UNITED STATES DEPARTMENT OF EDUCATION
WASHINGTON, DC 20202

December 7, 2017
Questions and Answers (Q&A) on U. S. Supreme Court Case Decision
Endrew F. v. Douglas County School District Re-1
On March 22, 2017 the U.S. Supreme Court (sometimes referred to as Court) issued a unanimous
opinion in Endrew F. v. Douglas County School District Re-1, 137 S. Ct. 988. In that case, the
Court interpreted the scope of the free appropriate public education (FAPE) requirements in the
Individuals with Disabilities Education Act (IDEA). The Court overturned the Tenth Circuit’s
decision that Endrew, a child with autism, was only entitled to an educational program that was
calculated to provide “merely more than de minimis” educational benefit. In rejecting the Tenth
Circuit’s reasoning, the Supreme Court determined that, “[t]o meet its substantive obligation
under the IDEA, a school must offer an IEP [individualized education program] that is
reasonably calculated to enable a child to make progress appropriate in light of the child’s
circumstances.” The Court additionally emphasized the requirement that “every child should
have the chance to meet challenging objectives.”
The Endrew F. decision is important because it informs our efforts to improve academic
outcomes for children with disabilities. To this end, the U.S. Department of Education
(Department) is providing parents and other stakeholders information on the issues addressed in
Endrew F. and the impact of the Court’s decision on the implementation of the IDEA. Because
the decision in Endrew F. clarified the scope of the IDEA’s FAPE requirements, the Department’s
Office of Special Education and Rehabilitative Services (OSERS) is interested in receiving
comments from families, teachers, administrators, and other stakeholders to assist us in
identifying implementation questions and best practices. If you are interested in commenting on
this document or have additional questions, please send them to OSERS by email at
EndrewF@ed.gov.

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

Q&A on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1

TABLE OF CONTENTS
OVERVIEW ............................................................................................................................................................... 3
1.

What were the facts surrounding the Endrew F. decision? ............................................................... 3

2.

What is the crucial issue that was addressed in the Endrew F. decision? ......................................... 3

3.

What was the Supreme Court’s final decision in Endrew F.?........................................................... 3

CLARIFICATION OF IDEA’s FAPE REQUIREMENT .............................................................................. 4
4.

How is FAPE defined in the IDEA?...................................................................................................... 4

5.

Prior to Endrew F., what did the Court say about the substantive standard for FAPE? .................... 4

6.

What does “de minimis” mean and why did the Tenth Circuit Court apply the “de minimis”
standard in the Endrew F. case?........................................................................................................ 4

7.

How did Endrew F. clarify the standard for determining FAPE and educational benefit?................ 5

8.

Does the standard in Endrew F. apply prospectively to IDEA cases? .............................................. 5

9.

Does the standard in Endrew F. only apply to situations similar to the facts presented in
Endrew F.?.............................................................................................................................................................................. 5

CONSIDERATIONS FOR IMPLEMENTATION ........................................................................................ 5
10. What does “reasonably calculated” mean? ....................................................................................... 5
11. What does “progress appropriate in light of the child’s circumstances” mean? ............................... 6
12. How can an IEP Team ensure that every child has the chance to meet challenging objectives?....... 6
13. How can IEP Teams determine if IEP annual goals are appropriately ambitious?............................ 7
14. How can IEP Teams implement the Endrew F. standard for children with the most significant
cognitive disabilities? ....................................................................................................................... 7
15. What actions should IEP Teams take if a child is not making progress at the level the
IEP Team expected? ......................................................................................................................... 7
16. Must IEPs address the use of positive behavioral interventions and supports? ................................ 8
17. How does the Endrew F. decision impact placement decisions?...................................................... 8
18. Is there anything IEP Teams should do differently as a result of the Endrew F. decision? ............... 9
19. Is there anything SEAs should do differently as a result of the Endrew F. decision? ....................... 9
20. Has the Endrew F. decision affected parents’ due process rights under the IDEA? ........................... 9

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Q&A on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1

QUESTIONS AND ANSWERS
OVERVIEW
1. What were the facts surrounding the Endrew F. decision?
Endrew, a child with autism, attended public school from kindergarten through fourth grade. In
April of 2010, Endrew’s parents rejected the 5th grade individualized education program (IEP)
proposed by the Douglas County School District. Endrew’s parents believed the proposed IEP
was basically the same as the previous IEPs under which their child’s academic and functional
progress had stalled. Endrew’s parents subsequently withdrew him from public school and
placed him in a private school that specialized in the education of children with autism. Endrew’s
behavior in the private school setting improved significantly; his academic goals were
strengthened and he thrived. This case arose because Endrew’s parents were unable to obtain
tuition reimbursement for the cost of the private school placement.
Endrew’s parents sought reimbursement for the private school tuition payments at a due process
hearing, and subsequently sought judicial review of the hearing decision in the U.S. District
Court for the District of Colorado after the hearing officer did not grant the relief they were
seeking. The District Court affirmed the hearing officer’s decision, and they appealed to the U.S.
Court of Appeals for the Tenth Circuit. In these proceedings, Endrew’s parents argued that the
IEP proposed by the public school was mostly unchanged from his previous IEPs, under which
he made “minimal progress.” The Tenth Circuit rejected the parents’ arguments and concluded
that Endrew had received FAPE through the district’s IEPs because they were calculated to
provide educational benefit that is merely more than de minimis (i.e., more than trivial or minor
educational benefit). Endrew’s parents then appealed the case to the U.S. Supreme Court. The
Court overturned the Tenth Circuit’s decision.
2. What is the crucial issue that was addressed in the Endrew F. decision?
Endrew F. clarified the substantive standard for determining whether a child’s IEP – the
centerpiece of each child’s entitlement to FAPE under the IDEA – is sufficient to confer
educational benefit on a child with a disability.
3. What was the Supreme Court’s final decision in Endrew F.?
The Court held that to meet its substantive obligation under the IDEA, a school must offer an IEP
reasonably calculated to enable a child to make progress appropriate in light of the child’s
circumstances. In clarifying the standard, the Court rejected the “merely more than de minimis”
(i.e. more than trivial) standard applied by the Tenth Circuit. In determining the scope of FAPE,
the Court reinforced the requirement that “every child should have the chance to meet
challenging objectives.”1

1

137 S.Ct. at 1000.

3

Q&A on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1

CLARIFICATION OF IDEA’s FAPE REQUIREMENT
4. How is FAPE defined in the IDEA?
Under the IDEA, FAPE is a statutory term.2 It is defined to include 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 IDEA Part B
requirements;
(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 34 CFR §§300.320
through 300.324.
Further, each child with a disability is entitled to receive FAPE in the least restrictive
environment (LRE).3
5. Prior to Endrew F., what did the Court say about the substantive standard for FAPE?
Prior to Endrew F., courts relied on the landmark case Board of Education of Hendrick-Hudson
Central School District v. Rowley. 458 U.S. 176 (1982) (“Rowley”). In Rowley, the Court held
that Amy Rowley, a child with a disability involved in the case, would receive FAPE if her IEP
was “reasonably calculated to enable the child to achieve educational benefits.” In Rowley, the
Court did not establish any one test for determining educational benefit provided to all children
covered by the IDEA. The Court did, however, discuss what appropriate progress would be for a
child with a disability who was performing above average in the general education classroom
with the supports included in her IEP. In Rowley, the Court emphasized that an IEP had to be
reasonably calculated to enable the child to achieve passing marks and advance from grade to
grade.
6. What does “de minimis” mean and why did the Tenth Circuit Court apply the
“de minimis” standard in the Endrew F. case?
“De minimis” is a Latin term which means too trivial or minor to consider. Because the Supreme
Court in Rowley did not establish one particular test for educational benefit, lower courts
(Federal District Courts and Circuit Courts) disagreed over how to determine educational benefit
and applied different substantive standards. For example, prior to Endrew F., six U.S. Court of
Appeals Circuit Courts applied a “merely more than de minimis” standard when considering
educational benefit. One of those courts was the U.S. Court of Appeals for the Tenth Circuit,
where Endrew and his parents lived. Therefore, initially the court applied the “de minimis”
standard to Endrew’s case. This meant that in order to meet its FAPE obligations, the school
district only had to show that the child’s IEP was designed to provide a child with a disability
more than trivial or minor educational benefit.

2
3

20 U.S.C. 1401(9) and 34 CFR §300.17.
20 U.S.C. 1412(a)(5) and 34 CFR §§300.114-300.117

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Q&A on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1

7. How did Endrew F. clarify the standard for determining FAPE and educational benefit?
With the decision in Endrew, F., the Court clarified that for all students, including those
performing at grade level and those unable to perform at grade level, a school must offer an IEP
that is “reasonably calculated to enable a child to make progress appropriate in light of the
child’s circumstances.” This standard is different from, and more demanding than, the “merely
more than de minimis” test applied by the Tenth Circuit. As the Court stated, “[t]he goals may
differ, but every child should have the chance to meet challenging objectives.” 4
8. Does the standard in Endrew F. apply prospectively to IDEA cases?
Yes. The Supreme Court decisively rejected the “merely more than de minimis” standard used by
the Tenth and other Circuits; therefore that standard is no longer considered good law. The Court
explained, “[a] student offered an educational program providing merely more than de minimis
progress from year to year can hardly be said to have been offered an education at all…The
IDEA demands more.” Now, as a result of Endrew F., each child’s educational program must be
appropriately ambitious in light of his or her circumstances, and every child should have the
chance to meet challenging objectives.
9. Does the standard in Endrew F. only apply to situations similar to the facts presented in
Endrew F.?
No. The standard that the Court announced in Endrew F. clarifies the scope of the FAPE
requirements in the IDEA and, as such, applies to the provision of FAPE to any IDEA-eligible
child with a disability, as defined by the law. The standard in Endrew F. applies regardless of the
child’s disability, the age of the child, or the child’s current placement.
CONSIDERATIONS FOR IMPLEMENTATION
10. What does “reasonably calculated” mean?
The “reasonably calculated” standard recognizes that developing an appropriate IEP requires a
prospective judgment by the IEP Team. Generally, this means that school personnel will make
decisions that are informed by their own expertise, the progress of the child, the child’s potential
for growth, and the views of the child’s parents. IEP Team members should consider how special
education and related services, if any, have been provided to the child in the past, including the
effectiveness of specific instructional strategies and supports and services with the student. In
determining whether an IEP is reasonably calculated to enable a child to make progress, the IEP
Team should consider the child’s previous rate of academic growth, whether the child is on track
to achieve or exceed grade-level proficiency, any behaviors interfering with the child’s progress,
and additional information and input provided by the child’s parents. As stated by the Court,
“any review of an IEP must consider whether the IEP is reasonably calculated to ensure such
progress, not whether it would be considered ideal.”5

4
5

137 S.Ct. at 1000.
137 S.Ct. at 999.

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Q&A on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1

11. What does “progress appropriate in light of the child’s circumstances” mean?
The essential function of an IEP is to provide meaningful opportunities for appropriate academic
and functional advancement, and to enable the child to make progress. The expectations of
progress in the IEP must be appropriate in light of the child’s unique circumstances. This reflects
the focus on the individualized needs of the particular child that is at the core of the IDEA. It also
reflects States’ responsibility to offer instruction “specially designed” to meet a child’s unique
needs through an IEP.6
While the Court did not specifically define “in light of the child’s circumstances,” the decision
emphasized the individualized decision-making required in the IEP process and the need to
ensure that every child should have the chance to meet challenging objectives. The IDEA’s focus
on the individual needs of each child with a disability is an essential consideration for IEP
Teams. Individualized decision-making is particularly important when writing annual goals and
other IEP content because “the IEP must aim to enable the child to make progress.”7 For
example, the Court stated that the IEP Team, which must include the child’s parents8 as Team
members, must give “careful consideration to the child’s present levels of achievement,
disability, and potential for growth.”
12. How can an IEP Team ensure that every child has the chance to meet challenging
objectives?
The IEP must include annual goals that aim to improve educational results and functional
performance for each child with a disability. This inherently includes a meaningful opportunity
for the child to meet challenging objectives. Each child with a disability must be offered an IEP
that is designed to provide access to instructional strategies and curricula aligned to both
challenging State academic content standards and ambitious goals, based on the unique
circumstances of that child. The IEP must be developed in a way that ensures that children with
disabilities have the chance to meet challenging objectives, as reflected in the child’s IEP goals.
Each child’s IEP must include, among other information, an accurate statement of the child's
present levels of academic achievement and functional performance and measurable annual
goals, including academic and functional goals.9 This information must include how the child's
disability affects the child's involvement and progress in the general education curriculum.
How IEP Team members evaluate and assess this information, as well as the establishment of the
child’s IEP goals, will each contribute to ensuring the child has access to challenging objectives.
The IEP Team’s effectiveness in gathering and interpreting this information will ensure that, in
establishing IEP goals, the child has the opportunity to meet challenging objectives. As the Court

6

137 S.Ct. at 999.
137 S.Ct. at 999.
8
The term “parent” means a biological or adoptive parent of a child; a foster parent, unless State law, regulations, or
contractual obligations with a State or local entity prohibit a foster parent from acting as a parent; a guardian
generally authorized to act as the child's parent, or authorized to make educational decisions for the child (but not
the State if the child is a ward of the State); an individual acting in the place of a biological or adoptive parent
(including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally
responsible for the child's welfare; or a surrogate parent who has been appointed in accordance with 34 CFR
§300.519. 34 CFR §300.30.
9
20 U.S.C. 1414(d)(1)(A)(i)(I)-(IV) and 34 CFR §300.320(a)(1)–(4).
7

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Q&A on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1

stated in Endrew F., “the IEP must aim to enable the child to make progress.”10 Determining an
appropriate and challenging level of progress is an individualized determination that is unique to
each child. When making this determination, each child’s IEP Team must consider the child’s
present levels of performance and other factors such as the child’s previous rate of progress and
any information provided by the child’s parents.
13. How can IEP Teams determine if IEP annual goals are appropriately ambitious?
As the Court stated, “advancement from grade to grade is appropriately ambitious for most
children in the regular classroom;” however, the Court also noted that while these “goals may
differ…every child should have the chance to meet challenging objectives.”11 In order to make
FAPE available to each eligible child with a disability, the child’s IEP must be designed to enable
the child to be involved in, and make progress in, the general education curriculum.12 The term
“general education curriculum” is “the same curriculum as for nondisabled children.”13 We have
previously clarified that the phrase “the same curriculum as for nondisabled children” is the
curriculum that is based on a State’s academic content standards. This alignment, however, must
guide, and not replace, the individualized decision-making required in the IEP process. This
decision-making continues to “require careful consideration of the child’s present levels of
achievement, disability, and potential for growth” as discussed in question #11.14
14. How can IEP Teams implement the Endrew F. standard for children with the most
significant cognitive disabilities?
The Department recognizes that there is a small number of children—those with the most
significant cognitive disabilities—whose performance can be measured against alternate
academic achievement standards.15 Alternate academic achievement standards also must be
aligned with the State’s grade-level content standards.
Therefore, annual IEP goals for children with the most significant cognitive disabilities should be
appropriately ambitious, based on the State’s content standards, and “reasonably calculated to
enable the child to make progress appropriate in light of the child’s circumstances.”
15. What actions should IEP Teams take if a child is not making progress at the level the
IEP Team expected?
An IEP is not a guarantee of a specific educational or functional result for a child with a
disability. However, the IDEA does provide for revisiting the IEP if the expected progress is not
occurring. This is particularly important because of the Court’s decision in Endrew F., which
clarifies that the standard for determining whether an IEP is sufficient to provide FAPE is
whether the child is offered an IEP reasonably calculated to enable the child to make progress
that is appropriate in light of the child’s circumstances. At least once a year, IEP Teams must
review the child's IEP to determine whether the annual goals for the child are being achieved.
10

137 S.Ct. at 999.
137 S.Ct. at 1000.
12
20 U.S.C. 1414(d)(1)(A) and 34 CFR §300.320(a).
13
20 U.S.C. 20 U.S.C. 1414(d)(1)(A)(i)(I)(aa) and 34 CFR §300.320(a)(1)(i).
14
137 S.Ct. at 999.
15
See section 1111(b)(1)(E) of the Elementary and Secondary Education Act (ESEA), and Section 200.6(c) of the
Department’s regulations for Title I Part A of the ESEA.
11

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Q&A on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1

The IEP Team also may meet periodically throughout the course of the school year, if
circumstances warrant it. For example, if a child is not making expected progress toward his or
her annual goals, the IEP Team must revise, as appropriate, the IEP to address the lack of
progress.16 Although the public agency is responsible for determining when it is necessary to
conduct an IEP Team meeting, the parents of a child with a disability have the right to request an
IEP Team meeting at any time. If a child is not making progress at the level the IEP Team
expected, despite receiving all the services and supports identified in the IEP, the IEP Team must
meet to review and revise the IEP if necessary, to ensure the child is receiving appropriate
interventions, special education and related services and supplementary aids and services, and to
ensure the IEP’s goals are individualized and ambitious.
Public agencies may find it useful to examine current practices for engaging and communicating
with parents throughout the school year as IEP goals are evaluated and the IEP Team determines
whether the child is making progress toward IEP goals. IEP Teams should use the periodic
progress reporting required at 34 CFR §300.320(a)(3)(ii) to inform parents of their child’s
progress. Parents and other IEP Team members should collaborate and partner to track progress
appropriate to the child’s circumstances.
16. Must IEPs address the use of positive behavioral interventions and supports?
Where necessary to provide FAPE, IEPs must include consideration of behavioral needs in the
development, review, and revision of IEPs.17 IEP Teams must consider and, if necessary to
provide FAPE, include appropriate behavioral goals and objectives and other appropriate
services and supports in the IEPs of children whose behavior impedes their own learning or the
learning of their peers. 18
17. How does the Endrew F. decision impact placement decisions?
Consistent with the decision in Endrew F., the Department continues to recognize that it is
essential to make individualized determinations about what constitutes appropriate instruction
and services for each child with a disability and the placement in which that instruction and those
services can be provided to the child. There is no “one-size-fits-all” approach to educating
children with disabilities. Rather, placement decisions must be individualized and made
consistent with a child’s IEP. 19 We note that placement in regular classes may not be the least
restrictive placement for every child with a disability. The IDEA Part B regulations specify that
each public agency must ensure that a continuum of alternative placements (including instruction
in regular classes, special classes, special schools, home instruction, placement in private
schools, and instruction in hospitals and institutions) is available to meet the needs of children
with disabilities for special education and related services.20

16

20 U.S.C. 1412(d)(4)(A).
20 U.S.C. 1414(d)(3)(B)(i) and 34 CFR §300.324(a)(2)(i) and (b)(2).
18
20 U.S.C. 1414(d)(1)(A)(i)(I)-(IV) and 34 CFR §300.320(a)(4).
19
20 U.S.C. 1412(a)(5)
20
20 U.S.C. 1412(a)(5)
17

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Q&A on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1

18. Is there anything IEP Teams should do differently as a result of the Endrew F. decision?
The Court in Endrew F. held that to meet its substantive obligation under the IDEA, a school
must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of
the child’s circumstances and expressly rejected the merely more than de minimis, or trivial
progress standard. Although the Court did not determine any one test for determining what
appropriate progress would look like for every child, IEP Teams must implement policies,
procedures, and practices relating to
(1) identifying present levels of academic achievement and functional performance;
(2) the setting of measurable annual goals, including academic and functional goals; and
(3) how a child’s progress toward meeting annual goals will be measured and reported, so
that the Endrew F. standard is met for each individual child with a disability.
Separately, IEP Teams and other school personnel should be able to demonstrate that, consistent
with the provisions in the child’s IEP, they are providing special education and related services
and supplementary aids and services; making program modifications; providing supports for
school personnel; and allowing for appropriate accommodations that are reasonably calculated to
enable a child to make progress appropriate in light of the child’s circumstances and enable the
child to have the chance to meet challenging objectives.
19. Is there anything SEAs should do differently as a result of the Endrew F. decision?
SEAs should review policies, procedures, and practices to provide support and appropriate
guidance to school districts and IEP Teams to ensure that IEP goals are appropriately ambitious
and that all children have the opportunity to meet challenging objectives. States can help ensure
that every child with a disability has an IEP that enables the child to be involved in and make
progress in the general education curriculum and is appropriately ambitious in light of the child’s
circumstances.21 While many States and school districts are already meeting the standard
established in Endrew F., this is an opportunity to work together to ensure that we are holding all
children with disabilities to high standards and providing access to challenging academic content
and achievement standards.
20. Has the Endrew F. decision affected parents’ due process rights under the IDEA?
No. Parents can continue to use the IDEA Part B mediation and due process procedures if they
disagree with IEP Team determinations about the special education and related services that are
appropriate and necessary for their child to receive FAPE.22 As reflected in Endrew F., the IDEA
provides a mechanism whereby parents may opt to place their child in a private school setting in
circumstances where they believe FAPE has been denied. If a court or hearing officer determines
that a school failed to make FAPE available in a timely manner prior to enrollment in a private
school setting, that the private placement is appropriate, and that the parents provided notice to
the school district, parents may recover the costs of the private placement.23 Nothing in
Endrew F. changes or amends these procedural due process rights.

21

20 USC §1414(d)(1)(A)(i)(IV); 137 S.Ct. at 1000.
34 CFR §§300.506-300.516
23
34 CFR §300.148(c).
22

9


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

September 8, 2017

Mr. Brian Radziwill
Archdiocese of Washington
Post Office Box 29260
Washington, DC 20017-0260
Dear Mr. Radziwill:
This letter responds further to questions raised during your October 18, 2016 conference call
with representatives of the U.S. Department of Education (Department), Office of Non-Public
Education and the Office of Special Education Programs (OSEP). During that discussion, you
requested clarification concerning certain provisions of the Individuals with Disabilities
Education Act (IDEA) that pertain to children with disabilities enrolled by their parents in
private schools. Your questions and OSEP’s responses are provided below. We regret the delay
in responding.
Question: What constitutes meaningful consultation under 34 CFR §300.134?
OSEP Response: Under 34 CFR §300.134, to ensure timely and meaningful consultation, a
local educational agency (LEA), or if appropriate, a State educational agency (SEA), must
consult with private school representatives and representatives of parents of parentally-placed
private school children with disabilities in the design and development of special education and
related services for the children regarding the following topics:
(a) Child find, and how parentally-placed private school children suspected of having a
disability can participate equitably, including how parents, teachers, and private school
officials will be informed of the process;
(b) Proportionate share. The determination of the proportionate share of Federal funds
available to serve parentally-placed private school children with disabilities, including the
determination of how the proportionate share of those funds was calculated;
(c) Consultation process. How the consultation process among representatives of the
agency, the private schools, and the parents of parentally-placed private school children
will take place, including how the process will operate throughout the school year to ensure
that parentally-placed private school children with disabilities identified through the child
find process can meaningfully participate in special education and related services;

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(d) Provision of special education and related services. How, where, and by whom special
education and related services will be provided, including a discussion of types of
services—including direct services and alternate service-delivery mechanisms, as well as
how the services will be apportioned if funds are insufficient to serve all children—and
how and when those decisions will be made; and
(e) Written explanation by LEA regarding services. How, if the LEA representatives
disagree with the views of the private school officials on the provision of services or the
types of services whether provided directly or through a contract, the LEA will provide to
the private school officials a written explanation of the reasons why the LEA chose not to
adopt the recommendations of the private school.
Apart from this regulatory provision, IDEA does not specify what constitutes “meaningful
consultation.” In prior guidance, the Department has provided the following explanation of
IDEA’s consultation requirement:
Effective consultation provides a genuine opportunity for all parties to express their views
and to have those views considered by the LEA before the LEA makes any decision that
has an impact on services to parentally-placed private school children with disabilities.
Timeliness is critical to effective consultation and requires collaboration between the LEA
and private school officials in developing a timeline and selecting dates for consultation.
Successful consultation establishes positive and productive working relationships that
make planning easier and ensure that the services provided meet the needs of eligible
parentally-placed private school children with disabilities.
A unilateral offer of services by an LEA with no opportunity for discussion is not
adequate consultation as such an offer does not meet the basic requirements of the
consultation process. Only after discussing key issues relating to the provision of special
education and related services with all representatives may the LEA make its final
decisions with respect to the services to be provided to eligible private school children
with disabilities.
Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private
Schools, April 2011, Question A-1, available at:
https://sites.ed.gov/idea/files/Private_School_Q_A_April_2011_1.pdf
In order for consultation to be meaningful, it also must be timely. Establishing a timeline for
consultation can help ensure that timely and meaningful consultation occurs throughout the
school year. The timeline can include meeting dates and times as well as topics to be discussed.
Question A-4 of the Department’s April 2011 Question and Answer document.
As there is no specific schedule for consultation of the LEA, or SEA, as appropriate, with private
school representatives and representatives of parents of parentally-placed private school children
with disabilities, States and LEAs are able to determine the appropriate period between
consultations based on circumstances in their jurisdictions. OSEP recognizes that the needs of
parentally-placed private school children with disabilities, and their number and location, may
vary over time, depending on the circumstances in a particular LEA in a particular year. Many

jurisdictions have found that it works well when consultation takes place, at a minimum, to
review the child find process, discuss the child count, plan the services being offered and
establish a consultation timeline prior to the start of each school year.
In addition, the LEA must maintain documentation that timely and meaningful consultation has
occurred, including a written affirmation signed by the representatives of the participating
private schools, as required by 34 CFR §300.135. This written affirmation signed by the
representatives of the participating private schools should reflect that those officials have indeed
participated in timely and meaningful consultation that has continued throughout the school year.
Question A-3 of the Department’s April 2011 Question and Answer document.
Question: What is the definition of “representatives of parents of parentally-placed private
school children with disabilities” that must be included in the consultation required by 34 CFR
§300.134?
OSEP Response: IDEA does not contain a definition of this term, and does not specify which
individuals must be included in the consultation process as representatives of parents of
parentally-placed private school children with disabilities. Determinations of which individuals
should be designated as representatives of parentally-placed private school children with
disabilities are best made at the State and local level so that the LEA, or SEA, if appropriate,
along with private school officials and representatives of parents can identify and acknowledge
the respective roles of those participating in the consultation process. IDEA would not prevent
parents of parentally-placed private school children with disabilities from representing
themselves in the consultation process. Whether parents of home-schooled children or other
representatives of home-schooled children should be considered “representatives” of parents of
parentally-placed private school children with disabilities depends on whether under State law, a
child with a disability that is being home schooled is regarded as a parentally-placed private
school child with a disability.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the Department
of the IDEA in the context of the specific facts and questions presented.
Finally, on February 24, 2017, President Donald J. Trump signed Executive Order 13777,
“Enforcing the Regulatory Reform Agenda,” in order to lower regulatory burdens on the
American people by implementing and enforcing government-wide regulatory reform. Each
Federal agency is required to establish a Regulatory Reform Task Force and conduct a thorough
review of existing policy in an effort to alleviate unnecessary regulatory burdens. To comply
with the Executive Order, the U.S. Department of Education (Department) has formed a
Regulatory Reform Task Force to review existing non-regulatory guidance and existing
regulations. Most recently, on June 22, 2017, the Secretary announced the release of the
Department’s first progress report of the Task Force, as required by Executive Order 13777.
One of the duties of the Task Force is to evaluate existing regulations and make
recommendations to the agency head regarding their repeal, replacement or modification. In
addition to conducting an agency-wide regulatory review, the Department is seeking public
comment concerning whether regulations and non-regulatory policy guidance should be
repealed, replaced or modified.

If you have recommendations concerning any of the Department’s guidance related to
meaningful consultation or other IDEA provisions, please submit them to docket ID number ED2017-OS-0074 at the Federal eRulemaking Portal at www.regulations.gov no later than
September 20, 2017.
If you have any questions, please do not hesitate to contact Dwight Thomas at 202-245-6238 or
by email Dwight.Thomas@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs


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

May 22, 2017
Contact Person
Name: Lisa Pagano
Telephone: (202) 245-7413
OSEP 17-05

MEMORANDUM
TO:

State Directors of Special Education, Preschool/619 State Coordinators

FROM:

Ruth E. Ryder
Acting Director
Office of Special Education Programs

SUBJECT:

Eligibility Determinations for Children Suspected of Having a Visual Impairment
Including Blindness under the Individuals with Disabilities Education Act

On November 12, 2014, the Office of Special Education Programs (OSEP) issued a response to
an inquiry for policy clarification addressing whether a State educational agency (SEA) and/or
local educational agency (LEA) is permitted to establish procedures that further define the
disability category, “visual impairment including blindness,” under the Individuals with
Disabilities Education Act (IDEA).1 Since that time, OSEP has received a request for written
guidance to assist SEAs in supporting their LEAs in reaching appropriate eligibility
determinations for children with this disability. The purpose of this memorandum is to ensure
broad dissemination of the key points made in our November 12, 2014 letter, provide the
additional guidance requested on this important issue, and share information about outside
resources that may be helpful as you examine your State’s procedures related to the identification
and evaluation of children suspected of having a visual impairment including blindness.
Applicable IDEA Definitions
Under Part B of the IDEA, a child with a disability means a child evaluated in accordance with
34 CFR §§300.304-300.311 as having a disability, and who, by reason thereof, needs special
education and related services. 34 CFR §300.8(a)(1). Further, under 34 CFR §300.8(c)(13),
1

See OSEP Letter to Kotler available at: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acc-13020197r-md-kotlereligibilitycriteria.pdf.
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—State Directors of Special Education, Preschool/619 State Coordinators
“visual impairment including blindness” means an impairment in vision that, even with
correction, adversely affects a child’s educational performance. (Emphasis added) The term
includes both partial sight and blindness.
State and Local Eligibility Criteria
While States are permitted to establish standards for eligibility for special education and related
services, and are not required to use the precise definition of a disability term in the IDEA, these
State-established standards must not narrow the definitions in the IDEA. We recognize that
States often adopt common definitions of certain modifiers to guide evaluators in making
individualized eligibility determinations. For example, as OSEP noted in our November 12, 2014
letter, “intellectual disability” refers to “significantly subaverage general intellectual
functioning,” (34 CFR §300.8(c)(6)), and similarly, the definition of “orthopedic impairment”
refers to “a severe orthopedic impairment that adversely affects a child’s educational
performance” (34 CFR §300.8(c)(8)). In these cases, because the IDEA does not specifically
address the meaning of these modifiers, the IDEA gives States discretion to determine the
precise level of impairment that qualifies as “significantly,” and “severe,” respectively, in order
for evaluators and eligibility teams to implement these definitions.
In contrast, in the definition of “visual impairment including blindness,” the regulations do not
contain a modifier; therefore, any impairment in vision, regardless of significance or severity,
must be included in a State’s definition, provided that such impairment, even with correction,
adversely affects a child’s educational performance. States may not use criteria or other
definitions for “visual impairment including blindness” that result in the exclusion of children
who otherwise meet the definition in 34 CFR §300.8(c)(13). For example, State eligibility
guidelines and definitions for “visual impairment including blindness” may not exclude a child
with convergence insufficiency or other visual impairment from meeting the IDEA’s definition
of “visual impairment including blindness” if that condition, even with correction, adversely
affects that child’s educational performance (e.g., the child’s ability to read and write).
It has come to our attention that some States direct their LEAs to implement a two-step process
when addressing whether a child suspected of having a visual impairment may be eligible for
special education and related services under the IDEA. During the first step, the eligibility team
is required to reach a decision as to whether the child has one or more of the conditions that the
State has identified and believes could affect a child’s vision functioning. Examples of such
conditions might include: the child has a reduced visual field to 50 degrees or less in the better
eye; the child has been diagnosed with cortical visual impairment; or the child has a diagnosis of
a degenerative condition that is likely to result in a significant loss of vision in the future. During
the second step, the eligibility team determines the extent that it should proceed further and
examine whether the condition adversely affects the child’s educational performance. However,
if the eligibility team were to conclude the child’s vision difficulties do not fall within one of the

Page 3—State Directors of Special Education, Preschool/619 State Coordinators
State’s listed criteria or conditions, the eligibility team would not consider whether the child’s
visual functioning adversely affects his or her educational performance. Such a practice is
inconsistent with the IDEA. While it is permissible for a State to provide examples of the types
of conditions that would meet the State’s criteria for “visual impairment including blindness,”
the SEA or LEA may not preclude eligibility teams from considering whether other vision
conditions, even with correction, adversely affect the child’s educational performance such that
the child requires special education and related services under the IDEA.
For more information about various types of visual impairments and the ways in which those
impairments can affect a child’s ability to learn, visit
http://www.parentcenterhub.org/repository/visualimpairment/.
Evaluation to Determine Whether the Child’s Visual Impairment Adversely Affects Educational
Performance
Prior to the eligibility determination, each public agency must conduct a full and individual
evaluation, in accordance with 34 CFR §§300.304-300.306, before the initial provision of special
education and related services to a child with a disability. 34 CFR §300.301(a). The purpose of
the evaluation is to determine whether the child qualifies as a child with a disability and the
nature and extent of the educational needs of the child. Under 34 CFR §300.304(b)(1), in
conducting the evaluation, the public agency must use a variety of assessment tools and
strategies to gather relevant functional, developmental, and academic information about the child
that may assist in determining whether the child is a child with a disability and the educational
needs of the child. That information could include information from a physician, if determined
appropriate, to assess the effect of the child’s visual impairment on the child’s eligibility and
educational needs. However, under 34 CFR §300.304(b)(2), no single measure or assessment
may be used as the sole criterion for determining whether the child is a child with a disability and
for determining an appropriate educational program for the child.
Under 34 CFR §300.306(c)(1)(i), in interpreting evaluation data for the purpose of determining
whether the child is a child with a disability under Part B of the IDEA and the educational needs
of the child, the group of qualified professionals and the parent must draw upon information
from a variety of sources, including aptitude and achievement tests, parent input, and teacher
recommendations, as well as information about the child’s physical condition, social or cultural
background, and adaptive behavior. Under 34 CFR §300.306(c)(1)(ii), the public agency must
ensure that information obtained from all of these sources is documented and carefully
considered. There is nothing in the IDEA or the Part B regulations that would prevent a public
agency from obtaining a medical diagnosis prior to determining whether the child has a

Page 4—State Directors of Special Education, Preschool/619 State Coordinators
particular disability, and the educational needs of the child.2 Also, there is nothing in the IDEA
or the Part B regulations that would prohibit a State from requiring that a medical diagnosis be
obtained for purposes of determining whether a child has a particular disability, provided the
medical diagnosis is obtained at public expense and at no cost to the parents, and is not used as
the sole criterion for determining an appropriate educational program for the child. Further, if a
State requires a medical diagnosis consistent with the above criteria, such a requirement exceeds
the requirements of Part B of the IDEA. Under 34 CFR §300.199(a)(2), the State would be
required to identify in writing to the LEAs located in the State, and to the Secretary, that such
rule, regulation, or policy is a State-imposed requirement that is not required by Part B of the
IDEA and Federal regulations.
When determining a child’s vision status, the LEA’s evaluation should be thorough and rigorous.
Such evaluations should include a data-based media assessment, be based on a range of learning
modalities (including auditory, tactile, and visual), and include a functional visual assessment. In
previously-issued guidance, OSEP has noted that an assessment of a child’s vision status
generally would include the nature and extent of the child’s visual impairment and its effect on
the child’s ability to learn to read, write, do mathematical calculations, and use computers and
other assistive technology, as well as the child’s ability to be involved in and make progress in
the general curriculum offered to nondisabled students. Such an evaluation generally would be
closely linked to the assessment of the child’s present and future reading and writing objectives,
needs, and appropriate reading and writing media. The information obtained through the
evaluation generally should be used by the eligibility team in determining whether it would be
appropriate to provide a blind or visually impaired child with special education or related
services as required by the IDEA. In addition, because the evaluation must assess a child’s future
needs, a child’s current vision status should not necessarily determine whether it would be
inappropriate for that child to receive special education and related services while in school.
Please see OSEP’s Dear Colleague Letter on Braille, June 19, 2013, available at:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/brailledcl-6-19-13.pdf.
You may wish to consult the following outside resources that address assessments for children
who have, or are suspected of having a “visual impairment including blindness.”3



American Foundation for the Blind. Assessments for students who are blind or visually
impaired. Retrieved from http://www.familyconnect.org/info/education/assessments/13
American Printing House for the Blind, Inc. Accessible tests resource center. Retrieved
from http://www.aph.org/accessible-tests/

2

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, ophthalmologist, or optometrist.
3

These organizations are examples of organizations that may be helpful on these matters. We cannot vouch for the
quality or completeness of their assistance. They are provided merely as examples, and there may be other
organizations that you may wish to consult.

Page 5—State Directors of Special Education, Preschool/619 State Coordinators


Perkins eLearning Center. Assessment of students who are blind or visually impaired.
Retrieved from http://www.perkinselearning.org/scout/assessment-students-who-areblind-or-visually-impaired

Based on the guidance set forth in this memorandum and OSEP’s Letter to Kotler, a State may
need to review its criteria and revise those criteria, as appropriate, and make sure that its LEAs
are informed of the changes. As an example of how a State could revise its criteria, a State could
comply with the IDEA requirements by adding a general criterion stating that the definition of
“visual impairment including blindness” includes, in addition to other specific State-established
criteria, any other impairment in vision that, even with correction, adversely affects a child’s
educational performance.
OSEP will be following up with States through our various monitoring activities. If you have
questions or would like to access technical assistance, please contact your OSEP State Lead. We
appreciate your continued efforts to ensure that children suspected of having visual impairments
including blindness are provided with an appropriate evaluation and if found eligible under
IDEA, the services necessary to meet their special education needs.
cc:

Parent Training and Information Centers
OSEP-Funded Technical Assistance Centers


UNITED STATES DEPARTMENT OF EDUCATION

TO:

State Assessment Directors
State Title I Directors
State Special Education Directors

FROM:

Ruth E. Ryder
Acting Director, Office of Special Education Programs
Office of Special Education and Rehabilitative Services
Patrick Rooney
Deputy Director, Office of State Support
Office of Elementary and Secondary Education

DATE:

May 16, 2017

SUBJECT:

Requirements for the Cap on the Percentage of Students who may be Assessed with an
Alternate Assessment Aligned with Alternate Academic Achievement Standards

States have requested information about the implementation of a new provision in Title I of the
Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student
Succeeds Act (ESSA) regarding alternate assessments for students with the most significant cognitive
disabilities.[1] In response to these requests, this memorandum provides information regarding
procedures for a State that wishes to seek a waiver of the 1.0 percent cap in ESEA section
1111(b)(2)(D)(i)(I) on the number of students who participate in alternate assessments aligned with
alternate academic achievement standards (AA-AAAS).
A. General Provisions for States Regarding the Number of Students with the Most Significant
Cognitive Disabilities Who Take Alternate Assessments Aligned with Alternate Academic
Achievement Standards (AA-AAAS)
ESEA section 1111(b)(2)(D) and 34 CFR 200.6(c) and (d) contain requirements for the participation
of students with the most significant cognitive disabilities in the AA-AAAS. ESEA section
1111(b)(2)(D)(i)(I) limits the total number of students with the most significant cognitive disabilities
who are assessed Statewide with an AA-AAAS to 1.0 percent of the total number of students in the
State who are assessed in that subject. As described in 34 CFR 200.6(c)(3), a State may not prohibit
an LEA from assessing more than 1.0 percent of its assessed students with an AA-AAAS. However, a
State must require an LEA that assesses more than 1.0 percent of its assessed students in any subject
with an AA-AAAS to submit information to the State justifying the need to exceed the 1.0 percent
threshold. States must provide appropriate oversight of each LEA that is required to submit such a
[1]

See http://www2.ed.gov/documents/essa-act-of-1965.pdf

400 MARYLAND AVE., SW, WASHINGTON, DC 20202
http://www.ed.gov/
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by
fostering educational excellence and ensuring equal access.

Page 2
justification and must make the justification publicly available, provided that it does not reveal
personally identifiable information about an individual student.
B. Requirements for States that Seek a Waiver of the 1.0 Percent Cap on Participation on an AAAAAS
If a State anticipates that it will exceed the 1.0 percent cap for any subject, the State may request that
the Department waive the cap for that subject, pursuant to ESEA section 8401, for one year. The
requirements for such waiver requests are summarized below.
In accordance with 34 CFR 200.6(c)(4), a State waiver request must:
 Be submitted at least 90 days prior to the start of the State’s testing window for the relevant
subject;
 Provide State-level data, from the current or previous school year, to show—
o The number and percentage of students in each subgroup of students who will take or
took the AA-AAAS; and
o That the State has measured the achievement of at least 95 percent of all students and
95 percent of students in the children with disabilities subgroup who are enrolled in
grades for which the assessment is required;
 Include assurances from the State that it has verified that each LEA that the State anticipates
will assess more than 1.0 percent of its assessed students in any subject using an AA-AAAS—
o Followed the State’s guidelines for participation in the AA-AAAS; [2] and
o Will address any disproportionality in the percentage of students in any subgroup
taking an AA-AAAS.
A State’s waiver request must include a plan and timeline by which—
 The State will improve the implementation of its guidelines for participation in the AA-AAAS,
including by reviewing and, if necessary, revising its definition of students with the most
significant cognitive disabilities (see 34 CFR 200.6(d)(1)), so that the State meets the 1.0
percent cap in each subject for which assessments are administered in future school years;
 The State will take additional steps to support and provide oversight to each LEA that the State
anticipates will exceed the 1.0 percent threshold to ensure that only students with the most
significant cognitive disabilities take an AA-AAAS. The State must describe how it will
monitor and regularly evaluate each such LEA to ensure that the LEA provides sufficient
training such that school staff who participate as members of an individualized education
program (IEP) team or other placement team understand and implement the guidelines
established by the State for participation in AA-AAAS so that all students are appropriately
assessed; and
 The State will address any disproportionality in the percentage of students taking an AAAAAS as identified through the data provided.[3]
If a State requests to extend a waiver for an additional year, it must demonstrate substantial progress
towards achieving each component of the plan and timeline.
[2]
[3]

34 CFR 200.6(d), consistent with section 612(a)(16)(C) of the Individuals with Disabilities Education Act (IDEA).
34 CFR 200.6(c)(4)(iv)

Page 3

As required annually for all States, a State must report separately to the Department the number and
percentage of children with disabilities taking: (1) general assessments; (2) general assessments with
accommodations; and (3) AA-AAAS.[4]
C. Procedures for States that Seek a Waiver of the 1.0 Percent Cap on Participation on an AAAAAS
States that anticipate that they will need a waiver from the 1.0 percent cap on AA-AAAS participation
should submit the request to the Department at least 90 days prior to the beginning of the testing
window for the AA-AAAS.[5] Each waiver request must be made in accordance with ESEA section
8401(b)(3), which explains that a State must provide the public and any interested LEA in the State
with notice and a reasonable opportunity to comment and provide input on the request, in the manner
in which the State customarily provides similar notice and opportunity to comment to the public.
In its request, the State must include:
 Information regarding each requirement in 34 CFR 200.6(c)(4) (see section B), and
 Evidence that the State provided notice and a reasonable opportunity for the public and LEAs
to comment and provide input on the request. This evidence must include:
o Evidence or a description of the manner in which that the State provided such notice to
the public and interested LEAs;
o Copies of all comments that the State received from LEAs in response to this notice,
with a description of how the State addressed the comments; and
o Evidence that the State also provided notice and a reasonable opportunity to comment
to the public and LEAs in the manner in which the State customarily provides similar
notice and opportunity to comment.
As an additional resource, the National Center on Educational Outcomes (NCEO) recently hosted a
webinar on strategies for meeting the 1.0 percent cap on participation in an AA-AAAS. Martha
Thurlow and Sheryl Lazarus reviewed ESSA requirements regarding the 1.0 percent cap on
participation in AA-AAAS, described the provisions in the regulation for requesting a waiver from the
1.0 percent cap, and suggested strategies for meeting the 1.0 percent cap. They also highlighted a new
NCEO Brief on this topic. Both the webinar and the brief are available through NCEO’s website.[6]
States with questions about this request should contact their Office of State Support contacts at:
OSS.[State]@ed.gov (e.g., OSS.Nebraska@ed.gov) and/or their Office of Special Education Programs
State Lead. Thank you for your continued commitment to our nation’s students.

[4]

34 CFR 200.6(c)(5)
34 CFR 200.6(c)(4)(i)
[6]
The reference to these materials is not intended to reflect their importance, nor is it intended to endorse any views
expressed, or products or services offered. The opinions expressed in any of these materials do not necessarily reflect the
positions or policies of the Department. The Department does not control or guarantee the accuracy, relevance, timeliness,
or completeness of any outside information included in these materials.
[5]


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

April 18, 2017

Ruthie-Marie Beckwith, Ph.D.
Executive Director
TASH
2013 H Street, NW, 4th Floor
Washington DC 20006
Dear Dr. Beckwith:
Thank you for your letter of February 16, 2017 in which you raised a number of concerns about
the 84.325K grant priority: Interdisciplinary Preparation in Special Education, Early
Intervention, and Related Services for Personnel Serving Children with Disabilities Who Have
High-Intensity Needs.
I would first acknowledge that we greatly appreciate your support for the Office of Special
Education Programs (OSEP) emphasizing an interdisciplinary approach. We believe that this
approach reflects the reality of how services are, or should be, delivered to children with
disabilities in school/educational settings.
Your first concern was related to OSEP’s definition of “high-intensity needs.” 1 OSEP has been using
the concept of high-intensity needs for three years in the 84.325K competition (“personnel to serve
school-age children with low incidence disabilities, including those with persistent and severe
learning or behavioral problems that need the most intensive individualized supports”). Addressing
high-intensity needs represented a shift in our interpretation of low incidence from one that focuses
on disability labels to one that focuses on the intensity of individual service and support needs.
Our interpretation builds on the statutory definition and is consistent with the focus of the
Individuals with Disabilities Education Act (IDEA) on meeting the individual needs of children
with disabilities and builds on the following definition of “low incidence disability” in IDEA
section 663(c)(3):
(A) a visual or hearing impairment, or simultaneous visual and hearing impairments;

1

The term “high-intensity needs’’ refers to a complex array of disabilities (e.g., multiple disabilities, significant
cognitive disabilities, significant physical disabilities, significant sensory disabilities, significant autism, significant
emotional disabilities, significant learning disabilities, including dyslexia) or needs of children with these disabilities
requiring intensive, individualized intervention(s) (i.e., that are specifically designed to address persistent learning or
behavior difficulties, implemented with greater frequency and for an extended duration than is commonly available
in a typical classroom or early intervention setting, or which requires personnel to have knowledge and skills in
identifying and implementing multiple interventions supported by evidence).
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.

(B) a significant cognitive impairment; 2 or
(C) any impairment for which a small number of personnel with highly specialized skills
and knowledge are needed in order for children with that impairment to receive early
intervention services or a free appropriate public education.
We believe that there is a group of children in every disability category whose needs are so
unique that they require intensive, individualized interventions that are specifically designed to
address persistent learning or behavior difficulties that affect learning. These interventions and
services provided under IDEA are implemented with greater frequency and duration than the
interventions and services received by children with less significant disabilities. In many
circumstances, the needs of these children may not be met due to a lack of trained personnel.
I also appreciate your concern that the broadening of the definition “will reduce the amount of
funding for children and youth with low incidence disabilities immensely.” OSEP continues to
make significant investments in the preparation of personnel trained in low incidence through
our Sensory Doctoral Training Consortia. These consortia have focused on the preparation of
doctoral scholars in the areas of visual impairment and blindness, deaf-blindness, and deafness
and hard of hearing. The vast majority of these doctoral graduates are employed as faculty who
are preparing hundreds of direct service personnel to serve children with these low incidence
disabilities. In addition, OSEP invests in excess of $11.5 million annually in technical assistance
for deaf-blind children and their families and $4 million annually in technical assistance for deaf
and hard of hearing secondary and postsecondary students.
Lastly, you also expressed concern that the wording of the definition “suggests that there are
children who cannot be included in general education settings and invites teacher preparation
programs that do not stress integrated service delivery models.” Our intent, when we included
the phrase “implemented with greater frequency and for an extended duration that is not
commonly available in a typical classroom or early intervention setting,” was to emphasize to
potential applicants that preparation programs must focus on children with very significant and
challenging disabilities. OSEP remains committed to serving children in the least restrictive
environment that meets their individual needs. This is evidenced by the specific language of
paragraph (a)(2)(iii) of the priority that the project must:
Identify the competencies that personnel need to support inclusion of children
with disabilities in the least restrictive and natural environments to the maximum
extent appropriate by intentionally promoting participation in learning and social
activities to foster development, learning, academic achievement, friendships with
peers, and sense of belonging.

2

A similar term—students with the most significant cognitive disabilities—is used in the Elementary and Secondary
Education Act of 1965, as amended by the Every Student Succeeds Act. Although not defined in the statute or
regulations, it has not been interpreted to mean a particular disability category, e.g., intellectual disability.

2

Thank you for your commitment to meeting the individual needs of children with the most
significant disabilities. Per your request, I would be happy to meet with you to discuss your
concerns. Please contact my assistant, Charlotte Stein, at 202-245-6210 or
Charlotte.Stein@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs

3


MODEL STATE TIMELINE
Updated 5/25/17
Please note that these timelines are suggestions that will prepare States for full compliance in SY 2018–2019. While States can make annual
determinations of significant disproportionality anytime during SY 2018–2019, for purposes of this Model Timeline, we are assuming States make
annual determinations between March 2019 and May 2019. States are not required to follow these timelines. Each State has its own unique
circumstances, and these timelines are just a way to outline the different streams of work that States should consider as they implement the
new rule.

TASKS

DATES

CONSIDERATIONS

Review new regulations and guidance

Feb 2017 to April 2017

Submit questions on the regulations to the
Department
Inform LEAs of relevant changes related to these
new regulations

April 2017 to June 2017

Visit: https://www.osepideasthatwork.org/osepmeeting/significant-disproportionality
Submit to SignificantDisproportionalityRule@ed.gov

Understanding the New Regulations

April 2017 to July 2017

States should consider the amount of assistance LEAs
may need to identify factors contributing to significant
disproportionality, implement “new” comprehensive
CEIS, track funds and students, and report data.

Set State Definition of Significant Disproportionality
Review and analyze state significant
disproportionality data to inform stakeholder
discussions.
Meet with stakeholders, including State Advisory
Panels (SAPs), to develop risk ratio thresholds,
minimum cell and n-sizes, standards for
reasonable progress, if applicable and the
rationales for each. In addition, determine the
number of years of data to be used, if applicable.

April 2017 to June 2017

States using contractors may need to consider the
timelines associated with their procurement processes.

June 2017 to
October 2017

States should consider how many stakeholder meetings
they may need to convene, whether they may need to use
video conferencing, and which relevant stakeholders, in
addition to SAP members, they should seek advice from
when setting these standards.

MODEL STATE TIMELINE

TASKS

DATES

CONSIDERATIONS

August 2017 to
December 2017
January 2018 to
March 2018

Obtain input from SAP’s and other stakeholders on these
changes.

Gather necessary data and develop and implement
tool to calculate risk ratios.

July 2018 to
November 2018

Calculate risk ratios [or alternate risk ratios, if
applicable] for LEAs

December 2018 to
March 2019

Make annual determinations of significant
disproportionality using new methodology

March 2019 to May 2019

Include 3 to 5 year olds in the identification
analyses

July 1, 2020

May want to seek input from the OSEP IDEA Data
Center. States using contractors may need to consider the
timelines associated with their procurement processes.
May want to seek input from the OSEP IDEA Data
Center. States using contractors may need to consider the
timelines associated with their procurement processes.
May want to seek input from the OSEP IDEA Data
Center. States using contractors may need to consider the
timelines associated with their procurement processes.
States have the option to include this population prior to
July 1, 2020.

State Revision of Policies and Procedures (PPs)
Review and draft revisions of State PP’s necessary
to comply with the new regulations.
If State PPs are amended to comply with the new
regulations, conduct public hearings, provide
adequate notice of the hearings, and afford an
opportunity for comment from the general public,
including individuals with disabilities and parents
of children with disabilities

Calculate Significant Disproportionality

Notify LEAs and Provide TA
Notify LEAs of a determination of significant
disproportionality
Provide for the review and, if appropriate, revision
of policies, procedures, and practices

March 2019 to May 2019

Provide technical assistance on identifying and
addressing factors contributing to significant
disproportionality

April 2019 to
September 2019

March 2019 to
August 2019

2

States may want to consider using the Success Gaps tool
in this work: https://ideadata.org/resourcelibrary/57ae50ea140ba0532a8b459e/
States may want to consider using the Success Gaps tool
in this work: https://ideadata.org/resourcelibrary/57ae50ea140ba0532a8b459e/

MODEL STATE TIMELINE

TASKS

DATES

CONSIDERATIONS

Implementing “New” Comprehensive Coordinated Early Intervening Services (CEIS)
Build a function into financial systems to track use
of IDEA Part B funds for “new” comprehensive
CEIS for LEAs identified with significant
disproportionality in SY 2018–2019.

July 2017 to June 2018

Build or modify data systems to track children
ages 3–21 receiving “new” comprehensive CEIS

July 2017 to June 2018

Beginning July 1, 2018, ensure LEAs identified
with significant disproportionality prior to SY
2018–2019 track the use of IDEA Part B funds for
“new” comprehensive CEIS.

July 2018 and track until
expended

Work with LEAs to plan how to implement “new”
comprehensive CEIS
Ensure LEAs are appropriately implementing
“new” comprehensive CEIS

March 2018 to July 2018
July 2018 until funds are
expended

3

States using contractors may need to consider the
timelines associated with their procurement processes.
Some State financial and data systems may take longer to
modify. In addition, consider challenges associated with
tracking CEIS data for 3 to 5 year olds.
States using contractors may need to consider the
timelines associated with their procurement processes.
Some State financial and data systems may take longer to
modify. In addition, consider challenges associated with
tracking CEIS data for 3 to 5 year olds.
States using contractors may need to consider the
timelines associated with their procurement processes.
Some State financial and data systems may take longer to
modify. In addition, consider challenges associated with
tracking CEIS data for 3 to 5 year olds.

MODEL STATE TIMELINE

TASKS

DATES

CONSIDERATIONS

Provide comment to the Department on
Information Collection Request

June 2017 to August 2017

This information collection has not yet been published,
but the Department anticipates that States will have an
opportunity to comment on the new collection this
summer.

Begin to prepare to report data based on new final
Information Collection Request
Report State selected risk ratio thresholds,
minimum cell and n-sizes, standards for
reasonable progress, rationales for each, and the
number of years of data used to make a
determination of significant disproportionality.

September 2017

LEAs publicly report revisions of policies,
procedures, and practices

September 2019 to
December 2019

New Reporting Requirements and Changes

Spring 2019

States will have the option of reporting these data prior
to SY 18-19 in the Spring of 2018. States will not need to
report these data in future years unless they make
changes to their risk ratio thresholds, cell-sizes, n-sizes,
standards for reasonable progress or the number of years
of data used.

4

MODEL STATE TIMELINE

Full Timeline Snapshot with Key Milestones
Note: The image below visually depicts the tasks and dates included in the table on pages 1–4.
3rd Quarter

1st Quarter

3rd Quarter

Start Understanding the State Revision of Policies and
New Regulations
Procedures (PP’s)

3rd Quarter

1st Quarter

Calculate Significant Disproportionality

Feb 2017

Feb 17 – July 17

1st Quarter

July 18 –July 20

August 17 – March 18

Set State Definition of
Significant Disproportionality

Notify LEAs and Provide TA
March 19 – September 19

April 17 – Oct 17

S
u
b
m

New Reporting Requirements and Changes
June 17 – December 19

Implementing “New” Comprehensive Coordinated Early Intervening Services (CEIS))
July 17 – December 19

Milestones

Submit questions on
the regulations to
the Department

Set State Definition
of Significant
Disproportionality

April 2017

October 2017

Implement “New”
Comprehensive CEIS
July 2018

Provide comment to the
Department on Information
Collection Request

Make annual
determinations of
significant
disproportionality using
new methodology
May 2019

Report State selected
risk ratio thresholds,
minimum cell and nsizes, standards for
reasonable progress
rationales for each, and
the number of years of
data used.
May 2019

Revise State Policies
and Procedures
March 2018

Summer 2017

5

MODEL STATE TIMELINE

February 2017 through June 2018
Note: The Gantt chart below visually depicts the dates from February 2017 through June 2018 that are included in the table on pages 1–4.
Feb-17

Mar-17

Apr-17

May-17

Jun-17

Jul-17

Unde rstanding the Ne w Re gulations
Feb 17 to April
17
Submit questions on the regulations to the
April 17 to June
Department
17
Inform LEAs of relevant changes related to
April 17 to July
these new regulations
17
Se t State De finition of Significant Disproportionality
Review and analyze state significant
April 17 to June
disproportionality data to inform stakeholder
17
discussions.
Meet with stakeholders, including State
Advisory Panels (SAPs), to develop risk ratio
thresholds, minimum cell and n-sizes, standards June 17 to
for reasonable progress and the rationales for October 17
each. In addition, determine the number of
years of data to be used.
State Re vision of Policie s and Proce dure s (PPs)
Review new regulations and guidance

Review and draft revisions of State PP’s
necessary to comply with the new regulations.

August 17 to
Dec 17

If State PPs are amended to comply with the
new regulations, conduct public hearings,
provide adequate notice of the hearings, and
January 18 to
afford an opportunity for comment from the
March 18
general public, including individuals with
disabilities and parents of children with
disabilities
Imple me nting "Ne w" Compre he nsive Coordinate d Early Inte rve ning Se rvice s (CEIS))
Build a function into financial systems to track
use of IDEA Part B funds for “new”
July 17 to June
comprehensive CEIS for LEAs identified with 18
significant disproportionality in SY 2018–2019.
Build or modify data systems to track children
ages 3–21 receiving “new” comprehensive
CEIS

July 17 to June
18

Beginning July 1, 2018, ensure LEAs identified
July 18 and
with significant disproportionality prior to SY
track until
2018–2019 track the use of IDEA Part B
expended
funds for “new” comprehensive CEIS.
Work with LEAs to plan how to implement
“new” comprehensive CEIS
Ensure LEAs are appropriately implementing
“new” comprehensive CEIS
Ne w Re porting Re quire me nts and Change s
Provide comment to the Department on
Information Collection Request
Begin to prepare to report data based on new
final Information Collection Request

March 2018 to
July 2018
July 2018 until
funds are
expended
June 17 to
August 17
September 17

Report State selected risk ratio thresholds,
minimum cell and n-sizes, standards for
reasonable progress and rationales for each.

Spring 19

LEAs publicly report revisions of policies,
procedures, and practices

September 19 to
Dec 19

6

Aug-17

Sep-17

Oct-17

Nov-17

Dec-17

Jan-18

Feb-18

Mar-18

Apr-18

May-18

Jun-18

MODEL STATE TIMELINE

July 2018 through July 2020
Note: The Gantt chart below visually depicts the dates from July 2018 through July 2020 that are included in the table on pages 1–4.
Jul-18

Aug-18

Sep-18

Oct-18

Nov-18

Dec-18

Jan-19

Feb-19

Calculate Significant Disproportionality
Gather necessary data and develop
July 18 to
and implement tool to calculate risk
November 18
ratios.
Calculate risk ratios [or alternate
Dec 18 to March
risk ratios, if applicable] for LEAs 19
Make annual determinations of
March 19 to May
significant disproportionality using
19
new methodology
Include 3 to 5 year olds in the
July 1, 2020
identification analyses
Notify LEAs and Provide TA
Notify LEAs of a determination of March 19 to May
significant disproportionality
19
Provide for the review and, if
March 19 to
appropriate, revision of policies,
August 19
procedures, and practices
Provide technical assistance on
identifying and addressing factors
April 19 to
contributing to significant
September 19
disproportionality
Implementing "New" Comprehensive Coordinated Early Intervening Services (CEIS))
Build a function into financial
systems to track use of IDEA Part
B funds for “new” comprehensive
July 17 to June 18
CEIS for LEAs identified with
significant disproportionality in SY
2018–2019.
Build or modify data systems to
track children ages 3–21 receiving July 17 to June 18
“new” comprehensive CEIS
Beginning July 1, 2018, ensure
LEAs identified with significant
disproportionality prior to SY
July 18 and track
2018–2019 track the use of IDEA until expended
Part B funds for “new”
comprehensive CEIS.
Work with LEAs to plan how to
March 2018 to July
implement “new” comprehensive
2018
CEIS
Ensure LEAs are appropriately
July 2018 until
implementing “new” comprehensive funds are
CEIS
expended
New Reporting Requirements and Changes
Provide comment to the Department June 17 to August
on Information Collection Request 17
Begin to prepare to report data
based on new final Information
September 17
Collection Request
Report State selected risk ratio
thresholds, minimum cell and n-sizes,
Spring 19
standards for reasonable progress
and rationales for each.
LEAs publicly report revisions of
September 19 to
policies, procedures, and practices Dec 19

7

Mar-19

Apr-19

May-19

Jun-19

Jul-19

Aug-19

Sep-19

Oct-19

Nov-19

Dec-19

Feb - June
Jan-20 2020

Jul-20


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

February 27, 2017

Mr. Patrick J. Zacchini
Chief Compliance Officer
Sonoran Schools Inc.
2430 West Ray Road, Suite 3
Chandler, Arizona 85224
Dear Mr. Zacchini:
This letter responds to your June 27, 2016 correspondence to the U.S. Department of Education’s
(Department’s) Family Policy Compliance Office. Your inquiry was forwarded to the Office of
Special Education Programs for response. We apologize for the delay in responding.
In your correspondence, you requested clarification regarding when and how parents must be
notified before records containing personally identifiable information are destroyed under Part B
of the Individuals with Disabilities Education Act (IDEA). Specifically, you asked whether,
under 34 CFR §300.624, the school district must specifically notify parents at the time the
district intends to destroy the records or whether such notice must be provided at the time the
records are no longer needed.
Under 34 CFR §300.624 of the IDEA Part B regulations, a public agency must inform parents
when personally identifiable information collected, maintained, or used under Part B of the
IDEA is no longer needed to provide educational services to the child. 34 CFR §300.624(a).
Additionally, personally identifiable information must be destroyed at the request of the parents
once it is no longer needed. However, a permanent record of a student’s name, address, and
phone number, his or her grades, attendance record, classes attended, grade level completed, and
year completed may be maintained without time limitation. 34 CFR §300.624(b).
As discussed in the Analysis and Comments accompanying the 1999 IDEA Part B regulations,
the notice required in 34 CFR §300.624(a) would normally be provided to the parent and student
when the student graduates (typically the earlier of when the student receives a regular high
school diploma or at age 21) or otherwise leaves the public agency. See: Assistance to States for
the Education of Children With Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities, Final Rule, 64 Fed. Reg. 12406, 12642 (March 12, 1999). Therefore,
we do not believe it is necessary to also provide this notice at the point in time when the district
meets its record retention requirement and intends to destroy the special education records. 1

1

IDEA records must be retained consistent with the record retention requirements in 2 CFR §200.333, and when
actually applied, this record retention time period is at least five and a half years. The provision in 2 CFR §200.333
requires “Financial records, supporting documents, statistical records, and all other non-Federal entity records
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.

We also note that in informing parents about their rights under this section, it would be helpful if
the public agency reminds them that the education records (such as the individualized education
program) may be needed by the student or parents for other purposes, such as accommodations
for employment or higher education, public benefits and insurance, and private insurance. In
instances in which an agency intends to destroy personally identifiable information that is no
longer needed to provide services to the student (such as after the student has graduated from, or
otherwise leaves the agency’s program), and informs parents of that determination, the parents
may want to exercise their right to access those records and request copies of the records that
they will need to acquire post-school benefits in the future. 64 Fed. Reg. 12406, 12643.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation of the IDEA by the
Department in the context of the specific facts presented.
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/
Ruth E. Ryder
Acting Director
Office of Special Education Programs

pertinent to a Federal award must be retained for a period of three years from the date of submission of the final
expenditure report.” This three-year period runs from when the final expenditure report is submitted (and it is due
generally 90 days from the end of the performance period, which is typically when Federal fiscal year (FFY) funds
are no longer available for obligation). Under 34 CFR §76.709, if a State does not obligate all of its IDEA grant
funds by the end of the fiscal year for which Congress appropriated the funds, it may obligate those funds during a
carryover period of one additional year. For example, under an IDEA Part B grant for FFY 2014 awarded on July 1,
2014, a State could obligate such FFY 2014 funds during the period July 1, 2014 through September 30, 2016. The
final expenditure report for that FFY 2014 award would then be due, and typically submitted, on December 30,
2016, and thus, all records created during that period pertinent to that FFY 2014 grant would need to be retained
until December 30, 2019, regardless of whether the record pertained to an obligation entered into on the first or the
last day those funds are available for obligation. Given that a State generally submits its final expenditure report two
and a half years after it receives its IDEA grant, the record retention period can extend to five and a half years from
the date an IDEA record was created and the minimal record retention period is thus five and a half years. A number
of States have adopted a six-year record retention timeline for IDEA records given that State and Federal fiscal years
do not always align and such a timeline is consistent with these requirements.


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

February 27, 2017

REDACTED
Dear :
This letter responds to your electronic mail correspondence to this office concerning the
applicable Federal time period for which the New York State educational agency (SEA) must
retain and make available to the general public, findings and decisions issued in due process
hearings and State-level reviews conducted pursuant to the Individuals with Disabilities
Education Act (IDEA). This letter does not address other record retention requirements under
State statutes of limitations or other laws. We apologize for the delayed response.
Under 34 CFR §300.513(d)(2), the public agency, and under §300.514(c)(2), the SEA, after
deleting any personally identifiable information, must make the findings and decisions issued in
due process hearings and State-level reviews conducted pursuant to the IDEA available to the
public. You asked about the minimal time period that the SEA must make the findings and
decisions available to the public. Below we describe the minimal time period that an SEA
awarded a grant under Part B of the IDEA must maintain grant records.
The SEA must ensure that records under Part B of the IDEA are retained under the three-year
period set forth in the record retention requirements in 2 CFR §200.333. Under that provision:
Financial records, supporting documents, statistical records, and all other
non-Federal entity records pertinent to a Federal award must be retained for
a period of three years from the date of submission of the final expenditure
report.
Under 2 CFR §200.343(a), the three-year period runs from when the final expenditure report is
submitted on a grant (and it is due 90 days from the end of the performance period, which is
typically when specific Federal fiscal year (FFY) funds are no longer available for obligation
under a grant). Under 34 CFR §76.709, if an SEA does not obligate all of its IDEA Part B grant
funds by the end of the fiscal year for which Congress appropriated the funds, it may obligate
those funds during a carryover period of one additional year. For example, under an IDEA Part B
grant for FFY 2014 awarded on July 1, 2014, a State could obligate such FFY 2014 funds during
the period July 1, 2014 through September 30, 2016. The final expenditure report for that FFY
2014 award is due and generally submitted on December 30, 2016. Thus, all records created
during that period pertinent to that FFY 2014 grant would need to be retained until December 30,
2019, regardless of whether the record pertains to an obligation entered into on the first or the
last day those funds are available for obligation.

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.

Given that the State generally submits its final expenditure report two and a half years after it
receives its IDEA Part B grant, the record retention period can extend to five and a half years
from the date the record was created. We view that five and a half year time period as the most
reasonable minimum time period during which States must make due process and State-level
review findings and decisions available to the public under 34 CFR §§300.513(d)(2) and
300.514(c)(2). We encourage States to establish longer required time periods in which to make
these findings and decisions available to the public, in order to promote the public policies
underlying the requirement to make these decisions available, namely accessibility in the future
by parties to these documents to help resolve potential future disputes. The SEA, of course, has
the discretion to keep the records longer than the required retention period if necessary to meet
State record retention requirements (subject to the parent’s right in 34 CFR §300.624 under the
IDEA to request destruction of records ).
It is important to note that if any litigation, claim, or audit is started before the expiration of the
three-year period, the records must be retained until all litigation, claims, or audit findings
involving the records have been resolved and final action taken. 2 CFR §200.333(a). See also
Questions and Answers on IDEA Part B Dispute Resolution Procedures, Question C-24. 1
Also, we note that a State cannot have a policy that limits the public’s access to due process
hearing and State-level review findings and decisions by making the information available only
when requested through the mechanism set up under the State’s Freedom of Information Act.
Such a policy does not meet the requirement under 34 CFR §§300.513(d)(2) and 300.514(c)(2)
to make the findings and decisions available to the public. If a member of the public wishes to
obtain a personal copy of the decisions, the State may charge a fee for copies but may not charge
a fee to search for, or to retrieve the information. See 34 CFR §300.617(b).
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have any further questions, you may contact Rebecca Walawender of my staff, at
202-245-7399 or by email at Rebecca.Walawender@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs

1

Questions and Answers on IDEA Part B Dispute Resolution Procedures can be found at:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqafinalmemo-7-2313.pdf.


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

February 27, 2017

REDACTED
Dear :
This letter responds to your May 23, 2016 correspondence to the U.S. Department of Education
(Department). Your inquiry was forwarded to the Office of Special Education Programs (OSEP)
for response. We apologize for the delay in responding.
In your correspondence you request clarification of the Individuals with Disabilities Education
Act (IDEA), Part B requirement in 34 CFR §300.320(b). That provision requires that, beginning
not later than the first individualized education program (IEP) to be in effect when the child turns
16, or younger if determined appropriate by the IEP Team, and updated annually, thereafter, the
IEP must include: (1) appropriate measurable postsecondary goals based upon age appropriate
transition assessments related to training, education, employment, and, where appropriate,
independent living skills; and (2) the transition services (including courses of study) needed to
assist the child in reaching those goals. You have asked for guidance on what actions are needed
to meet the requirement that the child’s postsecondary goals and transition services are
“updated” annually, and whether the IEP Team must always revise those goals to meet this
requirement.
Transition services as defined in 34 CFR §300.43 are: “a coordinated set of activities for a child
with a disability that –
(1) Is designed to be within a results-oriented process, that is focused on improving the
academic and functional achievement of the child with a disability to facilitate the child’s
movement from school to post-school activities, including postsecondary education,
vocational education, integrated employment (including support employment),
continuing and adult education, adult services, independent living, or community
participation;
(2) Is based on the individual child’s needs taking into account the child’s strengths,
preferences, and interests and includes –
(i)
Instruction;
(ii)
Related services;
(iii) Community experiences;
(iv)
The development of employment and other post-school adult living objectives;
and
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.

(v)

If appropriate, acquisition of daily living skills and provision of a functional
vocational evaluation.” (emphasis added)

As with all special education and related services, it is up to each child’s IEP Team to determine
the special education and related services that are needed to meet each child’s unique needs in
order for the child to receive a free appropriate public education (FAPE). 71 Fed. Reg. 46668. In
determining the child’s postsecondary goals and transition services, the IEP Team must take into
account the child’s preferences and interests. The IDEA requires that the public agency invite a
transition-age child to attend his or her IEP Team meeting if the purpose of the meeting will be
the consideration of the child’s postsecondary goals and transition services needed to assist the
child in reaching those goals. 34 CFR §300.321(b)(1). If the child does not attend the IEP Team
meeting, the public agency must take other steps to ensure that the child’s preferences and
interests are considered. 34 CFR §300.321(b)(2). This requirement applies only in the case of
postsecondary goals and transition services and is not mandatory with respect to the child’s other
IEP goals and special education and related services.
It is reasonable to expect that a transition-aged youth may, based on coursework completed,
community experiences (such as a summer or after-school job), and other college- and careerpreparation opportunities, develop new interests or changed preferences regarding his or her
postsecondary goal(s). For these and other reasons, it is important that the IEP Team review and
update the child’s postsecondary goals and transition services annually to reflect any new or
different activities that are required to provide FAPE to the child. While it is possible that the
IEP Team could conclude no changes to the goals and transition services are necessary, it must
carefully consider whether the existing IEP’s postsecondary goals and transition services remain
appropriate to support the child in working toward what he or she hopes to achieve after leaving
high school.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation of the IDEA by the
Department in the context of the specific facts presented.
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/
Ruth E. Ryder
Acting Director
Office of Special Education Programs