UNITED STATES DEPARTMENT OF EDUCATION
WASHINGTON, DC 20202

September 17, 2019
Increasing Postsecondary Opportunities and Success
for Students and Youth with Disabilities
The U.S. Department of Education (Department) is committed to ensuring that students and
youth with disabilities are held to high expectations and have the resources and supports needed
to expand their learning opportunities and prepare them for success in postsecondary education
or careers. To that end, this “Questions and Answers” (Q&A) describes how State educational
agencies (SEAs), local educational agencies (LEAs), and State vocational rehabilitation (VR)
agencies may coordinate to assist students and youth with disabilities, including students and
youth with intellectual disabilities who are in high school and at postsecondary education
institutions, through appropriate supports funded under the Individuals with Disabilities
Education Act (IDEA) and the Rehabilitation Act of 1973 (Rehabilitation Act), as amended by
Title IV of the Workforce Innovation and Opportunity Act (WIOA).
This Q&A addresses the following topics:
•

The opportunity for students with disabilities to enroll in postsecondary education programs
while still in high school;

•

The opportunity for students and youth with disabilities to enroll in comprehensive transition
and other postsecondary programs for individuals with disabilities after leaving high school;

•

The coordination of transition-related services that students with disabilities may receive
under the IDEA and under the VR program; and

•

The financial aid available to students with disabilities enrolled in comprehensive transition and
postsecondary education programs for students with intellectual disabilities offered at Institutions
of Higher Education (IHEs) under the Higher Education Act of 1965, as amended (HEA).

Attached to this Q&A is an Appendix with further details on these topics.
We hope this information is helpful as State VR agencies, SEAs, LEAs, and postsecondary
education institutions, including those with comprehensive transition and other postsecondary
education programs, continue to review, develop, and implement policies, procedures, and
programming for the provision of services for students and youth with disabilities, including
students with intellectual disabilities, and for those students with disabilities who are dually
enrolled in secondary and postsecondary education programs. If you have any further questions,
please contact Jessica Spataro at 202-245-6493 or by email at Jessica.Spataro@ed.gov.
Sincerely,
/s/
Johnny W. Collett
Assistant Secretary for Special Education
and Rehabilitative Services

/s/
Robert King
Assistant Secretary for Postsecondary
Education
www.ed.gov

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

Increasing Postsecondary Opportunities and Success
for Students and Youth with Disabilities
Questions and Answers
Overview
Q1

What is dual enrollment?
In this Q&A and accompanying Appendix, we use the term dual enrollment to refer to
situations when high school students with disabilities who have individualized education
programs (IEPs), are receiving services under the IDEA, and take courses offered by a
community college or other postsecondary education institution program prior to high
school graduation. As with all students taking classes at postsecondary institutions,
students with disabilities who have IEPs must meet the postsecondary institution’s
criteria to take the class. Dual enrollment can be a helpful option for some of these
students in facilitating their transition from secondary school to postsecondary education
and the workforce.

Q2

What is postsecondary education?
Postsecondary education includes education and training by institutions of higher
education (two- and four-year colleges and universities), as well as other career training
and technical education programs.

Q3

What are comprehensive transition programs (CTPs)?
CTPs are a type of postsecondary education. CTPs offered at IHEs provide inclusive,
academic, social, and career and technical education programs for individuals with
intellectual disabilities seeking a postsecondary or college experience and career path.
Participation in a CTP may generate academic credit leading to a postsecondary
credential or degree. These programs embrace high expectations and provide valuable
opportunities for individuals with intellectual disabilities to gain skills that will maximize
their opportunities for achieving employment, including competitive integrated
employment.
After exiting high school, students can enroll in CTPs on a full-time basis. Additionally,
since CTPs are a type of postsecondary education program, students can dually enroll in
CTPs while still attending secondary school.

Q4

What are transition services?
Under Part B of the IDEA
“Transition services” means a coordinated set of activities for a student with a disability
designed within a results-oriented process that is focused on improving the academic and
functional achievement of the student with a disability to facilitate the student’s movement
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from school to post-school activities, including postsecondary education, vocational
education, integrated employment (including supported employment), continuing and adult
education, adult services, independent living, or community participation.
The coordinated set of activities is based on each student’s needs, taking into account the
student’s strengths, preferences and interests, and includes instruction, related services,
community experiences, the development of employment and other post-school adult
living objectives, and, if appropriate, the acquisition of daily living skills and provision of
a functional vocational evaluation. 20 U.S.C. § 1401(34). The regulation in
34 C.F.R. § 300.43(b) also explains that transition services under the IDEA may be
special education if provided as specially designed instruction, or a related service if
required to assist the student to benefit from special education.
Beginning with the first IEP to be in effect when a student turns 16, or younger if
determined appropriate by the IEP Team, and updated annually thereafter, each student’s
IEP must include: (i) appropriate measurable postsecondary goals based upon ageappropriate transition assessments related to training, education, employment, and where
appropriate, independent living skills; and (ii) the transition services (including courses of
study) needed to assist the student in reaching those goals. 20 U.S.C.
§ 1414(d)(1)(A)(i)(VIII) and 34 C.F.R. §§ 300.320(b); see also 34 C.F.R. §300.321(b).
Under the VR program
“Transition services” means a coordinated set of activities for a student or youth with a
disability—
o Designed within an outcome-oriented process that promotes movement from
school to post-school activities, including postsecondary education, vocational
training, competitive integrated employment, supported employment, continuing
and adult education, adult services, independent living, or community
participation;
o Based upon the individual student’s or youth’s needs, taking into account the
student’s or youth’s preferences and interests;
o That includes instruction, community experiences, the development of
employment and other post-school adult living objectives, and, if appropriate,
acquisition of daily living skills and functional vocational evaluation;
o That promotes or facilitates the achievement of the employment outcomes
identified in the student’s or youth’s individualized plan for employment (IPE);
and
o That includes outreach to and engagement of the parents, or, as appropriate, the
representative of such a student or youth with a disability.
34 C.F.R. § 361.5(c)(55).
If individualized transition services are identified on an eligible student’s or youth’s
approved IPE in accordance with Section 103(a)(15) of the Rehabilitation Act and
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34 C.F.R. § 361.48(a)(18), then VR agencies provide those services to students and youth
with disabilities who have applied and been determined eligible for the VR program. VR
agencies may provide transition services to groups of students and youth with disabilities
who have not yet applied or been determined eligible for the VR program in accordance
with section 103(b)(7) of the Rehabilitation Act and 34 C.F.R. § 361.49(a)(7).
Q5

Who is responsible, the VR agency or the LEA, for providing and paying for
transition services?
There are instances in which some special education and related services under the IDEA
may also be services provided under the VR program. Decisions as to which agency, the
VR agency, the SEA, or the LEA, is responsible for providing and/or paying for preemployment transition services or transition services considered to be both a special
education (or a related service) and a VR service must be made at the State level.
Pre-employment transition services and transition services under the Rehabilitation Act
may be categorized as both VR services under the VR program and as special education
or related services under the IDEA.
Under the IDEA, related services could include psychological services; counseling
services, including rehabilitation counseling; orientation and mobility services; and
medical services for diagnostic or evaluation purposes.
Some of the special education or related services, such as counseling services, including
rehabilitation counseling, orientation and mobility services, and work experiences, are
also similar to pre-employment transition services that are available to students with
disabilities (e.g., job exploration counseling, workplace readiness training, and workbased learning opportunities).

Dual Enrollment and CTPs (IDEA)
Q6

Can IDEA Part B funds be used to support the participation of students with
disabilities in dual enrollment programs?
Yes. IDEA Part B funds can be used to support students with disabilities with IEPs in
dual enrollment programs if certain conditions are met.
Under IDEA Part B, States and LEAs must make a free appropriate public education
(FAPE) available to all eligible children with disabilities residing in the State in
mandatory age ranges. FAPE includes special education and related services that: 1) are
provided at public expense, under public supervision and direction, and without charge;
2) meet the standards of the SEA, including the requirements of IDEA Part B; 3) include
an appropriate preschool, elementary school, or secondary school education in the State
involved; and 4) are provided in conformity with an IEP that meets the requirements of
20 U.S.C. § 1414(d). 20 U.S.C. § 1401(9) and 34 C.F.R. § 300.17.

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Therefore, in order for IDEA Part B funds to be used to support students with disabilities
who have been accepted in dual enrollment programs, the student’s IEP Team must
determine that the courses offered as part of a dual enrollment program are necessary to
provide the student with FAPE. Because FAPE under IDEA Part B does not include
postsecondary education, when using IDEA Part B funds, LEAs are only permitted to
provide or pay for services that constitute FAPE in postsecondary education settings with
IDEA Part B funds if the education provided is considered secondary school education in
the State.
Q6a

How is secondary school defined in the IDEA?
Under the IDEA, the term “secondary school” means a nonprofit institutional day
or residential school, including a public secondary charter school that provides
secondary education, as determined under State law, except that it does not
include any education beyond grade 12. 20 U.S.C. § 1401(27) and
34 C.F.R. § 300.36.

Q7

Can students with disabilities participate in dual enrollment programs if such
programs are not part of a student’s IEP?
Yes. Students with disabilities are not precluded from participating in dual enrollment
programs solely because such courses are not explicitly detailed in a student’s IEP, or
such services are not considered secondary school education by the State. These
requirements only affect whether Federal funds may be used to defray the costs of such
programs or services.

Q8

Can IDEA Part B funds be used to support the students with disabilities dually
enrolled and participating in CTPs?
Yes. As with other dual enrollment programs, IDEA Part B funds can be used to support
students with disabilities in CTPs if certain conditions are met. As outlined in Q6 above,
in order for IDEA Part B funds to be used to support students with disabilities in CTPs,
the student’s IEP Team must determine that the courses offered as part of a CTP are
necessary to provide the student with FAPE. Because FAPE under IDEA Part B does not
include postsecondary education, when using IDEA Part B funds, LEAs are only
permitted to provide or pay for services that constitute FAPE in postsecondary education
settings if the education provided is considered secondary school education in the State.

Q9

Can students with disabilities participate in CTPs if such programs are not part of a
student’s IEP?
Yes. Students with disabilities are not precluded from participating in CTPs solely
because such courses are not explicitly detailed in a student’s IEP, or such services are not
considered secondary school education by the State. These requirements only affect
whether Federal funds may be used to defray the costs of such programs or services.

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Dual Enrollment and CTPs (VR)
Q10

What are Pre-Employment Transition Services?
Pre-employment transition services are certain “required activities” and “authorized
activities” specified in the Rehabilitation Act that are provided to students with
disabilities in need of such services who are either eligible or potentially eligible for
services under the VR program. VR agencies are required to provide, or arrange for the
provision of, pre-employment transition services for all students with disabilities in need
of such services, regardless of whether they have applied and been determined eligible
for the VR program. VR agencies must provide these services in collaboration with
LEAs. Section 113(a) of the Rehabilitation Act; 34 C.F.R. § 361.48(a)(1). Preemployment transition services must include, among other activities, counseling on
opportunities for enrollment in comprehensive transition or postsecondary education
programs at IHEs. Section 113(b)(3) of the Rehabilitation Act;
34 C.F.R. § 361.48(a)(2)(iii).

Q11

Can VR funds be used to support a student with a disability in a dual enrollment
program?
Yes. VR funds can be used to support students with disabilities in dual enrollment if
certain conditions are met.
Students and youth with disabilities who have been determined eligible for the VR
program and who are interested in postsecondary education should work with the
student’s or youth’s VR counselor to consider the postsecondary environment that
provides the educational program and support services that will best fit their individual
needs and career goals. Once the most appropriate program has been agreed to by both
the student or youth and the VR counselor, such education services, as well as any other
needed VR services consistent with Section 103(a) of the Rehabilitation Act, will be
identified on the IPE, which is signed by both the student or youth (or his or her parent or
legal representative) and the VR counselor. VR services described in an IPE may be
provided to an eligible student with a disability transitioning from secondary education to
postsecondary training, education, or employment. Some students may be eligible to
receive transition services through their State VR agency to participate in dual enrollment
programs.
Students with disabilities with IEPs benefit when transition services under the IDEA are
coordinated early in the transition process with the VR program. To that end, VR
agencies may coordinate with LEAs to assist students with disabilities who have IEPs
under the IDEA who are dually enrolled in secondary and postsecondary education
programs, including CTPs and other postsecondary education programs (e.g.,
postsecondary education programs for students with autism or learning disabilities).

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Q12

Can VR funds be used to support a student with a disability in a CTP?
Yes. VR funds can be used to support students with disabilities in CTPs if certain
conditions are met.
Students, youth, and their families, with the assistance of the VR program as appropriate,
should consider the wide array of postsecondary options that are available, including but
not limited to, two- and four-year colleges and universities, career and technical schools,
adult education programs, and comprehensive transition and postsecondary education
programs.
Students and youth with disabilities who have been determined eligible for the VR
program and who are interested in postsecondary education should work with the
student’s or youth’s VR counselor to consider the postsecondary environment that
provides the educational program and support services that will best fit their individual
needs and career goals. Once the most appropriate program has been agreed to by both
the student or youth and the VR counselor, such education services, as well as any other
needed VR services consistent with Section 103(a) of the Rehabilitation Act, will be
identified on the IPE, which is signed by both the student or youth (or his or her parent or
legal representative) and the VR counselor.
A comprehensive transition program is an example of one postsecondary option for
which the VR program could provide assistance to students and youth with intellectual
disabilities when appropriate and agreed to on their approved IPE.

Q13

Can students with disabilities exercise informed choice when participating in
postsecondary education through the VR program?
Yes. The Rehabilitation Act supports the informed choice of a student or youth with a
disability receiving services under the VR program, with respect to, among other things,
participation in programs offered by postsecondary education institutions, including
comprehensive transition and postsecondary programs, the benefits of which may
enhance the academic, career, and independent living skills of these individuals. Section
102(b)(3)(B) of the Rehabilitation Act and 34 C.F.R. § 361.52 require that VR agencies
provide participants with the opportunity to exercise informed choice throughout the VR
process, including making decisions related to employment goals, services and service
providers, settings for employment and service provision, and methods for procuring
services.

Participation in Federal Student Aid Programs
Q14

Can students with disabilities who participate in CTPs receive Federal student
financial aid?
Yes. Under Section 484(s) of the HEA (20 U.S.C. § 1091(s) and 34 C.F.R. Part 668,
Subpart O), students enrolled in a comprehensive transition and postsecondary program
for students with intellectual disabilities who are maintaining satisfactory academic
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progress in that program may receive Federal student financial aid under the Federal Pell
Grant, Federal Supplemental Opportunity Grant, or Federal Work-Study programs. The
term “comprehensive transition and postsecondary program for students with intellectual
disabilities” is defined in Section 760(1) of the HEA (20 U.S.C. § 1140(1)) and includes
degree, certificate, and nondegree programs that meet certain requirements.

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Increasing Postsecondary Opportunities and Success
for Students and Youth with Disabilities
Appendix
Overview
The purpose of this Appendix is to support the answers in the Questions and Answers (Q&A) and
provide a more detailed explanation, including legal requirements, of dual enrollment and
comprehensive transition programs (CTPs) supported under the Individuals with Disabilities
Education Act (IDEA) and the State vocational rehabilitation (VR) program.
For purposes of this Q&A and the Appendix, the term postsecondary education institution
includes institutions of higher education (IHEs) (two- and four-year colleges and universities), as
well as other career training and technical education programs.
Although this Q&A and the Appendix discuss the Rehabilitation Act, they do not address a local
educational agency’s (LEA’s) or postsecondary education institution’s responsibility to comply
with the nondiscrimination protections and obligations under Section 504 of the Rehabilitation Act
(Section 504), 29 U.S.C. § 794; 34 C.F.R. Part 104, and under the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101 et seq., including Title II of the ADA, which applies to public entities,
including public schools and public postsecondary education institutions. Furthermore, note that
Section 504 (29 U.S.C. § 705(20)(B)) and the ADA (42 U.S.C. § 12102; 28 C.F.R. § 35.104) use
the same definition of an “individual with a disability” and this definition is different than the
definition of a “student with a disability” under the Rehabilitation Act, as amended by the
Workforce Innovation and Opportunity Act (WIOA), that is discussed in this Appendix.
This Appendix uses the term “students with disabilities eligible under the IDEA” to refer to
students who qualify as children with disabilities under Part B of the IDEA and who have
individualized education programs (IEPs). The definition of “child with a disability” is in Section
602(3) of the IDEA, 20 U.S.C. § 1401(3). The regulatory definition, which includes definitions
of individual disability categories, is at 34 C.F.R. § 300.8.
Except as otherwise noted, this Appendix will primarily use the term “students and youth with
disabilities” throughout. The Rehabilitation Act defines the term “student with a disability” in
Section 7(37) and the term “youth with a disability” in Section 7(42) for purposes of the VR
program.
While this Appendix discusses programs and services that are available for students and youth
with disabilities in general, CTPs at IHEs are specifically for individuals with intellectual
disabilities.
Dual Enrollment in Postsecondary Education Institutions Consistent with the IDEA
Providing students with disabilities in high school who have IEPs under the IDEA with
opportunities to take courses at a community college or other postsecondary education institution
prior to high school graduation, a strategy known as dual enrollment, can be a helpful option for
8

some students in facilitating their transition from secondary school to postsecondary education
and the workforce.
Participation in courses at a postsecondary education institution, including comprehensive
transition and postsecondary programs for students with intellectual disabilities when
applicable, 1 can occur under State law consistent with Part B of the IDEA and with the use of
IDEA Part B funds as determined appropriate. Providing students with disabilities eligible under
the IDEA with the opportunity to participate in dual enrollment programs helps to ensure that
when they exit from high school, they have the knowledge and skills they need to prepare them
for success in postsecondary education and careers.
Under IDEA, States and LEAs must make a free appropriate public education (FAPE) available
to all eligible children with disabilities residing in the State in mandatory age ranges. 2
FAPE includes special education and related services that: 1) are provided at public expense,
under public supervision and direction, and without charge; 2) meet the standards of the State
educational agency (SEA), including the requirements of the IDEA; 3) include an appropriate
preschool, elementary school, or secondary school education in the State involved; and 4) are
provided in conformity with an IEP that meets the requirements of Section 614(d) of IDEA,
20 U.S.C. § 1414(d). 20 U.S.C. § 1401(9) and 34 C.F.R. § 300.17.
Because FAPE under the IDEA does not include postsecondary education, when using IDEA
funds, LEAs are only permitted to provide or pay for services that constitute FAPE in
postsecondary education settings if the education provided is considered secondary school
education in the State. Therefore, IDEA funds can be used for appropriate education services
included in an IEP that are provided outside of a public or private elementary or secondary
school if the education provided is considered secondary school education in the State. However,
the student would need to be accepted by the dual enrollment program for this to occur. Under
the IDEA, the term “secondary school” means a nonprofit institutional day or residential school,
including a public secondary charter school that provides secondary education, as determined
under State law, except that it does not include any education beyond grade 12. 20 U.S.C.
§ 1401(27) and 34 C.F.R. § 300.36. The language in the definition of “secondary school” -- “as
determined under State law” -- does not require that a State statute specifically address what
educational opportunities can be provided to students with disabilities eligible under the IDEA at
postsecondary education institutions. There is no provision in the IDEA that requires States to
include this information in their State law or to change State law to permit this to occur. Rather,
States have the flexibility to interpret how “secondary school” education is defined and would
apply to dual enrollment programs in their State. For example, a State may provide guidance or
Not all comprehensive transition and postsecondary education programs for individuals with intellectual
disabilities support dual enrollment.
2
Under IDEA a student’s entitlement to FAPE could last until the student’s 22nd birthday, depending on State law
or practice. 20 U.S.C. § 1412(a)(1)(A)(B) and 34 C.F.R. §§ 300.101-300.102 (applicable to States); and 20 U.S.C. §
1413(a)(1) and 34 C.F.R. § 300.201 (applicable to LEAs). The obligation to make FAPE available does not apply to
children with disabilities who have exceeded the age of eligibility for FAPE under State law or to children with
disabilities who have graduated from high school with a regular high school diploma. 20 U.S.C. § 1412(a)(1)(B) and
34 C.F.R. § 300.102(a)(1) and (3). Note, however, that some State laws may address the provision of educational
services to individuals with disabilities beyond their 22nd birthday.
1

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amend its policies and procedures to make clear that permitting high school students to attend
classes at a postsecondary education institution, whether auditing or for credit, is considered
secondary school education in the State for students in grade 12 or below if the education
provided meets applicable State standards. Under these circumstances, enrollment by a high
school student in a dual enrollment program could be designated as a service on the student’s IEP
and paid for with IDEA Part B funds, consistent with the student’s entitlement to FAPE.
As with all special education and related services provided under the IDEA, it is up to each
student’s IEP Team to determine the special education and related services that are needed to
meet each student’s unique needs in order for the student to receive FAPE. In general, the IDEA
requires that the special education and related services provided to a student pursuant to his or
her IEP must be provided at public expense and at no cost to the parents. 34 C.F.R. §§ 300.101,
300.17, and 300.201. This requirement would apply to services in a community, technical, or
other postsecondary program that are determined to be necessary to assist the secondary school
student in receiving FAPE. Whether the school district is obligated to provide and pay for other
supports and related services, such as transportation, tuition, and/or a paraprofessional to attend
classes with the student, is a determination that must be made on an individual basis by the
student’s IEP Team.
Therefore, if a student’s IEP Team determines that a high school student’s needs can best be met
through participation in dual enrollment programs, which are offered on college campuses or in
community-based settings, and classes from those programs are considered to meet secondary
school education requirements by the State, as discussed above, the IEP Team could include
those services in the student’s IEP, and if appropriate to the needs of the student, could designate
them as transition services. 3 School districts must ensure that the services that are included in a
student’s IEP that are deemed necessary for the provision of FAPE to the student are provided at
public expense and at no cost to the parents, and the school district may pay for those services
with IDEA funds. 20 U.S.C. § 1413(a)(2)(A) and 34 C.F.R. § 300.202(a). Please note that
students with disabilities are not precluded from participating in dual enrollment programs solely
because such courses are not explicitly detailed in a student’s IEP, or such services are not
considered secondary school education by the State. 4 These requirements only affect whether
Federal funds may be used to defray the costs of such programs or services.

Under IDEA, “transition services” means a coordinated set of activities for a student with a disability designed
within a results-oriented process that is focused on improving the academic and functional achievement of the
student with a disability to facilitate the student’s movement from school to post-school activities, including
postsecondary education, vocational education, integrated employment (including supported employment),
continuing and adult education, adult services, independent living, or community participation. The coordinated set
of activities is based on each student’s needs, taking into account the student’s strengths, preferences and interests,
and includes instruction, related services, community experiences, the development of employment and other postschool adult living objectives, and, if appropriate, the acquisition of daily living skills and provision of a functional
vocational evaluation. 20 U.S.C. § 1401(34). The regulation in 34 C.F.R. § 300.43(b) also explains that transition
services under the IDEA may be special education if provided as specially designed instruction, or a related service
if required to assist the student to benefit from special education.
4
Under Section 504 of the Rehabilitation Act, individuals with disabilities must be provided with an equal
opportunity to participate in or benefit from any aid, benefit, or service that is available to individuals without
disabilities. 34 C.F.R. § 104.4(b)(1)(ii).
3

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Additionally, some students may be eligible to receive transition services through their State VR
agency to participate in dual enrollment programs, as discussed further below. A State also could
elect to use IDEA funds it reserves for other State-level activities to facilitate the participation of
IDEA-eligible students in dual enrollment programs, such as by developing and implementing
transition programs, including coordination of services with agencies involved in supporting the
transition of students with disabilities to postsecondary activities. 20 U.S.C. § 1411(e)(2)(C)(vi)
and 34 C.F.R. § 300.704(b)(4)(vi).
The participation of a student with a disability who has an IEP under the IDEA in a dual
enrollment program while in high school could be addressed through the transition services
component of the student’s IEP. Beginning with the first IEP to be in effect when a student turns
16, or younger if determined appropriate by the IEP Team, and updated annually thereafter, each
student’s IEP must include: (i) appropriate measurable postsecondary goals based upon ageappropriate transition assessments related to training, education, employment, and where
appropriate, independent living skills; and (ii) the transition services (including courses of study)
needed to assist the student in reaching those goals. 20 U.S.C. § 1414(d)(1)(A)(i)(VIII) and
34 C.F.R. §§ 300.320(b) and 300.321(b). LEAs must invite representatives of any participating
agency, with parental consent or the consent of the student who has reached the age of majority,
to participate in IEP Team meetings where transition services and postsecondary goals are
discussed, if that agency is likely to be responsible for providing or paying for the transition
services to be included in the student’s IEP. 34 C.F.R. §§ 300.321(b)(3) and 300.622(b)(2). This
individual could be a representative of a State VR agency. The involvement and collaboration
with other public agencies (e.g., VR agencies), as appropriate, can be helpful in planning for
transition and in providing resources that will help students when they leave high school. 5 We
believe that students with disabilities benefit when transition services under the IDEA are
coordinated early in the transition process with the VR program, as well as other supports and
programs that serve all students transitioning from school to adult life. To that end, VR agencies
may coordinate with the LEAs to assist students with disabilities eligible under the IDEA who
are dually enrolled in secondary and postsecondary education programs, including CTPs and
other postsecondary education programs (e.g., postsecondary education programs for students
with autism or learning disabilities).
We also note that, consistent with 34 C.F.R. § 300.110, States must ensure that public agencies
take steps to ensure that students with disabilities eligible under the IDEA have access to the
same program options that are available to nondisabled students in the area served by the agency.
This would apply to dual enrollment programs in postsecondary or community-based settings.
Therefore, a State would be responsible for ensuring that a public agency that offered dual
enrollment programs in postsecondary or community-based settings to nondisabled students

While IEP Teams are not required by the IDEA or the Rehabilitation Act to invite representatives from the
postsecondary programs students and youth with disabilities are participating in, or considering participating in, to
IEP Team meetings, we recommend IEP Teams consider whether a higher education provider should be invited to
IEP Team meetings. If representatives of postsecondary institutions are invited to a student’s IEP Team meeting
where the student’s participation in the postsecondary program is to be discussed, the prior consent of the parents or
the student who has reached the age of majority would be required in order for that individual to attend the meeting
consistent with 34 C.F.R. §§ 300.321(b)(3) and 300.622(b)(2).

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would make that option available to students with disabilities under the IDEA, whose IEP Teams
determined that such programs would best meet the students’ needs.
Transition-Related Services under the VR Program and the IDEA
The VR program offers a continuum of services, with pre-employment transition services being
among the most fitting for a student with a disability transitioning from secondary education to
postsecondary education and employment, while VR services described in an individualized plan
for employment (IPE) may be provided to an eligible individual with a disability transitioning
from secondary education to postsecondary training, education, or employment. VR agencies
must provide, or arrange for the provision of, pre-employment transition services for all students
with disabilities in need of such services, regardless of whether they have applied and been
determined eligible for the VR program. VR agencies must provide these services in
collaboration with LEAs. Section 113(a) of the Rehabilitation Act; 34 C.F.R. § 361.48(a)(1).
Pre-employment transition services could include, among other activities provided directly to
students with disabilities, job exploration counseling and work-based learning experiences.
Section 113(b) of the Rehabilitation Act; 34 C.F.R. § 361.48(a)(2).
It is important to note that pre-employment transition services are only available to those
individuals with disabilities who meet the definition of a “student with a disability” in
Section 7(37) of the Rehabilitation Act, meaning that the individual must be enrolled in an
educational program and meet certain age requirements. For purposes of the VR program,
students with disabilities who have exited from secondary education but are enrolled in a
postsecondary education institution,6 including a comprehensive transition and postsecondary
education program, for whom classes have been delayed (for example due to summer break) or
deferred, continue to be considered by the Department to be a student with a disability so long as
the individual meets the age requirements for a “student with a disability” as set forth in
Section 7(37) of the Rehabilitation Act and 34 C.F.R. § 361.5(c)(51). On the other hand, if an
individual with a disability has not been accepted into a postsecondary education program upon
exit from secondary education, that individual would not be considered enrolled or participating
in an educational program. As such, the individual would be considered a “youth with a
disability,” as defined in Section 7(42) of the Rehabilitation Act, not a “student with a disability.”
Although youth with disabilities are not eligible to receive pre-employment transition services
under the VR program because Section 113 of the Rehabilitation Act limits these services to
students with disabilities, they may receive similar services, such as transition services, as
permitted under Section 103(a)(15) and (b)(7) of the Rehabilitation Act and
34 C.F.R. §§ 361.48(b)(18) and 361.49(a)(7), or other VR services (Section 103(a) of the
Rehabilitation Act and 34 C.F.R. § 361.48(b)) if they are determined eligible for VR services and
such services are included on their IPE.

In this context, enrollment in a postsecondary education institution means, at a minimum, that the postsecondary
education institution offered, and the student accepted, a space at the postsecondary education institution.

6

12

Pre-employment transition services and transition services under the Rehabilitation Act may be
categorized as both VR services under the VR program and special education or related services
under the IDEA. 7 Note that under the IDEA, related services could include a range of support
services, such as psychological services; counseling services, including rehabilitation counseling;
orientation and mobility services; and medical services for diagnostic or evaluation purposes.
Some special education or related services, such as counseling services, including rehabilitation
counseling, orientation and mobility services, and work experiences, are also similar to preemployment transition services that are available to students with disabilities (e.g., job
exploration counseling, workplace readiness training, and work-based learning opportunities).
Decisions as to which agency, the VR agency or the LEA, is responsible for providing and/or
paying for pre-employment transition services or transition services considered to be both a
special education (or related service) and a VR service must be made at the State level.
Participation in Postsecondary Education Institutions, including Comprehensive Transition
and other Postsecondary Education Programs, under the VR Program
As students and youth with disabilities, including those with intellectual disabilities, transition
from secondary school to postsecondary education training and prepare for employment,
including competitive integrated employment, it is critical that they are prepared for all aspects
of postsecondary life. Students, youth, and their families, with the assistance of the VR program
as appropriate, should consider the wide array of postsecondary options that are available,
including but not limited to, two- and four-year colleges and universities, career and technical
schools, adult education programs, and comprehensive transition and postsecondary education
programs. Additionally, eligible students who have completed or are scheduled to complete a
bachelor’s degree program may be able to receive, pursuant to the Rehabilitation Act and
consistent with their approved IPE, support such as tuition, as appropriate, when seeking VR
services to attain an advanced degree in a field of science, technology, engineering, mathematics
(including computer science), medicine, law, or business. Section 103(a)(18) of the
Rehabilitation Act and 34 C.F.R. § 361.48(b)(6).
Students and youth with disabilities who have been determined eligible for the VR program and
who are interested in postsecondary education should work with the student’s or youth’s VR
counselor to consider the postsecondary environment that provides the educational program and
support services that will best fit their individual needs and career goals. Once the most
appropriate program has been agreed to by both the student or youth and the VR counselor, such
education services, as well as any other needed VR services consistent with Section 103(a) of the
Rehabilitation Act, will be identified on the IPE, which is signed by both the student or youth (or
his or her parent or legal representative) and the VR counselor. These services could include,
among other things, career counseling, transportation, maintenance, interpreters, rehabilitation
technology, transition, and postsecondary education services. A comprehensive transition

Note that under the IDEA, special education must include specially designed instruction, at no cost to the parents,
to meet the unique needs of a child with a disability (20 U.S.C. § 1401(29) and 34 C.F.R. § 300.39), and related
services include a range of support services as are required to assist a child with a disability to benefit from special
education (20 U.S.C. § 1401(26) and 34 C.F.R. § 300.34).

7

13

program is an example of one postsecondary option for which the VR program could provide
assistance to students and youth with intellectual disabilities when appropriate and agreed to on
their approved IPE.
Under Section 484(s) of the HEA (20 U.S.C. § 1091(s)) and 34 C.F.R. Part 668, Subpart O,
students enrolled in a comprehensive transition and postsecondary educational program for
students with intellectual disabilities who are maintaining satisfactory academic progress in that
program may receive Federal student financial aid under the Federal Pell Grant or Federal
Supplemental Opportunity Grant, or for the Federal Work-Study programs. The term
“comprehensive transition and postsecondary program for students with intellectual disabilities”
is defined in Section 760(1) of the HEA (20 U.S.C. § 1140(1)) and includes degree, certificate,
and other nondegree programs that meet certain requirements.
The Department supports States in their work to increase postsecondary education options and
opportunities for individuals with disabilities, including students and youth with intellectual
disabilities, through participation in comprehensive transition programs at IHEs, regardless of
whether the completion credential is a degree, certificate, or other recognized credential. Nothing
in the Rehabilitation Act prohibits or precludes VR agencies from supporting individuals with
disabilities (including those with intellectual disabilities), who have been determined eligible for
and are receiving VR services under an IPE, at comprehensive transition and postsecondary
education programs in order to achieve their employment goal.
In sum, individuals with disabilities may be supported by VR agencies using VR funds to
support “students with intellectual disabilities” as defined in Section 760(2)(B) of the HEA and
by LEAs with funds under IDEA Part B, when the students have IEPs under IDEA and are dually
enrolled in secondary and postsecondary education programs, including comprehensive
transition and postsecondary programs. The extent of the use of VR funds for these students will
depend on whether they have been determined eligible for the VR program and have an approved
IPE, or whether they need only pre-employment transition services. As noted above, preemployment transition services may be provided to students with disabilities regardless of
whether they have applied and been determined eligible for the VR program
Informed Choice under the Rehabilitation Act and Postsecondary Education Programs
The Rehabilitation Act supports the informed choice of a student or youth with a disability
receiving services under the VR program, with respect to, among other things, participation in
programs offered by postsecondary education institutions, including comprehensive transition
and postsecondary programs, the benefits of which may enhance the academic, career, and
independent living skills of these individuals. Section 102(b)(3)(B) of the Rehabilitation Act and
34 C.F.R. § 361.52 require that VR agencies provide participants with the opportunity to exercise
informed choice throughout the VR process, including making decisions related to employment
goals, services and service providers, settings for employment and service provision, and
methods for procuring services.
The exercise of informed choice involves communicating clearly, gathering and understanding
information, setting goals, making decisions, and following through with decisions. Therefore, it
is imperative that VR agencies inform applicants and recipients of VR services, including both
14

students with disabilities who are transitioning from programs under the responsibility of an
educational agency to programs under the responsibility of the VR agency, and youth with
disabilities, about opportunities to exercise informed choice when considering services and
options available through postsecondary education institutions, including comprehensive
transition and postsecondary education programs at IHEs. Such informed choice decisions must
be reflected in the approved IPE that is signed by both the eligible individual with a disability
and the VR counselor prior to the receipt of VR services.

15


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

September 9, 2019

Jill C. Rowland, Esq.
Saltz Family Early Intervention Advocacy Center
Alliance for Children’s Rights
3333 Wilshire Blvd., Ste. 550
Los Angeles, California 90010
Dear Ms. Rowland:
This letter addresses your organization’s electronic correspondence to Ruth Ryder, former acting
director of the Office of Special Education Programs (OSEP). In that letter, your former
colleague, Lisa Winebarger, asked a series of questions based on the Preschool for All Learners
(“PAL”) special day program within the Los Angeles Unified School District. We regret the
delay in responding.
We note that section 607(d) of the Individuals with Disabilities Education Act (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.
In your letter, you state that PAL classrooms serve 10 children with a range of disabilities with
both moderate and severe levels of need and are staffed with a special education teacher as well
as two special education assistants. Specific special education and related services are not listed
in the individualized education programs (IEP) for children attending this program as all services
are provided in a collaborative setting in the PAL classroom. Based on this information you
asked the following questions:
1. Does a local educational agency (LEA) violate the guarantee of [a free appropriate
public education] FAPE by categorically barring speech and language therapy
services on account of a student’s placement in the PAL program, which purportedly
provides two hours per week of speech and language services to each PAL
classroom?
2. Does an LEA violate the guarantee of FAPE by placing blanket restrictions on
available “related services,” e.g., physical therapy, occupational therapy, or
behavioral interventions, on account of placement in a particular special day
program?
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Because these questions are related, we have combined our responses.
Because specific responses to your questions would necessarily require a factual inquiry, OSEP
expresses no view as to whether the LEA’s program described in your inquiry would violate
IDEA. We note though that under IDEA, decisions about each child’s educational program and
services and the setting in which the child’s program and services will be implemented must be
made on an individual basis in light of each child’s unique needs. In general, a policy that
prohibits the provision of specific related services or restricts the amount or type of services that
can be provided to a child based solely on the particular setting in which the child is placed,
regardless of the child’s individual needs, would not be consistent with IDEA. Our explanation
of relevant IDEA requirements follows.
Under IDEA, an IEP must include, among other elements, a statement of the special education
and related services, and supplementary aids and services, based on peer-reviewed research to
the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the
program modifications or supports for school personnel that will be provided for the child. 20
U.S.C. § 1414(d)(1)(A)(iv)(IV) and 34 C.F.R. § 300.320(a)(4). An appropriate IEP for a
preschool aged child with a disability must be designed to enable the child to participate in
appropriate activities. See 20 U.S.C. § 1414(d)(1)(A)(i)(I) and 34 C.F.R. § 300.320(a)(1)(ii). The
IEP also must include the projected date for the beginning of the services and modifications, and
the anticipated frequency, location, and duration of those services and modifications. 20 U.S.C. §
1414(d)(1)(A)(i)(VII) and 34 C.F.R. § 300.320(a)(7). Consistent with these provisions the child’s
IEP must include the specific amount of special education and related services, and
supplementary aids and services, that the public agency will provide to the child so the level of
the agency’s commitment of resources is clear to parents and IEP Team members. The amount of
time to be committed to each of the various services to be provided must be appropriate to the
specific service, and clearly stated in the IEP in a manner that can be understood by all involved
in the development and implementation of the IEP. See also OSEP Letter to Carroll (April 19,
2018) and OSEP Letter to Matthews (January 7, 2010).
IDEA also includes requirements regarding the educational placement of a child with a
disability. Placement decisions must be made 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. Each child’s placement decision also must be made in conformity with the
least restrictive environment provisions, including 34 C.F.R. §§ 300.114 through 300.118.
Additionally, a child’s placement must be determined at least annually, be based on the child’s
IEP, and be as close as possible to the child’s home. The overriding rule is that placement
decisions must be determined on an individual, case-by-case basis, depending on each child’s
unique needs and circumstances and based on the child’s IEP. In all cases, however, placement
decisions must not be made solely on factors such as category of disability, severity of disability,
availability of special education and related services, configuration of the service delivery
system, availability of space, or administrative convenience. See Assistance to States for the
Education of Children with Disabilities and Preschool Grants for Children with Disabilities,
Final Rule, Analysis of Comments and Changes, 71 FR 46540, 46588 (Aug. 14, 2006).

Given the information provided above, barring a specific related service from being included in a
child’s IEP or restricting the provision of a specific related service or services based solely on the
child’s placement in a particular program – without regard for the child’s identified needs for
that service – would be inconsistent with the individualized decision-making required in both the
IEP and placement processes. By copy of this letter, we are informing Kristin Wright, Director of
Special Education at the California Department of Education, of your inquiry and OSEP’s
response.
If you have any further questions, please do not hesitate to contact Lisa Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs

Cc: Kristen Wright


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

September 9, 2019

Dear XXXXXXXXX:
This letter is in response to your correspondence to the Office of Special Education and
Rehabilitative Services. In your letter, you asked whether it is permissible under the Individuals
with Disabilities Education Act (IDEA) to exclude a transition aged student with a disability
from an Individualized Education Program (IEP) Team meeting when results of assessments will
be reviewed as well as discussion of the student’s transition service needs. You also asked
whether copies of assessment reports should be provided to members of the IEP Team, including
the parent, student, and school staff, prior to the IEP Team meeting in which the reports will be
discussed.
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.
Question 1: In the case of an (IEP Team) meeting held to discuss education testing and possible
change in the student’s identified disability category and transition service needs, is it a violation
of law and/or regulation for a service provider who conducted testing to exclude the student from
that meeting in which the other IEP Team members are to be present?
OSEP Response: We assume from your question that the meeting you are referring to in your
inquiry involved consideration of three topics, including student testing, the student’s disability
category, and the student’s transition services. While it is not appropriate for OSEP to address
whether the student should have been invited to this particular meeting, we will provide
information about relevant IDEA requirements for your consideration. IDEA does not address
student participation at meetings to discuss the results of testing, the student’s evaluation or
reevaluation, or the student’s disability category. IDEA does address parent participation at
meetings regarding the identification, evaluation, educational placement, or the provision of a
free appropriate public education to the child (34 C.F.R. §300.501(b)), and also specifically
addresses parent involvement in placement decisions (34 C.F.R. §300.501(c)). IDEA is silent as
to the student’s participation in such meetings, and the public agency may, but would not be
required to, permit the student to attend at the parent’s request.

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With regard to meetings involving transition services, if the purpose of the IEP Team meeting is
to consider the child’s postsecondary goals and the transition services needed to assist the child
in reaching those goals, the public agency must invite the child to attend the meeting. 34 C.F.R. §
300.321(b)(1); see also 71 Fed. Reg. 46540, 46671 (Aug. 14, 2006).1 If the child does not attend
the IEP Team meeting to discuss postsecondary goals and transition services, the public agency
must take steps to ensure that the child’s preferences and interests are considered. 34 C.F.R. §
300.321(b)(2). We also note that until the child reaches the age of majority under State law,
unless the rights of the parent to act for the child are extinguished or otherwise limited, only the
parent has the authority to make educational decisions for the child under Part B of the Act,
including whether the child should attend an IEP Team meeting. 71 Fed. Reg. 46753. If the
rights accorded to parents under Part B of IDEA are transferred to a child with a disability once
the child reaches the age of majority under State law, the child has the authority to make
educational decisions under Part B of the Act.
Questions 2 and 3: Is it best practice to withhold an educational report from the student, parent,
guardian, a special education teacher, or another IEP Team member until the IEP or other
meeting in which the results are going to be discussed is convened? Is there a legal obligation or
requirement for a service provider conducting an evaluation to provide the report to members of
the IEP Team, specifically the parents, student, or the special education teacher, prior to any
meeting in which the report will be discussed?
OSEP Response: Under 34 C.F.R. §300.306(a), a copy of the evaluation report must be
provided at no cost to the parents. However, neither IDEA nor its implementing regulations
establish a timeline for providing a copy of the evaluation report or the documentation of
determination of eligibility to parents. Likewise, IDEA does not prescribe a timeline for sharing
the results of assessments conducted as part of the child’s evaluation or reevaluation. Whether
parents receive all evaluation reports prior to the IEP Team meeting is a decision that is left to
State and local officials to make. 71 Fed. Reg. 46645.
It is important to ensure that parents have the information they need to participate meaningfully
in IEP Team meetings, which may include reviewing their child’s records. The public agency
must comply with a parent’s request to inspect and review existing educational records,
including an evaluation report, without unnecessary delay and before any meeting regarding an
IEP, and in no case more than 45 days after the request has been made. This includes the right to
a response from the public agency to reasonable requests for explanations and interpretations of
the records. 34 C.F.R. § 300.613.
We note that some States have established procedures that require public agencies to provide
parents with copies of assessment reports prior to the IEP Team meeting. You may wish to check
with your State educational agency for any applicable procedures.

1

This citation is to Assistance to States for the Education of Children with Disabilities and Preschool Grants for
Children with Disabilities, Final Rule, Analysis of Comments and Changes, which accompanied publication of the
final part B regulations on August 14, 2006.

If you have any further questions, please do not hesitate to contact Ms. Lisa Pagano at 202-2457413 or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs


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

July 3, 2019
Perry A. Zirkel, Ph.D., J.D.
University Professor Emeritus of Education and Law
Lehigh University
Department of Education and Human Services
111 Research Drive
Bethlehem, Pennsylvania 18015-4793
Dear Dr. Zirkel:
This letter is in response to your electronic mail (email) addressed to Lisa Pagano of the Office
of Special Education Programs (OSEP), U.S. Department of Education (Department), regarding
the State educational agency’s (SEA’s) complaint procedures process. In that email, you asked a
series of questions about enforcement actions and resolution of State complaints. Each of your
questions is answered below. We regret the delay in responding.
We note that section 607(d) of the Individuals with Disabilities Education Act (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.
Question 1: Must the SEA’s complaint resolution for enforcement of a corrective action ordered
in a previous complaint resolution be “of the same rigor” as the original (or any other directive as
compared with enforcement) investigation?
Answer: The IDEA regulations do not address the “rigor” of a SEA’s resolution of a complaint.
Nevertheless, in resolving any complaint that meets the requirements in 34 C.F.R. § 300.153, the
SEA must comply with the requirements in 34 C.F.R. § 300.152(a)–(b). This includes the
resolution of a complaint alleging that a public agency has failed to implement the corrective
actions ordered in the SEA’s decision on a prior complaint. The SEA must give the complainant
the opportunity to submit additional information, either orally or in writing, about the allegations
in the complaint and provide the public agency an opportunity to respond to the complaint.
Further, the public agency must review all relevant information and make an independent
determination as to whether the public agency is violating a requirement of Part B of the Act or
the IDEA Part B regulations. 34 C.F.R. § 300.152(a)(2)–(4). Ultimately, the SEA must issue a
written decision to the complainant that addresses each allegation in the complaint and contains,
findings of fact and conclusions, and the reasons for the SEA’s final decision.
34 C.F.R. § 300.152(a)(5).
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Question 2: Does such enforcement action require a complaint or is the SEA’s obligation to
monitor and where necessary, investigate enforcement of complaint corrective action orders
sua sponte?
Answer: The SEA must ensure that the public agency involved in the complaint implements the
written decision on the complaint in a timely manner. The State’s complaint procedures must
include procedures for effective implementation of the SEA’s final decision, if needed, including
technical assistance activities, negotiations, and corrective actions to achieve compliance.
34 C.F.R. § 300.152(b)(2). To ensure corrective action and pursuant to its general supervisory
and monitoring responsibilities in 34 C.F.R. §§ 300.149 and 300.600, the SEA must inform the
public agency that is involved in the complaint of any findings of noncompliance and the
required corrective action, and ensure that the corrective action is completed as soon as possible
and within the timeframe specified in the SEA’s written decision, and in no case later than one
year of the State’s identification of the noncompliance. 34 C.F.R. § 300.600€.
Question 3: If an IDEA complaint is directed specifically at the SEA for failure to fulfill its
supervisory obligations but incidentally mentions in its factual basis alleged violations by one or
more local educational agencies (LEAs) that the SEA purportedly failed to correct, must the SEA
investigate the identified LEAs for these alleged violations, even though the complaint was
directly against the SEA, not the LEAs?
Answer: The IDEA regulations do not address this specific issue. OSEP, however, has addressed
the issue of how a SEA resolves a complaint against itself, which states that “the SEA must
ensure that all of the procedures in 34 C.F.R. § 300.151–300.153 are followed…the SEA must
ensure that all relevant information is reviewed and that an independent determination is made as
to whether the public agency (in this case the SEA) has violated a requirement of Part B or the
Part B regulations with respect to the complaint.” See Question B-12 of Questions and Answers
on IDEA Part B Dispute Resolution Procedures (July 23, 2013) available at:
https://sites.ed.gov/idea/idea-files/osep-memo-and-qa-on-dispute-resolution/. In addition, the
SEA must resolve any complaint that alleges that the SEA or one of its LEAs has violated a
requirement of Part B of the Act or the IDEA regulations and that meets the requirements of
34 C.F.R. § 300.153. Even if a complaint was not expressly written for the purpose of asking the
SEA to review the alleged noncompliance by the LEA, the SEA, pursuant to its general
supervisory responsibilities, is obligated to make an independent determination as to whether it
finds that there is noncompliance as a result of the complaint allegation, and if so, determine any
necessary actions to remedy the noncompliance.
If you have any further questions, please do not hesitate to contact Ms. Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs


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

May 2, 2019
Craig A. Haller
Haller Advocacy
44 Franklin Street
Brookline, Massachusetts 02445
Dear Mr. Haller:
This letter responds to your correspondence to Ruth Ryder, former Acting Director of the Office of
Special Education Programs (OSEP), regarding the Public Schools of Brookline’s policies
concerning the membership of an individualized education program (IEP) Team and the criteria
surrounding school administrators attending the meeting as non-contributing observers. You noted
that the school district revised its Special Education – Standard Operational Procedural Manual to
state, “Any person who is invited to the Team meeting by Brookline must be included on the
invitation sheet. If a district’s administrator’s participation is required as a contributing member or
not of the IEP Team, their name must be included on the meeting notification.” Given this
language, you asked whether it is appropriate to invite an administrator to the IEP Team meeting
with the intent or predetermined knowledge that the administrator will not be contributing to the
IEP process (e.g., an observer). We apologize for the delay in providing this response.
We note that section 607(d) of the Individuals with Disabilities Education Act (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, in order to make a free appropriate public education available to each eligible child
with a disability, the responsible public agency must ensure that an appropriate IEP is developed
and implemented for the child. Each child’s IEP is developed at a meeting of the IEP Team
which includes the child’s parents and relevant school officials, and whenever appropriate, the
child. 20 U.S.C. § 1414(d)(1)(B) and 34 C.F.R. § 300.321(a). Also, the IEP Team could include,
at the discretion of the parent or the public agency, other individuals who have knowledge or
special expertise regarding the child, including related services personnel as appropriate. 20
U.S.C. § 1414(d)(1)(B)(vi) and 34 C.F.R. § 300.321(a)(6). Individuals with special expertise
could include professionals in evaluation or special education and related services who have
been directly involved with the child, as well as those who do not know the child personally, but
who have expertise in (for example) an instructional method or procedure, or in the provision of
a related service that the parents or agency believe can be of assistance in developing an
appropriate IEP for the child. Assistance to States for the Education of Children with Disabilities
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Page 2 – Craig A. Haller
and the Early Intervention Program for Infants and Toddlers with Disabilities, Final Rule,
Analysis of Comments and Changes, 64 Fed. Reg. 12406, 12585 (March 12, 1999). The
determination of the knowledge or special expertise of any individual described in 34 C.F.R.
§ 300.321(a)(6) must be made by the party (parents or public agency) who invited the individual
to be a member of the IEP Team. 34 C.F.R. § 300.321(c).
With regard to the participation of noncontributing observers at IEP Team meetings, generally,
attendance at IEP Team meetings should be limited to individuals who would contribute to
decisions about the appropriate services to be included in the child’s IEP. The legislative history
of the Education for All Handicapped Children’s Act, the predecessor statute to IDEA Part B,
suggests that “attendance at IEP meetings should be limited to those who have an intense interest
in the child.” Cong. Rec. § 10974 (June 18, 1975) (remarks of Sen. Randolph).
IDEA also includes confidentiality of information provisions. See 34 C.F.R. §§ 300.611 through
300.626 and the Family Educational Rights and Privacy Act and its implementing regulations in
34 C.F.R. Part 99. In general, these provisions require parental consent before public agencies
can release personally identifiable information to third parties, other than officials of
participating agencies in accordance with 34 C.F.R. § 300.622(b)(1), unless permitted to do so
without parental consent under 34 C.F.R. Part 99. 34 C.F.R. § 300.622(a) and 34 C.F.R. § 99.31.
Absent parental consent, a person who does not have knowledge and special expertise regarding
the child and who is not requested to be present at the IEP Team meeting by the parent or public
agency would not be permitted to be a member of the IEP Team or be permitted to attend the IEP
Team meeting as an observer unless he or she meets one of the parental consent exceptions in 34
C.F.R. § 300.622 or 34 C.F.R. § 99.31. Assistance to States for the Education of Children with
Disabilities and Preschool Grants for Children with Disabilities, Final Rule, Analysis of
Comments and Changes, 71 FR 46540, 46670-46671 (Aug. 14, 2006) and OSEP Letter to Gran
(November 12, 2012).1 In determining whether an administrator who does not satisfy the criteria
in 34 C.F.R. § 300.321(a)(6) could be an observer at an IEP Team meeting, a public agency
should be mindful of the interests of the child, including the confidential and sensitive nature of
discussions that occur and the personally identifiable information that is exchanged during those
meetings.
If you have any further questions, please do not hesitate to contact Lisa Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs
1

A copy of this letter is available at: https://sites.ed.gov/idea/files/idea/policy/speced/guid/idea/memosdcltrs/12015702r-pa-gran-dph-11-30-12.doc.


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

May 2, 2019

Brittany N. Mills
Gibson, Dunn and Crutcher, LLP
333 South Grand Avenue
Los Angeles, California 90071
Dear Ms. Mills:
This letter responds to your correspondence to Ruth Ryder, former Acting Director of the Office of
Special Education Programs (OSEP). In your letter, you ask a series of questions that resulted from
your request for a functional vision assessment by an optometrist for a child with a diagnosed
visual disability. Each of your questions is answered below. We apologize for the delay in
providing this response.
We note that section 607(d) of the Individuals with Disabilities Education Act (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.
Question 1: Does a local educational agency (LEA) violate the procedural protections of 34
C.F.R. § 300.503 by failing to either agree to conduct the assessment requested by a parent or
guardian, or to deny that assessment, when it proposes to conduct a “screening” in the same
area of suspected disability by different personnel?
Answer: Under IDEA, written notice that meets the requirements of 34 C.F.R. § 300.503(b)
must be given to the parents of a child with a disability a reasonable time before the public
agency: (1) proposes to initiate or change the identification, evaluation, or educational placement
of the child, or the provision of a free appropriate public education (FAPE) to the child; or (2)
refuses to initiate or change the identification, evaluation, or educational placement of the child
or the provision of FAPE to the child. 20 U.S.C. § 1415(b)(3) and 34 C.F.R.
§ 300.503(a). If a request for an evaluation has been made, the LEA must respond to the request
through prior written notice, which includes among other content, an explanation of why the
agency proposes or refuses to take the action. If the LEA believes an evaluation is not necessary
because the child is not suspected of having a disability, it must issue written notice to the parent
explaining why it is refusing to evaluate the child. If the LEA believes an evaluation is
necessary, it must also issue a prior written notice. In the case of an initial evaluation, after
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202-2600
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competiveness
by fostering educational excellence and ensuring equal access.

Page 2 - Brittany N. Mills
receiving parental consent, the LEA must complete the evaluation within the 60-day timeframe
(or, if the State has an established timeframe, within that timeframe) in accordance with 34
C.F.R. § 300.301(c).
There is nothing in IDEA that would prohibit a State educational agency (SEA) or LEA from
implementing screening procedures to determine if a child is suspected of having a disability.
The use of screening procedures, however, may not be used to delay or deny an evaluation for
special education and related services. See OSEP Letter to Torres (April 7, 2009).1 Therefore,
referring a child for screening after a request for an evaluation has been made does not replace
the evaluation and does not alleviate the public agency’s responsibility to issue a prior written
notice that meets the requirements described above.
Question 2: Does an LEA violate the procedural protections of 34 C.F.R. § 300.503 and Cal.
Educ. Code § 56321(a) by failing to either agree to conduct the specific assessment by the
specific personnel requested by the parent, or to deny that specific assessment by the specific
personnel in writing within 15 calendar days?
Answer: Under 34 C.F.R. § 300.503(b) and 20 U.S.C. § 1415 (c)(1), prior written notice must
include the evaluation procedures the agency proposes to use, along with an explanation of why
the agency proposes to evaluate the child; a description of each evaluation procedure,
assessment, record, or report the agency used as a basis for requesting the evaluation; a statement
that the parents have protection under the procedural safeguards of the Act, and if this notice is
not an initial referral for an evaluation, the means by which a copy of the procedural safeguards
can be obtained; sources for the parents to contact to obtain assistance in understanding the
provisions of the Act; a description of other options that were considered and why these reasons
were rejected; and a description of other factors that are relevant to the agency’s proposal to
request consent for an evaluation. Assistance to States for the Education of Children with
Disabilities and Preschool Grants for Children with Disabilities, Final Rule, Analysis of
Comments and Changes, 71 FR 46540, 46641-46642 (August 14, 2006). This provision does not
require that the specific personnel completing the evaluation be included in the prior written
notice.
You also mention California’s prior written notice requirement. We take no position on whether
the district has complied with those procedures as that is a matter of State law and OSEP does
not interpret State law.
Question 3: Are optometrists “qualified personnel” pursuant to 34 C.F.R. § 300.156 who
may conduct assessments for children with disabilities or suspected disabilities?
Answer: Under IDEA, the SEA must establish and maintain qualifications to ensure that
personnel necessary to carry out the purposes of Part B of IDEA are appropriately and
adequately prepared and trained, including that those personnel have the content knowledge and
1

A copy of this letter is available at: https://sites.ed.gov/idea/idea-files/policy-letter-april-7-2009-to-chula-vistaelementary-school-district-union-representative-johncarlos-torres/.

Page 3 - Brittany N. Mills
skills to serve children with disabilities. 20 U.S.C. § 1412(a)(14) and 34 C.F.R. § 300.156(a). In
addition, the public agency must ensure that each child’s evaluation is conducted by trained and
knowledgeable personnel. 34 C.F.R. § 300.304(c)(1)(iv) and 20 U.S.C. § 1414(b)(3)(A)(iv).
IDEA does not address which specific providers are considered qualified personnel. LEAs are
permitted to obtain a medical diagnosis to determine if a child’s medically related disability
results in the child’s need for special education and related services.” In the case of a suspected
“visual impairment including blindness,” a diagnosis may be made by a medical professional
such as the child’s pediatrician, an ophthalmologist, or optometrist. See OSEP Memo 17-05: Re:
Eligibility Determinations for Children Suspected of Having a Visual Impairment Including
Blindness under the Individuals with Disabilities Education Act (May 22, 2017).2 Therefore,
depending on the child’s situation, an optometrist could be considered “qualified personnel”
under 34 C.F.R. § 300.156.
If you have any further questions, please do not hesitate to contact Lisa Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs

2

A copy of OSEP Memo 17-05 is available at: https://sites.ed.gov/idea/files/letter-on-visual-impairment-5-2217.pdf.


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

May 2, 2019
Perry A. Zirkel, Ph.D., J.D.
University Professor Emeritus of Education and Law
Lehigh University
Department of Education and Human Services
111 Research Drive
Bethlehem, Pennsylvania 18015-4793
Dear Dr. Zirkel:
This letter is in response to your electronic mail (email) addressed to Lisa Pagano of the Office
of Special Education Programs (OSEP), U.S. Department of Education (Department), regarding
independent educational evaluations (IEEs). In that email, you noted that the regulation at 34
C.F.R. § 300.502(a) regarding the right to an IEE, applies to “the parents of a child with a
disability.” Based on this provision, you asked a series of questions regarding the rights of a
parent to an IEE when the parent’s child has been evaluated under the Individuals with
Disabilities Education Act (IDEA) and found not to be a child with a disability in need of special
education and related services. Each of your questions is answered below.
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.
Question 1: Does the parent have the right to obtain an IEE at public expense if the child is
evaluated under IDEA and found not to be a child with a disability in need of special education
and related services?
Answer: Yes. Under 34 C.F.R. § 300.502(a), the parents of a child with a disability have the
right under Part B of IDEA to obtain an IEE, subject to 34 C.F.R. § 300.502(b) through (e).
Under 34 C.F.R. § 300.15, the term “evaluation” means the procedures used in accordance with
34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability (emphasis
added), and the nature and extent of the special education and related services that the child
needs. Because the definition of evaluation includes eligibility determinations under IDEA, we
believe an IEE can be obtained after an initial evaluation regardless of whether the child was
found eligible as a child with a disability, if the parent disagrees with the initial evaluation
obtained by the public agency, subject to certain conditions. 34 C.F.R. § 300.502(b)(1). The right
to an IEE at public expense, therefore, would extend to parents who suspect their child might be
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202-2600
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competiveness
by fostering educational excellence and ensuring equal access.

Page 2 - Perry A. Zirkel, Ph.D., J.D.

a child with a disability and who disagree with the initial evaluation obtained by the public
agency.
Question 2: If a parent whose child has been found not to be a child with a disability provides an
IEE at his or her expense, is the district required to consider it?
Answer: Yes. Under 34 C.F.R. § 300.502(c), if the parent obtains an IEE at public expense or
shares with the public agency an evaluation obtained at private expense, the results of the
evaluation must be considered by the public agency, if it meets agency criteria, in any decision
made with respect to the provision of a free appropriate public education (FAPE) to the child.
This requirement applies to a parent who seeks an IEE after his or her child has been found not
to be a child with a disability.
Question 3: In a case where the parent files for a due process hearing to claim a child find
violation but either: (a) the district’s belated evaluation determines that the child is not eligible
under IDEA; or (b) the district never evaluated the child, is the parent deprived of the right to a
FAPE-denial remedy (e.g., compensatory education or tuition reimbursement) and to attorneys’
fees under the IDEA?
Answer: The determination of a specific remedy resulting from a due process hearing is made on
a case-by-case basis in light of the specific facts of each case at the discretion of the hearing
officer. We believe that the hearing officer, as the designated trier of fact under IDEA, is in the
best position to determine whether a delayed evaluation or a failure to complete an evaluation
would be subject to the remedies described in your question.
If you have any further questions, please do not hesitate to contact Ms. Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,

/s/
Laurie VanderPloeg
Director
Office of Special Education Programs


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF ELEMENTARY AND SECONDARY EDUCATION

TO:

State Assessment Directors
State Title I Directors
State Special Education Directors

FROM:

Patrick Rooney
Director, Evidence-Based Practices Assessment and Accountability and School
Support and Accountability
Office of Elementary and Secondary Education
Ruth Ryder
Deputy Director, Office of Special Education Programs (OSEP)
Office of Special Education and Rehabilitative Services

DATE:

March 28, 2019

SUBJECT:

Information Regarding Consequences for States Not Meeting the Requirement to
Assess Not More than 1.0 Percent of Students on the Alternate Assessment

Introduction
The purpose of this memorandum is to provide information regarding the implications for States
not meeting the requirement, in Title I of the Elementary and Secondary Education Act of 1965
(ESEA), as amended by the Every Student Succeeds Act (ESSA), related to participation in an
alternate assessment aligned with alternate academic achievement standards (AA-AAAS). The
ESEA requires that only students with the most significant cognitive disabilities may take an
AA-AAAS and limits the percentage of students that a State may assess with an AA-AAAS to no
more than 1.0 percent of all students in the grades assessed in a State for each subject
(reading/language arts, mathematics and science). This requirement took effect beginning with
the 2017-18 school year (SY).
Since most States previously assessed more than 1.0 percent of students with the AA-AAAS, the
Department understands that States may need time to adjust their systems to come into
compliance. To support States in meeting the requirement, the ESEA allows States to seek a
waiver. The Department established regulations that describe the requirements States must meet
to be granted a waiver. The Department granted 23 States such a waiver for the 2017-18 SY.1 In
receiving these waivers, each State had to meet specific requirements set forth in the ESEA
statute and regulations.2 Specifically, each State receiving the waiver had to demonstrate that at
least 95 percent of all students and 95 percent of all students with disabilities participated in the
1

DE, GA, ID, KY, MI, MS, MO, NE, NC, OH, OK, SD, TN, TX, WV, and WI each received waivers for
reading/language arts, mathematics, and science; AZ, AR, IN, HI, LA, MA, and ND each received waivers for
reading/language arts and mathematics.
2
See https://www2.ed.gov/admins/lead/account/saa/onepercentcapmemo51617.pdf and
https://www2.ed.gov/admins/lead/account/saa/ossstateassessmentltr.pdf.

Page 2
required assessments. These States also provided the Department assurances and detailed plans
on how they would work with local educational agencies (LEAs) to reduce the rates of students
participating in AA-AAAS.
We encourage States that received a waiver to make readily and publicly available the State’s
plan for reducing the percentage of students assessed on the AA-AAAS so that parents,
stakeholders, and the public are aware of the State’s actions and progress in implementing their
plans.
In addition, we want to remind all States of the requirement in 34 CFR 200.6(c)(3)(iv) to make
the information submitted by an LEA justifying the need to assess more than 1.0 percent of its
students with an AA-AAAS publicly available, provided that such information does not reveal
personally identifiable information about an individual student.
Technical Assistance
The Department understands that this new requirement necessitates robust engagement with
LEAs and community members and may require an update to your AA-AAAS guidelines. To
support the effort, the Department has been providing technical assistance. Last October, the
National Center on Educational Outcomes (NCEO) hosted a convening, in partnership with
OSEP and OSSA, “Supporting States in Implementing ESSA’s 1.0 Percent State-Level Cap on
Participation of Students in the AA-AAAS.” NCEO and the Center on Standards and Assessment
Implementation (CSAI) published a document summarizing the convening, “Proceedings of the
1% Cap National Convening”, which is available at:
1PercentNationalConveningProceedings.pdf. This document includes links to video clips of the
plenary presentations as well as resources that were shared by States and others.
Additionally, NCEO and CSAI are hosting three Peer Learning Groups (PLGs) on topics that
States identified at the convening:
 Digging into Your Data: Building a One Percent Data Analysis and Use Plan
 Guiding and Evaluating District Justifications for Exceeding the One Percent Cap
 Building Capacity of IEP Teams and Parents in Making Decisions about Assessment
Participation
Consequences for Exceeding the Cap
If a State did not receive a waiver for the 2017-18 SY and assessed more than 1.0 percent of
assessed students in reading/language arts, mathematics, and/or science, in the State with the
AA-AAAS, the State is out of compliance with ESSA. Based on the State’s context and
information, such as the extent to which the State exceeded the 1.0 percent cap, the Department
will consider one of the following actions:
1. Sending a letter notifying the State that it has assessed more than 1.0 percent of tested
students with an AA-AAAS and requiring the State to submit a plan to come into
compliance with the 1.0 percent cap.
2. Placing a condition on the State’s Title I Part A grant award. As part of the condition, a
State would be required to submit a plan to assess no more than 1.0 percent of students
with an AA-AAAS in each subject.
3. Imposing high risk status on the State’s Title I Part A grant award. A State with such a
high risk status would be required to submit a plan to come into compliance with the 1.0

Page 3
percent cap and to participate in joint OESE/OSEP monitoring calls while the State
works to meet the requirement.
4. Withholding Title I Part A State administrative funds. If the Department withholds funds,
a State would be required to submit a plan to come into compliance with the 1.0 percent
cap and participate in joint OESE/OSEP monitoring calls while they work to come into
compliance.
When determining which of these consequences to apply, the Department will consider multiple
factors, including the extent to which a State assessed more than 1.0 percent of tested students
with an AA-AAAS (e.g., a rate of 1.2 percent compared to a rate of 2.5 percent); and the State’s
improvement over time in reducing participation of students in alternate assessments.
The Department established the following framework for classifying consequences for State
noncompliance with the 1.0 percent cap on AA-AAAS participation, which will guide our
actions this year and in future years. This framework considers the complexity States face in
addressing rates of AA-AAAS participation and takes into account the amount of time that may
be necessary for States to make the changes to come into compliance with this new requirement.
Accordingly, the most severe consequences are not contemplated until after the 2019-20 SY and
then only if the State has not demonstrated improvement in reducing AA-AAAS participation
rates.
Classification Criteria
Between 1.0-1.3 percent of students assessed with
an AA-AAAS in at least one subject without a
waiver and the State would have been eligible for
(i.e., assessed at least 95 percent of all students and
students with disabilities in the previous year), but
did not request, a waiver.
Between 1.0-1.3 percent of students assessed with
an AA-AAAS in at least one subject without a
waiver. The State would not have been eligible for
a waiver request because assessment participation
rates in that subject for all students or students
with disabilities were below 95 percent.
OR
More than 1.3 percent of students assessed with an
AA-AAAS in at least one subject without a
waiver.
OR
State received a notification letter in the
preceding year and did not come into compliance
by reducing the AA-AAAS participation rate
below 1.0 percent.

Consequence for State
Notification letter and a State is required to
submit a plan for compliance with the
requirement.

Title I Part A grant award condition. As
part of the condition, a State is required to
submit a plan to come into compliance with
the 1.0 percent cap and submit data via
EDFacts for the 2018-19 SY by October 1,
2019.

Page 4
Classification Criteria
State received a Title I grant condition in the
preceding year and did not make progress in
decreasing the AA-AAAS participation rate by at
least 0.1 percent.

State was on high-risk status or had Title I
administrative funds withheld in the preceding
year and did not make progress in decreasing the
AA-AAAS participation rate by at least 0.1
percent.

Consequence for State
High-risk status for the Title I Part A grant
award. A State with high-risk status would
be required to submit a plan to come into
compliance with the 1.0 percent cap and
participate in joint OESE/OSEP monitoring
calls until it meets the requirement.
Withhold a percentage of Title I Part A
State administrative funds. A State would
be required to submit a plan to come into
compliance with the requirement and
participate in joint OESE/OSEP monitoring
calls while until it meets the requirement.

States with requests for technical assistance, or with questions about these consequences or the
process to request a waiver, should contact their Office of School Support and Accountability
contacts at: OSS.[State]@ed.gov (e.g., OSS.Nebraska@ed.gov) and their Office of Special
Education Programs State Leads.
Thank you for your continued commitment to our nation’s students.