case-by-case basis, that a pattern of removals constitutes a change of placement because the series
of removals total more than 10 school days in a school year; the student’s behavior is substantially similar to the
behavior that resulted in the previous removals; and because of such additional factors as the length of each removal,
the total amount of time the student has been removed, and the proximity of the removals to one another. The public
agency may consider any unique circumstances, on a case-by-case basis, when determining whether a pattern of
removals constitutes a change in placement under 34 CFR §300.536 (34 CFR §300.530(a)). The Department
believes that “unique circumstances” are best determined at the local level by school personnel who know the
individual child and are familiar with the facts and circumstances regarding a child’s behavior. “Factors such as a
child’s disciplinary history, ability to understand consequences, expression of remorse, and supports provided …
prior to the violation of a school code [of student conduct] could be unique circumstances considered by school
personnel when determining whether a disciplinary change in placement is appropriate for a child with a disability.”
71 Fed. Reg. 46540, 46714 (Aug 14, 2006).

16

Each time a student with a disability in a correctional facility is removed from his or her current
educational placement for more than 10 consecutive school days, or each time that the public
agency determines that a series of removals constitutes a change of placement, the public agency
must: (1) provide services to the student as provided for in 34 CFR §300.530(d) to enable the
student to continue to participate in the general education curriculum, although in another setting
and to progress toward meeting the goals in the student’s IEP; and (2) conduct, as appropriate, a
functional behavioral assessment and provide behavioral intervention services and modifications,
that are designed to address the behavioral violation so that it does not recur
(34 CFR §300.530(d)(1)(ii) and (f)(1)). In addition, within 10 school days of any decision to
change the placement of a student with a disability because of a violation of a code of student
conduct, the LEA, parent, and relevant members of the student’s IEP Team must conduct a
manifestation determination (34 CFR §300.530(e)). Specifically, an IEP Team is required to
hold a manifestation determination to determine whether the student’s conduct in question was
caused by, or had a direct and substantial relationship to, the student’s disability, or if the conduct
in question was the direct result of the failure to implement the IEP. It is particularly important
for IEP Teams to review carefully whether the student has, in fact, received the special education
and related services that are provided in the student’s IEP when making this determination, as the
failure to implement an IEP may be more common in some correctional facilities than in
traditional schools.
Parental Engagement
Parental35 engagement in a student’s education is particularly important when a student with a
disability is in a correctional facility. Parents who remain involved with their child’s education
while the student is in a correctional facility will be better equipped to provide needed support to
the student when he or she exits the facility and returns to the community and/or school. Unless
the State has opted to transfer parental rights at the age of majority under 34 CFR §300.520(a)
(see Transfer of Parental Rights at Age of Majority, above), parents do not lose their rights under
the IDEA when their child is placed in a correctional facility, even if the student has been
convicted as an adult and incarcerated in an adult prison.
Parents of students in correctional facilities are entitled to receive all “prior written notice” and
procedural safeguards notice documents, as required by 34 CFR §§300.503, 300.504, and
300.520(a)(1)(i). The LEA or other responsible public agency must provide the parents with a
prior written notice, in accordance with 34 CFR §300.503, a reasonable time before the public
agency proposes or refuses to initiate or change the identification, evaluation, or educational
placement of a child with a disability, or the provision of FAPE to the child. These notices must
be written in language understandable to the general public and provided in the native language

35

The definition of parent is in 34 CFR §300.30.

17

of the parent or other mode of communication used by the parent, unless it is clearly not feasible
to do so (34 CFR §300.503(c)(1)).36
Furthermore, correctional facilities may not assume the role of a parent under the IDEA, and
therefore may not, for example, provide or refuse consent for a student’s initial evaluation or
reevaluation, or provide, refuse, or revoke consent for services under the IDEA or serve as the
parent on an IEP Team. It may be difficult for some parents to participate in person in IEP Team
meetings if the correctional facility is not located near the parent’s residence. Nevertheless, the
parent participation requirements in 34 CFR §300.322 are fully applicable to public agencies that
are responsible for educating students with disabilities in correctional facilities.37 See footnote
18 for further discussion regarding use of video conferences and conference calls.
In many States, the public agency with the responsibility for the appointment of a surrogate
parent is the LEA. In carrying out this responsibility, the LEA must have a method for
determining whether a student needs a surrogate parent and for assigning a surrogate parent to
the student (34 CFR §300.519(b)). The IDEA also permits a judge overseeing the case of a
student who is a ward of the State to appoint a surrogate parent (34 CFR §300.519(c)). A
surrogate parent must meet certain requirements, including that the individual not be an
employee of the SEA, the LEA, or any other agency that is involved in the education or care of
the student (34 CFR §300.519(d) and (e)). However, public agencies must not assume that all
students with disabilities in correctional facilities need a surrogate parent. Rather, a surrogate
parent acts in place of a student’s parent only when: (1) the parent cannot be identified; (2) the
parent cannot be located after reasonable efforts; (3) the student is a ward of the State under the
laws of that State; or (4) the student is an unaccompanied or homeless youth, as defined in
section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. §11434(a)(6))
(34 CFR §300.519(a)).
If parental rights transfer to students with disabilities who have reached the age of majority under
State law (except for a student with a disability determined to be incompetent under State law),
the public agency must provide any notices required by the IDEA, Part B regulations to both the
student and the parents, and all rights accorded to parents under IDEA, Part B transfer to the
student (34 CFR §§300.320(c) and 300.520(a)(3)). Therefore, it is important that public agencies

36

If the native language or other mode of communication of the parent is not a written language, the public agency
must take steps to ensure: (1) that the notice is translated orally or by other means to the parent in his or her native
language or other mode of communication; (2) that the parent understands the content of the notice; and (3) that
there is written evidence that these requirements have been met. (34 CFR §300.503(c)(2)).
37
If neither parent can attend an IEP Team meeting, the LEA or other responsible public agency must use other
methods to ensure parent participation, including individual or conference telephone calls consistent with §300.328
(related to alternative means of meeting participation) (34 CFR §300.322(c)), and the public agency must maintain
required documentation when the IEP Team meeting is conducted without either parent in attendance if the public
agency is unable to convince the parent to attend (34 CFR §300.322(d)). Moreover, the public agency must take
whatever action is necessary to ensure that the parents understand IEP Team meeting proceedings, including
arranging for an interpreter for parents with deafness or whose native language is other than English (34 CFR
§300.322(e)).

18

are aware of the applicable law in their State governing whether parental rights transfer and
provide the required notices to the student and his or her parents.
Reentry Considerations
Reentry services promote the effective reintegration of students back to communities upon
release from correctional facilities. Evidence strongly supports the notion that juvenile
offenders, both with and without disabilities, are significantly more likely to experience
successful reentry into their home schools and communities if appropriate programs and supports
are in place and discussed with the student prior to his or her release.38 Many experts in the field
recommend a comprehensive approach to reentry that includes individualized reentry plans,
vocational and life skills training, behavior management systems and direct academic instruction.
Reentry planning supports the successful reentry of students into their communities and includes
information about State reentry options that may include the student’s school prior to
commitment in the correctional facility, charter schools, virtual schools, evening schools, adult
education programs, community colleges, alternative schools for students with specific needs,
schools with a dual focus on diploma/GED and career and technical education, and dual
enrollment high/school/college programs. Informing students of their options is an important
part of the reentry process. Methods to disseminate information regarding reentry options may
include: (1) home visits; (2) information sharing between schools; (3) collaboration with
community-based organizations; (4) school expos/reengagement fairs;
(5) reengagement/transition centers; (6) print and electronic media; (7) collaboration with
probation and parole practitioners from both public and private sectors; and (8) community wide
campaigns.39 The IDEA’s requirements related to parental engagement, records sharing among
public agencies, and transition planning, discussed above, complement these efforts.
On June 9, 2014, the U.S. Department of Education and the U.S. Department of Justice issued a
letter addressing the Administration’s efforts related to the education of students in juvenile
facilities. The letter includes information on Title I, Part D of the ESEA, which is administered
by the Department’s Office of Elementary and Secondary Education and, among other matters,
includes requirements that support juvenile correctional education and reentry. We are providing
a copy of that letter and its enclosure with this letter to ensure that you and your staff are aware
of this information and the resources available on this topic.

38

Reentry Programs for Students with Disabilities in the Juvenile Justice System: Four State Approaches, National
Association of State Directors of Special Education (NASDSE), December 2011. See also National Institute of
Justice, Office of Justice Programs, for resources related to reentry.
http://www.crimesolutions.gov/TopicDetails.aspx?ID=2
39
For further information regarding strategies to reenroll youth with disabilities after exiting the correctional system,
see Reentry Programs for Out of School Youth with Disabilities, Julia Wilkins, National Drop Out Center for
Students with Disabilities, July 2011, and A Reentry Education Model Supporting Education and Career
Advancement for Low-Skill Individuals in Corrections at
http://www2.ed.gov/about/offices/list/ovae/pi/AdultEd/reentry-model.pdf. For information regarding funding
opportunities for reentry programs, see http://www.ojjdp.gov/funding/FundingList.asp

19

Conclusion
The Department is committed to supporting all students in our nation’s schools, including
correctional facilities, to achieve positive educational outcomes. Ensuring that students in
correctional facilities are receiving a high quality education will have a clear, positive effect in
reducing recidivism and increasing post-release success in higher education, employment, and
other life endeavors. Providing FAPE to students with disabilities in correctional facilities is not
only required by law; it is critically important to ensuring successful outcomes.
The Department strongly encourages SEAs, LEAs, and other public agencies, and correctional
facilities serving students with disabilities to review their policies, procedures, and practices to
verify that they are in compliance with IDEA requirements with a focus on improved educational
outcomes for these students. SEAs and LEAs must, as part of their monitoring responsibilities,
ensure that identified noncompliance is timely corrected. 34 CFR §300.600(e). We encourage
SEAs and LEAs and other stakeholders to review the resources enclosed with this letter. We
look forward to continuing to work with you to ensure that all students with disabilities,
including students with disabilities in correctional facilities, have access to high-quality
educational services.
If you have any questions or comments, please contact Office of Special Education Programs
Education Program Specialists, Dr. Curtis Kinnard at 202-245-7472 or Curtis.Kinnard@ed.gov
or Dr. Tony G. Williams at 202-245-7577 or TonyG.Williams@ed.gov.
Thank you for your support and your continued interest in improving results and ensuring equal
access to educational services for students with disabilities.
Sincerely,
/s/
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs

/s/
Michael K. Yudin
Acting Assistant Secretary
Office of Special Education and
Rehabilitative Services

Enclosures

20

RESOURCES
U.S. Department of Education
Individuals with Disabilities Education Act. Retrieved November 18, 2014 from
http://idea.ed.gov/explore/view/p/%2Croot%2Cstatute%2C
Joint letter to Chief State School Officers and State Attorneys General with Attorney General
Eric Holder regarding educational support for youth in the juvenile justice system, June 9, 2014.
Retrieved July 11, 2014 from http://www2.ed.gov/policy/elsec/guid/secletter/140609.html
IDEA and FERPA Confidentiality Provisions. June 2014. Retrieved July 21, 2014 from
http://www2.ed.gov/policy/gen/guid/ptac/pdf/idea-ferpa.pdf
Office of Special Education Programs Memorandum and Questions and Answers on Dispute
Resolution, July 23, 2013. Retrieved July 11, 2014 from
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqaf
inalmemo-7-23-13.pdf
Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and
Reevaluations, September 2011. Retrieved July 11, 2014, from
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C3%2C
Questions and Answers on Discipline Procedures, June 2009. Retrieved November 18, 2014
from http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C7%2C
Dear Colleague Letter on Education for Highly Mobile Children, July 19, 2013. Retrieved
November 18, 2014 from http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/120392dclhighlymobile.pdf
U.S. Department of Justice
U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and
Delinquency Prevention. http://www.ojjdp.gov
U.S. Department of Justice, Civil Rights Division, Special Litigation Section.
http://www.justice.gov/crt/about/spl/juveniles.php
U.S. Department of Justice, Civil Rights Division, Educational Opportunities Section.
http://www.justice.gov/crt/about/edu/.
Statement of Interest of the United States, G.F. v. Contra Costa Cnty., No. 3:13-cv-03667-MEJ
(N.D. Cal. Feb. 13, 2014). http://www.justice.gov/crt/about/spl/documents/contracosta_soi_2-1314.pdf

21


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND
REHABILITATIVE SERVICES
November 12, 2014
Michelle Kotler
Law Offices of Michelle Kotler, P.C.
5257 Buckeystown Pike #269
Frederick, Maryland 21704
Dear Ms. Kotler:
This is in response to your letter to the Office of Special Education Programs (OSEP) regarding
the criteria used by some States to identify children with “visual impairments or blindness,” as
that term is defined under Part B of the Individuals with Disabilities Education Act (IDEA). In
your letter, you provide, as an example, the criteria used by the District of Columbia Public
Schools (DCPS) to determine eligibility for special education and related services under Part B
of the IDEA based on visual impairment or blindness.1 You indicate that the criteria are
inconsistent with Federal regulations because they exclude children whose vision problems
affect their ability to read and write. Furthermore, you indicate that an example of a vision
condition that severely impairs learning is “convergence insufficiency” and that some States’
definitions of “visual impairment” exclude children with such a condition.
Under Part B of the IDEA a child with a disability means a child evaluated in accordance with 34
CFR §§300.304-300.311 as having a disability, and who, by reason thereof, needs special
education and related services. 34 CFR §300.8(a)(1). Further, under 34 CFR §300.8(c)(13),
“visual impairment including blindness” means an impairment in vision that, even with
correction, adversely affects a child's educational performance. The term includes both partial
sight and blindness. OSEP understands that convergence insufficiency results when a person’s
eyes do not properly turn inward to focus and provide binocular vision and a single image, which
could affect a child’s ability to read, and therefore, the child’s educational performance.
While States may establish standards for eligibility for special education and related services,
and are not required to use the precise definition of disability terms in the IDEA, these Stateestablished standards must not narrow the definition in the IDEA. It is important to note that
1

Your letter included a copy of the Office of the State Superintendent of Education’s (OSSE) Letter of Decision for
State Complaint No. 013-004 dated October 16, 2013, in which OSSE identified the five eligibility criteria used by
DCPS under the category of visual impairment including blindness:
1.
2.
3.
4.
5.

Central acuity with corrective lenses 20/70 in the better eye with correction, or
Reduced visual field to 50 degrees or less in the better eye, or
A diagnosis of cortical visual impairment, or
A diagnosis of a degenerative condition that is likely to result in a significant loss of vision in the future, or
Any ocular pathology that is permanent and irremediable through medical or therapeutic intervention that
has adverse effect on educational performance.

Page 2 – Ms. Michelle Kotler
States define or adopt common definitions of certain ambiguous modifiers to guide evaluators in
making individualized determinations of eligibility. For example, where the definition of
“intellectual disability”2 refers to “significantly subaverage general intellectual functioning,” 34
CFR §300.8(c)(6), and, similarly, where the definition of “orthopedic impairment” refers to
“severe orthopedic impairment that adversely affects a child’s educational performance,” States
are given discretion to determine the precise level of impairment that qualifies as significant, and
severe, respectively, in order for evaluators to implement those definitions. In contrast, the
definition of “visual impairment including blindness,” does not contain a vague modifier; rather,
any impairment in vision, regardless of severity, is covered, provided that such impairment, even
with correction, adversely affects a child’s educational performance.
Accordingly, States may not use criteria or other definitions for “visual impairment including
blindness” that result in the exclusion of children who otherwise meet the definition in 34 CFR
§300.8(c)(13). State eligibility guidelines and definitions for visual impairment and blindness
may not exclude a child with convergence insufficiency or other visual impairment from meeting
the definition in the IDEA for visual impairment and blindness if that condition adversely affects
that child’s educational performance.
The evaluation of vision status and the need for special education and related services should be
thorough and rigorous, include a data-based media assessment, be based on a range of learning
modalities, including auditory, tactile, and visual, and include a functional visual assessment. An
assessment of a child’s vision status generally would include the nature and extent of the child’s
visual impairment, and its affect, for example, on the child’s ability to learn to read, write, do
mathematical calculations, and use computers and other assistive technology, as well as the
child’s ability to be involved in and make progress in the general curriculum offered to
nondisabled students. Such an evaluation generally would be closely linked to the assessment of
the child’s present and future reading and writing objectives, needs, and appropriate reading and
writing media. The information obtained through the evaluation generally should be used by the
IEP Team in determining whether it would be appropriate to provide a blind or visually impaired
child with special education instruction or related services as required by the IDEA. In addition,
because the evaluation must assess a child’s future needs, a child’s current vision status should
not necessarily determine whether it would be inappropriate for that child to receive special
education and related services while in school. Please see OSEP’s Dear Colleague Letter on
Braille, June 19, 2013, http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/brailledcl-619-13.pdf (copy attached).
With respect to the definition used by DCPS, as the State educational agency for the District of
Columbia, OSSE is responsible for establishing and implementing procedures for ensuring that
all eligible children with disabilities are identified, located and evaluated, and that a free
appropriate public education is made available to all such children. OSSE is also responsible for
ensuring that Part B funds are not used to serve children who do not meet the Part B definition of
“child with a disability.” It is the role of OSSE, rather than this office, to establish State
standards for determining eligibility (so long as they are consistent with Part B requirements),
and to determine whether DCPS’ eligibility guidelines are consistent with State standards, and
the requirements of Part B of the IDEA. OSEP will work with OSSE to address this issue.

2

Rosa’s Law (P.L. 111-256) replaced references to “mental retardation” or “mentally retarded” with “intellectual
disability” in all Federal health, education, and labor policy.

Page 3 – Ms. Michelle Kotler
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
Thank you for bringing this matter to our attention. If you have questions, please do not hesitate
to contact Jennifer Denny at 202-245-6331 or by email at Jennifer.Denny@ed.gov.

Sincerely,
/s/ Melody Musgrove
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs

Attachment

cc: State Director of Special Education

Page 4 – Ms. Michelle Kotler


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND
REHABILITATIVE SERVICES
November 12, 2014
Ms. Tracy Blodgett
1764 Bromley Drive
Woodbury, Minnesota 55125
Dear Ms. Blodgett:
This is in response to your letter to Ruth Ryder, Deputy Director, Office of Special Education
Programs, dated December 3, 2013. Your letter stated that Minnesota requires a student to
demonstrate an audiological documentation of hearing loss, among other factors, to be eligible
for special education services as a deaf or hearing impaired student. You noted that some
students “meet the initial eligibility criteria for special education services in the area of deaf or
hard of hearing due to a conductive hearing loss” and that “[c]onductive hearing loss can often
be corrected medically or surgically” so that the student no longer meets the criteria for deaf or
hard of hearing. You asked whether a student whose conductive hearing loss has been
medically or surgically corrected to the point that the student’s hearing thresholds are within
normal limits can continue to receive special education and related services if a reevaluation
shows that the student continues to demonstrate significant discrepancies in reading, written
language, general knowledge, and social skills.
The regulations under Part B of the Individuals with Disabilities Education Act (IDEA) define a
child with a disability as a child evaluated in accordance with 34 CFR §§300.304 through
300.311 as having one or more of a number of impairments, including a hearing impairment
(which includes deafness), and who, by reason thereof, needs special education and related
services. 34 CFR §300.8(a)(1). Deafness means a hearing impairment that is so severe that the
child is impaired in processing linguistic information through hearing, with or without
amplification, that adversely affects a child’s educational performance. 34 CFR §300.8(c)(3).
Under 34 CFR §300.8, a child must meet two prongs to be considered a child with a disability
eligible for special education and related services under IDEA Part B: 1) the child has one or
more of the impairments specified in 34 CFR §300.8; and 2) because of one or more of the
impairments, the child needs special education and related services. If a child does not meet both
prongs, whether determined during an initial evaluation or a reevaluation, then the child is not
eligible for special education and related services under IDEA Part B.
However, it is important to note that 34 CFR §300.305(e) requires the public agency to evaluate
a child with a disability in accordance with 34 CFR §§300.304 through 300.311 before
determining that the child is no longer a child with a disability. Therefore, before exiting a child
from special education based on a determination that the child no longer meets the criteria for
“child with a disability,” the child must be assessed in all areas related to the suspected disability,
and the evaluation must be sufficiently comprehensive to identify the child’s potential need for
special education and related services, whether or not commonly linked to the disability category
in which the child was previously identified, consistent with 34 CFR §300.304(c)(4) and (6).

Page 2 – Ms. Tracy Blodgett
That is, even though a child may no longer meet the criteria for “child with a disability” under
the “hearing impairment” category based on medically or surgically corrected hearing that is
now in the normal range, the child may still meet the criteria for “child with a disability” under
one of the other disability categories specified in 34 CFR §300.8. In OSEP’s view, the child’s
language needs and whether he or she qualifies under the “speech or language impairment”
category would be important considerations when evaluating that child’s continued eligibility for
services, because hearing loss during the crucial early years can have a long-term impact on a
child’s speech and language acquisition and development.1 Therefore, a group of qualified
professionals and the child’s parent, which may be the child’s individualized education program
team, could determine that the child continues to be eligible for special education and related
services even if the child’s hearing loss is resolved. 34 CFR §300.306(a). This could occur if
the group determines that, after following the appropriate evaluation procedures, the child
continues to be a child with a disability under one of the other disability categories (such as
speech or language impairment) and, because of the disability, requires special education and
related services.2 34 CFR §300.305(a).
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the Department
of the IDEA in the context of the specific facts presented.
If you have any further questions, please do not hesitate to contact Dr. Ken Kienas, of my staff,
at 202-245-7621 or by email at Ken.Kienas@ed.gov.
Sincerely,
/s/ Melody Musgrove
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
cc: State Director of Special Education

1

For example, see: Ingvalson, E.M., Young, N. M. & Wong, P. C. M. (2014). Auditory–cognitive training improves
language performance in prelingually deafened cochlear implant recipients, International Journal of Pediatric
Otorhinolaryngology, 78, 1624-31; Kronenberger, W. G., Bethany G. Colson, Shirley C. Henning, and David B.
Pisoni. (2014). Executive functioning and speech-language skills following long-term use of cochlear implants.
Journal of Deaf Studies and Deaf Education, 19, 456-470.
2

In addition, even if a child is found ineligible for services under IDEA Part B, the child may be eligible for services
under Section 504 of the Rehabilitation Act of 1973 (Section 504) and/or Title II of the Americans with Disabilities
Act of 1990 (ADA). The Office for Civil Rights (OCR) in the U.S. Department of Education enforces Section 504
in public schools and, along with the U.S. Department of Justice, enforces Title II of the ADA in public schools.
Information about OCR enforcement is available on OCR’s website at www.ed.gov/ocr.