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

Date: July 27, 2015
Contact Person: Gregg Corr
Telephone: 202-245-7309
OSEP MEMO 15-10
MEMORANDUM
TO:

Chief State School Officers
State Directors of Special Education

FROM:

Melody Musgrove, Ed.D.
Director
Office of Special Education Programs (OSEP)

SUBJECT:

Issuance of Guidance on the Final Local Educational Agency (LEA) Maintenance
of Effort (MOE) Regulations under Part B of the Individuals with Disabilities
Education Act (IDEA)

The purpose of this Memorandum is to provide a question and answer (Q&A) document on the final
LEA MOE regulations that were published in the Federal Register on April 28, 2015. 1 These regulations
became effective on July 1, 2015. OSEP encourages State educational agencies (SEAs) and LEAs to
review carefully the final regulations and the attached guidance and work collaboratively to ensure that
the regulations are implemented correctly. The major changes in the final regulations include: (1)
Clarification of the eligibility standard; (2) Clarification of the compliance standard; (3) Explanation of
the Subsequent Years rule; and (4) Specification of the consequences for an LEA’s failure to maintain
effort.
The attached Q&A document explains the above terms, describes the actions that SEAs and LEAs must
take to meet the MOE compliance standard and the eligibility standard, answers frequently asked
questions about LEA MOE, and shares examples to facilitate and enhance SEAs’ and LEAs’
understanding of LEA MOE.
OSEP intends to issue a second Q&A document on LEA MOE to address issues that were not affected by
the change to the regulations. The topics to be addressed will include the allowable exceptions and
adjustment to the LEA MOE requirement, and the interaction between the LEA MOE adjustment and the
voluntary use of funds for coordinated early intervening services.
This Memorandum and the attached questions and answers are available at
https://osep.grads360.org/#program and http://www2.ed.gov/about/offices/list/osers/osep/policy.html.
We hope that you find this information helpful. If you or members of your staff have questions, please
contact Gregg Corr or your State Contact in OSEP’s Monitoring and State Improvement Planning
Division.
Thank you for your continued commitment to improving results for children and youth with disabilities
and to ensuring that the rights of children and their parents are protected.
Attachment

1

80 Fed. Reg. 23644 (Apr. 28, 2015).

IDEA PART B SUPPLEMENTAL REGULATIONS
LOCAL EDUCATIONAL AGENCY (LEA)
MAINTENANCE OF EFFORT (MOE)
ISSUED APRIL 28, 2015
AND EFFECTIVE JULY 1, 2015
NON-REGULATORY GUIDANCE
July 2015
Office of Special Education Programs
Office of Special Education and Rehabilitative Services
U.S. Department of Education

Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

INTRODUCTION
The Office of Special Education and Rehabilitative Services (OSERS) issues this document to
provide State educational agencies (SEAs), local educational agencies (LEAs), parents, advocacy
organizations, and other interested parties with information regarding the LEA maintenance of
effort (MOE) requirement in Part B of the IDEA. 1
The LEA MOE requirement was first added to the IDEA in the 1997 amendments and the 1999
implementing regulations. The purpose of the requirement is to ensure that LEAs provide the
financial support necessary to make a free appropriate public education (FAPE) available to
eligible children with disabilities. The Department identified a need for revisions to the LEA
MOE requirement based upon fiscal monitoring, audits and questions from States and others.
On April 28, 2015, the U.S. Department of Education (Department) published final regulations
on LEA MOE. 2 These regulations were effective on July 1, 2015. The Subsequent Years rule for
Fiscal Years 3 (FYs) 2014 and 2015, stated in final § 300.203(c)(1), reiterates the relevant
provisions of the 2014 Appropriations Act and the 2015 Appropriations Act, respectively. As
explained in the Effective Date section of the Analysis of Comments and Changes in the final
rule, the 2014 and 2015 Appropriations Acts made the Subsequent Years rule applicable for
Individuals with Disabilities Education Act (IDEA) Part B grants awarded on July 1, 2014, and
July 1, 2015, respectively.
To provide additional clarity and act as a supplement to the revised regulations, we are issuing a
two-part document in a question-and-answer format to provide guidance to the field in this
complex area. Part I, as appears below, addresses the major changes in the revised regulations.
The major changes in the revised regulations include:
•
•
•
•

Clarification of the eligibility standard;
Clarification of the compliance standard;
Explanation of the Subsequent Years rule; and
Specification of the consequences for an LEA’s failure to maintain effort.

Each of these areas is discussed in more detail in this document.
Part II, to be released separately, will address related issues not addressed in changes to the
regulations. These issues include the allowable exceptions, adjustment, and the interaction

1

The Department published final regulations for IDEA Part B in the Federal Register on August 14, 2006, and they
became effective on October 13, 2006. Supplemental IDEA Part B regulations were published on December 1,
2008, and on February 13, 2013, and became effective on December 31, 2008, and March 18, 2013, respectively.
2
80 Fed. Reg. 23644 (Apr. 28, 2015).
3
The LEA MOE requirement in section 613(a) of the IDEA does not clearly specify the time period delineated by
the term “fiscal year.” As such, LEAs may meet the LEA MOE requirement using their own State fiscal years
(SFYs), which often cover a different range of time than do Federal fiscal years (FFYs). For clarity, references to
a particular year in this document refer to the fiscal year covering that school year, unless otherwise noted.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

between the LEA MOE adjustment and the voluntary use of funds for Coordinated Early
Intervening Services.
This guidance does not impose any requirements beyond those required under applicable law and
regulations. The responses presented in this document generally are informal guidance
representing the interpretation of the Department of the applicable statutory or regulatory
requirements in the context of the specific facts presented and are not legally binding. This
document is not intended to be a replacement for careful study of the IDEA and its implementing
regulations.
If you are interested in commenting on this guidance, please e–mail your comments to
OSERSguidancecomments@ed.gov and include LEA MOE in the subject of your e–mail or
write us at the following address:
Gregg Corr
U.S. Department of Education
Potomac Center Plaza
550 12th Street, S.W., room 4144
Washington, DC 20202

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

CONTENTS
A. GENERAL RULE .................................................................................................................................... 4
B. ELIGIBILITY STANDARD .................................................................................................................... 7
C. COMPLIANCE STANDARD ............................................................................................................... 13
D. EXCEPTIONS AND ADJUSTMENT/FLEXIBILITY ......................................................................... 19
E. CONSEQUENCES OF LEA MOE FAILURE....................................................................................... 21

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

A. GENERAL RULE
Authority: §300.203 4
Question A-1:

What is LEA MOE?

Answer:

Generally, an LEA may not reduce the amount of local, or State and local,
funds that it spends for the education of children with disabilities below
the amount it spent for the preceding fiscal year. 5 There are two
components to the LEA MOE requirement – the eligibility standard
(§300.203(a)) and the compliance standard (§300.203(b)).

Question A-2:

What is the eligibility standard?

Answer:

The eligibility standard in §300.203(a) requires that, in order to find an
LEA eligible for an IDEA Part B subgrant for the upcoming fiscal year,
the SEA must determine that the LEA has budgeted for the education of
children with disabilities at least the same amount of local, or State and
local, funds, as it actually spent for the education of children with
disabilities during the most recent fiscal year for which information is
available.
The eligibility standard is discussed in more detail in Section B of this
document.

Question A-3:

What is the compliance standard?

Answer:

The compliance standard in §300.203(b) prohibits an LEA from reducing
the level of expenditures for the education of children with disabilities
made by the LEA from local, or State and local, funds below the level of
those expenditures from the same source for the preceding fiscal year. In
other words, an LEA must maintain (or increase) the amount of local, or
State and local, funds it spends for the education of children with
disabilities when compared to the preceding fiscal year.
The compliance standard is discussed in more detail in Section C of this
document.

Question A-4:

What are the four methods an LEA may use to meet the eligibility and
compliance standards?

Answer:

An LEA may use the following four methods to meet both the eligibility
and compliance standards:
(i) Local funds only;
(ii) The combination of State and local funds;
(iii) Local funds only on a per capita basis; or
(iv) The combination of State and local funds on a per capita basis.

4

All regulatory citations in this document refer to the IDEA Part B regulations in 34 CFR part 300, unless otherwise
noted.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Question A-5:

What does “per capita” mean in the context of the LEA MOE regulations?

Answer:

Per capita, in the context of the LEA MOE regulations, refers to the total
amount of local, or State and local, funds either budgeted or expended by
an LEA for the education of children with disabilities, divided by the
number of children with disabilities served by the LEA.

Question A-6:

What is the “comparison year”?

Answer:

The “comparison year” refers to the fiscal year that an LEA uses to
determine the amount of local, or State and local, funds it must budget or
spend, in order to meet both the LEA MOE eligibility and compliance
standards. The comparison year differs for each standard, and may be
affected by the Subsequent Years rule. The comparison year is discussed
more fully in B-2 and C-3.

Question A-7:

What is the Subsequent Years rule?

Answer:

The Subsequent Years rule prescribes the level of effort an LEA must meet
in the year after the LEA fails to maintain effort. The Department first set
out the Subsequent Years rule on April 4, 2012 in a letter to Ms. Kathleen
Boundy, available at
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep-04-042012.pdf. At that time, the Department clarified that the level of effort that
an LEA must meet in the year after it fails to maintain effort is the level of
effort that would have been required in the absence of that failure and not
the LEA’s actual reduced level of expenditures in the fiscal year in which
it failed to meet the compliance standard. Therefore, the Department’s
expectation is that SEAs and LEAs have been complying with this
interpretation since FY 2012-2013. Since that time, Congress included the
Subsequent Years rule in the 2014 Appropriations Act 6 and the 2015
Appropriations Act. 7
Example: For FY 2014-2015, an LEA must have maintained at least the
same level of expenditures as it did in the preceding fiscal year, FY 20132014, unless it did not meet the compliance standard in that year. If it did
not meet the compliance standard in FY 2013-2014, the LEA must
determine what it should have spent in FY 2013-2014, which is the
amount that it actually spent in the preceding fiscal year, FY 2012-2013.
For further examples illustrating the Subsequent Years rule, see Tables B
and D in this guidance and Tables 1–4 and 8 in Appendix E of the final
regulations.

6
7

Pub. L. No. 113-76, 128 Stat. 5, 394 (2014).
Pub. L. No. 113-235, 128 Stat. 2130, 2499 (2014).

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Question A-8:

May an LEA meet the compliance and/or eligibility standards using local
funds only if it spent zero local dollars in the comparison year?

Answer:

An LEA, including an LEA that has not spent any local funds for the
education of children with disabilities since the MOE requirement was
enacted in 1997, may use any of the four methods to meet the compliance
and eligibility standards. Therefore, an LEA that has spent $0 in local
funds for the education of children with disabilities may meet the
compliance and eligibility standards by continuing to budget and spend $0
in local funds for the education of children with disabilities. However, the
Department believes that there are very few instances where LEAs have
expended $0 in local funds for the education of children with disabilities,
and reminds LEAs that they must continue to make FAPE available to all
eligible children with disabilities. In addition, when demonstrating that
they meet the compliance and eligibility standards using any of the four
methods, LEAs must be able to provide auditable data regarding their
expenditures from the relevant sources in all relevant years. Simply
because an LEA does not account for local funds separately from State
funds does not mean that the LEA expends $0 in local funds for the
education of children with disabilities.

Question A-9:

May LEAs use their local, or State and local, funds to meet both the LEA
MOE requirement and a matching or MOE requirement for a separate
Federal program (e.g., Medicaid or Vocational Rehabilitation)?

Answer:

Yes. In fact, LEAs must include the amount of local only, or State and
local, funds spent for the education of children with disabilities when
calculating the level of effort required to meet the eligibility and
compliance standards, even if those local only, or State and local, funds
are also used to meet a matching requirement in another Federal program.
The IDEA does not impose a matching requirement. In other words, an
LEA that expends local, or State and local, funds for the education of
children with disabilities must include those funds in its LEA MOE
calculations regardless of whether it uses those same funds to comply with
a matching or other MOE requirement (of course, an LEA that uses the
local funds only method to meet the LEA MOE requirement need not
include State funds in its LEA MOE calculations).
Example: An LEA expended $4,000 in local funds for the education of
children with disabilities in FY 2013–2014. It properly used these funds to
meet a matching or MOE requirement for Medicaid. The LEA must
include the $4,000 in local funds in its LEA MOE calculation for FY
2013–2014 even though it uses those same funds to meet a matching
requirement for Medicaid.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

B. ELIGIBILITY STANDARD
Authority: §300.203(a)
Question B-1:

What is the eligibility standard?

Answer:

The eligibility standard describes the MOE requirement that an LEA must
meet as a condition of receiving an IDEA Part B subgrant. When
reviewing an LEA’s application for an IDEA Part B subgrant, the SEA
must determine that the LEA budgets, for the education of children with
disabilities, at least the same amount as the LEA spent for that purpose
from the same source in the most recent fiscal year for which information
is available, subject to the Subsequent Years rule.
As indicated in A-4, an LEA may meet the eligibility standard using any
one of the following methods:
(i) Local funds only;
(ii) The combination of State and local funds;
(iii) Local funds only on a per capita basis; or
(iv) The combination of State and local funds on a per capita basis.
The following table illustrates how the different methods work in practice:

Table A. Example of How an LEA May Meet the Eligibility Standard in 2016-2017
Using Different Methods (same table as Table 7 in Appendix E of the final regulations)
Combination
of State and
Local Combination Local funds
local funds
Fiscal
funds of State and only on a per
on a per
Child
Year
only
local funds
capita basis
capita basis Count
Notes
2014–2015 $500* $1,000*
$50*
$100*
10
*The LEA met the compliance
standard using all 4 methods.
2015–2016
Final information not available at
time of budgeting for 2016–
2017.
How much $500
$1,000
$50
$100
When the LEA submits a budget
must the
for 2016–2017, the most recent
LEA budget
fiscal year for which the LEA
for 2016–
has information is 2014–2015. It
2017 to
is not necessary for the LEA to
meet the
consider information on
eligibility
expenditures for a fiscal year
standard in
prior to 2014–2015 because the
2016–2017?
LEA maintained effort in 2014–
2015. Therefore, the Subsequent
Years rule in §300.203(c) is not
applicable.
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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Question B-2:

What is the comparison year for the LEA MOE eligibility standard?

Answer:

The comparison year for the LEA MOE eligibility standard, regardless of
the method used to meet the eligibility standard, is the most recent fiscal
year for which information is available. Thus, in the example in Table A,
above, the comparison year is FY 2014-2015. However, if the LEA had an
MOE failure in FY 2014-2015, the SEA would be required to identify the
correct comparison year in order to determine whether the LEA had met
the eligibility standard in FY 2016-2017. Utilizing the Subsequent Years
rule, the SEA would determine the most recent fiscal year in which the
LEA met MOE and for which it has information available. For example, if
the LEA met MOE in FY 2013-2014, FY 2013-2014 would be the
comparison year for determining whether the LEA met the eligibility
standard in FY 2016-2017.

Question B-3:

What is the “most recent fiscal year for which information is available”?

Answer:

The “most recent fiscal year for which information is available” is the
most recent fiscal year for which an LEA has final data on the amount the
LEA spent in local, or State and local, funds for the education of children
with disabilities. Generally, an LEA applies for an IDEA Part B subgrant
in the spring. At the time of the application, the LEA typically is finalizing
its budget for the next fiscal year (the “budget year”), and will not have
final information on its level of expenditures for the fiscal year
immediately preceding the budget year because that fiscal year has not yet
ended. Therefore, the most recent fiscal year for which information is
available is frequently two fiscal years prior to the budget year.
For example, in Table B below, in June 2017 an SEA reviews an LEA’s
application for an IDEA Part B subgrant for FFY 2017 Part B funds,
available on July 1, 2017, which means that the SEA reviews the amount
the LEA has budgeted for FY 2017-2018. The most recent fiscal year for
which information could be available is FY 2015-2016. This is because
FY 2016-2017 has not yet concluded and, therefore, final expenditure data
are not yet available for that year.
In the example in Table B below, if the LEA failed to maintain effort in FY
2015-2016, the SEA would examine the most recent fiscal year for which
information is available, which would likely be FY 2014-2015. Assuming
the LEA maintained effort in FY 2014-2015, the SEA would compare the
amount budgeted for the education of children with disabilities for FY
2017-2018 to the amount actually expended for that purpose from the
same source in FY 2014-2015. This is reflected in Table B, below.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Table B. Example of How an LEA May Meet the Eligibility Standard in 2017-2018
Using Different Methods and the Application of the Subsequent Years Rule
(Same table as Table 8 in Appendix E of the final regulations)
Combinatio
Local
n of State
Combinatio funds only
and local
Local
n of State
on a per
funds on a
Fiscal
funds
and local
capita
per capita
Child
Year
only
funds
basis
basis
Count
Notes
2014–2015 $500* $1,000*
$50*
$100*
10
2015–2016 $450
$1,000*
$45
$100*
10
2016–2017
Final information not available
at time of budgeting for
2017-2018.
How much $500
$1,000
$50
$100
If the LEA seeks to use a
must the
combination of State and local
funds, or a combination of
LEA budget
State and local funds on a per
for 2017–
capita basis, to meet the
2018 to
eligibility standard, the LEA
meet the
does not consider information
eligibility
on expenditures for a fiscal
standard in
year prior to 2015–2016
2017–2018?
because the LEA maintained
effort in 2015–2016 using
those methods. However, if the
LEA seeks to use local funds
only, or local funds only on a
per capita basis, to meet the
eligibility standard, the LEA
must use information on
expenditures for a fiscal year
prior to 2015–2016 because the
LEA did not maintain effort in
2015–2016 using either of
those methods, per the
Subsequent Years rule. That is,
the LEA must determine what
it should have spent in 2015–
2016 using either of those
methods, and that is the
amount that the LEA must
budget in 2017–2018.
*LEA met MOE using this method.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Question B-4:

What process should an SEA use to determine an LEA’s eligibility for a
Part B subgrant?

Answer:

For the eligibility standard, an SEA has discretion to determine the type
and amount of information it requires an LEA to submit in order to
determine whether the LEA has met the eligibility standard, as long as the
SEA has sufficient information to determine on an annual basis that the
LEA budgets, for the education of children with disabilities, at least the
same amount, from at least one of the following sources, as the LEA spent
for that purpose from the same source for the most recent fiscal year for
which information is available (subject to the Subsequent Years rule): (i)
local funds only; (ii) the combination of State and local funds; (iii) local
funds only on a per capita basis; or (iv) the combination of State and local
funds on a per capita basis.
It is not necessary for the SEA to review a detailed budget, so long as the
SEA has sufficient information to determine if the LEA meets the
eligibility standard. For example, these regulations do not require LEAs to
submit budgets broken down by object codes or line items. However, the
Department would expect an LEA to submit information on the amount of
funds budgeted for the education of children with disabilities and any
additional information an SEA would need to determine eligibility (for
example, an explanation of any applicable exceptions or adjustment, the
relevant numbers of children with disabilities if the LEA seeks to establish
eligibility on a per capita basis, etc.)

Question B–5:

May an LEA change the method it uses to establish eligibility from one
year to the next?

Answer:

Yes. An LEA may change methods to establish eligibility from one year to
the next, as long as the LEA uses the same method for calculating the
amount it spent in the comparison year and the amount it must budget in
the year for which it is establishing eligibility. For example, an LEA met
the MOE eligibility standard using local funds only in FY 2015-2016.
That LEA wishes to meet the MOE eligibility standard using a
combination of State and local funds in FY 2016-2017. In order to do so,
the LEA calculates the amount it expended for the education of children
with disabilities using a combination of State and local funds in the most
recent fiscal year in which the LEA met MOE using that method and for
which information is available. As a practical matter, many LEAs will
meet the eligibility standard for a fiscal year using more than one method.

Question B-6:

May an LEA use a different method to establish eligibility than it used in
the comparison year to meet the compliance standard?

Answer:

Yes. When establishing eligibility, an LEA is not required to use the same
method it used to meet the compliance standard in the most recent fiscal
year for which information is available. When an LEA is budgeting for the
education of children with disabilities, the LEA selects a method by which it

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

intends to meet the eligibility standard. If the LEA met the compliance
standard using the same method in the most recent fiscal year for which
information is available, the LEA must budget at least that amount (after
taking into consideration the exceptions and adjustment in §§300.204 and
300.205, as permitted by §300.203(a)(2)) in order to meet the eligibility
standard.
Pursuant to the Subsequent Years rule in §300.203(c), if the LEA did not
meet the compliance standard using that method in the most recent fiscal
year for which information is available, the LEA determines the amount
that the LEA should have spent for the education of children with
disabilities using that same method in the most recent fiscal year for which
information is available. In that case, the LEA must budget at least that
amount (after taking into consideration the exceptions and adjustment in
§§300.204 and 300.205, as permitted by §300.203(a)(2)) in order to meet
the eligibility standard.
For example, an LEA seeks to use a combination of State and local funds
on a per capita basis to meet the eligibility standard in FY 2016-2017.
The LEA determines the amount it expended for the education of
children with disabilities using that same method in the most recent
fiscal year for which information is available, which, in this case, is FY
2014-2015. The LEA determines that it met the compliance standard
using the same method in FY 2014-2015. Therefore, after taking into
account the exceptions and adjustment in §§300.204 and 300.205, the
LEA determines that, in order to meet the eligibility standard in FY
2016-2017 using a combination of State and local funds on a per capita
basis, it must budget for FY 2016-2017 at least the same amount it spent
in FY 2014-2015 using the same method.
Question B-7:

How does an LEA establish eligibility if it did not receive an IDEA Part B
subgrant in “the most recent fiscal year for which information is available”?

Answer:

In such a case, the LEA uses the comparison year in §300.203(a)(1),
which is “the most recent fiscal year for which information is available,”
even if the LEA did not receive an IDEA Part B subgrant in that year. For
example, an LEA received an IDEA Part B subgrant in 2013-2014, but did
not receive one in 2015-2016. When seeking to establish eligibility for a
subgrant in FY 2017-2018, the LEA determines that the most recent fiscal
year for which information is available is FY 2015-2016. The LEA must
budget for FY 2017-2018 at least the same amount that it expended in
local only, or State and local, funds, for the education of children with
disabilities in FY 2015-2016.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Question B-8:

Is an LEA required to provide budget amendments to the SEA if its
expenditures change during a fiscal year, after the SEA determines that the
LEA is eligible for a Part B subgrant for that fiscal year?

Answer:

No. Once an SEA has determined an LEA’s eligibility, the LEA does not
need to provide amendments that reflect changes in expenditures in order
to remain eligible for that year.

Question B-9:

What happens if an LEA does not meet the eligibility standard?

Answer:

If an SEA determines that an LEA does not meet the MOE eligibility
standard using any of the four eligibility methods in §300.203(a), the SEA
must provide the LEA with reasonable notice that the SEA has determined
the LEA not eligible for an IDEA Part B subgrant and provide the LEA an
opportunity for a hearing, pursuant to §300.221. If the SEA determines
that the LEA is not eligible to receive a Part B subgrant for that fiscal year,
the SEA retains the Part B subgrant that the LEA would have received, and
the SEA is required to provide special education and related services
directly to children with disabilities residing in the area served by that
LEA pursuant to §300.227.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

C. COMPLIANCE STANDARD
Authority: §300.203(b)
Question C-1:

What is the compliance standard?

Answer:

The compliance standard is an expenditure test to determine whether an
LEA, in fact, met the requirement to maintain effort in a particular fiscal
year. The compliance standard prohibits LEAs from reducing the level of
expenditures from local, or State and local, funds for the education of
children with disabilities below the level of those expenditures made by
the LEA for that purpose from the same source for the preceding fiscal
year, except as provided in §§300.204 and 300.205. In other words, an
LEA must maintain (or increase) the amount of local, or State and local
funds, it spends for the education of children with disabilities when
compared to the preceding fiscal year, except as provided in §§300.204
and 300.205.

Question C-2:

What are the four methods by which an LEA may meet the compliance
standard?

Answer:

As indicated in A-4, an LEA may meet the compliance standard using any
one of the following methods:
(i) Local funds only;
(ii) The combination of State and local funds;
(iii) Local funds only on a per capita basis; or
(iv) The combination of State and local funds on a per capita basis.
The table below provides an example of how an LEA meets or does not
meet the LEA MOE compliance standard using alternate methods from
year to year without using the exceptions or adjustment in §§ 300.204 and
300.205.

Table C. Example of How an LEA May Meet the Compliance Standard Using Alternate Methods from
Year to Year (this table is Table 5 in Appendix E of the final regulations)
Combination of
Local funds
Combination of
Local funds
State and local
only on a per
State and local funds
Fiscal Year
only
funds
capita basis
on a per capita basis Child Count
2015–2016
$500*
$950*
$50*
$95*
10
2016–2017
$400
$950*
$40
$95*
10
2017–2018
$500*
$900
$50*
$90
10
*LEA met compliance standard using this method.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Question C-3:

What is the comparison year for the LEA MOE compliance standard?

Answer:

The comparison year for the compliance standard is “the preceding fiscal
year.” However, due to the Subsequent Years rule in §300.203(c), the
Department is, in effect, defining “the preceding fiscal year” to mean the
last fiscal year in which the LEA met MOE, regardless of whether the
LEA is seeking to establish compliance based on local funds only, or
based on State and local funds.
The Subsequent Years rule does not prevent an LEA from using any of the
four methods to meet the compliance standard in §300.203(b). However,
an LEA that wishes to meet the compliance standard in a fiscal year using
one particular method must be able to identify the amount of funds that the
LEA expended in the most recent fiscal year in which the LEA met the
compliance standard using that same method.
The table below illustrates how to calculate the required level of effort
when an LEA fails to meet MOE in the preceding fiscal year.

Table D. Example of Level of Effort Required to Meet MOE Compliance Standard in
Year Following Year in Which LEA Did Not Meet MOE Compliance Standard
(this table is Table 4 in Appendix E of the final regulations)
Required
Actual level
level of
Fiscal Year
of effort
effort
Notes
2012–2013
$100
$100
LEA met MOE.
2013–2014
$90
$100
LEA did not meet MOE.
LEA did not meet MOE. Required level of effort is $100
2014–2015
$90
$100
despite LEA’s failure in 2013–2014.
2015–2016
$110
$100
LEA met MOE.
LEA did not meet MOE. Required level of effort is $110
2016–2017
$100
$110
because LEA expended $110, and met MOE, in 2015–
2016.
Required level of effort is $110, despite LEA’s failure in
2017–2018
$110
2016–2017.
Question C-4:

May an LEA switch methods from year to year to meet the compliance
standard?

Answer:

Yes. LEAs may change methods to establish compliance from one year to
the next as long as the LEA is using the same method for comparing the
expenditures in the comparison year to the expenditures in the year for
which it is establishing compliance, and the LEA is able to provide
auditable data to document that it met the compliance standard using that
method in the comparison year.
For example, an LEA met the compliance standard in FY 2017-2018 using
a combination of State and local funds, and using a combination of State

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

and local funds on a per capita basis. However, during a compliance
review for FY 2017-2018, the LEA provided data to the SEA
demonstrating only that it met the compliance standard for FY 2017-2018
using a combination of State and local funds on a per capita basis. This
data would be sufficient for the SEA to find that the LEA met the
compliance standard. Subsequently, the State conducts a compliance
review to determine if the LEA met the compliance standard in the next
year, FY 2018-2019. The LEA provides information to the State that
demonstrates that it met the compliance standard in FY 2018-2019 using a
combination of State and local funds. In order to demonstrate that it met
the compliance standard using that method, the LEA provides to the State
the amount of State and local funds that the LEA spent for the education of
children with disabilities in FY 2017-2018 and in FY 2018-2019 so that
the State is comparing each year’s expenditures using the same method.
The following table demonstrates how an LEA may meet the compliance
standard using alternate methods from year to year in years that the LEA
used the exceptions or adjustment in §§ 300.204 and 300.205.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Table E. Example of How an LEA May Meet the Compliance Standard Using Alternate Methods from Year to Year and Using
Exceptions or Adjustment under §§300.204 and 300.205 (this table is Table 6 in Appendix E of the final regulations)
Combination
Combination of
of State and
Local funds only on a
State and local funds
Fiscal Year
Local funds only
local funds
per capita basis
on a per capita basis Child Count
2015– 2016
$500*
$950*
$50*
$95*
10
2016– 2017
$400
$950*
$40
$95*
10
2017–2018
$450*
$1,000*
$45*
$100*
10
In 2017-2018, the LEA was
required to spend at least the
same amount in local funds only
that it spent in the preceding
fiscal year, subject to the
Subsequent Years rule.
Therefore, prior to taking any
exceptions or adjustment in
§§300.204 and 300.205, the
LEA was required to spend at
least $500 in local funds only.
In 2017-2018, the LEA properly
reduced its expenditures, per an
exception in §300.204, by $50,
and therefore, was required to
spend at least $450 in local
funds only ($500 from 20152016 per Subsequent Years rule
– $50 allowable reduction per an
exception under §300.204).

In 2017-2018, the LEA was required to
spend at least the same amount in local funds
only on a per capita basis that it spent in the
preceding fiscal year, subject to the
Subsequent Years rule. Therefore, prior to
taking any exceptions or adjustment in
§§300.204 and 300.205, the LEA was
required to spend at least $50 in local funds
only on a per capita basis.
In 2017-2018, the LEA properly reduced its
aggregate expenditures, per an exception in
§300.204, by $50.
$50/10 children with disabilities in the
comparison year (2015-2016) = $5 per capita
allowable reduction per an exception under
§300.204.
$50 local funds only on a per capita basis
(from 2015-2016 per Subsequent Years rule)
– $5 allowable reduction per an exception
under §300.204 = $45 local funds only on a
per capita basis to meet MOE.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Table E. Example of How an LEA May Meet the Compliance Standard Using Alternate Methods from Year to Year and Using
Exceptions or Adjustment under §§300.204 and 300.205 (this table is Table 6 in Appendix E of the final regulations)
Combination
Combination of
of State and
Local funds only on a
State and local funds
Fiscal Year
Local funds only
local funds
per capita basis
on a per capita basis Child Count
2018–2019
$405
$1,000*
$45*
$111.11*
9
In 2018-2019, the LEA was
Because the In 2018-2019, the LEA was required to spend Because the LEA did
required to spend at least the
LEA did not at least the same amount in local funds only on not reduce its
same amount in local funds only reduce its
a per capita basis that it spent in the preceding expenditures from the
that it spent in the preceding
expenditures fiscal year, subject to the Subsequent Years
comparison year
fiscal year, subject to the
from the
rule. Therefore, prior to taking any exceptions (2017-2018) using a
Subsequent Years rule.
comparison or adjustment in §§300.204 and 300.205, the
combination of State
Therefore, prior to taking any year (2017- LEA was required to spend at least $45 in local and local funds on a
exceptions or adjustment in
2018) using a funds only on a per capita basis.
per capita basis
§§300.204 and 300.205, the
combination In 2018-2019, the LEA properly reduced its
($1,000/9 = $111.11
LEA was required to spend at of State and aggregate expenditures, per an exception in
and $111.11>$100),
least $450 in local funds only. local funds,
the LEA met MOE.
§300.204 by $10 and the adjustment in
the
LEA
met
In 2018-2019, the LEA properly
§300.205 by $10.
reduced its expenditures, per an MOE.
$20/10 children with disabilities in the
exception in §300.204 by $10
comparison year (2017-2018) = $2 per capita
and the adjustment in §300.205
allowable reduction per an exception and the
by $10.
adjustment under §§300.204 and 300.205.
Therefore, the LEA was
$45 local funds only on a per capita basis
required to spend at least $430
(from 2017-2018) – $2 allowable reduction per
in local funds only. ($450 from
an exception and the adjustment under
2017-2018 – $20 allowable
§§300.204 and 300.205 = $43 local funds only
reduction per an exception and
on a per capita basis required to meet MOE.
the adjustment under §§300.204
Actual level of effort is $405/9 (the current
and 300.205).
year child count).
*LEA met MOE using this method.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

NOTE ABOUT TABLE:

When calculating any exception(s) and/or adjustment on a per capita
basis for the purpose of determining the required level of effort, the
LEA must use the child count from the comparison year, and not the
child count of the year in which the LEA took the exception(s)
and/or adjustment. When determining the actual level of effort on a
per capita basis, the LEA must use the child count for the current
year. For example, in 2018-2019, the LEA uses a child count of 9,
not the child count of 10 in the comparison year, to determine the
actual level of effort.

Question C-5:

May an LEA use a different method to meet the compliance standard in a
fiscal year that it used to meet the eligibility standard for that same year?

Answer:

Yes. An LEA is not required to use the same method to meet the
compliance standard in a fiscal year that it used to meet the eligibility
standard for that same year. For example, if an LEA meets the eligibility
standard for FY 2016-2017 using local funds only, it is not required to
meet the compliance standard for FY 2016-2017 using local funds only.
Likewise, an LEA is not required to use the same method to meet the
eligibility standard in a subsequent year that it used to meet the
compliance standard in a preceding fiscal year. For example, if an LEA
met the compliance standard for FY 2016-2017 using a combination of
State and local funds, the LEA is not required to meet the eligibility
standard for FY 2017-2018 using a combination of State and local funds.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

D. EXCEPTIONS AND ADJUSTMENT/FLEXIBILITY
Authority: §§300.204 and 300.205
Question D-1:

What are the allowable exceptions to the LEA MOE requirement?

Answer:

Under §300.204, there are five instances where an LEA may reduce the
level of expenditures for the education of children with disabilities made
by the LEA below the level of those expenditures for the preceding fiscal
year (for the compliance standard), and below the level of those
expenditures for the most recent fiscal year for which information is
available (for the eligibility standard). They are:
(a) The voluntary departure, by retirement or otherwise, or departure for
just cause, of special education or related services personnel (e.g.,
special education teachers, speech pathologists, paraprofessionals
assigned to work with children with disabilities);
(b) A decrease in the enrollment of children with disabilities;
(c) The termination of the obligation of the agency, consistent with IDEA
Part B, to provide a program of special education to a particular child
with a disability that is an exceptionally costly program, as determined
by the SEA, because the child—
(1) Has left the jurisdiction of the agency;
(2) Has reached the age at which the obligation of the agency to
provide FAPE to the child has terminated; or
(3) No longer needs the program of special education;
(d) The termination of costly expenditures for long-term purchases, such
as the acquisition of equipment or the construction of school facilities;
and
(e) The assumption of cost by the high cost fund operated by the SEA
under §300.704(c).

Question D-2:

May an LEA apply the exceptions in §300.204 and the adjustment in
§300.205 to meet both the eligibility and compliance standards?

Answer:

Yes. An LEA may apply the exceptions in §300.204 and the adjustment in
§300.205 to meet both the eligibility and compliance standards. When
determining the amount of funds that an LEA must budget to meet the
eligibility standard, the LEA may take into consideration, to the extent the
information is available, the exceptions and adjustment that the LEA: (i)
took in the intervening year or years between the most recent fiscal year
for which information is available and the fiscal year for which the LEA is
budgeting; and (ii) reasonably expects to take in the fiscal year for which
the LEA is budgeting.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Question D-3:

May an LEA reduce its required level of effort by taking more than one
exception in the same fiscal year?

Answer:

Yes, an LEA may reduce its required level of expenditures for the
education of children with disabilities by taking more than one exception
in the same fiscal year. For example, an LEA may reduce its level of
expenditures for the education of children with disabilities because of the
voluntary departure of a special education teacher, and further reduce its
level of effort for the same fiscal year because of the termination of the
LEA’s obligation to provide a program of special education to a particular
child with a disability that is an exceptionally costly program because the
child leaves the jurisdiction of the LEA. LEAs must maintain
documentation to demonstrate the LEA properly took the exceptions.

Question D-4:

How does taking the exceptions in §300.204 and/or the adjustment in
§300.205 affect the required amount of expenditures that an LEA must
make in a subsequent year?

Answer:

If an LEA properly takes the exceptions or the adjustment to reduce the
level of local, or State and local, expenditures otherwise required in a
fiscal year, the LEA would be required in subsequent fiscal years to
maintain effort at the reduced level – except to the extent that the LEA
increases the actual level of expenditures above the required level of
expenditures for that fiscal year. In addition, the LEA’s actual level of
expenditures in a preceding fiscal year, and not the reduced level of
expenditures that the LEA could have spent had it taken all of the
exceptions and the adjustment permitted by §§300.204 and 300.205, is the
level of expenditures required of the LEA in a future fiscal year (which
may be affected by the Subsequent Years rule).
The following table illustrates how taking, or not taking, an allowable
exception or adjustment, and an increase in actual expenditures, affect the
required level of effort in subsequent years.

Table F. Comparison of Required Levels of Effort for Two Hypothetical LEAs
Actual FY
2015−2016
Expenditures Using Allowable
a Combination of
Exception in
State and Local
§300.204 Taken in
funds
FY 2016−2017
LEA #1 $250,000*
$10,000
LEA #2 $250,000*
$10,000
* LEA met MOE.

Page 20

Actual FY
Required Level of
2016−2017
Effort Using a
Expenditures Using Combination of
a Combination of
State and Local
State and Local
Funds in FY
funds
2017−2018
$240,000*
$240,000
$260,000*
$260,000

Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

E. CONSEQUENCES OF LEA MOE FAILURE
Authority:

§300.203(d); section 452 of the General Education Provisions Act (GEPA)
(20 U.S.C. 1234a)

Questions E-1:
Answer:

What are the consequences of an LEA’s failure to meet the MOE
compliance standard?
If an LEA fails to meet the MOE compliance standard, the SEA is liable in a
recovery action under section 452 of GEPA (20 U.S.C. 1234a) to return to
the Department, using non-Federal funds, an amount equal to the amount by
which the LEA failed to maintain its level of expenditures in that fiscal year,
or the amount of the LEA’s IDEA Part B subgrant in that fiscal year,
whichever is lower. Table G shows how to determine the amount of a
required recovery based on an LEA’s failure to meet the MOE compliance
standard.

Table G. Example of How to Calculate the Amount of an LEA’s Failure to Meet the Compliance
Standard in 2016–2017 and the Amount an SEA Must Return to the Department (This table is Table 10
in Appendix E of the final regulations)

Fiscal year
2015−2016
2016−2017

Local
funds only
*$500
$400

Amount by
$100
which an
LEA failed to
maintain its
level of
expenditures
in 2016-2017.

Combination Local funds only
of State and on a per capita
local funds
basis
*$950
*$50
$750
$40
$200

Combination of
State and local
funds on a per
capita basis
*$95
$75

Child
count
10

Amount of
IDEA Part B
subgrant
Not relevant
$50

$100 (the amount $200 (the amount
of the failure
of the failure
equals the amount equals the amount
of the per capita
of the per capita
shortfall ($10)
shortfall ($20)
times the number times the number
of children with
of children with
disabilities in
disabilities in
2016–2017 (10)). 2016–2017 (10)).
The SEA determines that the amount of the LEA’s failure is $100 using the calculation method that results in
the lowest amount of a failure. The SEA’s liability is the lesser of the four calculated shortfalls and the amount
of the LEA’s Part B subgrant in the fiscal year in which the LEA failed to meet the compliance standard. In this
case, the SEA must return $50 to the Department because the LEA’s IDEA Part B subgrant was $50, and that is
the lower amount.
* LEA met MOE using this method.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Question E-2:

How do the GEPA requirements interact with LEA MOE?

Answer:

Under 20 U.S.C. 1234b, a failure to comply with expenditure
requirements, including the IDEA’s LEA MOE requirement, is a harm to
an identifiable Federal interest. If an LEA fails to meet the MOE
requirement, the SEA is liable in a recovery action for the amount that is
proportionate to the extent of the harm the violation caused to the
identifiable Federal interest – that is, the amount by which the LEA failed
to maintain its level of expenditures for the education of children with
disabilities, or the amount of the LEA’s Part B subgrant, whichever is
lower. The SEA is responsible for ensuring that LEAs receiving an IDEA
Part B subgrant comply with all applicable requirements of that statute and
its implementing regulations, including the MOE requirement. If an LEA,
in a particular fiscal year, fails to meet the MOE requirement, the
Department has authority to take steps to recover the appropriate amount
of funds from the SEA. The SEA, in turn, following applicable State
procedures, could seek reimbursement from the LEA. See July 26, 2006,
letter to Ms. Carol Ann Baglin, available at
http://www2.ed.gov/policy/speced/guid/idea/letters/20063/baglin072606moe3q2006.pdf.

Question E-3:

Why does the SEA have to pay funds when an LEA fails to meet its MOE
requirement?

Answer:

The SEA (acting on behalf of the State), not the LEA, is the grantee in the
IDEA Part B program. As a condition of eligibility for an IDEA Part B
grant, States must provide an assurance to the Department that the SEA is
responsible for ensuring that, among other things, all requirements of Part
B are met. IDEA § 612(a)(11)(A)(i) (20 U.S.C. 1412(a)(11)(A)(i)). SEAs
may minimize LEA noncompliance by carefully reviewing the LEA’s
application for an IDEA Part B subgrant to determine if the LEA meets the
eligibility standard, by monitoring for compliance on a regular basis, and
by providing technical assistance to LEAs. SEAs that find an LEA is
failing to comply with the MOE requirement may take further
enforcement action as provided in §300.222.

Question E-4:

Have the revised LEA MOE regulations modified the Department’s
position on the consequences of an LEA’s failure to maintain effort?

Answer:

No. The revised regulations cite to the recovery of funds provision in
GEPA, a bill that was enacted in 1968. We included a provision addressing
the consequences of an LEA’s failure to maintain effort in the proposed
and final regulations not because this is a change in law, but to highlight
the importance of the LEA MOE requirement and the significance of the
remedies for a failure to comply. In addition, the comments to the
proposed LEA MOE regulations indicated that some SEAs and LEAs may
not have been aware of the consequence of an LEA’s failure to meet the
MOE compliance standard.

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Questions and Answers on IDEA Part B Local Educational Agency Maintenance of Effort Requirements

Question E-5:

How should funds be remitted to the Department?

Answer:

If the SEA is remitting $100,000 or more, it should use the FEDWIRE
system. The FEDWIRE form and instructions are posted on
http://www2.ed.gov/programs/safra/fed-wire-form.pdf. A copy of the form
with a cover letter should be sent to the Office of Special Education
Programs (OSEP). The cover letter should identify that these funds are
being sent to the Department to pay back the Federal government for the
failure of an LEA (or LEAs) to meet the MOE requirement under
§300.203, are not Federal funds, and are not tied to a particular Federal
grant award.
For payments less than $100,000 as a result of an audit or monitoring
finding, the SEA should cut a check and send it to a “lock box” in St.
Louis, with a copy to OSEP of both the cover letter and the check. The
cover letter should identify that these funds are being sent to the
Department to pay back the Federal government for the failure of an LEA
(or LEAs) to meet the MOE requirement under §300.203, are not Federal
funds, and are not tied to a particular Federal grant award. Make the check
payable to “Accounts Receivable U.S. Department of Education.”
If the repayment is a result of an audit or monitoring finding, the check
should be mailed to the following address:
U.S. Department of Education
P.O. Box 979026
St. Louis, MO 63197-9000
ATTN: Accounts Receivable Group/OCFO
If the repayment is made on a voluntary basis, due to the State identifying
noncompliance, the check should be mailed to the following address:
U.S. Department of Education
P.O. Box 979053
St. Louis, MO 63197-9000
ATTN: Accounts Receivable Group/OCFO
The letter should advise that the funds be posted to “Miscellaneous
Receipts” in the unbilled lock box.

Page 23


July 16, 2015
Mark McWilliams
Michigan Protection and Advocacy Service, Inc.
4095 Legacy Parkway, Suite 500
Lansing, MI 48911-4263
Dear Mr. McWilliams:
This letter is in response to the Michigan Protection and Advocacy Service, Inc. (MPAS) letter to
me regarding concerns about how the Michigan Department of Education (MDE) responds to
State complaints that allege a public agency’s failure to implement a behavioral intervention plan
(BIP) included in an individualized education program (IEP). On May 19, 20141 MPAS filed a
“formal systemic complaint” under 34 CFR §§300.151 – 300.153 and State regulation R
340.1851-55 against the MDE alleging that MDE improperly dismissed a complaint regarding a
BIP that was part of an IEP. MPAS’ letter included a copy of that State complaint and MDE’s
Final Decision dated July 7, 2014.2
We express no opinion on the underlying issue of whether the public agency in fact failed to
implement a BIP, or otherwise violated Part B of the Individuals with Disabilities Education Act
(IDEA) or its implementing regulations in the circumstances surrounding your inquiry. However,
MDE’s Final Decision made two conclusions of law regarding BIPs that we want to address: (1)
that the BIP was neither a supplementary aid or service nor an “instructional activity3”; and (2)
that it may only investigate a public agency’s failure to implement a BIP if the BIP results from a
manifestation determination review where the behavior was a result of the disability. See 34 CFR
§300.530(f).
A State educational agency must resolve any complaint, including one filed by an organization
or individual from another State, that meets the requirements in 34 CFR §300.153. 34 CFR
§§300.151 – 300.152. A State complaint must include a statement alleging that a public agency
has violated a requirement of Part B of the IDEA or the IDEA implementing regulations. 34 CFR
§300.153(b)(1). An allegation in a State complaint that a public agency failed to implement a
BIP that is part of an IEP may constitute a violation of Part B of the IDEA, and would thus
trigger a State’s obligation to resolve a complaint under 34 CFR §§300.151 through 300.153.
Once an IEP Team considers a child’s behavioral needs through the IEP process, consistent with
34 CFR §300.324(a)(2)(i), and deems a BIP necessary for the child to receive a free appropriate
public education (FAPE), IDEA does not address how the BIP must be reflected in the child’s
IEP. As we understand MDE’s analysis, in order for a BIP to be properly reflected in a child’s
IEP, it must be reflected in the annual goals and the statement of special education and related
1

MPAS’ communication with the Office of Special Education Programs (OSEP) included a copy of the State
complaint, which was dated December 30, 2014. However, it appears from other information that the correct date of
the State complaint is May 19, 2014.
2
An initial complaint investigation based on a parent complaint was conducted by MDE with the letter of findings
issued on January 17, 2014.
3
MDE uses the term “instructional activity” multiple times in its Final Decision. It should be noted that this term
does not exist in the IDEA or its implementing regulations.

Page 2 – Mr. Mark McWilliams
services, but not as a supplementary aid or service. Under 34 CFR §300.42, “supplementary aids
and services” means “aids, services, and other supports that are provided in regular education
classes, other education-related settings, and in extracurricular and nonacademic settings, to
enable children with disabilities to be educated with nondisabled children to the maximum extent
appropriate in accordance with §§300.114 through 300.117.” See also 34 CFR
§300.320(a)(4)(iii) (instruction and services included in an IEP to enable a child with a disability
to be educated and participate with other children with disabilities and nondisabled children in
extracurricular and other nonacademic activities). Given the breadth of this definition, depending
on a child’s needs, we do not believe it would be inconsistent with the IDEA for an IEP Team to
designate a BIP as a supplementary aid or service. Next, even in those instances where the
regulations require a BIP, we understand MDE to be suggesting that its review of a State
complaint would be limited to whether the BIP was actually provided, not to whether the BIP
was appropriate. As noted above, a BIP developed through the IEP process is a proper subject of
a State complaint, regardless of the manner in which the BIP is reflected in a child’s IEP.
With respect to the issue of whether BIPs can be required in circumstances where a child’s
behavior is not a manifestation of his or her disability, we note that the IDEA provides that the
IEP Team must consider a variety of special factors in the development, review, and revision of a
child’s IEP, and “must in the case of a child whose behavior impedes the child’s learning or that
of others, consider the use of positive behavioral interventions and supports, and other strategies,
to address that behavior.” Section 614(d)(3)(B)(i) of the IDEA; 34 CFR §300.324(a)(2)(i); see
also 34 CFR §300.324(b)(2). See also, Assistance to States for the Education of Children with
Disabilities and Preschool Grants for Children with Disabilities, Final Rule, Analysis of
Comments and Changes, 71 Fed. Reg. 46540, 46721 (Aug. 14, 2006) (the IDEA “emphasizes a
proactive approach to behaviors that interfere with learning by requiring that, for children with
disabilities whose behavior impedes their learning or that of others, the IEP Team consider, as
appropriate, and address in the child’s IEP, ‘the use of positive behavioral interventions, and
other strategies to address the behavior.’ (See section 614(d)(3)(B)(i) of the Act). This provision
should ensure that children who need behavior intervention plans to succeed in school receive
them.”).
Moreover, OSEP’s June 2009 Questions and Answers on Discipline Procedures provided further
guidance related to BIPs (copy enclosed). Specifically, the answer to Question E-1 states: “. . . .
FBAs [functional behavioral assessments] and BIPs must also be used proactively, if the IEP
Team determines that they would be appropriate for the child.” In addition, Question E-2
addresses when a BIP should be included in a child’s IEP and explains: “For a child with a
disability whose behavior impedes his or her learning or that of others, and for whom the IEP
Team has decided that a BIP is appropriate, or for a child with a disability whose violation of the
code of student conduct is a manifestation of the child’s disability, the IEP Team must include a
BIP in the child’s IEP to address the behavioral needs of the child.”
The above guidance clarifies that while IEP Teams are not required to include BIPs in an IEP
outside the context of a manifestation determination, IEP Teams may elect to include BIPs in
other circumstances, such as when they deem a BIP necessary for a child whose behavior
impedes his or her learning or that of others to receive FAPE.

Page 3 – Mr. Mark McWilliams
As a result of OSEP’s review of the information provided in MPAS’ July 29, 2014 letter and
MDE’s Final Decision dated July 7, 2014, OSEP concludes that MDE is incorrectly applying the
State complaint procedures, promulgated under 34 CFR §§300.151-300.153, by not resolving
complaints alleging that BIPs that are included in IEPs or developed as part of a manifestation
determination were inappropriate. OSEP will share this letter with the MDE and provide
technical assistance to MDE to ensure that MDE’s State complaint policies and procedures are
consistent with the IDEA.
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 questions, please contact the OSEP Michigan State Contact, Daniel Schreier at
(202) 245-6552 or by email at daniel.scheier@ed.gov.
Sincerely,
/s/
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
Enclosure
cc:

Teri Johnson Chapman, Ed.S., Michigan State Director of Special Education
Ron Hager, National Disability Rights Network


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

July 6, 2015
Mr. Edward Sarzynski
Hogan, Sarzynski, Lynch, Surowka and DeWind, LLP
P.O. Box 660
Binghamton, NY 13902-0660
Dear Mr. Sarzynski:
This is in response to your letter to the Office of Special Education Programs (OSEP) regarding
children with disabilities from other countries enrolled in private schools by their parents.
First, you ask if all the obligations of 34 CFR §§300.130-300.144 apply to the public school
district where a private school is located when the parents of a child with a disability reside
outside the country. If so, you raised a question about the meaning of the child find
responsibilities in 34 CFR §300.131(f) related to out of State students. OSEP’s Letter to
Corwell, dated February 4, 2013, states that if the international students with disabilities are
enrolled in private elementary schools or secondary schools that meet the definitions in 34 CFR
§§300.13 and 300.36, respectively, the local educational agencies (LEAs) where the private
schools those children attend are located must consider them for equitable services in accordance
with the requirements in the Individuals with Disabilities Education Act (IDEA). Further, that
letter also states that neither the IDEA nor its implementing regulations distinguish between
parentally-placed private school children with disabilities whose parents reside in other countries
and those whose parents reside in the United States, with respect to the requirements in 34 CFR
§§300.130 through 300.144. These provisions include the child find requirements in 34 CFR
§300.131 for parentally-placed private school students. Also, the provision in 34 CFR
§300.138(b)(2)(ii), which requires that an equitable services plan must, to the extent appropriate,
be developed, reviewed, and revised in accordance with the requirements in 34 CFR §§300.321
through 300.324 for each parentally-placed child with a disability selected to receive services,
would also apply. In instances where parents may not be able to attend meetings to develop and
review their child’s services plan in person, we would expect school districts to use other
methods to ensure parent participation as required in 34 CFR §300.322(c). Such methods may
include conference calls and video conferences. 34 CFR §300.328.
Second, you ask if Section J, Out-of-State Children with Disabilities, of OSEP’s Questions and
Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools
(Questions and Answers) applies equally to international students. Section J of the Questions
and Answers references 34 CFR §300.131(f), and as stated above, this regulation applies to
parentally-placed private school children who reside out-of-State even if their parents reside
outside of the country. Thus, the guidance provided in the Out-of-State Children with
Disabilities section of the Questions and Answers is applicable to international students, if the
child with a disability is enrolled in a private elementary school or secondary school that meets
the definitions in 34 CFR §§300.13 and 300.36.
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Page 2 – Lead Agency Director
You also made a statement in your letter that may indicate a misunderstanding of the
requirements related to parentally-placed private school children. You stated “If the parentallyplaced student were a resident of the same State as the private school, the school district of
location, and the public school district of residence, the public school district of location would
be able to bill the public school district of residence.” We are unclear what you mean by this
statement, but wish to clarify that, under the IDEA, LEAs must use a proportionate share of their
Part B IDEA funds to provide special education and related services to children who are
parentally-placed in private schools and who attend private schools located in the LEA. 34 CFR
§300.133; see also Appendix B for information on how to calculate the proportionate share. The
IDEA does not address whether LEAs can bill one another for the reimbursement of IDEA funds
to meet the requirements in 34 CFR §§300.130 through 300.144, but we find nothing in IDEA
that would prohibit this practice. With regard to other funding sources, a State would have the
discretion to determine whether LEAs may spend State and local funds for the provision of
special education and related services for parentally-placed private school children with
disabilities, as long as those funds supplement, and do not supplant, the proportionate amount of
federal funds required to be expended for parentally-placed private school children with
disabilities. 34 CFR §300.133(d).
Regarding your question concerning students with disabilities on F-1 visas, the Department of
Education does not enforce or interpret Federal laws governing visas. For information on that
subject, we recommend that you contact the following agency, which is part of the Department
of Homeland Security’s Immigration and Customs Enforcement:
Student and Exchange Visitor Program
DHS/ICE
500 12th Street, SW, Stop 5600
Washington, DC 20536-5600
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.
I hope this information is helpful. If you have additional questions, please feel free to contact
Jennifer Wolfsheimer at 202-245-6090, or by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,
/s/ Melody Musgrove
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs


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

May 19, 2015
Heather S. Deaton
Special Assistant Attorney General
Mississippi Department of Education
P.O. Box 771
Jackson, Mississippi 39205-0771
Dear Ms. Deaton:
This is in response to two of your electronic inquiries to the Office of Special Education
Programs (OSEP), and follow-up phone conversations with Jennifer Finch and Jennifer
Wolfsheimer, Education Program Specialists, seeking guidance related to corrective actions by
the State arising from State complaints. I apologize for the delay in responding.
First, you seek guidance regarding a State educational agency’s (SEA) duty to ensure the
correction of noncompliance when the SEA has issued findings related to a State complaint and
subsequently the same issues are part of a due process hearing request. Specifically, you ask
whether the SEA remains obligated to require the school district to submit the improvement plan
or must the SEA set aside its findings of noncompliance pending the outcome of the due process
hearing. You describe a situation in which the Mississippi Department of Education (MDE)
investigated a parent’s complaint and issued a “Findings and Decision” which identified
noncompliance and required the school district to file an improvement plan. Before the school
district filed the improvement plan, the parent requested a due process hearing. The parent’s
hearing request raised new issues, in addition to the same issues contained in the State complaint
which were addressed in MDE’s Findings and Decision.
Under the Individuals with Disabilities Education Act (IDEA), each SEA has an independent
obligation to ensure that its local educational agencies (LEAs) are in compliance with State and
Federal requirements that apply to the education of children with disabilities. See 20 U.S.C.
1232d(b)(3)(E) and 34 CFR §§300.149 and 300.600(e). The State complaint process is one
method used by States to ensure compliance with IDEA by requiring LEAs to correct any
identified noncompliance. Accordingly, the SEA must ensure that the public agency involved in
the complaint implements the SEA’s written decision on the complaint in a timely manner. The
State’s complaint procedures must include procedures for effective implementation of the SEA’s
final decision, if needed, including technical assistance activities, negotiations, and corrective
actions to achieve compliance. 34 CFR §300.152(b)(2). To ensure corrective action, and
pursuant to its general supervisory responsibilities in 34 CFR §§300.149 and 300.600, the SEA
must inform the public agency that is involved in the complaint of any findings of
noncompliance and the required corrective action, and ensure that the corrective action is
completed as soon as possible, within the timeframe specified in the SEA’s written decision, and
in no case later than one year of the State’s identification of the noncompliance. 34 CFR
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Page 2 – Heather S. Deaton
§300.600(e); See also Question B-31 of the Questions and Answers on IDEA Part B Dispute
Resolution Procedures
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqaf
inalmemo-7-23-13.pdf.
In the situation you pose, pursuant to its general supervisory responsibility, the SEA may not
permit the school district to delay implementation of any corrective action related to the issue(s)
addressed in the State complaint decision, pending the outcome of the due process hearing.
Therefore, under these circumstances, it is OSEP’s view that the SEA would be obligated to
require the school district to submit the improvement plan, regardless of whether that plan
addresses matters that are also the subject of a pending due process hearing. As explained above,
the SEA must ensure that the corrective actions are completed as soon as possible within the
timeframe specified in the SEA’s written decision, and not later than one year from the State’s
identification of the noncompliance.
The second issue you raise concerns the types of corrective actions the SEA may order to remedy
a State complaint finding that a public agency has failed to provide appropriate services.
Specifically, you ask whether the SEA may order child specific services that must be provided in
order to ensure that a child with a disability receives a free appropriate public education (FAPE).
In resolving a State complaint in which there is a finding that a public agency has not provided
appropriate services, the regulation in 34 CFR §300.151(b) requires an SEA, through its general
supervisory authority under Part B, to address: (1) the failure to provide appropriate services,
including corrective actions appropriate to address the needs of the child (such as compensatory
services or monetary reimbursement); and (2) appropriate future provision of services for all
children with disabilities.
Each SEA is responsible for ensuring that all public agencies within its jurisdiction meet the
requirements of the IDEA and its implementing regulations, and this responsibility includes
ensuring the correction of any identified noncompliance, whether child-specific or systemic. See
20 U.S.C. 1412(a)(11) and 34 CFR §300.149. In light of the SEA’s general supervisory authority
and responsibility under those provisions, SEAs have broad flexibility to determine the
appropriate remedy or corrective action necessary to resolve a State complaint in which the SEA
has found that the public agency has failed to provide appropriate services to children with
disabilities, including awarding monetary reimbursement and compensatory services. See
Question B-10 of the Questions and Answers on IDEA Part B Dispute Resolution Procedures.
See also, 71 Fed. Reg. 46540, 46602 (Aug. 14, 2006). Therefore, an SEA may order childspecific services that must be provided in order to ensure that a child with a disability receives
FAPE.
The nature of corrective actions will differ based on the specifics of a particular State complaint.
For example, an SEA that has found that an IEP did not include the special education and related
services needed to provide FAPE to a particular child with a disability might order an
individualized education program (IEP) Team to reconvene to develop a program that ensures
the provision of FAPE for that child or order compensatory services. See Questions B-8 and B10 of the Questions and Answers on IDEA Part B Dispute Resolution Procedures. An SEA
might order a public agency to ensure the child’s IEP is modified or amended in accordance

Page 3 – Heather S. Deaton
with 34 CFR §300.324(a)(4) to include the direct services the State has determined are
appropriate for that child consistent with the resolution of that State complaint. However,
because the IDEA contemplates that the IEP Team, which includes the child’s parent, is best
equipped to make informed decisions regarding the specific special education and related
services necessary to provide FAPE to the child, an SEA should carefully consider whether
ordering the provision of services not previously in the IEP is appropriate and necessary to
ensure the provision of FAPE.
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 questions, please do not hesitate to contact Jennifer Wolfsheimer at 202-245-6090 or
by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,
/s/ Melody Musgrove
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs


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

April 17, 2015

Contact Person
Name: Rebecca Walawender
Telephone: 202-245-7399
OSEP 15-08
MEMORANDUM

TO:

State Directors of Special Education

FROM:

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

SUBJECT: Letter to Delisle: Children with disabilities with high cognition
I am writing to draw your attention to the Office of Special Education Programs’ (OSEP)
December 20, 2013 letter to Dr. Jim Delisle (Letter to Delisle) regarding determining eligibility
for special education and related services under the Individuals with Disabilities Education Act
(IDEA) for children with disabilities with high cognition; students who Dr. Delisle terms “twice
exceptional students” or “2E students.” Letter to Delisle pointedly addresses children with high
cognition who may be eligible for special education and related services as a student with a
specific learning disability, but also cites to the broader requirements in 34 CFR §300.304(b)(1)
and (2) that state, in part –
… in determining whether a child has a disability … the IDEA
requires the use of a variety of assessment tools and strategies to
gather relevant functional, developmental, and academic
information about the child, and prohibits the use of any single
measure or assessment as the sole criterion for determining
whether a child is a child with a disability and for determining an
appropriate educational program for the child.”
In spite of the guidance provided in Letter to Delisle, we continue to receive letters from those
who work with children with disabilities with high cognition, particularly those with emotional
disturbance or mental illness, expressing concern that some local educational agencies (LEA) are
hesitant to conduct initial evaluations to determine eligibility for special education and related
services for children with high cognition.
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excellence and ensuring equal access.

Page 2 – OSEP Memo 15-08

In transmitting OSEP Memo 15-08, I am requesting that you widely distribute Letter to Delisle
to the LEAs in your State, and remind each LEA of its obligation to evaluate all children,
regardless of cognitive skills, suspected of having one of the 13 disabilities outlined in 34 CFR
§300.8
Should you have any questions, please contact Rebecca Walawender at (202) 245-7399. We
appreciate your on-going commitment to providing quality services to children and youth with
disabilities.
Attachment


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

April 15, 2015
Dear Colleague:
Improving results and achieving better outcomes for children with disabilities is an important
goal for all of us. However, even where informal attempts to resolve differences are made,
parents and public agencies may be unable to reach agreement on important matters when
determining how to provide a free appropriate public education (FAPE) to children with
disabilities. The Individuals with Disabilities Education Act (IDEA or the Act) and its
implementing regulations 1 provide specific options for resolving disputes, which should be used
in a manner consistent with our shared goals of providing FAPE to, and achieving better
outcomes for, children with disabilities. It has come to our attention that some public agencies
may be filing due process complaints concerning the same issue that is the subject of an ongoing
State complaint resolution, ostensibly to delay the State complaint process and force parents to
participate in, or ignore at considerable risk, due process complaints and hearings. Increased
costs and a potentially more adversarial and lengthy dispute resolution process are not in the best
interest of children with disabilities and their families. Therefore, the Office of Special
Education and Rehabilitative Services in the U.S. Department of Education (Department) issues
this letter to provide guidance that States, hearing officers, school districts, school staff, parents,
and other stakeholders may find helpful in determining how to follow the IDEA dispute
resolution procedures.
Requirements
The IDEA Part B regulations and Questions and Answers on IDEA Part B Dispute Resolution
Procedures, revised July 2013 (OSEP Memo 13-08)
(http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqa
finalmemo-7-23-13.pdf) explain in detail the Part B dispute resolution procedures. We cite to
these documents throughout this letter, as appropriate.
Due process complaint procedures
A parent or a public agency may file a due process complaint on any matter relating to the
identification, evaluation, or educational placement of a child with a disability or the provision of
FAPE to the child. 34 CFR §300.507(a). 2 The parent or public agency is entitled to have an
1

20 U.S.C. 1400 et seq. (IDEA) and 34 CFR part 300 (Part B of IDEA regulations).

2

A parent or a public agency may request a hearing to appeal a decision regarding a disciplinary matter, as
described in 34 CFR §300.532(a). An impartial due process hearing on a disciplinary matter must be conducted on
an expedited basis, which means that the overall hearing timeline is shorter. For example, unless the parties agree in
writing to waive the resolution meeting or to use mediation, the resolution meeting must occur within 7 days of
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Page 2 – Dear Colleague: Use of Due Process Procedures After a Parent Has Filed a State Complaint

opportunity for an impartial due process hearing. 34 CFR §300.511(a). Within 15 days of
receiving notice of the parent’s due process complaint, and prior to initiating a due process
hearing, the public agency must convene a resolution meeting with the parent and the relevant
member or members of the Individualized Education Program (IEP) Team to discuss the issues
in the parent’s due process complaint, and the facts that form the basis of the due process
complaint, so that the public agency has the opportunity to resolve the dispute, unless the parent
and the public agency agree in writing to waive the meeting or the parties agree to use mediation
under 34 CFR §300.506. 34 CFR §300.510(a). If the public agency does not resolve the due
process complaint to the satisfaction of the parent within 30 days of the receipt of the due
process complaint, the due process hearing may occur. 34 CFR §300.510(b)(1). Although there
is no corresponding requirement for a resolution process when a public agency, rather than a
parent, files a due process complaint (OSEP Memo 13-08, D-2), public agencies should strive to
resolve disputes informally.
Under 34 CFR §300.510(b)(4), a public agency may request that a hearing officer dismiss a
parent’s due process complaint at the conclusion of the 30-day resolution period when the public
agency has been unable to obtain the participation of the parent in a resolution meeting despite
making reasonable efforts to do so and documenting those efforts. Under 34 CFR
§300.510(b)(5), if a public agency fails to hold a resolution meeting within the required timelines
or fails to participate in a resolution meeting, the parent may seek the intervention of a hearing
officer to begin the due process hearing timeline. The appropriate party must seek the hearing
officer’s intervention to either dismiss the complaint or to initiate the hearing timeline,
depending on the circumstances (OSEP Memo 13-08, D-13).
Under IDEA, a court, in its discretion, may award a parent of a child with a disability who is the
prevailing party in any action or proceeding brought under section 615 of the IDEA reasonable
attorney’s fees. 34 CFR §300.517(a)(1)(i). While 34 CFR §300.517(c)(4) allows that the court
may reduce the payment of attorney’s fees under certain circumstances, the provision does not
apply in any action or proceeding if the court finds that the State or local agency unreasonably
protracted the final resolution of the action or proceeding or there was a violation of section 615
of the Act. 34 CFR §300.517(c)(5). Additionally, IDEA Part B funds may not be used to pay
attorney’s fees or costs of a party related to any action or proceeding under Section 615 of the
Act or Subpart E of 34 CFR part 300. 34 CFR §300.517(b)(1).
Mediation process
Another important method for resolving disputes available under the IDEA is the mediation
process described in 34 CFR §300.506. The mediation process, which must be voluntary, offers
a less complex opportunity for parents and public agencies to resolve disputes about any matter
under 34 CFR part 300, including matters arising prior to the filing of a due process complaint.
34 CFR §300.506(a). This includes matters regarding the identification, evaluation, or
educational placement of a child with a disability, or the provision of FAPE to a child with a
receiving notice of the parent’s due process complaint. 34 CFR §300.532(c). More information about expedited
due process hearings is contained in Section E. of OSEP Memo 13-08.

Page 3 – Dear Colleague: Use of Due Process Procedures After a Parent Has Filed a State Complaint

disability, and any other matters arising under 34 CFR part 300 that may not be the subject of a
due process complaint (OSEP Memo 13-08, A-6).
State complaint procedures
States are also required to establish and implement their own State complaint procedures,
separate from their due process procedures, for resolving any complaint that meets the
requirements of 34 CFR §300.153. 34 CFR §300.151(a)(1). Any organization or individual,
including one from another State, may file a signed written State complaint alleging that a public
agency has violated a requirement of either Part B of the Act or the Part B regulations. 3 34 CFR
§300.151(a). If the State complaint otherwise meets the requirements in 34 CFR §300.153, a
party may raise an issue in a State complaint even though it is also the subject of a due process
complaint. However, if a State complaint is filed on an issue that is also the subject of a due
process hearing, the State must set aside any part of the State complaint that is being addressed
in the due process hearing until the conclusion of the hearing. 34 CFR §300.152(c). If the
hearing officer dismisses the due process complaint or does not rule on the substance of the due
process complaint, the State must resolve the issue using the 60-day time limit and procedures
described in 34 CFR §300.152(a) and (b). 34 CFR §300.152(c)(1).
Analysis
As noted above, a State must have procedures for resolving any complaint alleging that a public
agency has violated a requirement of Part B of the IDEA or the Part B regulations. A parent may
file a State complaint challenging, for example, a public agency’s eligibility determination or
alleging a denial of FAPE by a public agency. While these same issues could be the subject of a
due process complaint, it is the Department’s long-standing position that a State may not refuse
to resolve a parent’s State complaint challenging a public agency’s eligibility determination or a
State complaint alleging a denial of FAPE through its complaint resolution procedures even if
the State complaint concerns a matter that could also be the subject of a due process complaint.
This is true even if the State believes that the parent should file a due process complaint against
the local educational agency or that a due process hearing is a more appropriate mechanism to
resolve such disputes (OSEP Memo 13-08, B-7).
If a complaint is received that is also the subject of a due process hearing, the State must set
aside any part of the State complaint that is being addressed in the due process hearing until the
hearing officer issues a final decision or dismisses the due process complaint. 34 CFR
§300.152(c)(1). While a public agency has the right to file a due process complaint, we believe
3

Under 34 CFR §300.153, a State complaint must include a statement that a public agency has violated a
requirement of Part B of the Act or the Part B regulations, the facts on which the statement is based, and the
signature and contact information for the complainant. If the State complaint alleges a violation with respect to a
specific child, the State complaint also must include the name and address of the residence of the child; the name of
the school the child is attending; in the case of a homeless child or youth, available contact information for the child
and the name of the school the child is attending; a description of the problem of the child, including facts relating to
the problem; and a proposed resolution of the problem to the extent known and available to the party at the time the
complaint is filed.

Page 4 – Dear Colleague: Use of Due Process Procedures After a Parent Has Filed a State Complaint

that in some situations, a public agency’s filing of a due process complaint after a parent has
filed a State complaint on the same issues may unreasonably deny a parent the right to use the
State complaint process. We question why a public agency would seek a due process hearing
when there is already an active State complaint on the same issue or issues and where other
opportunities for dispute resolution are available, such as mediation or informal or alternative
dispute resolution procedures. It appears that in some instances, public agencies may have filed
due process complaints against parents in an effort to prevent the State complaint process from
moving forward.
This type of action by a public agency increases the costs of dispute resolution for both parties
and lengthens the time period for dispute resolution, including the time for resolving the State
complaint. Furthermore, it may unreasonably limit parents’ dispute resolution options, and force
parents either to participate in a potentially more adversarial, lengthy, and costly due process
complaint and hearing, or to fail to participate in the due process complaint and hearing and
thereby risk the hearing official’s ruling in favor of the public agency. Indeed, some parents may
have opted to file a State complaint rather than a due process complaint precisely because of the
time, expense, and complexity associated with the latter. Based on this, the Department strongly
believes that it is in the best interest of parents and school districts to respect parents’ choice of
forum for resolution of their disputes. A public agency’s filing of a due process complaint while
a parent’s State complaint resolution is ongoing could result in preventing the parent, who may
not have the resources to participate in a due process hearing, from exercising his or her right to
engage in dispute resolution through the State complaint process.
Conclusion
Public agencies that seek to force parents who have already exercised their right to file a State
complaint into a potentially more adversarial due process hearing harm the “cooperative process”
that should be the goal of all stakeholders. Moreover, diverting resources into adversarial
processes between parents and public agencies is contrary to Congressional intent in the 2004
amendments to IDEA’s dispute resolution procedures to give parents and schools expanded
opportunities to resolve their disagreements in positive and constructive ways. 20 U.S.C.
1400(c)(8). We strongly encourage public agencies to respect parents’ reasonable choice to use
the State complaint process rather than a due process complaint hearing. Likewise, before
pursuing a due process hearing, a public agency should attempt to engage parents in mediation or
other informal dispute resolution procedures, as appropriate.
As stated earlier in this letter, we remind public agencies that a court may choose to award a
parent who is the prevailing party in a due process hearing brought by a public agency
reasonable attorney’s fees to be paid by the public agency that filed the due process complaint.
If a court authorizes an award of attorneys’ fees against the public agency, under 34 CFR
§300.517(b)(1), funds under Part B of the Act may not be used to pay those attorneys’ fees.

Page 5 – Dear Colleague: Use of Due Process Procedures After a Parent Has Filed a State Complaint

We ask you to share this information with your hearing officers and local school districts to help
ensure that Part B’s dispute resolution procedures are used to facilitate the provision of timely
and appropriate special education and related services for children with disabilities.
Thank you for your continued interest in improving results for children with disabilities.
Sincerely,
/s/ Sue Swenson

/s/ Melody Musgrove

Sue Swenson
Acting Assistant Secretary

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


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

February 23, 2015
Debbie Baus

Dear Ms. Baus:
This is in response to your June 27, 2014 electronic correspondence requesting guidance from
the Office of Special Education Programs (OSEP) regarding an independent educational
evaluation (IEE) under 34 CFR §300.502 of the Individuals with Disabilities Education Act
(IDEA). Specifically, you ask whether a parent can request an IEE in an area that was not
previously assessed by the school district’s evaluation.
Under 34 CFR §300.502(b)(1) of the IDEA, a parent of a child with a disability is entitled to an
IEE at public expense if the parent disagrees with an evaluation obtained by the public agency.
Evaluation is defined at 34 CFR §300.15 as procedures used in accordance with 34 CFR
§§300.304 through 300.311 to determine whether a child has a disability and the nature and
extent of the special education and related services that the child needs. An initial evaluation of
the child is the first completed assessment of a child to determine if he or she has a disability
under IDEA, and the nature and extent of special education and related services provided. 34
CFR §300.301. Once a child has been fully evaluated for the first time in a State, a decision has
been rendered that a child is eligible under the IDEA, and the required services have been
determined, any subsequent evaluation of a child would constitute a reevaluation. See the
Analysis of Comments and Changes published as Attachment 1 to the March 12, 1999 final
regulations at 64 Fed. Reg. at 12606. Evaluation procedures at 34 CFR §300.304(b)(1) require
that in conducting an 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 content of the
child’s individualized education program, including information related to enabling the child to
be involved in and progress in the general education curriculum. Furthermore, the State must
ensure that in evaluating each child with a disability under 34 CFR §§300.304 through 300.306,
the evaluation is sufficiently comprehensive to assess the child in all areas related to the
suspected disability, and must identify all of the child’s special needs, whether or not commonly
linked to the disability category in which the child has been classified. 34 CFR
§300.304(c)(4)and (6).

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Page 2 – Ms. Debbie Baus
When an evaluation is conducted in accordance with 34 CFR §§300.304 through 300.311 and a
parent disagrees with the evaluation because a child was not assessed in a particular area, the
parent has the right to request an IEE to assess the child in that area to determine whether the
child has a disability and the nature and extent of the special education and related services that
child needs. Under 34 CFR §300.502(b)(2), if a parent requests an IEE at public expense, the
public agency must, without unnecessary delay, either: (i) initiate a hearing under 34 CFR
§300.507 to show that its evaluation is appropriate; or (ii) ensure that an IEE is provided at
public expense, unless the agency demonstrates in a hearing under 34 CFR §300.507 that the
evaluation obtained by the parent did not meet agency criteria.
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 questions, please do not hesitate to contact Jennifer Wolfsheimer at 202-245-6090 or
by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,
/s/ Melody Musgrove

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