UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

July 26, 2021
Long COVID under Section 504 and the IDEA:
A Resource to Support Children, Students, Educators, Schools, Service Providers, and Families
Introduction
The COVID-19 pandemic has created significant challenges for schools in meeting the needs of all
children and students in early childhood, elementary, secondary, and postsecondary education. These
challenges will continue as schools and public agencies 1 seek to ensure support and equity for children
and students experiencing the long-term adverse health effects of COVID-19, commonly referred to as
long COVID.
This resource is issued jointly by the U.S. Department of Education’s Office for Civil Rights (OCR) and the
Office of Special Education and Rehabilitative Services (OSERS) to provide information about long COVID
as a disability and about schools’ 2 and public agencies’ responsibilities for the provision of services and
reasonable modifications to children and students for whom long COVID is a disability. The discussion
here focuses on two Federal laws: Section 504 of the Rehabilitation Act of 1973 (Section 504) and Parts
B and C of the Individuals with Disabilities Education Act (IDEA). 3
This resource has four sections:
I.
II.
III.
IV.

Background Information on Section 504 and IDEA
What Is Long COVID and What Is Its Impact on Children and Students
Protections and Services under IDEA and Section 504 for Children and Students with Long COVID
What to Do If a Child or Student Is Experiencing Long COVID

Additional Resources from the Department of Education
The Department is committed to providing resources to support schools and public agencies in
reopening safely and in ways that support equity among all children and students. To date, the
Department has released various important resources to assist schools and public agencies, including
the ED COVID-19 Handbook, Volumes I, II, and III; 4 Questions and Answers on Civil Rights and School
Reopening in the COVID-19 Environment; 5 the Safer Schools and Campuses Best Practices
Clearinghouse; 6 and this resource, which addresses the potential developmental and educational
implications of long COVID for children and students 7 who have this condition.
Please note: Other than statutory and regulatory requirements included in the document, the contents
of this guidance do not have the force and effect of law and are not meant to bind the public. This
document is intended only to provide clarity to the public regarding existing requirements under the law
or agency policies. The Department has determined that this document provides significant guidance
under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72
Fed. Reg. 3432 (Jan. 25, 2007).
1

I.

Background: About Section 504 and IDEA

Section 504 prohibits disability discrimination and ensures that students with disabilities have equal
access to educational opportunities. In the education context, this law applies to schools that receive
Federal financial assistance from the Department and is enforced by the Department’s OCR.
IDEA Part B ensures that a free appropriate public education (FAPE) is available to all children with
disabilities residing in the State between the ages of 3 through 21 years, with a few specific exceptions,
and including children with disabilities who have been suspended or expelled from school. 8 Under Part
C of the IDEA, infants and toddlers (birth through age 2 years) with disabilities and their families are
eligible to receive early intervention services. 9 OSERS’ Office of Special Education Programs (OSEP)
administers the IDEA, including the Federal Special Education Grants to States under Part B and Special
Education Grants for Infants and Toddlers under Part C.
II.

What Is Long COVID and What Is Its Impact on Children and Students

The U.S. Centers for Disease Control and Prevention (CDC) has identified long COVID as another term for
post-COVID conditions. 10 According to the CDC, post-COVID conditions “are a wide range of new,
returning, or ongoing health problems people can experience more than four weeks after first being
infected with the virus that causes COVID-19. Even people who did not have symptoms when they were
infected can have post-COVID conditions.” 11
Preliminary studies show that children and students of all ages may experience long COVID, which can
produce a combination of symptoms, including: 12
•
•
•
•
•
•
•
•
•

Tiredness or fatigue
Difficulty thinking or concentrating
(sometimes referred to as “brain fog”)
Headache
Changes in smell or taste
Dizziness on standing (lightheadedness)
Fast-beating or pounding heart (also
known as heart palpitations)
Symptoms that get worse after physical
or mental activities
Chest or stomach pain
Difficulty breathing or shortness of
breath

•
•
•
•
•
•
•
•
•
•

Cough
Joint or muscle pain
Mood changes
Fever
Pins-and-needles feeling
Diarrhea
Sleep problems
Changes in period cycles
Multiorgan effects or autoimmune
conditions
Rash

As the Departments of Justice and Health and Human Services explain, long COVID can be a disability
under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.13
III.

Protections and Services Under IDEA and Section 504 for Children and Students with Long
COVID

A child or student experiencing long COVID or other conditions that have arisen as a result of COVID-19
may be eligible for special education and related services under IDEA and/or may be entitled to
protections and services under Section 504. Some children and students who were already identified
2

as having a disability under IDEA and/or Section 504 and who have contracted COVID-19 may
experience new or worsened symptoms related to their pre-existing disability, to COVID-19, or to both.
If these symptoms persist in the form of long COVID, these children or students may need new or
different related aids and services, specialized instruction, or reasonable modifications. Other children
or students may be found eligible for services under IDEA and/or Section 504 for the first time because
of the adverse impact of long COVID on the child’s educational achievement and functioning (IDEA) or if
long COVID substantially limits one or more of the student’s major life activities (Section 504).
A. Eligibility Under IDEA: To be eligible for special education and related services under Part B,
the child must be evaluated and determined to be a child who has a disability and who requires
specialized services as defined under IDEA. 14 For example, under the IDEA Part B regulations, a
child may be eligible for special education and related services based on having an “other
health impairment” if the child has limited strength, vitality, or alertness due to a chronic or
acute health problem that adversely affects the child’s educational performance. 15 To be
eligible for early intervention services under IDEA Part C, an infant or toddler must receive a
comprehensive, multidisciplinary evaluation and meet the State’s eligibility criteria. 16 For
example, infants with severe post-COVID conditions could, based on evaluation data, have
developmental delays that make them eligible for early intervention services.
B. Eligibility Under Section 504: Under Section 504, a person has a disability if they: (1) have a
physical or mental impairment that substantially limits a major life activity; (2) have a record of
such an impairment; or (3) are regarded as having such an impairment. 17 Major life activities
include, for example, breathing and concentrating as well as major bodily functions such as
functions of the immune system. 18 A student does not need to be substantially limited in their
learning to be eligible for protection and services under Section 504. If a student’s long COVID
substantially limits one or more major life activities, the student would have a disability under
Section 504. 19 This analysis applies to all students, whether in pre-school, elementary or
secondary school, or a postsecondary setting.
IV.

What To Do if a Child or Student Is Experiencing Long COVID

Early Childhood, Elementary, and Secondary Children and Students
Long COVID impacts children and students in a variety of ways, and therefore, the determination of
whether a child or student is eligible for IDEA and/or Section 504 services must be made on an
individual basis following existing procedures in those laws and their implementing regulations.
A.

Child Find and Evaluation Procedures under IDEA Part C

Child Find is a requirement that States have a system in place to identify, locate, and evaluate all
infants and toddlers with disabilities who may be eligible for early intervention services as early as
possible. A child suspected of having a disability should be referred as soon as possible, but in no case
more than seven days, after the child has been identified. 20 With parental 21 consent, a timely,
comprehensive, multidisciplinary evaluation must be completed, and if the child is determined eligible,
a child and family assessment must be conducted to determine the appropriate early intervention
services and supports for the child and family. The initial evaluation and the initial assessments of the
child and family and the initial individualized family service plan (IFSP) meeting must be completed
within 45 days from the date the lead agency or early intervention service (EIS) provider receives the
3

referral of the child. The lead agency or EIS provider must ensure that once the IFSP is developed and
the parent consents to services, the IFSP is implemented as soon as possible.
B.

Child Find and Initial Evaluation Procedures under IDEA Part B

Similarly, Child Find for IDEA Part B requires public agencies to implement policies and procedures
ensuring that all children with disabilities who need special education and related services are
identified, located, and evaluated, regardless of the severity of the disability. This includes, for
example, children who may have been identified as a child with a disability under the IDEA category of
other health impairment as a result of contracting COVID-19 (e.g., long COVID or multisystem
inflammatory syndrome in children, known as MIS-C). 22 Child Find activities typically involve a
screening process to determine whether the child should be referred for a full evaluation to determine
eligibility for special education and related services. If the public agency suspects the child may have a
disability under IDEA, it must seek the parent’s consent to conduct an initial evaluation. That evaluation
must be consistent with IDEA’s requirements and conducted within 60 days of receiving parental
consent or within the State-established timeline. At the completion of the evaluation, a group of
qualified professionals and the child’s parent determine whether the child is a child with a disability as
defined in IDEA and, if yes, identify the educational needs of the child.
C.

Evaluation Procedures under Section 504

Under Section 504, schools must conduct an evaluation in a timely manner of any student who needs
or is believed to need special education or related services because of a disability. 23 The evaluation of a
student must be individualized and not make any conclusions based on the child’s diagnosis alone.
Once the evaluations are completed, a group of people knowledgeable about the child and the child’s
evaluation data and placement options (for example, the child’s parents, school nurses, teachers,
counselors, psychologists, school administrators, social workers, doctors, etc.) reviews the evaluation
results. 24 Then the group determines the child’s placement based on whether the student has a
disability and what, if any, supports are needed. For example, a student who has had COVID-19 and
who continues to have difficulty concentrating may require an evaluation to determine if the student
has a disability and needs special education or related services such as additional time to finish
classwork and tests. For students who already receive services under Section 504, schools must
provide reevaluations periodically and prior to a significant change in placement. 25
D.

Eligibility and Implementation under IDEA and Section 504

If the child is eligible for services under Part C of IDEA, an IFSP will be developed by the IFSP Team,
which includes the infant’s or toddler’s parent. For example, an IFSP Team may determine that a
toddler with developmental delays as a result of the effects of long COVID may require early
intervention services and occupational therapy to address fine and visual motor skills. The IFSP could
also include parent services or family-centered interventions to foster social-emotional well-being as
the toddler recovers from long COVID. Likewise, a child determined eligible for services under Part B
will have an Individualized Education Program (IEP) developed by the IEP Team, which includes the
child’s parent. 26 For example, an IEP Team may determine that a child whose disability meets the
definition of other health impairment under IDEA and who is experiencing difficulty concentrating and
anxiety symptoms related to long COVID may need to receive special education and related services
and supplementary aids and services to improve academic engagement during instructional periods,
4

counseling services to address anxiety, and a plan for positive behavioral interventions and supports to
promote on-task behavior and adaptive responses to stress triggers.
If a student is eligible for services or reasonable modifications under Section 504, schools often record
those services and modifications in a document called a Section 504 plan. 27 Under Section 504, for
example, a group of knowledgeable people may determine that a student requires a reasonable
modification to the attendance policy to receive excused absences for long COVID-related illness or
medical appointments beyond the initial period of illness.
Postsecondary Education Students
Colleges and universities also have obligations under Section 504 and must provide students with
disabilities an opportunity to participate that is equal to that of students without disabilities. 28 This
obligation extends to students whose long COVID substantially limits a major life activity.
Postsecondary education students who are experiencing long COVID may have a disability; if so, they
may require academic adjustments and/or reasonable modifications. 29 For example, a student with
asthma may experience increased difficulty breathing and new difficulty with walking as a result of long
COVID. That student may need a reasonable modification to register early for a class schedule that
minimizes the distance between classes.
In the postsecondary setting, Section 504 does not require colleges or universities to identify students
with disabilities. Students who require academic adjustments or reasonable modifications may request
them; typically, students work with a postsecondary institution’s disability services office to identify
appropriate modifications.

Students with disabilities—including those whose long COVID is a disability—have a right to
be free from discrimination in school. Federal disability laws, such as Section 504, guarantee
equal opportunity to learn for students with disabilities. OCR is committed to enforcing
Section 504 and ensuring that all students with disabilities have the supports and services
needed to fulfill the law’s commitment.
—Suzanne B. Goldberg, Acting Assistant Secretary for Civil Rights

Long COVID is an emerging issue that may affect many children (and educators) across the
country. Early intervention and local educational agencies need to ensure that children who
are living with impaired development or health due to long COVID that is a disability are
identified and are provided the appropriate services and supports covered under IDEA.
—Katherine Neas, Acting Assistant Secretary for the Office of Special Education and
Rehabilitative Services

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V.

Language Assistance

On request, this publication is available in alternate formats, such as Braille or large print. For more
information, please contact the Department’s Alternate Format Center at 202-260-0818 or
alternateformatcenter@ed.gov. If you have difficulty understanding English and need more
information about interpretation or translation services, please call 1-800-USA-LEARN (1-800- 8725327) (TTY: 1-800-877-8339), email us at Ed.Language.Assistance@ed.gov, or write to U.S. Department
of Education, Information Resource Center, 400 Maryland Avenue, SW, Washington, DC 20202.
VI.

About the Department of Education’s Office of Special Education and Rehabilitative Services
(OSERS) and Office for Civil Rights (OCR)

OSERS’ mission is to improve early childhood, educational, and employment outcomes and raise
expectations for all people with disabilities, their families, their communities, and the nation. In
implementing this mission, OSERS supports programs that help educate children and youth with
disabilities and provides for the rehabilitation of youth and adults with disabilities. OSERS provides a
wide array of supports to parents and individuals, school districts, and States in two main areas—
special education and vocational rehabilitation—through its two main components: OSEP and
Rehabilitation Services Administration. For more information, visit the Department’s Office of Special
Education and Rehabilitative Services website (https://www2.ed.gov/osers).
OCR’s mission is to ensure equal access to education and to promote educational excellence through
vigorous enforcement of civil rights in our nation’s schools. An important OCR responsibility is
resolving complaints of discrimination, which can be filed by anyone who believes that an education
institution that receives Federal financial assistance 30 has discriminated against someone on the basis
of race, color, national origin, sex, disability, or age. For more information, visit the Department’s
Office for Civil Rights website (https://www2.ed.gov/ocr). There, a complaint of discrimination can also
be filed (https://www2.ed.gov/about/offices/list/ocr/complaintintro.html).

The information in this document under IDEA applies to public agencies, which includes State educational
agencies (SEAs), local educational agencies (LEAs), educational service agencies (ESAs), nonprofit public charter
schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other
political subdivisions of the State that are responsible for providing education to children with disabilities. IDEA
also requires State lead agencies to provide early intervention services for infants and toddlers. This resource
refers to all these entities as “public agencies.”
2
The information in this document regarding Section 504 applies to all schools, which includes public schools and
school districts, as well as private schools, public charter schools, and magnet schools, and postsecondary
institutions that receive Federal financial assistance from the Department. Although some Section 504 regulatory
requirements are different for public and private school recipients, both public and private schools that receive
Federal financial assistance from the U.S. Department of Education must comply with Section 504. See, 34 C.F.R. §
104.33 and 39. Section 504 falls under OCR’s jurisdiction.
3
Another Federal disability civil rights law, the Americans with Disabilities Act (ADA), also applies to schools. Title
II of the ADA prohibits disability discrimination by public entities, including public schools. Title III of the ADA
prohibits disability discrimination by certain private entities, including certain private schools. OCR shares in the
enforcement of Title II of the ADA with the U.S. Department of Justice (DOJ); DOJ has enforcement authority for
1

6

Title III of the ADA. This document focuses on Section 504 and the IDEA. More information about the ADA is
available at: www.ed.gov/ocr and www.ada.gov.
4
ED Covid-19 Handbook, Strategies for Safely Reopening Elementary and Secondary Schools, Volume I, available
at https://www2.ed.gov/documents/coronavirus/reopening.pdf, Volume II, Roadmap to Reopening Safely and
Meeting All Students’ Needs available at https://www2.ed.gov/documents/coronavirus/reopening-2.pdf, and
Volume III, Strategies for Safe Operation and Addressing the Impact of COVID-19 on Higher Education Students,
Faculty, and Staff available at https://www2.ed.gov/documents/coronavirus/reopening-3.pdf.
5
Questions and Answers on Civil Rights and School Reopening in the COVID-19 Environment, May 2021, available
at https://www2.ed.gov/about/offices/list/ocr/docs/qa-reopening-202105.pdf.
6
https://bestpracticesclearinghouse.ed.gov/.
7
For purposes of this document, “students with disabilities” generally refers to the definition of disability found
in the Rehabilitation Act of 1973 at 29 U.S.C. § 705(9)(B), (20)(B); see also the Department’s Section 504
regulation at 34 C.F.R. § 104.3(j). “Child or children with disabilities” generally refers to the definitions of child
with a disability or infant or toddler with a disability in Parts B and C of the IDEA. See 34 C.F.R. § 300.8 (Part B)
and 34 C.F.R. § 303.21 (Part C). However, the terms and definitions are not mutually exclusive. All children with
disabilities who are eligible for special education and related services under IDEA are protected by Section 504
(but the inverse is not true; not all students protected by Section 504 are IDEA-eligible). See U.S. Department of
Education, Office for Civil Rights, Parent and Educator Resource Guide to Section 504 in Public Elementary and
Secondary Schools (December 2016), available at https://www2.ed.gov/about/offices/list/ocr/docs/504resource-guide-201612.pdf.
8
34 C.F.R. § 300.102(a).
9
Appropriate early intervention services are available to all infants and toddlers with disabilities in the State and
their families, including Indian infants and toddlers with disabilities and their families residing on a reservation
geographically located in the State, infants and toddlers with disabilities who are homeless children and their
families, and infants and toddlers with disabilities who are wards of the State.
10
The Centers for Disease Control and Prevention also recognizes other post-COVID conditions, a series of
illnesses resulting in debilitating conditions, that can be similar to long COVID. This guidance may also be
applicable to other post-COVID conditions. For example, the CDC has identified a post-COVID condition called
“Multisystem inflammatory Syndrome in children (MIS-C).” MIS-C is a condition where different parts of a child’s
body can become inflamed, including the heart, lungs, kidneys, brain, skin, eyes, or gastrointestinal organs.
Children with MIS-C may have a fever and various symptoms, including abdominal (gut) pain, vomiting, diarrhea,
neck pain, rash, bloodshot eyes, or feeling extra tired. Currently, it is unknown how long multiorgan effects might
last and whether the effects could lead to chronic health conditions. MIS-C, mental health conditions, and future
conditions not yet identified as a result of contracting COVID may adversely impact a student’s educational
performance or other major life activity, and if they do, the same process described in this document applies to
those students.
11
See CDC’s Post-COVID Conditions website, https://www.cdc.gov/coronavirus/2019-ncov/long-termeffects.html.
12
See CDC’s Post-COVID Conditions website, https://www.cdc.gov/coronavirus/2019-ncov/long-termeffects.html.
13
For more information concerning long COVID as a disability, see Department of Justice and Department of
Health and Human Services, Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section
1557, https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-coviddisability/index.html.
14
34 C.F.R. §§ 300.301-300.306.
15
IDEA does not require children to be identified with a particular disability category for purposes of the delivery
of special education and related services, since a child’s entitlement under IDEA is to FAPE and not to a particular
disability label. See Assistance to States for the Education of Children With Disabilities and Preschool Grants for
Children With Disabilities; Final Rule, 71 Fed. Reg. 46540, 46737 (Aug. 14, 2006).
16
34 C.F.R. §§ 303.303-303.322.

7

29 U.S.C. § 705(9)(B), (20)(B).
For more examples of major life activities and bodily functions, see the Department’s Parent and Educator
Resource Guide to Section 504 in Public Elementary and Secondary Schools (Resource Guide), available at
https://www2.ed.gov/about/offices/list/ocr/docs/504-resource-guide-201612.pdf.
19
In addition, if a person with long COVID has a record of such impairment or is regarded as having such an
impairment, the person would meet the definition of disability under Section 504.
20
34 C.F.R. § 303.303.
21
In this document, parent refers to both parents and guardians.
22
34 C.F.R. § 300.111.
23
34 C.F.R. § 104.35.
24
34 C.F.R. § 104.35(c).
25
34 C.F.R. § 104.35(d). A reevaluation procedure consistent with the IDEA is one means of meeting this Section
504 requirement.
26
Parentally-placed private school children with disabilities may receive special education and related services
through a services plan. See 34 C.F.R. §§ 300.130-300.144.
27
For more information about identification, evaluation, placement, and other Section 504 procedures, refer to
the Resource Guide, available at https://www2.ed.gov/about/offices/list/ocr/docs/504-resource-guide201612.pdf.
28
34 C.F.R. §§ 104.4, 41-47. Postsecondary institutions also are not required to provide academic adjustments,
auxiliary aids and services, or modifications that would impose an undue burden or cause a fundamental
alteration to the service, program, or activity.
29
34 C.F.R. § 104.44.
30
Under Title II of the Americans with Disabilities Act (Title II), which prohibits disability discrimination by public
entities, including public schools, OCR has jurisdiction regardless of whether the entity receives Federal financial
assistance.
17
18

8


OSEP Policy Support 21-02

U.S. DEPARTMENT OF EDUCATION FACT SHEET

Section 2014 of the American Rescue Plan Act of 2021 and the
Individuals with Disabilities Education Act
Part B and Part C of the Individuals with Disabilities Education Act (IDEA) authorize assistance to States to support the provision of
special education and related services to children with disabilities and the provision and coordination of early intervention services for
infants and toddlers with disabilities and their families, respectively. Section 2014(a) of the American Rescue Plan Act of 2021 (ARP)
provided more than $3 billion in supplemental funding for Fiscal Year 2021 for the three IDEA formula grant programs described
below:
•
•
•

$2,580,000,000 for IDEA Part B Grants to States (Section 611)
$200,000,000 for IDEA Part B Preschool Grants (Section 619)
$250,000,000 for IDEA Part C Grants for Infants and Families

This document provides an overview of the major statutory and regulatory requirements for IDEA Part B and Part C. Supplemental
funding made available by the ARP is subject to the same requirements as Federal fiscal year (FFY) 2021 IDEA funding made
available under Public Law 116-260 (The Consolidated Appropriations Act of 2021).
Part B of the IDEA provides funds to eligible States and entities under the Grants to States program authorized by section 611 of
IDEA for children with disabilities aged three through 21 and the Preschool Grants program authorized by section 619 of IDEA for
children with disabilities aged three through five. The IDEA Part B funds assist States, and through them, eligible local educational
agencies (LEAs), in providing special education and related services to children with disabilities. Part B funds are awarded to each
State educational agency (SEA) that has established its eligibility under section 612 of IDEA for IDEA Part B funds to assist in
providing special education and related services to eligible children with disabilities. 1. States are required to distribute any IDEA
section 611 and section 619 funds that the State does not reserve for State-level activities 2 to LEAs that have established their
eligibility under section 613 of IDEA under a statutory formula and must be used only to pay the excess costs of providing special
education and related services in accordance with part B of IDEA. 3 All IDEA Part B ARP funds must be used consistently with the
current IDEA Part B statutory and regulatory requirements.
See also 34 C.F.R. § 300.100.
States are limited in the amount they may reserve for State-level activities by the formula in 34 C.F.R. § 300.704.
3
34 C.F.R. §§ 300.705(a) and 300.815; see also 34 C.F.R. § 300.202(a)(2).
1
2

Part C of the IDEA provides funds to each State lead agency designated by the Governor to implement statewide systems of
coordinated, comprehensive, multidisciplinary, interagency programs to make early intervention services available to infants and
toddlers with disabilities and their families. All IDEA Part C ARP funds must be used consistently with the current IDEA Part C
statutory and regulatory requirements. IDEA Part C ARP funds may be used for any allowable purpose under Part C of the IDEA,
including the direct provision of early intervention services to infants and toddlers with disabilities and their families, and
implementing a statewide, comprehensive, coordinated, multidisciplinary, interagency system to provide early intervention services.
Under Public Law 116-260, (The Consolidated Appropriations Act of 2021) States may use IDEA Part C FFY 2021 and IDEA Part C
ARP funds allotted under section 643(c) of the IDEA to make subgrants to LEAs, institutions of higher education, other public
agencies, and private non-profit organizations to carry out activities authorized by section 638 of the IDEA. States may also apply for
state incentive grants (SIGs) to fund the Part C extension option under IDEA sections 635(c) and 643(e) and 34 C.F.R. §§ 303.211 and
303.734.
The additional IDEA Part B and Part C funds that section 2014 of the ARP made available for States, in addition to State IDEA Part B
and Part C formula grant awards for Federal fiscal year (FFY) 2021, are subject to all IDEA statutory requirements reflected in 20
U.S.C. 1401 et seq. and applicable regulatory requirements in 34 CFR Parts 300 and 303. These statutory and regulatory provisions
apply to IDEA grant awards, and include requirements and provisions under IDEA, the Education Department General Administrative
Regulations (EDGAR), applicable provisions of the General Education Provisions Act (GEPA), and the Office of Management and
Budget’s (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform
Guidance). State allocation summary tables for FFY 2021 IDEA Part B and Part C grant awards (including both the regular formula
grant funds and the supplemental IDEA grant funds provided under section 2014 of the ARP) are available on the IDEA ARP page in
the linked locations.
The table below describes major statutory and regulatory requirements of IDEA Part B and C. These requirements apply equally to
funds made available under the ARP and the Consolidated Appropriations Act of 2021. The table below is intended to highlight key
topics with links to statutory and regulatory text, but is not a comprehensive list of all requirements.
Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

Authorizing Statutes

Section 611 and section 619 of the IDEA
(for the IDEA Part B FFY 2021 formula
grant funds), and section 2014 of the ARP
(for the supplemental IDEA section 611
and section 619 funds).

Section 643 of the IDEA (for the IDEA
Part C FFY 2021 IDEA formula grant
funds, and section 2014 of the ARP (for
the supplemental IDEA Part C funds).

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

Amount of IDEA regular FFY 2021
funds (not including ARP)

$12,937,457,000 for IDEA section 611

$477,000,000 for IDEA Part C.

Amount of IDEA funds awarded in
ARP

$2,580,000,000 for IDEA section 611

Period of Funds Availability

Funds are available for obligation by
SEAs and LEAs between July 1, 2021,
and September 30, 2023, and must be
liquidated by January 28, 2024.

Funds are available for obligation by Part
C lead agencies between July 1, 2021, and
September 30, 2023, and must be
liquidated by January 28, 2024.

Reservation of IDEA funds for State
administration and other State-level
activities

IDEA allows States to reserve funds for
State level activities (State administration
and other State-level activities) for both
sections 611 and 619. However, because
the provisions governing the maximum
amount of funds that may be reserved are
slightly different for section 611 and
section 619, the impact of the additional
ARP funds is different.

N/A

$397,620,000 for IDEA section 619.
$250,000,000 for IDEA Part C.

$200,000,000 for IDEA section 619.

For section 611, the amounts that States
may reserve for State administration and
other State-level activities are set in
accordance with section 611(e) of the
IDEA. Under these provisions the
maximum amount that a State may
reserve is subject to rate of inflation and
not the total amount of IDEA funds made
available. As a result, the additional IDEA
funds made available by ARP do not
increase the amount that can be reserved

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

for State administration and other State
level activities.
For section 619, the amounts that States
may reserve for State administration and
other State-level activities are set in
accordance with section 619(d) of the
IDEA. Under these provisions the
maximum amount that a State may
reserve is determined by the lesser of (1)
the increase in the State’s allocation under
the program, or (2) the rate of inflation.
As a result of the additional ARP Act
funding, there was a small increase in the
amount that States may reserve compared
to FFY 2020.
LEA allocations

Under section 611(f) of the IDEA and 34
C.F.R. § 300.705(a), each State that
receives a section 611 grant for any fiscal
year shall distribute any section 611 funds
the State does not reserve for State-level
activities to LEAs (including public
charter schools that operate as LEAs) in
the State that have established their
eligibility under section 613 of the IDEA,
in accordance with the formula in section
611(f)(2).
Likewise, under section 619(g) of the
IDEA and 34 C.F.R. § 300.815, each State
that receives a section 619 grant for any
fiscal year shall distribute all of the

N/A

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

section 619 grant funds that the State does
not reserve for State-level activities to
LEAs in the State (including public
charter schools that operate as LEAs) in
the State that have established their
eligibility under section 613 of the IDEA,
in accordance with the formula in section
619(g)(1)(A) and (B).
Cash Management

For the IDEA section 611 program, cash
management principles apply and IDEA
funds are usually included in the
Treasury-State agreement. 31 C.F.R. Part
205, Subpart A. IDEA subgrants are
subject to the OMB Uniform Guidance
payment requirements in 2 C.F.R
§ 200.305(b).

Cash management principles in 31 C.F.R.
Part 205 Subpart B (rules applicable to
Federal assistance programs not included
in a Treasury-State agreement) apply.

For the IDEA section 619 program, cash
management principles in 31 C.F.R. Part
205 Subpart B (rules applicable to Federal
assistance programs not included in a
Treasury-State agreement) apply.
Uses of Funds

Funds may be used for all allowable
purposes under Part B of IDEA and are
subject to all requirements and provisions
that apply to IDEA funds, including
requirements and provisions under IDEA,
EDGAR, and the OMB Uniform
Guidance.

Funds may be used for all allowable
purposes under Part C of IDEA and are
subject to all requirements and provisions
that apply to IDEA funds, including
requirements under IDEA, EDGAR, and
the OMB Uniform Guidance.

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

Prior Approvals (for selected items of
cost)

Under section 605 of the IDEA, if the
Secretary determines that a program
authorized under IDEA Part B will be
improved by permitting program funds to
be used to acquire appropriate equipment,
or to construct new facilities or alter
existing facilities, the Secretary is
authorized to allow the use of those funds
for those purposes.

Under section 605 of the IDEA, if the
Secretary determines that a program
authorized under IDEA Part C will be
improved by permitting program funds to
be used to acquire appropriate equipment,
or to construct new facilities or alter
existing facilities, the Secretary is
authorized to allow the use of those funds
for those purposes.

Note that SEAs will continue to have the
authority, as the pass-through entity, to
review and approve LEA requests to use
IDEA Part B funds for the purchase of
equipment, including the alteration of
existing facilities. 2 C.F.R. § 200.439(b)
(1)–(3).

States may also wish to review the
October 2019 Frequently Asked
Questions (2019 FAQs) Prior Approval –
OSEP and RSA Formula Grants, which
provides prior approval flexibilities for
certain equipment and participant support
costs.

States may also wish to review the
October 2019 Frequently Asked
Questions (2019 FAQs) Prior Approval –
OSEP and RSA Formula Grants, which
provides prior approval flexibilities for
certain equipment and participant support
costs.
Maintenance of State Financial Support Under section 612(a)(18) of the IDEA, a
(MFS)/Maintenance of Effort (MOE)
State may not reduce the amount of State
(State)
financial support for special education and
related services for children with
disabilities, or otherwise made available
because of the excess costs of educating

Section 637(b)(5)(B) of the IDEA
includes a supplement not supplant
provision, implemented through the Part
C regulations at 34 C.F.R. § 303.225. The
IDEA Part C MOE provision in 34 C.F.R.
§ 303.225(b) requires each State to ensure
that the total amount of State and local

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

those children, below the amount of that
support for the preceding fiscal year.

funds budgeted for expenditures in the
current fiscal year for early intervention
services for children eligible under this
part and their families must be at least
equal to the total amount of State and
local funds actually expended for early
intervention services for these children
and their families in the most recent
preceding fiscal year for which the
information is available. States must meet
this standard to be eligible for the receipt
of Federal IDEA Part C funds.

Under section 612(a)(18)(C) of the IDEA,
the Department is authorized to waive the
MFS requirement for a State, for one
fiscal year at a time, if the Department
determines that doing so would be
equitable due to an exceptional or
uncontrollable circumstance, such as a
natural disaster or a precipitous and
unforeseen decline in the financial
resources of the State.
Part C MOE Allowances

N/A

Allowances to the requirements in 34
C.F.R. § 303.225(b) may be made for:
1. A decrease in the number of infants
and toddlers who are eligible to
receive early intervention services
under this part; and
2. Unusually large amounts of funds
expended for such long-term purposes
as the acquisition of equipment and
the construction of facilities.

Maintenance of Effort (LEA)

Under section 613(a)(2)(A)(iii) of the
IDEA, an LEA may not reduce the level
of expenditures for the education of
children with disabilities made by the
LEA from local funds below the level of
those expenditures for the preceding fiscal
year.

N/A

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

LEA MOE Exceptions

Under section 613(a)(2)(B) of the IDEA
and 34 C.F.R. § 300.204, there are five
instances where an LEA may reduce the
level of expenditures for the education of
children with disabilities made by the
LEA below the level of those
expenditures for the preceding fiscal year
(for the compliance standard), and below
the level of those expenditures for the
most recent fiscal year for which
information is available (for the eligibility
standard). They are:

N/A

(1) The voluntary departure, by retirement
or otherwise, or departure for just
cause, of special education or related
services personnel (e.g., special
education teachers, speech
pathologists, paraprofessionals
assigned to work with children with
disabilities);
(2) A decrease in the enrollment of
children with disabilities;
(3) The termination of the obligation of
the agency, consistent with IDEA Part
B, to provide a program of special
education to a particular child with a
disability that is an exceptionally
costly program, as determined by the
SEA, because the child—

Topic

IDEA Part B, Sections 611 and 619
(a) Has left the jurisdiction of the
agency;
(b) Has reached the age at which the
obligation of the agency to provide
FAPE to the child has terminated;
or
(c) No longer needs the program of
special education;
(4) The termination of costly expenditures
for long-term purchases, such as the
acquisition of equipment or the
construction of school facilities; and
(5) The assumption of cost by the high
cost fund operated by the SEA under
34 C.F.R. § 300.704(c).

Adjustment to Local Effort

Under section 613(a)(2)(C) of the IDEA,
for any fiscal year that an LEA’s IDEA
allocation exceeds the amount the LEA
received for the previous fiscal year,
under certain circumstances, the LEA may
reduce the level of local, or State and
local, expenditures otherwise required to
meet MOE by up to 50 percent of the
amount of the excess, as long as the LEA
uses the freed-up local funds for activities
that could be supported under the ESEA.
Note that an LEA may not take this
reduction if the SEA determines that the

IDEA Part C

Topic

IDEA Part B, Sections 611 and 619
LEA is unable to establish and maintain
programs of free appropriate public
education for eligible children with
disabilities or the SEA has taken action
against the LEA under section 616 of
IDEA. Also, an LEA that is required to
reserve the maximum 15 percent of its
IDEA Part B allocation on
Comprehensive Coordinated Early
Intervention Services (CCEIS) because
the LEA is identified with significant
disproportionality under 34 C.F.R.
§ 300.646 will not be able to take
advantage of the MOE reduction in 34
C.F.R. § 300.205(a).
In addition, under IDEA section 616(f), if
in making its annual determinations, an
SEA determines that an LEA is not
meeting the requirements of Part B,
including meeting targets in the State’s
performance plan, the SEA must prohibit
that LEA from reducing its MOE under
IDEA section 613(a)(2)(C) for any fiscal
year. Therefore, an SEA must prohibit an
LEA from taking advantage of the MOE
reduction under IDEA section
613(a)(2)(C) if the LEA’s determination is
Needs Assistance, Needs Intervention, or
Needs Substantial Intervention.

IDEA Part C

Topic

IDEA Part B, Sections 611 and 619

Part C Option

Equitable Services Reservations

IDEA Part C
Under the reservation for State incentive
grants in section 643((e) of the IDEA, for
any fiscal year for which the amount
appropriated pursuant to the authorization
of appropriations under section 644 of this
title exceeds $460,000,000, the Secretary
shall reserve 15 percent of such
appropriated amount to provide grants to
States that are carrying out the policy
described in section 635(c) of this title in
order to facilitate the implementation of
such policy.

Under section 612(a)(10)(A)(i) of the
IDEA, to the extent consistent with the
number and location of children with
disabilities in the State who are enrolled
by their parents in private elementary
schools and secondary schools in the
school district served by an LEA,
provision is made for the participation of
those children in the program assisted or
carried out under Part B by providing for
such children special education and
related services in accordance with the
equitable services requirements in IDEA.
34 C.F.R. §§ 300.130-300.144. Amounts
to be expended for the provision of those
services (including direct services to
parentally placed private school children)
by the LEA shall be equal to a
proportionate amount of Federal funds

N/A

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

made available under Part B of the IDEA.
In calculating the proportionate share
required under IDEA section
612(a)(10)(A)(i)(I), an LEA must first
aggregate the FFY 2021 funds received
under the section 611 (Grants to States)
regular and ARP awards and apply the
formula outlined in 34 C.F.R. § 300.133
for calculating the proportionate share to
the aggregated amount. Similarly, for
children aged 3-5, the proportionate share
is based on the total FFY 2021 funds
received under the section 619 (Preschool
Grants) regular and ARP awards.
Indirect Cost Rates

Indirect costs are restricted. Under 34
C.F.R § 76.563 of EDGAR, 34 C.F.R.
§§ 76.564 through 76.569 apply to
agencies of State and local governments
that are grantees under programs with a
statutory requirement prohibiting the use
of Federal funds to supplant non-Federal
funds, and to their subgrantees under these
programs.
Indirect cost rates are approved by the
Secretary pursuant to 34 C.F.R. § 76.561.
Restricted indirect cost rates apply to the
IDEA Part B regular formula grant funds
and supplemental funds provided by the
ARP. States should calculate their
restricted indirect costs on the IDEA Part

Indirect costs are restricted. Under 34
C.F.R § 76.563 of EDGAR, 34 C.F.R.
§ 76.564 through 76.569 apply to agencies
of State and local governments that are
grantees under programs with a statutory
requirement prohibiting the use of Federal
funds to supplant non-Federal funds, and
to their subgrantees under these programs.
Under 34 C.F.R. § 303.225(c), State may
not charge indirect costs to IDEA Part C
FFY 2021 formula funds as well as ARP
supplemental IDEA Part C funds unless
they are charged on a restricted basis.
States should calculate their restricted
indirect costs on the IDEA Part C ARP
funds in the same way as they calculate

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

B ARP funds in the same way as they
calculate indirect costs on their IDEA Part
B regular formula grant award.

indirect costs on their IDEA Part C
regular formula grant award.

CEIS

Section 613(f) of the IDEA and the
regulations in 34 C.F.R. § 300.226 permit
an LEA to use not more than 15 percent of
the amount the LEA receives under Part B
for any fiscal year (i.e., the aggregate of
the LEA’s section 611 and section 619
amounts for both the regular formula
IDEA awards and the supplemental IDEA
awards made available by the ARP), less
any amount reduced by the LEA pursuant
to 34 C.F.R. § 300.205, to develop and
provide CEIS for students in kindergarten
through grade 12 (with a particular
emphasis on students in kindergarten
through grade three) who are currently not
identified as needing special education or
related services but who need additional
academic and behavioral support to
succeed in a general education
environment.

Comprehensive CEIS (CCEIS)

Under section 618(d)(2)(B) of the IDEA
and the regulations in 34 C.F.R.
§ 300.646(d), the State or the Secretary of
the Interior shall require any LEA
identified under 34 C.F.R. § 300.646(a)
and (b) to reserve the maximum amount
of funds under section 613(f) of the IDEA

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

(i.e., 15 percent of the amount the LEA
receives under Part B for any fiscal year)
to provide CCEIS to address factors
contributing to the significant
disproportionality. The 15 percent is
calculated based on the aggregate of the
LEA’s section 611 and section 619
amounts for both the regular formula
IDEA awards and the supplemental IDEA
awards made available by the ARP.
Reporting

All prime recipients of IDEA Part B funds
must report subaward information as
required by the Federal Funding
Accountability and Transparency Act of
2006 (FFATA), as amended in 2008.
First-tier subaward information must be
reported by the end of the following
month from when the award was made or
obligated. FFATA guidance is found at
https://www.fsrs.gov/. The supplemental
IDEA awards made available by the ARP
will be assigned separate Catalog of
Federal Domestic Assistance (CFDA)
numbers, allowing the funds to be tracked
separately from the regular IDEA awards.

All prime recipients of IDEA Part C funds
must report subaward information as
required by the Federal Funding
Accountability and Transparency Act of
2006 (FFATA), as amended in 2008.
First-tier subaward information must be
reported by the end of the following
month from when the award was made or
obligated. FFATA guidance is found at
https://www.fsrs.gov/. The supplemental
IDEA awards made available by the ARP
will be assigned separate Catalog of
Federal Domestic Assistance (CFDA)
numbers, allowing the funds to be tracked
separately from the regular IDEA awards.

Audit

Under 2 C.F.R. § 200.501(a), a nonFederal entity that expends $750,000 or
more during the non-Federal entity’s
fiscal year in Federal awards must have a
single or program-specific audit

Under 2 C.F.R. § 200.501(a), a nonFederal entity that expends $750,000 or
more during the non-Federal entity’s
fiscal year in Federal awards must have a
single or program-specific audit

Topic

IDEA Part B, Sections 611 and 619

IDEA Part C

conducted for that year in accordance with conducted for that year in accordance with
the Uniform Guidance provisions.
the Uniform Guidance provisions.
Under 2 C.F.R. § 200.501(b), a nonFederal entity that expends $750,000 or
more during the non-Federal entity’s
fiscal year in Federal awards must have a
single audit conducted in accordance with
the scope of the audit requirements in
§ 200.514 except when it elects to have a
program-specific audit conducted in
accordance with 2 C.F.R. § 200.501(c).

Under 2 C.F.R. § 200.501(b), a nonFederal entity that expends $750,000 or
more during the non-Federal entity’s
fiscal year in Federal awards must have a
single audit conducted in accordance with
the scope of the audit requirements in
§ 200.514 except when it elects to have a
program-specific audit conducted in
accordance with 2 C.F.R. § 200.501(c).


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

May 12, 2021

OSEP Policy 21-01
Garth Tymeson, PhD
Center on Disability Health and Adapted Physical Activity
University of Wisconsin-La Crosse
Department of Exercise and Sport Science
1725 State Street
108 Mitchell Hall
La Crosse, Wisconsin 54601
Dear Dr. Tymeson:
This letter responds to your April 9, 2020, correspondence addressed to Laurie VanderPloeg,
former Director of the Office of Special Education Programs (OSEP), U.S. Department of
Education (Department). In that letter, you asked that OSEP clarify requirements related to the
provision of physical education, including adapted physical education (APE), to children with
disabilities under the Individuals with Disabilities Education Act (IDEA). Specifically, you
asked that OSEP clarify “issues including the substitution or replacement of required physical
education services by related services such as physical or occupational therapy for children with
disabilities in special education, ages 3-21, and the qualifications/licensure required to teach
specially designed physical education included in the [individualized education program (IEP)]
IEP.” You shared a scenario of a child who had received APE at her elementary school but,
when she was to transition to middle school, the local educational agency members of the IEP
Team proposed to replace the child’s APE with physical therapy services due to the
unavailability of a qualified APE teacher at the middle school. On January 26, 2021, Daniel
Schreier, Policy Advisor to the Acting OSEP Director, and Lisa Pagano, OSEP Policy Specialist,
spoke with you by telephone to gather additional information related to your request. We regret
the delay in responding.
We note that section 607(d) of the IDEA prohibits the Secretary of the Department from issuing
policy letters or other statements that establish a rule that is required for compliance with, and
eligibility under, IDEA without following the rulemaking requirements of section 553 of the
Administrative Procedure Act. Therefore, based on the requirements of IDEA section 607(e),
this response is provided as informal guidance and is not legally binding. It represents an
interpretation by the Department of the requirements of IDEA in the context of the specific facts
presented and does not establish a policy or rule that would apply in all circumstances. Other
than statutory and regulatory requirements included in the document, the contents of this
400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-2800
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal access.

guidance do not have the force and effect of law and are not meant to bind the public. This
document is intended only to provide clarity to the public regarding existing requirements under
the law or agency policies.
IDEA defines special education as “specially designed instruction, at no cost to parents, to meet
the unique needs of a child with a disability, including (A) instruction conducted in the
classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in
physical education.” IDEA section 602(29). The IDEA regulations define physical education to
mean “[t]he development of – (A) [p]hysical and motor fitness; (B) [f]undamental motor skills
and patterns; and (C) [s]kills in aquatics, dance, and individual and group games and sports
(including intramural and lifetime sports).” 34 C.F.R. § 300.39(b)(2)(i). Physical education
“[i]ncludes special physical education, adapted physical education, movement education, and
motor development.” 34 C.F.R. § 300.39(b)(2)(ii).
Under 34 C.F.R. § 300.108(a), the State is required to ensure that public agencies in the State
make physical education services, specially designed if necessary, available to every child with a
disability receiving a free appropriate public education (FAPE), unless the public agency enrolls
children without disabilities and does not provide physical education to children without
disabilities in the same grades. Further, each child with a disability must be afforded the
opportunity to participate in the regular physical education program available to nondisabled
children unless - (1) the child is enrolled full time in a separate facility; or (2) the child needs
specially designed physical education, as prescribed in the child’ IEP. 34 C.F.R. § 300.108(b). If
specially designed physical education is prescribed in a child’s IEP, the public agency
responsible for the education of that child must provide the services directly or make
arrangements for those services to be provided through other public or private programs. 34
C.F.R. § 300.108(c).
Since instruction in physical education is included in the definition of special education, the IEP
Team must determine the extent to which the child can access the regular physical education
program available to nondisabled peers, in addition to the extent to which physical education is
required as specially designed instruction to meet the child’s unique needs. Therefore, even if a
school does not provide physical education to children without disabilities in the same grades as
children with disabilities, the school is not relieved of the duty to provide physical education to
those students who have unique needs requiring physical education and have IEPs setting out
physical education as part of that student’s special education and related services. Thus, under
IDEA Part B, “if physical education is specially designed to meet the unique needs of a child
with a disability and is set out in that child’s IEP, those services must be provided whether or not
they are provided to other children in the agency.” Analysis of Comments and Changes to the
final IDEA Part B regulations, 71 Fed. Reg. 46540, 46583 (Aug. 14, 2006); see also 34 C.F.R.
§ 300.108(c).
When the IEP Team determines a child requires physical education as specially designed
instruction to meet the unique needs of a child with a disability, the service is considered special
education and not a related service. As with other services in the IEP, the IEP Team determines
the frequency, location, and duration of the service based on the needs of the child. See 34
C.F.R. § 300.320(a)(7). It would be inconsistent with IDEA for the IEP Team to base its

determination of services necessary to provide FAPE, including specially designed instruction in
physical education, on the availability of qualified staff.
During the January 26, 2021, telephone discussion with OSEP staff, you asked that this response
specifically address whether it would be appropriate for a physical therapist to develop and
implement goals in a child’s IEP that require specially designed instruction in physical
education. You shared concerns that, in the absence of an APE teacher, IEP Teams may be
inclined to substitute physical therapy for the specially designed physical education that had been
determined necessary for FAPE. While Part B of the IDEA does not mandate any particular
personnel standards, each State’s policies and procedures must provide for the establishment and
maintenance of standards to ensure that personnel necessary to carry out the purposes of Part B
are appropriately and adequately prepared and trained. 34 C.F.R. § 300.156(a). This includes
ensuring that personnel have the content knowledge and skills to serve children with disabilities.
Id. The Part B regulations at 34 C.F.R. § 300.156 address separately, the requirements for related
services personnel and paraprofessionals (34 C.F.R. § 300.156(b)) and the qualifications for
special education teachers (34 C.F.R. § 300.156(c)). The determination of who is qualified to
provide physical education as specially designed instruction, including APE, is dependent upon
the State’s policies and procedures.
Finally, you asked whether an IEP Team meeting is required if a public agency proposes to
remove APE included in a child’s IEP and replace it with one-to-one physical therapy services.
You inquired whether such a change would constitute a change in educational placement. Unless
the parent and public agency agree to use the IEP amendment procedures in 34 C.F.R.
§ 300.324(a)(4) and (6), the public agency would need to convene the IEP Team to discuss
making the revisions to the child’s IEP that you describe. A public agency must provide the
parent with prior written notice, as required by 34 C.F.R. § 300.503, a reasonable time before
proposing to initiate or change, or refusing to initiate or change, the identification, evaluation,
educational placement or provision of FAPE to the child.
Generally, OSEP does not opine on whether the scenarios set forth in policy inquiries
constitute a change in a child’s educational placement. Determinations about whether a
revision to a child’s program results in a change in placement are made based on the facts
and circumstances of the specific child, examining a number of factors. To help guide
that decision-making process, OSEP set out several factors to consider in its Letter to
Fisher, 21 IDELR 992 (July 6, 1994):
In determining whether a “change in educational placement” has occurred, the
public agency responsible for educating the child must determine whether the
proposed change would substantially or materially alter the child’s educational
program. In making such a determination, the effect of the change in location on
the following factors must be examined: whether the educational program set out
in the child’s IEP has been revised; whether the child will be able to be educated
with nondisabled children to the same extent; whether the child will have the
same opportunities to participate in nonacademic and extracurricular services; and
whether the new placement option is the same option on the continuum of
alternative placements.

We thank you for your continued commitment to ensuring children with disabilities have access
to appropriate instruction to meet their unique physical education needs and trust that the
information in this letter is responsive to your inquiry. If you have further questions, please
contact Lisa Pagano at 202-245-7413 or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
David Cantrell, PhD
Acting Director
Office of Special Education Programs


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

OSEP QA 21-02

October 21, 2020
The Office of Special Education Programs (OSEP), within the U.S. Department of
Education’s (Department) Office of Special Education and Rehabilitative Services,
issues this Question and Answer (Q & A) document in response to inquiries concerning
implementation of the Individuals with Disabilities Education Act (IDEA) Part C provision
of service in the current COVID-19 environment.
Other than statutory and regulatory requirements included in the document, the
contents of this guidance do not have the force and effect of law and are not meant to
bind the public. This document is intended only to provide clarity to the public regarding
existing requirements under the law or agency policies.
To review other Q & A documents that OSEP has provided related to COVID-19, please
visit https://sites.ed.gov/idea/topic-areas/#COVID-19. Additional information specific to
the COVID-19 pandemic may be found online at https://www.ed.gov/coronavirus.
Additional OSEP early intervention (EI) resources, strategies and support materials are
available at https://ectacenter.org/.

IFSP MEETINGS AND SERVICE PROVISION
Part C of the IDEA provides funds to the State lead agency (State LA) to make EI
services available to all eligible infants and toddlers with disabilities and their families
living within the State. These EI services are provided in conformity with the child’s
individualized family service plan (IFSP), 34 C.F.R. § 303.13(a)(9). Under
34 C.F.R. § 303.340, for each infant or toddler with a disability, the State LA must ensure
the development, review, and implementation of an IFSP developed by a
multidisciplinary team, which includes the parents, that (a) Is consistent with the
definition of that term in 34 C.F.R. § 303.20; and (b) Meets the requirements in
34 C.F.R. § 303.342 through 34 C.F.R. § 303.346. This document addresses the IFSP
meeting, notice and other requirements related to service provision.

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www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal access.

IFSP MEETINGS AND NOTICE
Q1.

How can parents, State LAs and their early intervention service (EIS) providers
hold initial, periodic and annual IFSP meetings when LAs and EIS providers
cannot conduct face-to-face meetings?

The Department recognizes that some States, due to operational constraints caused by
the COVID-19 pandemic, are currently unable to conduct face-to-face IFSP meetings.
IDEA Part C provisions in 34 C.F.R. § 303.342(d) require that the initial, annual and
periodic IFSP meetings be held in settings and at times that are convenient for the
family. Additionally, IFSP meetings need to be in the native language of the family or
other mode of communication used by the family (unless this is not feasible). During the
time of this pandemic when in-person meetings are not feasible or practicable, the
Department is extending the flexibility for IFSP periodic reviews that is allowed in
34 C.F.R. § 303.342(b)(2) to the State LAs and local EIS providers to conduct initial and
annual IFSP meetings through alternate means, such as through a telephone or video
conference call (if feasible and consistent with privacy standards) if acceptable to the
parents and other IFSP team meeting participants.

45-DAY TIMELINE
Q2.

Does IDEA allow for flexibility in meeting the 45-day timeline for conducting the
initial IFSP meeting?

Yes, in specific circumstances. The IDEA Part C 45-day timeline is required under
34 C.F.R. §§ 303.310, 303.342(a) and 303.345(c). The 45-day timeline applies to any
screening offered by the State, the initial evaluation, the child and family assessment,
and the initial IFSP meeting. The two exceptions to the 45-day timeline are when:
1) The child or parent is unavailable to complete the required activities
(screening, initial evaluation, initial assessments of the child and family,
and the initial IFSP meeting) due to exceptional family circumstances that
are documented in the child's early intervention records; and
2) The parent has not provided consent for the screening (if applicable), the
initial evaluation, or the initial assessment of the child despite
documented and repeated attempts by the lead agency or EIS provider
to obtain parental consent.

2

OSEP has also applied documented exceptional family circumstances when clear
circumstances outside the State LA’s or EIS provider’s control, such as a hurricane, do
not permit the underlying activity to occur and thus the child and family are
unavailable as a practical matter. 1 In these very limited circumstances, under 34 C.F.R.
§ 303.310(c), the State LA or EIS provider must:
1) document in the child’s early intervention record the exceptional
circumstances; and
2) complete the activities as soon as possible after the documented
exceptional circumstances no longer exist.
For at least two of the activities in the 45-day timeline, the evaluation of the child to
determine eligibility and the child assessment, (but possibly also for all of the activities
required) the inability to conduct an in-person observation may be critical to ensuring
appropriate evaluation and assessment. Given that in-person meetings may not be
feasible or advisable due to the pandemic related to COVID-19, the pandemic can
constitute the basis for documented exceptional family circumstances to the 45-day
timeline.

SERVICE PROVISION
Q3.

What must a State LA and its EIS providers do if they cannot provide IDEA Part C
services in accordance with the IFSP due to the pandemic?

In many cases, the public health responses related to COVID-19 may prevent EIS
providers from delivering specific early intervention services in a child’s IFSP. For
example, Part C services on many IFSPs are to be provided in the child’s natural
environment, including the child’s home and community settings (such as day care)
that are natural or typical for a same-aged infant or toddler without a disability 2. When
the lead agency or EIS provider cannot provide IDEA Part C services in accordance
with the IFSP, it must provide prior written notice to the parents as soon as possible. The
child’s IFSP Team, which includes the parents, must then determine which services can
be provided to meet the child’s needs during this time, and consider other services or
alternate means of service delivery, if feasible and consistent with privacy interests, such
as through the use of telecommunications, including telephone or videoconferencing,
or consultative services to the parent. If the parent has previously agreed, or agrees

1 This exception does not apply if the State LA or EIS provider staff are unavailable due to
circumstances such as staffing shortages.
2 See 34 C.F.R. § 303.344(d)(ii).

3

during the pandemic, the prior written notice can be provided through electronic mail
(email). 3
The State LA and EIS providers must document the IFSP Team’s determination and revise
the child’s IFSP to reflect the agreed-upon services that will be provided in light of the
circumstances (e.g., program closures, social distancing or other measures) so that the
IFSP is clear to the parents and all who are responsible for providing IDEA Part C services
to the child. OSEP notes that, where feasible, early intervention services identified in the
IFSP should be based on peer reviewed research to the extent practicable, but the
Department understands that in light of the public health responses related to the
COVID-19 pandemic, peer reviewed research may not be available for services
provided remotely. 4

3 See the previously issued Q & A on Part C Procedural Safeguards (June 30, 2020) for more

information.

4 See 34 C.F.R. § 303.344(d)(1).

4


DEPARTAMENTO DE EDUCACIÓN DE EE.UU.
OFICINA DE EDUCACIÓN ESPECIAL Y SERVICIOS DE REHABILITACIÓN
OFICINA DE PROGRAMAS DE EDUCACIÓN ESPECIAL

OSEP QA 21-02

21 de octubre de 2020
La Oficina de Programas de Educación Especial (OSEP), que pertenece a la Oficina de
Educación Especial y Servicios de Rehabilitación del Departamento de Educación de
los EE. UU. (Departamento), emite este documento de Preguntas y Respuestas
(Questions and Answers, Q & A) en respuesta a consultas relacionadas con la
implementación de la prestación de servicios de la Parte C de la Ley de Educación
para Personas con Discapacidades (IDEA) en el entorno actual de la COVID-19.
Aparte de los requisitos legales y reglamentarios incluidos en el documento, el
contenido de esta guía no tiene fuerza ni vigencia de ley y no genera obligaciones
para el público. Este documento tiene como único objetivo brindar claridad al público
con respecto a los requisitos existentes según la ley o las políticas de la agencia.
Para revisar otros documentos de preguntas y respuestas ofrecidos por la OSEP en
relación con la COVID-19, visite https://sites.ed.gov/idea/topic-areas/#COVID-19.
Puede encontrar información adicional específica sobre la pandemia de COVID-19 en
el sitio web https://www.ed.gov/coronavirus. Hay recursos, estrategias y materiales de
apoyo adicionales de la OSEP para intervención temprana en https://ectacenter.org/.

REUNIONES DEL IFSP Y PRESTACIÓN DE SERVICIOS
La Parte C de IDEA proporciona fondos a la agencia principal estatal para que los
servicios de intervención temprana (early intervention services, EIS) estén disponibles
para todos los bebés y niños pequeños con discapacidades que reúnan los requisitos y
sus familias que viven dentro del Estado. Estos servicios de intervención temprana se
proporcionan de conformidad con el Plan de servicio familiar individualizado
(Individualized Family Service Plan, IFSP), Título 34 §§ 303.13(a)(9) del CFR. En virtud del
Título 34 § 303.340 del CFR, para cada bebé o niño pequeño con una discapacidad, la
agencia principal estatal debe garantizar el desarrollo, la revisión y la implementación
de un IFSP desarrollado por un equipo multidisciplinario, que incluye a los padres, que
(a) es consistente con la definición de ese término que aparece en el Título 34 § 303.20
del CFR; y (b) cumple con los requisitos mencionados en el Título 34 § 303.342 a §
303.346 del CFR. Este documento aborda la reunión del IFSP, la notificación y otros
requisitos relacionados con la prestación de servicios.

400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-2800
www.ed.gov
Tenemos como misión promover el alto rendimiento académico y la preparación de los estudiantes para la competitividad global
al fomentar la excelencia en la educación y garantizar la igualdad de acceso.

REUNIONES DEL IFSP Y NOTIFICACIONES
P1.

¿Cómo pueden los padres, las agencias principales estatales y sus proveedores
de servicios de intervención temprana (EIS) realizar reuniones iniciales,
periódicas y anuales del IFSP cuando las agencias principales estatales y los
proveedores de EIS no pueden realizar reuniones presenciales?

El Departamento reconoce que algunos Estados, debido a las limitaciones operativas
causadas por la pandemia de COVID-19, actualmente no pueden realizar reuniones
presenciales del IFSP. Las disposiciones de la Parte C de la Ley IDEA en el Título 34 §
303.342(d) del CFR exigen que las reuniones iniciales, anuales y periódicas del IFSP se
lleven a cabo en entornos y horarios que sean convenientes para la familia. Además,
las reuniones del IFSP deben realizarse en el idioma nativo de la familia o a través de
otro modo de comunicación utilizado por la familia (a menos que esto no sea factible).
Durante esta pandemia, cuando las reuniones en persona no son factibles o viables, el
Departamento está extendiendo la flexibilidad para las revisiones periódicas del IFSP
permitidas en el Título 34 § 303.342(b) (2) del CFR a las agencias principales estatales y
proveedores locales de EIS para realizar reuniones iniciales y anuales del IFSP a través
de medios alternativos, como por teléfono o videoconferencia (si es factible y
consistente con las normas de privacidad) si resulta aceptable para los padres y otros
participantes de la reunión del equipo del IFSP.

PLAZO DE 45 DÍAS
P2.

¿Permite la Ley IDEA flexibilidad para cumplir con el plazo de 45 días para
realizar la reunión inicial del IFSP?

Sí, en circunstancias específicas. El plazo de 45 días de la Parte C de la Ley IDEA es
obligatorio en virtud del Título 34 §§ 303.310, 303.342(a) y 303.345(c) del CFR. El plazo de
45 días se aplica a cualquier examen de detección ofrecido por el Estado, la
evaluación inicial, la valoración del niño y la familia y la reunión inicial del IFSP. Hay dos
excepciones al plazo de 45 días:
1) Si el niño o los padres no están disponible para completar las actividades
requeridas (el examen de detección, la evaluación inicial, las valoraciones
iniciales del niño y la familia, y la reunión inicial del IFSP) debido a circunstancias
familiares excepcionales que están documentadas en los registros de
intervención temprana del niño; y
2) Si los padres no han dado su consentimiento para el examen de detección (si
corresponde), la evaluación inicial o la valoración inicial del niño, a pesar de los
intentos repetidos y documentados del proveedor de EIS o la agencia principal
estatal para obtener el consentimiento de los padres.

2

La OSEP también ha aplicado esta excepción documentada de circunstancias
familiares excepcionales cuando circunstancias claras fuera del control de la agencia
principal estatal o el proveedor de EIS, como un huracán, no permiten que se dé lugar
a la actividad subyacente y, por lo tanto, el niño y la familia no están disponibles como
una cuestión práctica.1 En estas circunstancias muy limitadas, según el Título 34 §
303.310(c) del CFR, la agencia principal estatal o el proveedor de EIS deben:
1) Documentar en el registro de intervención temprana del niño las circunstancias
excepcionales; y
2) Completar las actividades tan pronto como sea posible después de que ya no
existan las circunstancias excepcionales documentadas.
Para al menos dos de las actividades en el plazo de 45 días, la evaluación del niño
para determinar la elegibilidad y la valoración del niño (pero posiblemente también
para todas las actividades requeridas), la incapacidad de realizar una observación en
persona puede ser crítica para garantizar una evaluación y una valoración
apropiadas. Dado que las reuniones personales pueden no ser factibles o
recomendables debido a la pandemia de COVID-19, la pandemia puede constituir la
justificación de circunstancias familiares excepcionales documentadas para el plazo
de 45 días.

PRESTACIÓN DE SERVICIOS
P3.

¿Qué deben hacer las agencias principales estatales y sus proveedores de EIS si
no pueden prestar los servicios de la Parte C de la Ley IDEA de acuerdo con el
IFSP debido a la pandemia?

En muchos casos, las respuestas de salud pública relacionadas con la COVID-19
pueden impedir que los proveedores de EIS presten servicios específicos de
intervención temprana del IFSP de un niño. Por ejemplo, los servicios de la Parte C en
muchos IFSP deben prestarse en el entorno natural del niño, lo que incluye el hogar y la
comunidad del niño (como la guardería) que son naturales o típicos para un bebé o
niño pequeño de la misma edad sin una discapacidad.2 Cuando la agencia principal
o el proveedor de EIS no pueden prestar los servicios de la Parte C de la Ley IDEA de
acuerdo con el IFSP, deben proporcionar una notificación previa por escrito a los
padres lo antes posible. El equipo del IFSP del niño, que incluye a los padres, debe
determinar qué servicios se pueden proporcionar para satisfacer las necesidades del
niño durante este tiempo y considerar otros servicios o medios alternativos de

1 Esta excepción no se aplica si el personal de la agencia principal estatal o del proveedor de
EIS no está disponible debido a la escasez de personal.
2 Consulte el Título 34 § 303.344(d)(ii) del CFR.

3

prestación de servicios, si es factible y coherente con los intereses de privacidad, como
a través del uso de telecomunicaciones, incluidas llamadas telefónicas o
videoconferencias, o servicios de consulta para los padres. Si los padres previamente
lo aceptaron, o lo aceptan durante la pandemia, la notificación previa por escrito se
puede proporcionar a través de correo electrónico (email).3
La agencia principal estatal y los proveedores de EIS deben documentar la
determinación del equipo IFSP y revisar el IFSP del niño para reflejar los servicios
acordados que se proporcionarán considerando las circunstancias (por ejemplo,
cierres de programas, distanciamiento social u otras medidas) para que el IFSP sea
claro para los padres y todos los responsables de proporcionar los servicios de la Parte
C de la Ley IDEA al niño. La OSEP señala que, cuando sea factible, los servicios de
intervención temprana identificados en el IFSP deben basarse, en la medida de lo
posible, en investigaciones revisadas por pares pero el Departamento entiende que,
considerando las respuestas de salud pública relacionadas con la pandemia de
COVID-19, la investigación revisada por pares puede no estar disponible para los
servicios prestados de forma remota.4

3 Para obtener más información, consulte el documento Preguntas y respuestas sobre las

garantías procesales de la Parte C (30 de junio de 2020) publicado anteriormente.
4 Consulte el Título 34 § 303.344(d)(1) del CFR.

4


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

September 10, 2020
Memorandum
TO:

Directors of State Lead Agencies that are also State Educational Agencies (SEAs)

FROM:

Mark Schultz
Commissioner, Rehabilitation Services Administration
Delegated the authority to perform the functions and duties of the
Assistant Secretary for the Office of Special Education and Rehabilitative
Services

SUBJECT:

Waiver Authority for the Period of Availability for Individuals with Disabilities
Education Act (IDEA) Part C Funds for Federal fiscal year (FFY) 2018

Under section 3511(b)(1)(B) of the Coronavirus Aid, Relief, and Economic Security Act
(CARES Act), Pub. L. No. 116-136 (March 27, 2020), the Secretary of Education is authorized
to consider waivers to extend the period of availability of certain Federal funds to SEAs
responsible for implementing Federal programs. The CARES Act provides substantial relief to
children, families, educators, and service providers who have been profoundly affected by the
Novel Coronavirus Disease (COVID-19). Funds provided under Part C of IDEA are to assist
each State to maintain and implement a statewide, comprehensive, coordinated,
multidisciplinary, interagency system to provide early intervention services for infants and
toddlers with disabilities and their families. Under the CARES Act, State Lead Agencies that are
also SEAs may request a waiver for the period of availability for the use of IDEA Part C funds.
The CARES Act does not authorize the Secretary to consider waivers from State Lead Agencies
that are not SEAs.
Specifically, as a State Lead Agency that is also an SEA, you may request a waiver on behalf of
your State that will permit the IDEA Part C lead agency to use Federal fiscal year (FFY) 2018
IDEA Part C grant award funds for an additional year beyond what is known as the Tydings
period. This action is taken as a result of the on-going national emergency declared by the
President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, and to
assist in your planning for how to continue the provision of early intervention services to infants,
toddlers and children with disabilities and their families.
Your State may now submit a streamlined waiver request for an extension of the period of
availability in Section 421(b) of the General Education Provisions Act (GEPA) for FFY 2018
IDEA Part C grant award funds. Upon approval of a waiver, the FFY 2018 IDEA Part C grant
award funds will be available for obligation by the State lead agency through September 30,
2021 and may be liquidated through December 30, 2021. OSERS is committed to acting on and
responding to complete waiver requests as quickly as possible. To that end, a waiver template is
available which, if completed and submitted electronically to IDEAwaiver@ed.gov, will result
in an expedited response from the Department. The waiver template in fillable portable
document

format (PDF) is attached to this memorandum and is also posted at www.ed.gov/coronavirus.
The attached request must be signed by the SEA State lead agency. Your State’s SEA
representative (Chief State School Officer or other authorized representative) will need to submit
the waiver request.
Thank you for your ongoing work in support of educators, families, and infants, toddlers and
children with disabilities during these extraordinary circumstances. If you have questions or need
additional information regarding submission of your IDEA Part C waiver request, please contact
us at IDEAwaiver@ed.gov. If you have general questions regarding COVID-19 and how the
U.S. Department of Education can best support you, please contact COVID-19@ed.gov. I
encourage you to continue to monitor information regarding COVID-19 from the Centers for
Disease Control and Prevention and stay abreast of information and resources for schools and
school personnel at http://www.ed.gov/coronavirus.

Attachment
cc: Part C Coordinators of SEA lead agencies

2


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

July 31, 2020

Dear XXXXXXXXXXX:
This letter addresses your November 8, 2019, electronic mail (email) correspondence to Rebecca
Walawender, a member of my staff in the U.S. Department of Education (Department), Office of
Special Education Programs (OSEP). In that correspondence you shared your communications
with an official of the Texas Education Agency (TEA) concerning whether a parent may be
required to sign a confidentiality agreement in order to participate in mediation under Part B of
the Individuals with Disabilities Education Act (IDEA). In your communication with TEA, a
TEA official informed you that although a confidentiality pledge is not required, a school district
may withdraw from the mediation process if a parent refuses to sign such an agreement. You
contacted OSEP to request clarification regarding whether a public agency, in this case a local
educational agency, may condition its participation in mediation on a parent’s agreement to sign
a confidentiality pledge. We regret the delay in responding.
We note that section 607(d) of IDEA prohibits the Secretary from issuing policy letters or other
statements that establish a rule that is required for compliance with, and eligibility under, IDEA
without following the rulemaking requirements of section 553 of the Administrative Procedure
Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as
informal guidance and is not legally binding. This response represents an interpretation by the
Department of the requirements of IDEA in the context of the specific facts presented and does
not establish a policy or rule that would apply in all circumstances.
Under IDEA, discussions that occur during mediation sessions must remain confidential. 34
C.F.R. § 300.506(b)(6) and (8). Therefore, a parent’s or public agency’s participation in the
mediation process may not be conditioned on the party’s agreement to sign a confidentiality
pledge. IDEA and its implementing regulations require public agencies to establish and
implement procedures to allow parties to resolve disputes involving any matter under IDEA and
its implementing regulations, including matters arising prior to the filing of a due process
complaint, through a mediation process. 20 U.S.C. 1415(e)(1) and 34 C.F.R. § 300.506(a). The
public agency must ensure, among other requirements, that the mediation process is voluntary on
the part of the parties. 34 C.F.R. § 300.506(b)(1)(i). Additionally, mediation may not be used to
deny or delay a parent’s right to a hearing on the parent’s due process complaint, or to deny any
other rights afforded under Part B of IDEA. 34 C.F.R. § 300.506(b)(1)(ii). The goal of mediation

is for the parties to resolve the dispute and execute a legally binding written agreement reflecting
that resolution.
In its July 2013 “Questions and Answers on IDEA Part B Dispute Resolution Procedures”
(available at https://sites.ed.gov/idea/idea-files/osep-memo-and-qa-on-dispute-resolution/),
OSEP responded to an inquiry asking whether parties to the mediation process may be required
to sign a confidentiality pledge or agreement. That question and answer, which is restated below,
remains the Department’s position:
Question A-26: May parties to the mediation process be required to sign a confidentiality
pledge or agreement prior to, or as a precondition, to the commencement of the mediation
process?
Answer: No. In the Notice of Proposed Rulemaking implementing the IDEA
Amendments of 2004, the Department included a provision that would have required
parties to a mediation to sign a confidentiality pledge, without regard to whether the
mediation ultimately resolved the dispute. 70 FR 35870 (June 21, 2005). This proposed
provision was based on Note 208 of Conf. Rpt. (Conference Report) No. 108-779, p. 216
(2004). 1 However, the Department decided to remove this proposed provision when the
final Part B regulations were published in 2006 based on the statutory requirement in
section 615(e)(2)(G) that discussions that occur during the mediation process must
remain confidential and may not be used as evidence in any subsequent due process
hearing or civil proceeding. 71 FR 46696 (August 14, 2006).
Additionally, if the parties resolve a dispute through the mediation process, as noted above,
34 C.F.R. § 300.506(b)(6)(i) requires that the legally binding written agreement contain a
statement that all discussions that occurred during the mediation process will remain
confidential and may not be used as evidence in any subsequent due process hearing or civil
proceeding. 34 C.F.R. § 300.506(b)(6)(i). This is so even if the parties do not enter into a
mediation agreement. However, nothing in these regulations is intended to prevent States
from allowing parties to sign a confidentiality pledge to ensure that discussions during the
mediation process remain confidential, irrespective of whether the mediation results in a
legally binding written agreement resolving the dispute. 71 FR 46696 (August 14, 2006).
The Department’s position that States may not require parties to sign a confidentiality pledge is
reinforced by the Department’s decision in the 2006 final Part B regulations to remove a
proposed regulation that would have required parties to sign a confidentiality pledge. 71 Fed.
Reg. at 46696 (Aug. 14, 2006). In addition to the provision that must be included in a mediation
agreement, 34 C.F.R. § 300.506(b)(8) also provides that discussions that occur during the
mediation process must be confidential and may not be used as evidence in any subsequent due
process hearing or civil proceeding of any Federal court or State court of a State receiving
assistance under Part B of IDEA. Accordingly, the requirement that discussions that occur during
mediation remain confidential is fully applicable regardless of whether the parties sign a separate
confidentiality pledge or agreement prior to commencing the mediation process. We recognize
Conference Report refers to the joint explanatory statement of the Committee of Conference. This report
accompanied HR 1350, the bill to reauthorize the IDEA in 2004.

1

that mediation is voluntary on the part of the parties, but it is impermissible under IDEA for a
public agency to condition a parent’s participation in mediation on the parent’s signing a
confidentiality pledge. While nothing in IDEA is intended to prevent States from allowing
parties to sign a confidentiality pledge, public agencies may not condition their participation in
mediation on such an agreement, because such a requirement is counter to the voluntary nature
of the mediation process.
By copy of this letter we are notifying TEA of your inquiry and our response. OSEP staff will
follow up separately with TEA officials regarding this matter.
If you have any further questions, please do not hesitate to contact Ms. Walawender at 202-2457399 or by email at Rebecca.Walawender@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Program
cc: Justin Porter, Texas Education Agency