UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND
REHABILITATIVE SERVICES
July 10, 2014
Kim Wedel
Part C Coordinator
Texas Department of Assistive and Rehabilitative Services
4800 North Lamar Boulevard
Austin, Texas 78756
Dear Ms. Wedel:
This letter is in response to your February 28, 2014 letter to me requesting clarification on
provisions in the regulations implementing Part C of the Individuals with Disabilities Education
Act (IDEA) regarding 34 CFR §§303.520 and 303.521, State systems of payments (SOP), and 34
CFR §303.510, payor of last resort. You believe that the SOP regulatory requirements may
create barriers to using public or private insurance as funding sources for IDEA Part C, and that
those barriers are inconsistent with the statutory payor of last resort requirement in IDEA section
640. 20 U.S.C. § 1440. Additionally, you raise concerns that some parents may arbitrarily
decline to provide written consent for the State to use their insurance to pay for IDEA Part C
services, thereby creating a conflict with the payor of last resort requirement. We are pleased to
clarify the IDEA Part C SOP requirements and to address your concerns regarding these
provisions.
The IDEA Part C SOP regulations allow States to use public benefits or insurance, private
insurance, and family fees as three potential funding sources for IDEA early intervention
services for infants and toddlers with disabilities and their families. The SOP requirements that
became effective on July 1, 2012 (Federal fiscal year (FFY) 2012), balance important protections
for parents with options for States on how to finance Part C services. As explained further
below, a State may choose to either obtain parent consent to use insurance, or adopt cost
protections for the use of public benefits or insurance and for the use of private insurance so that
the State does not have to obtain parent consent. 34 CFR §303.520(a) and (b). A State may
choose to include in its SOP a family fee for specific early intervention services for which a fee
can be charged (no fees may be charged for the services identified in 34 CFR §303.521(b)), and
charge parents who have an ability to pay the family fee (which fee cannot exceed the actual cost
of the service). 34 CFR §303.521(a)(3), and (4)(ii) and (iii). However, under 34 CFR
§303.520(c), if a parent or family of an infant or toddler with a disability is determined unable to
pay under the State’s definition of inability to pay as prescribed in 34 C.F.R. § 303.521(a)(3) and
does not provide consent under 34 CFR §303.520(b)(1), the lack of consent may not be used to
delay or deny any services.
The IDEA Part C SOP use-of-insurance provisions were promulgated with the payor of last
resort requirements specifically in mind. The Analysis of Comments and Changes to Final
Regulations Implementing Part C of the IDEA clarified that the “nonsubstitution of funds”
requirement in 34 CFR §303.510(a) directly incorporates the long-standing payor of last resort

Page 2 – Ms. Kim Wedel
requirements in section 640(A) of the IDEA. 76 Fed. Reg. 60140, 60220 (Sep. 28, 2011). The
reference to 34 CFR §303.520 in 34 CFR §303.510(a) was added to ensure that States do not
interpret the Part C payor of last resort provisions to override the requirements in 34 CFR
§§303.520 and 303.521, concerning consent and the use of public and private insurance and an
SOP to pay for IDEA Part C services. As noted in the 2011 final regulations, the United States
Department of Education (Department) determined that funds from public health insurance or
benefits (e.g., Medicaid or CHIP) or private insurance, are not considered “available” funding
sources under the Part C payor of last resort provisions, unless a parent has provided the consent
required under 34 CFR §§303.520(a)(1) and (b)(1)(i) (concerning parental consent for use of
public benefits or insurance or private insurance), or unless one of the exceptions under 34 CFR
§§303.520(a)(2) or (b)(2) applies. Further, when other public funds are available to pay for the
Part C services, such as funds from the Department of Defense’s TRICARE medical assistance
program or Temporary Assistance for Needy Families, IDEA Part C funds are the payor of last
resort.
Regarding the requirement in 34 CFR §303.520(b)(1) to obtain parental consent before using a
parent’s private insurance, parental consent must be obtained: (1) when the lead agency or early
intervention service provider seeks to use private insurance to pay for the initial provision of any
early intervention service in the individualized family service plan (IFSP); and (2) each time
consent for services is required due to an increase in the provision of services in the child’s IFSP
because of the potential costs that can be incurred by a family as a direct result of using such
insurance. In promulgating the requirement to obtain parental consent to use private insurance,
the Department noted that it believes that the potential costs to parents outweigh the need to
make private insurance funds available to lead agencies unless the cost protections in 34 CFR
§303.520(b)(2) are adopted by the State. 76 Fed. Reg. at 60224-60225. Therefore, if a State is
concerned about parents providing consent, a State may adopt the protections set forth under 34
CFR §303.520(b)(2) in order to not have to obtain parental consent. The private insurance
protections are as follows:
i. The use of private health insurance to pay for Part C services cannot count
towards or result in a loss of benefits due to the annual or lifetime health
insurance coverage caps for the infant or toddler with a disability, the
parent, or the child’s family members who are covered under that health
insurance policy;
ii. The use of private health insurance to pay for Part C services cannot
negatively affect the availability of health insurance to the infant or
toddler with a disability, the parent, or the child’s family members who are
covered under that health insurance policy, and health insurance coverage
may not be discontinued for these individuals due to the use of the health
insurance to pay for services under Part C of the act; and
iii. The use of private health insurance to pay for Part C services cannot be the
basis for increasing the health insurance premiums of the infant or toddler
with a disability, the parent, or child’s family members covered under the
health insurance policy.
Your letter also asks about how the payor of last resort requirements are applied when serving
children whose public or private insurance would cover [Early Childhood Intervention] (ECI)

Page 3 – Ms. Kim Wedel
services.1 You raise concerns that the statutory and regulatory provisions may prevent an infant
or toddler with the disability from being eligible for IDEA Part C services in Texas. Neither the
IDEA nor the implementing regulations for Part C prohibit a child with a disability from
receiving Part C services because of the availability or lack of insurance coverage. “Eligibility”
to receive early intervention services is determined by a comprehensive, multidisciplinary
evaluation of the child, as described in 34 CFR §303.321. Therefore, a parent’s refusal to
consent to the use of public or private insurance does not impact the infant or toddler’s eligibility
for early intervention services. Furthermore, if a parent does not consent to use public or private
insurance, Federal IDEA Part C funds could be used to pay for IDEA Part C services in such a
case, because the public or private insurance funds are not “available” under the payor of last
resort provisions in IDEA section 640. See, 34 CFR §303.510 and 76 Fed. Reg. 60140, 60220
(Sep. 28, 2011).
We note that although your letter raises concerns about the Department’s SOP regulations, Texas
has submitted its revised SOP policies on April 8, 2014 that comply with the Department’s IDEA
Part C SOP regulations, and address each of the applicable requirements in Section II.A.3.a of
the IDEA Part C FFY 2014 Grant Application and the specific assurance Texas provided in its
FFY 2013 IDEA Part C grant letter. The Department’s Office of Special Education Programs
approved those revised SOP policies in a memorandum dated, April 18, 2014.
If you have any further questions, please do not hesitate to contact Susan Kauffman, of my staff,
at 202-245-6432 or by email at Susan.Kauffman@ed.gov.
Sincerely,

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

1

ECI is the name of the Statewide IDEA Part C early intervention program in Texas.


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

June 11, 2014
Dear Chief State School Officer:
I am writing to remind you of an important opportunity for the upcoming school year and
provide guidance on the potential impact of changes in the National School Lunch Program
(NSLP) 1 on the allocation of Part B of the Individuals with Disabilities Education Act (IDEA
Part B) funds to local educational agencies (LEAs). With the passage of the Healthy, HungerFree Kids Act of 2010 (Act), the NSLP now includes a new universal meal option, the
“Community Eligibility Provision” (CEP or Community Eligibility). The CEP reduces
administrative costs and paperwork, has increased school meals participation in early-adopting
States, facilitates creative meal service options, and eliminates student-level meal charges. LEAs
have until June 30th to decide to participate in the CEP for the upcoming school year.
IDEA Part B includes provisions that require State educational agencies (SEAs) to make
subgrants to eligible LEAs (including public charter schools that operate as LEAs) based on a
three-part formula that consists of a base, population, and poverty payment. 34 CFR §300.705
and 34 CFR §§300.815 and 300.816. The base payment is calculated based on the amount of
IDEA Part B funds an LEA would have received in a prior year, subject to certain adjustments.
After making base payments, the State must allocate 85 percent of the remaining funds based on
population and 15 percent of the remaining funds based on poverty. 2
As discussed in more detail below, SEAs have the discretion to define poverty for the purpose of
allocating IDEA Part B funds. 34 CFR §300.705(b)(3)(ii) and 34 CFR §300.816(c)(2). SEAs
often use NSLP data as the means to define “the relative numbers of children living in poverty”
to allocate the poverty payment when making IDEA Part B subgrants to LEAs. The recent
changes to NSLP, discussed below, do not affect that discretion, and SEAs may continue to use
NSLP data or another definition of poverty for allocating the poverty payment when making
subgrants under IDEA Part B section 611 pursuant to 34 CFR §300.705(b)(3)(ii) and under
IDEA section 619 pursuant to 34 CFR §300.816(c)(2).
Background
CEP reduces burden at the household and local level by eliminating the need to obtain eligibility
data from families through individual household applications, and permits schools, if they meet
certain criteria, to provide meal service to all students at no charge to the students or their families.
1

The changes to the NSLP detailed below are being phased in. Beginning in the 2011 – 2012 school year, LEAs
and schools in Illinois, Kentucky, and Michigan were eligible to participate. In the 2012 – 2013 school year, the
USDA added the District of Columbia, New York, Ohio, and West Virginia, and in the 2013 – 2014 school year,
added Maryland, Massachusetts, Florida, and Georgia. Beginning in the 2014 – 2015 school year, this program will
be available in all States.
2
The formula for allocating section 611 subgrant funds to LEAs under the Grants to States program is in 34 CFR
§300.705, and the formula for allocating section 619 subgrant funds under the Preschool Grants program to LEAs is
in 34 CFR §300.816. Funds awarded under both programs are referred to as IDEA Part B funds.
www.ed.gov
400 MARYLAND AVE., SW, WASHINGTON, DC 20202
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by fostering educational
excellence and ensuring equal access.

Page 2 of 5 – IDEA Part B Community Eligibility
To be eligible to participate in Community Eligibility, schools must: (1) have at least 40 percent
of their students qualify for free meals through “direct certification” 3 in the year prior to
implementing Community Eligibility; (2) agree to serve free breakfasts and lunches to all
students; and, (3) agree to cover, with non-Federal funds, any costs of providing free meals to
students above the amounts provided by Federal assistance.
CEP schools are not permitted to use household applications to determine a reimbursement
percentage from the USDA. Rather, the USDA determines meal reimbursement for CEP schools
based on “claiming percentages,” calculated by multiplying the percentage of students identified
through the direct certification data by a multiplier established in the Act, which is currently 1.6.
The 1.6 multiplier provides an estimate of the number of students that would be eligible for free
and reduced-price meals in CEP schools if the schools determined eligibility through household
applications.
Community Eligibility and IDEA Subgrant Allocations
Under 34 CFR §300.705(b)(3)(ii), States allocate a portion of their IDEA Part B section 611
funds to LEAs based, in part, on the “relative numbers of children living in poverty, as
determined by the SEA.” Similarly, under 34 CFR §300.816(c)(2), States allocate a portion of
their IDEA section 619 funds to LEAs based, in part, on the “relative numbers of children living
in poverty, as determined by the SEA.” States must apply, on a uniform basis across all LEAs,
the best data that are available to them on the numbers of children living in poverty.
As indicated above, SEAs often use NSLP data as the means for defining “the relative numbers
of children living in poverty” when allocating IDEA Part B funds on the basis of poverty. The
recent changes to the NSLP, discussed above, do not affect the discretion SEAs have in
determining the numbers of children living in poverty, and SEAs may continue to use NSLP data
or another definition of poverty when making subgrants under section 611 (pursuant to 34 CFR
§300.705(b)(3)(ii)) or section 619 (pursuant to 34 CFR §300.816(c)(2)).
However, if an SEA uses NSLP data from CEP schools when making IDEA Part B subgrants to
LEAs, it should not use the number of children actually receiving free meals in CEP schools to
determine the relative numbers of children living in poverty because, in those schools, some
children receiving free meals live in households that do not meet a definition of poverty.
Therefore, OSEP recommends, but does not require, that SEAs that wish to use NSLP data for
purposes of determining the number of children living in poverty in LEAs that are participating
in Community Eligibility use the number of children for whom the LEA is receiving
reimbursement from the USDA (direct certification total with the 1.6 multiplier), provided that
the SEA does not permit LEAs to report numbers of children living in poverty that exceed the
total number of children enrolled. 4 As noted above, States must apply the definition of poverty
they opt to use on a uniform basis across all LEAs.
3

“Direct certification” is a process by which schools identify students as eligible for free meals using data from,
among other sources, the Supplemental Nutrition Assistance Program (SNAP) or the Temporary Assistance for
Needy Families (TANF) program.
4
Recently the U.S. Department of Education (ED) issued similar guidance regarding CEP and Title I, Part A of the
Elementary and Secondary Education Act of 1965, as amended (Title I, Part A). In contrast to IDEA Part B
subgrants, CEP data generally are not used in determining subgrants to LEAs under Title I, Part A. Rather, SEAs

Page 3 of 5 – IDEA Part B Community Eligibility
The following examples explain this calculation:
Example 1: An LEA has an enrollment of 100,000 children. In this LEA, all the schools
participate in Community Eligibility. The LEA identifies 60,000 children through direct
certification data as eligible for the NSLP. The LEA multiplies 60,000 by 1.6, and that
result is 96,000. The LEA would receive reimbursement through the NSLP for meals for
96,000 children, and the SEA would allocate IDEA Part B funds to that LEA on the basis
of 96,000 children living in poverty in that LEA.

Total Enrollment
# NSLP Students – Direct Certification
CEP Total (Direct Certification x 1.6)
# NSLP Students – Household Applications
TOTAL # NSLP Students

CEP Schools
100,000
60,000
96,000
-96,000

Non-CEP Schools
0
0
-0
0

# of Children for which LEA is reimbursed by USDA ..................... 96,000
# of Children Living in Poverty for IDEA Part B Allocation........... 96,000

generally use statutorily determined formula child counts based primarily on poverty estimates provided by the U.S.
Census Bureau to allocate funds to LEAs under Title I, Part A. CEP data primarily come into play for school-level
allocations within an LEA. To give LEAs maximum flexibility in determining allocations to their schools, ED’s
Title I, Part A CEP guidance provides three options for determining relative numbers of children living in poverty.
However, in the context of IDEA Part B where SEAs are not comparing individual schools, we recommend using
the number of children for whom an LEA is receiving reimbursement from the USDA. Note that, because of
differences in the statutory requirements of IDEA Part B and Title I, Part A, when determining the relative numbers
of children living in poverty for the purposes of allocating IDEA Part B funds to LEAs, an SEA may use a
methodology that differs from the one used by an LEA to determine its schools’ poverty percentages under Title I,
Part A. Please see http://www2.ed.gov/programs/titleiparta/13-0381guidance.doc for a further description of the
CEP’s application to Title I, Part A.

Page 4 of 5 – IDEA Part B Community Eligibility

Example 2: An LEA has an enrollment of 100,000 children. In this LEA, all the schools
participate in Community Eligibility. The LEA identifies 80,000 children through direct
certification data as eligible for the NSLP. The LEA multiplies 80,000 by 1.6, and that
result is 128,000. However, because there are only 100,000 children enrolled within the
jurisdiction of the LEA, the LEA would only receive reimbursement through the NSLP
for meals for 100,000 children, and the SEA would allocate IDEA Part B funds to this
LEA on the basis of 100,000 children living in poverty in that LEA.

Total Enrollment
# NSLP Students – Direct Certification
CEP Total (Direct Certification x 1.6)
# NSLP Students – Household Applications
TOTAL # NSLP Students

CEP Schools
100,000
80,000
128,000
-100,000

Non-CEP Schools
0
0
-0
0

# of Children for which LEA is reimbursed by USDA ................... 100,000
# of Children Living in Poverty for IDEA Part B Allocation......... 100,000

Example 3: An LEA has an enrollment of 120,000 children. Only some of the schools
in this LEA participate in Community Eligibility. The schools that participate in
Community Eligibility identify 60,000 children through direct certification as eligible for
the NSLP. The LEA multiplies 60,000 by 1.6, and that result is 96,000. The schools that
do not participate in Community Eligibility report 15,000 children living in poverty
through the use of other NSLP data (i.e., a combination of direct certification counts and
household applications). The LEA adds 15,000 children plus 96,000 children and that
totals 111,000 children. The LEA would receive reimbursement through the NSLP for
meals for 111,000 children, and the SEA would allocate IDEA Part B funds to that LEA
on the basis of 111,000 children living in poverty in that LEA.

Total Enrollment
# NSLP Students – Direct Certification
CEP Total (Direct Certification x 1.6)
# NSLP Students – Household Applications
TOTAL # NSLP Students

CEP Schools
100,000
60,000
96,000
-96,000

Non-CEP Schools
20,000
10,000
-5,000
15,000

# of Children for which LEA is reimbursed by USDA ................... 111,000
# of Children Living in Poverty for IDEA Part B Allocation......... 111,000

We provide these examples to demonstrate that, in States exercising the Community Eligibility
Provision, SEAs may continue to use NSLP data to determine the relative numbers of children
living in poverty for the purpose of allocating poverty payments when making IDEA Part B
subgrants to LEAs. If you have additional questions, please feel free to contact Gregg Corr,

Page 5 of 5 – IDEA Part B Community Eligibility
Director, Monitoring and State Improvement Planning, at 202-245-7309, or by e-mail at
Gregg.Corr@ed.gov.

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

State Director of Special Education
State Section 619 Coordinator


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND
REHABILITATIVE SERVICES
June 2, 2014
Mark W. Voigt
Law Office of Mark W. Voigt
Plymouth Meeting Executive Campus
Suite 400
600 West Germantown Pike
Plymouth Meeting, Pennsylvania 19462
Dear Mr. Voigt:
This is in response to your letters of August 28, 2011, September 2, 2011, and September 8, 2011 to
the Office of Special Education Programs (OSEP) in the Office of Special Education and
Rehabilitative Services (OSERS), U.S. Department of Education (Department). Your letters concern
the Pennsylvania Department of Education’s (PDE’s) policy of allowing local educational agencies
(LEAs) 150 days to implement due process hearing decisions under Part B of the Individuals with
Disabilities Education Act (IDEA or Part B). I apologize for the delayed response.
You included with your letters an August 19, 2011 decision letter from the PDE’s Bureau of Special
Education (BSE), which outlines PDE’s policy as set out in its Office of Dispute Resolution
document entitled “Appeal Timelines and Instructions for Completing Assurance Forms.” Under
Section I of the policy, either party may appeal a final due process decision to state court within 30
calendar days and to Federal Court within 90 calendar days. Under Section III of the policy, if a
hearing officer agrees with the child’s parents that a change of placement is appropriate, the child is
afforded that placement during the pendency of any administrative or judicial proceeding, consistent
with the requirements in 34 CFR §300.518(d), and the child must be afforded the ordered placement
within 30 days of the hearing officer decision. Under Section IV of the policy, an LEA is not
obligated to implement the decision until the expiration of the applicable appeal period. The LEA
has 60 calendar days after the expiration of the applicable appeal period to implement the decision
and file the required assurance with the State verifying implementation of the order. As we read the
policy, the timeline for implementing a due process decision in Section IV of the policy does not
apply if a hearing officer agrees with the child’s parents that a change of placement is appropriate.
You ask OSEP to provide an opinion as to whether PDE’s policy is consistent with the IDEA, its
implementing regulations, and prior OSEP guidance.
The IDEA contains certain timelines that apply to due process decisions and appeals. In
Pennsylvania, due process hearings are conducted by the State educational agency (SEA), in this case
PDE. The IDEA provides that the hearing decision must be issued within 45 days of the expiration
of the 30-day resolution period described in 34 CFR §300.510(b) or an adjusted resolution period
described in 34 CFR §300.510(c), unless the hearing officer grants a request for a specific extension
at the request of either party. 34 CFR §300.515(a) and (c). The hearing decision is final, unless a
party aggrieved by that decision appeals that decision by bringing a civil action in a State court of
competent jurisdiction or a district court of the United States. 34 CFR §300.514(a) and 300.516. As
noted above, in Pennsylvania, a party may appeal a final due process decision to state court within 30
calendar days and to Federal Court within 90 calendar days.

Page 2 – Mark W. Voigt
While the IDEA does not specifically address State-established timelines for implementation of final
administrative decisions, we would expect that all final due process decisions are implemented
within a reasonable period of time and without undue delay so that a child with a disability receives
the services determined necessary to provide that child with the free appropriate public education to
which he or she is entitled, but has been denied, under the IDEA. These determinations are highly
factual in nature; therefore, we believe that what constitutes a “reasonable period of time” depends in
part on the circumstances surrounding the decision.
If an LEA determines shortly after the beginning of the time period to bring an appeal that it is not
going to appeal a final due process decision, the LEA should not delay implementation of the
decision until the expiration of the 90 day appeal period. To the contrary, that LEA should
implement the decision as soon as possible, absent a specific reason to do otherwise. If the LEA
does not make a final decision about whether to appeal a decision until the end of the 90 day appeal
period, the LEA should not delay implementation of the decision for an additional 60 days beyond
the 90 days. Depending on the type of relief ordered, particularly where the relief itself is timesensitive, a shorter time frame may be reasonable. For example, if an LEA is required to pay tuition
reimbursement or provide compensatory education services that are commonly available, the LEA
should implement the decision in less than 60 days. On the other hand, in unusual circumstances
where implementing the hearing officer’s decision requires the LEA to undertake significant action,
e.g., training an entire school staff on how to meet the needs of the child, extensive renovations, or
purchasing particularly unique equipment that is not readily available, the LEA may need additional
time, up to 60 days in Pennsylvania, to implement the decision. As noted above, meeting the special
education and related services needs of the child without undue delay is paramount and should drive
the timeliest implementation of the hearing officer’s decision.
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 additional questions, please do not hesitate to contact Rebecca Walawender, at 202-2457399 or by email at Rebecca.Walawender@ed.gov.

Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
March 21, 2014
Janice Breton, Director of Special Services
Maine Department of Education
23 State House Station
Augusta, Maine 04333
Dear Ms. Breton:
This is in response to your January 16, 2014 electronic correspondence to the Office of Special
Education Programs (OSEP) and phone conversations with Jennifer Wolfsheimer, OSEP
Education Program Specialist, in which you ask whether a school district may use electronic
mail to provide parents with their child’s individualized education programs (IEPs) and related
documentation, such as progress reports. Specifically, you describe a situation where a Maine
school district is using electronic mail to distribute IEPs and progress reports to parents who
have consented to electronic delivery of such documents. You also state that the district has
implemented the following security procedures when delivering such information via electronic
mail: the district obtains prior signed permission from the parents; the parents provide the
address of their confidential email account; a secure password is used to access documents; and
the parents may request hard copies at any time and/or refuse the electronic mail option.
Under Part B of the Individuals with Disabilities Education Act (IDEA) and the implementing
regulations, parents may elect to receive prior written notices, procedural safeguards notices, and
due process complaint notices by an electronic mail communication, if the public agency makes
that option available. 34 CFR §300.505. The IDEA statute and regulations do not explicitly
address the use of electronic mail for other documents required under the IDEA. However,
OSEP has stated that the IDEA statute and regulations do not prohibit the use of electronic mail
to carry out administrative matters under section 615 of the IDEA, so long as the parent of the
child with a disability and the public agency agree. Analysis of Comments and Changes to Final
Regulations Implementing 2004 IDEA, 71 Fed. Reg. 46540, 46687 (Aug. 14, 2006). In addition,
OSEP has stated that States may use electronic or digital signatures for consent, provided they
take the necessary steps to ensure that there are appropriate safeguards to protect the integrity of
the process. That is, consistent with §300.9(b), a parent must understand and agree to the
carrying out of the activity for which the parent’s consent is sought. 71 Fed. Reg. at 46629.
Further, with regards to the requirement under 34 CFR §300.320(a)(3)(ii) concerning periodic
progress reports, OSEP has left the discretion with State and local officials to determine the
manner and format for reporting a child’s progress toward meeting the annual goals. 71 Fed.
Reg. at 46664.
Therefore, in light of the IDEA statute and regulations, as well as OSEP’s prior guidance, States
may permit the use of electronic mail to distribute IEPs and related documents, such as progress
reports, to parents, provided that the parents and the school district agree to use the electronic

Page 2 – Ms. Janice Breton
mail option, and the States take the necessary steps to ensure that there are appropriate
safeguards to protect the integrity of the process.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have any further questions, please do not hesitate to contact Jennifer Wolfsheimer, of my
staff, at 202-245-6090 or by email at Jennifer.Wolfsheimer@ed.gov.

Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
March 13, 2014
Dear Chief State School Officer:
The purpose of this letter is to inform you of a provision in the Consolidated Appropriations
Act, 2014 (Appropriations Act) signed by the President on January 17, 2014. That provision is
related to the requirement in Part B of the Individuals with Disabilities Education Act (Part B,
or IDEA) that local educational agencies (LEAs) maintain the level of local, or State and local,
expenditures for the education of children with disabilities (frequently referred to as LEA
maintenance of effort or LEA MOE) (see IDEA section 613(a)(2)(A)(iii) and 34 CFR
§300.2031). The relevant provision of the Appropriations Act states:
That the level of effort a local educational agency must meet under section
613(a)(2)(A)(iii) of the IDEA, 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 reduced level of expenditures.
Pub. L. No. 113-76, 128 Stat. 5, 394 (2014).
This provision is effective for the Federal fiscal year 2014 Part B grants, which are awarded on
July 1, 2014. Accordingly, it is important that all LEAs in your State understand the level of
effort required to meet the LEA MOE requirement in the fiscal year covering school year 20142015 (all references to a year in this letter refer to the fiscal year covering that school year).
Under this provision, if an LEA failed to maintain effort in 2013-2014, the level of effort that the
LEA must maintain in 2014-2015 is the level of effort that would have been required in 20132014 in the absence of that failure, and not the LEA’s reduced level of expenditures in 20132014.
MOE Compliance Requirement: If, for example, an LEA failed to maintain effort in 20132014, in order to meet the MOE compliance requirement in 2014-2015 based on a combination
of State and local funds, the level of effort that the LEA must maintain in 2014-2015 is the
amount of the combination of State and local funds the LEA expended for the education of
children with disabilities in 2012-2013. The following tables provide examples of a compliance
analysis based on what we believe to be the most common situations.
1

Under IDEA section 613(a)(2)(A)(iii), Part B funds “shall not be used, except as provided in subparagraphs (B)
and (C), to reduce the level of expenditures for the education of children with disabilities made by the local
educational agency from local funds below the level of those expenditures for the preceding fiscal year.” Under 34
CFR §300.203(a), in relevant part, “[e]xcept as provided in §§300.204 and 300.205, funds provided to an LEA
under Part B of the Act must not be used to reduce the level of expenditures for the education of children with
disabilities made by the LEA from local funds below the level of those expenditures for the preceding fiscal year.”
400 MARYLAND AVE., SW, WASHINGTON, DC 20202-2600
www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by
fostering educational excellence and ensuring equal access.

Page 2 – Chief State School Officer
Examples of a Compliance Analysis Based on a Combination of State and Local Funds

Fiscal Year
2012-2013
2013-2014

2014-2015

Fiscal Year
2012-2013
2013-2014
2014-2015

Table 1. LEA Maintained Effort in 2013-2014
Actual level of
Required level of
Notes
effort
effort
$100
$100
LEA met MOE requirement
LEA properly took exceptions and
$90
$90
adjustments in 34 CFR §§300.204
and 300.205
Required level of effort is $90
$90
because LEA expended $90 and met
MOE in 2013-2014

Table 2. LEA Did Not Maintain Effort in 2013-2014
Actual level of
Required level of
Notes
effort
effort
$100
$100
LEA met MOE requirement
$90
$100
LEA did not maintain effort
Required level of effort is $100
$100
despite LEA’s failure in 2013-2014

MOE Eligibility Requirement: In order to meet the MOE eligibility requirement in 2014-2015
based on a combination of State and local funds, if an LEA failed to maintain effort in 20122013 (assuming the most recent fiscal year for which information is available is 2012-2013), the
LEA must budget for 2014-2015 the amount from that same source (a combination of State and
local funds) that it should have expended in 2012-2013 (i.e., its actual 2011-2012 expenditures).
The following tables provide examples of an eligibility analysis based on what we believe to be
the most common situations.

Page 3 – Chief State School Officer
Examples of an Eligibility Analysis Based on a Combination of State and Local Funds

Fiscal Year
2011-2012
2012-2013
2013-2014

2014-2015

Fiscal Year
2011-2012
2012-2013
2013-2014

2014-2015

Table 3. LEA Maintained Effort in 2012-2013
Actual level of
Required level of
Notes
effort
effort
$130
$130
LEA met MOE requirement
$150
$130
LEA met MOE requirement
Final expenditure data are not
available when budgeting for 20142015
Required level of effort to budget for
2014-2015 is $150 because LEA
$150
expended $150 and met MOE in
2012-2013
Table 4. LEA Did Not Maintain Effort in 2012-2013
Actual level of
Required level of
Notes
effort
effort
$130
$130
LEA met MOE requirement
$100
$130
LEA did not maintain effort
Final expenditure data are not
available when budgeting for 20142015
Required level of effort to budget for
$130
2014-2015 is $130 despite LEA’s
failure in 2012-2013

Notice of Proposed Rulemaking: In addition, the Secretary published a notice of proposed
rulemaking seeking comment on proposed amendments to the Part B regulations regarding LEA
MOE to clarify existing policy and make other related changes, including, but not limited to, the
level of effort required of an LEA in the year after it fails to maintain effort under the IDEA. 78
Fed. Reg. 57324, 57324 (Sept. 18, 2013). Pending publication of the final regulations, States and
LEAs remain subject to the provisions in current law related to LEA MOE, including IDEA
section 613(a)(2), the Appropriations Act (Pub. L. No. 113-76, 128 Stat. 5, 394 (2014)), and the
Part B regulations, including 34 CFR §§300.203 through 300.205.

Page 4 – Chief State School Officer
In order to ensure that LEAs are aware of this information before they submit their applications
for a Part B subgrant, we ask that you distribute this letter to your LEAs as soon as possible.
The Office of Special Education Programs will address LEA MOE in a conference call with
State Directors of Special Education on March 21, 2014, at 2:00 pm EDT.
We look forward to continuing our work together on behalf of students with disabilities.
Sincerely,

Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
cc: State Directors of Special Education


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
February 10, 2014

Diana M. Savit, Esq.
Savit & Szymkowicz, LLP
4520 East-West Highway, Suite 700
Bethesda, MD 20814-6907
Dear Ms. Savit:
This is in response to your April 12, 2013 letter to the Office of Special Education and
Rehabilitative Services (OSERS), U.S. Department of Education (Department), which was
forwarded to the Office of Special Education Programs (OSEP) for response. In your letter, you
ask for guidance regarding the District of Columbia Public Schools (DCPS) Chancellor’s
Directive concerning, “School Visitors, School Record Release, and Barring Notice Procedures.”
Please note that the responses below only pertain to the Individuals with Disabilities Education
Act (IDEA) and its implementing regulations in 34 CFR Part 300.
In your letter, you also refer to two Federal laws prohibiting discrimination on the basis of
disability, which are enforced by the Office for Civil Rights (OCR) within the Department.
Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits discrimination on the basis
of disability by recipients of Federal financial assistance, and Title II of the Americans with
Disabilities Act (Title II) prohibits discrimination on the basis of disability by State and local
governmental entities, including public elementary and secondary school systems, regardless of
their receipt of Federal funds. OCR and the U.S. Department of Justice share enforcement
responsibility for Title II.
OCR determines if there has been a violation of a law that it enforces based on OCR’s specific
factual findings and legal conclusions in an OCR complaint investigation or compliance review.
Information about filing a complaint is on OCR’s web site, www.ed.gov/ocr. We suggest that
you contact the OCR enforcement office with jurisdiction over the District of Columbia if you
wish to file a complaint to allege a violation of a law that OCR enforces or if you have general
questions about a law that OCR enforces. The contact information for that office is:
Washington DC (Metro)
Office for Civil Rights
U.S. Department of Education
400 Maryland Avenue, S.W.
Washington, DC 20202-1475
Telephone: 202 453-6020
Email: OCR.DC@ed.gov
The following responds to your questions concerning the IDEA.

Page 2 – Diana Savit
Question 1: Does the February 19, 2013 Chancellor's Directive issued by DCPS violate the
IDEA? Specifically, you inquire about the particular provisions that: (1) bar third parties
(including attorneys and educational advocates) who are not evaluators or parents from
observing classrooms in public schools while children are in the classroom; and (2) limit
evaluators to two-hours of observation time, which must be scheduled in advance, and grant
additional time solely at DCPS's discretion.
OSEP’s Response: Under the IDEA, parents of children with disabilities are expected to have an
important role in the evaluation and educational placement of their children and be participants,
along with school personnel, in developing, reviewing, and revising the individualized education
programs (IEPs) for their children. However, the IDEA and its implementing regulations do not
provide a general entitlement for third parties, including attorneys and educational advocates, to
observe children in their current classrooms or proposed educational placements. The
determination of which individuals may have access to classrooms may be addressed by State
and/or local policy. See OSEP’s Letter to Mamas, dated May 26, 2004 (42 IDELR 10).
OSEP also recognizes that independent educational evaluators may need to have access to
classrooms if the parents of a child with a disability invoke their right to an independent
educational evaluation (IEE) of their child under 34 CFR §300.502, and the evaluation requires
observing the child in the educational placement. Under 34 CFR §300.502(e)(1), if an IEE is at
public expense, the criteria under which the evaluation is obtained, including the location of the
evaluation and the qualifications of the examiner, must be the same as the criteria that the public
agency uses when it initiates an evaluation, to the extent those criteria are consistent with the
parent’s right to an IEE. Therefore, it would be inconsistent with the IDEA for a public agency
to have a policy giving third party evaluators only a two hour observation window, because such
a limitation may restrict the scope of the IEE and prevent an independent evaluator from
fulfilling his or her purpose, unless the LEA also limits its evaluators to a two hour observation
period.
Question 2: May DCPS bar parents or their representatives from recording resolution sessions,
held pursuant to the IDEA, absent a written policy or uniform standards?
OSEP’s Response: Part B of the IDEA is silent regarding the use of audio or video recording
devices at meetings between parents of children with disabilities and school officials, including
resolution meetings conducted pursuant to 34 CFR §300.510. OSEP has previously stated in the
Letter to Anonymous dated June 4, 2003 (40 IDELR 70):
An SEA [State educational agency] or public agency has the option to require,
prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings.
If a State or public agency has a policy that limits or prohibits the use of recording
devices at IEP meetings, that policy must provide for exceptions if they are
necessary to ensure that the parent understands the IEP or the IEP process, or to
implement other parental rights guaranteed under Part B.
The same guidance that OSEP has provided regarding the tape recording of IEP Team meetings
applies to resolution meetings. See, Letter to Walker dated August 9, 2012 (59 IDELR 262).

Page 3 – Diana Savit
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have any further questions, please do not hesitate to contact Rebecca Walawender, of my
staff, at 202-245-7399 or by email at Rebecca.Walawender@ed.gov.

Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
February 7, 2014

Gene Lenz, Director
Federal and State Education Policy
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494
Dear Mr. Lenz:
This is in response to your April 29, 2013 letter to me seeking clarification of the requirements in
the Individuals with Disabilities Education Act (IDEA) and its implementing regulations in 34
CFR Part 300. Specifically, you asked “whether a local educational agency (LEA) is required to
report on the progress the student is making with regard to benchmarks or short-term objectives
or whether the Act [IDEA] merely requires the reporting of the student’s progress toward
meeting the overall annual goals” in the student’s individualized education program (IEP). You
indicate that in Texas, LEAs are only required to report consistent with IDEA requirements; for
those students who take alternate assessments aligned to alternate achievement standards, Texas
does not specifically require LEAs to report to parents on a student’s progress in meeting
benchmarks or short-term objectives. However, you seek clarification because you have
observed that LEAs have varying practices with regard to reporting the progress of students
whose IEPs include benchmarks or short-term objectives and that State educational agencies
have different interpretations of the progress reporting requirements in the IDEA.
Under 34 CFR §300.320(a)(2)(i), each child’s IEP must include a statement of measurable
annual goals. Under 34 CFR §300.320(a)(2)(ii), the IEPs of children who take alternate
assessments aligned to alternate achievement standards must also include a description of
benchmarks or short-term objectives. Under 34 CFR §300.320(a)(3)(i)-(ii), each child’s IEP
must include a description of how the child’s progress toward meeting the annual goals described
in 34 CFR §300.320(a)(2) will be measured; and when periodic reports on the progress the child
is making towards meeting the annual goals (such as through the use of quarterly or other
periodic reports, concurrent with the issuance of report cards) will be provided. This IDEA
requirement addresses reporting on a child’s progress toward meeting his or her annual IEP
goals.
The regulation at 34 CFR §300.320(a)(2)(ii) specifies that the IEPs of children who take
alternate assessments aligned to alternate achievement standards must include a description of
benchmarks or short-term objectives, but there is no specific IDEA requirement for reporting to
parents on every child’s progress in meeting these benchmarks or short-term objectives.
Therefore, whether reporting on benchmarks or short-term objectives is necessary to
meaningfully report on progress toward meeting the annual goals must be determined on a caseby-case basis.

Page 2 – Mr. Gene Lenz
While not specifically required by the IDEA, there may be some children participating in the
alternate assessment aligned to alternate achievement standards for whom reporting on the
progress in meeting the benchmarks or short-term objectives included in the child’s IEP is the
appropriate way to report meaningfully to parents on that child’s progress in meeting the annual
IEP goals. However, this is a matter that IDEA leaves to the discretion of the IEP Team.
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 additional questions, please do not hesitate to contact Dr. Marion Crayton at 202245-6474 or by email at Marion.Crayton@ed.gov.
Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
December 20, 2013

Dr. Jim Delisle
Distinguished Professor of Education (Retired)
P.O. Box 3550
North Myrtle Beach, SC 29582
Dear Dr. Delisle:
This letter is in response to your emails to me dated March 8, 2013 and April 4, 2013 asking for
clarification of the Individuals with Disabilities Education Act (IDEA) and its implementing
regulations as they apply to children who have high cognition and who may have specific
learning disabilities (SLD). In your communications, you refer to these children as “twice
exceptional students” or “2E students.”
The IDEA does not specifically address “twice exceptional” or “2E” students. It remains the
Department’s position that students who have high cognition, have disabilities and require
special education and related services are protected under the IDEA and its implementing
regulations. See Letter to Anonymous, dated January 13, 2010 (55 IDELR 172). That is, under
34 CFR §300.8, a child must meet a two-prong test to be considered an eligible child with a
disability: (1) have one of the specified impairments (disabilities); and (2) because of the
impairment, need special education and related services.
With regard to your first question, under 34 CFR §300.307, a State must adopt, consistent with
34 CFR §300.309, criteria for determining whether a child has an SLD as defined in 34 CFR
§300.8(c)(10). In addition, the criteria adopted by the State: (1) must not require the use of a
severe discrepancy between intellectual ability and achievement for determining whether a child
has an SLD; (2) must permit the use of a process based on the child’s response to scientific,
research-based intervention; and (3) may permit the use of other alternative research-based
procedures for determining whether a child has an SLD. Therefore, a State’s criteria under 34
CFR §300.307 may permit, but must not require, the use of a severe discrepancy between
intellectual ability and achievement for determining whether a child has an SLD.
Regarding your second question, the regulations do not require or prohibit a State’s use of “cut
scores” when determining if there is a severe discrepancy between intellectual ability and
achievement for determining whether a child has an SLD; rather, the regulations allow a State
flexibility in establishing its criteria for determining whether a child has an SLD, as long as those
criteria meet the requirements in 34 CFR §300.307(a). It is important to note that in determining
whether a child has a disability -- whether an SLD or any of the other disability categories
identified in 34 CFR §300.8 -- 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. 34 CFR §300.304(b)(1) and (2). Therefore, it would be

Page 2 – Dr. Jim Delisle
inconsistent with the IDEA for a child, regardless of whether the child is gifted, to be found
ineligible for special education and related services under the SLD category solely because the
child scored above a particular cut score established by State policy. Further, under 34 CFR
§300.309(a)(1), the group described in §300.306 may determine that a child has an SLD if the
child ”does not achieve adequately for the child’s age or to meet State-approved grade level
standards… when provided with learning experiences and instruction appropriate for the child’s
age or State-approved grade level standards” in one or more of the following areas: oral
expression; listening comprehension; written expression; basic reading skill; reading fluency
skills; reading comprehension; mathematics calculation; or mathematics problem solving.
In the Analysis of Comments and Changes in the 2006 final regulations implementing Part B of
the IDEA, the Department, in responding to public comments, recognized that there will be some
students who are gifted but also need special education and related services. See 71 Fed. Reg.
46540, 46647 (Aug. 14, 2006) (“Discrepancy models are not essential for identifying children
with SLD who are gifted. However, the regulations clearly allow discrepancies in achievement
domains, typical of children with SLD who are gifted, to be used to identify children with
SLD.”). In responding to a public comment specifically addressing students who are gifted and
who have difficulty with reading fluency, the Department stated as follows: “No assessment, in
isolation, is sufficient to indicate that a child has an SLD. Including reading fluency in the list of
areas to be considered when determining whether a child has an SLD makes it more likely that a
child who is gifted and has an SLD would be identified.” 71 Fed. Reg. at 46652.
Lastly, you suggest that OSEP adopt specific language to clarify the use of discrepancy models
and response-to-intervention models when determining if a child is a child with an SLD. We
believe that further clarification is unnecessary at this time.
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 questions, please do not hesitate to contact
Jennifer Wolfsheimer at 202-245-6090 or by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
November 26, 2013

William J. Casey, Esq.
Watson Bennett Colligan & Schechter LLP
12 Fountain Plaza, Suite 600
Buffalo, New York 14202
Dear Mr. Casey:
This is in response to your letter to me dated October 2, 2012 asking for clarification of specific
requirements in Part B of the Individuals with Disabilities Education Act (IDEA) and its
implementing regulations at 34 CFR Part 300. On December 17, 2012, Rebecca Walawender,
Deputy Director of the Monitoring and State Improvement Planning Division in the Office of
Special Education Programs (OSEP), held a conference call with you to clarify the question
posed in your letter. You ask: may a local educational agency (LEA) require that, due to the
nature of extended school year (ESY) services, a child remain in a private child care setting at
the parent’s expense in order to receive the ESY services on the child’s individualized education
program (IEP)?
Based on your letter and conversation with Ms. Walawender, I understand that your firm’s client
is the parent of a child with a disability who is transitioning from preschool to kindergarten. The
child, while enrolled by the parent in a private child care program, was determined eligible for
special education and related services at age four. The LEA implemented the IEP in the private
child care setting during the “school year,” i.e., though June. The IEP also provided for ESY
services pursuant to 34 CFR §300.106. At the end of the “school year,” the LEA informed the
parent that, due to the nature of the ESY services, the ESY services in the IEP would only be
delivered if the child remained in the child care setting and that the cost of the child care program
would be the responsibility of the parent. Finally, you informed Ms. Walawender that these facts
are part of a due process complaint under 34 CFR §300.508 in which the parent is seeking
reimbursement for the private child care center tuition paid during the summer and for which you
are awaiting a due process hearing officer’s decision.
Please be advised that OSEP’s general practice is not to comment on matters that are the subject
of a due process complaint or due process hearing. Therefore, OSEP declines to address the
issues raised in your letter.
Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
November 25, 2013

Guy M. McBride, Ph.D.
5309 Lisa Lane
Hickory, North Carolina 28602
Dear Dr. McBride:
This is in response to your letter to the Office of Special Education Programs (OSEP), Office of
Special Education and Rehabilitative Services at the U.S. Department of Education
(Department). In your letter, you raise concerns about the criteria used by the State of Maine for
the identification of children with specific learning disabilities, specifically the use of what you
refer to as “cognitive referencing.”
Thank you for sharing your concerns with the Department. OSEP received a similar letter from
Buckley J. Hugo, regarding Maine’s criteria for identification of children with specific learning
disabilities, and we are enclosing OSEP’s response to that letter because, in it, we address
concerns that are similar to yours. As a result of the concerns raised by you and Mr. Hugo
regarding the Maine Unified Special Education Regulations at §VII.2.L(2)(a) and the Maine
Department of Education’s Learning Disability Evaluation Report, OSEP is working with the
Maine State Director of Special Education to resolve this matter.
We thank you for your continued interest in children with disabilities in Maine. If you have
additional questions, please do not hesitate to contact Jennifer Wolfsheimer at 202-245-6090 or
by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,

Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
cc: State Director of Special Education
Enclosure


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
November 5, 2013
Buckley J. Hugo
Midcoast Advocacy
2 Sandy Ridge Road
Brunswick, Maine 04011
Dear Mr. Hugo:
This is in response to your letter to me regarding criteria used in the State of Maine to identify
children with specific learning disabilities. I apologize for the delay in responding. You raise
two issues in your letter. First, you raise a concern that Maine Unified Special Education
Regulations (MUSER) at §VII.2.L(2)(a) is inconsistent with the Individuals with Disabilities
Education Act (IDEA) Part B requirement in 34 CFR §300.307, regarding specific learning
disabilities (SLD). Second, you raise a concern about the required use of Maine Department of
Education’s Learning Disability Evaluation Report (LDR) when determining if a child has an
SLD as defined in 34 CFR §300.8(c)(10). The Office of Special Education Programs (OSEP)
provides the following responses.
MUSER Provisions Regarding SLD
Under 34 CFR §300.307, a State must adopt, consistent with 34 CFR §300.309, criteria for
determining whether a child has an SLD as defined in 34 CFR §300.8(c)(10). In addition, the
criteria adopted by the State: (1) must not require the use of a severe discrepancy between
intellectual ability and achievement for determining whether a child has an SLD; (2) must permit
the use of a process based on the child’s response to scientific, research-based intervention; and
(3) may permit the use of other alternative research-based procedures for determining whether a
child has an SLD. The Department has interpreted these criteria to mean that a State may
prohibit or make optional – but must not require – the use of severe discrepancy in SLD
determinations. 71 Fed. Reg. 46540, 46646–47, 46651 (Aug. 14, 2006).
MUSER §VII.2.L(2)(a) states that the individualized education program (IEP) Team may
determine a child has an SLD if: 1) data indicate a response to general education intervention is
not adequate; 2) the child scores “1.5 or more standard deviations below the mean for the child’s
age on tests in one area of psychological processing, or 1 or more standard deviations below the
mean in two or more areas of psychological processing . . . ”; and 3) for children in grades 4-12,
the composite standardized score is “no lower than 1.5 standard deviations below the mean on at
least one index/scale of cognitive functioning . . . .” Further, the preceding language in the
heading states that “[a]ll steps below are required.” Therefore, it appears that the MUSER
provisions quoted above would require that all three criteria need to be satisfied, and the second
criterion, MUSER §VII.2.L(2)(a)(ii), includes the use of a severe discrepancy in making SLD
determinations. If this is an accurate interpretation of MUSER §VII.2.L(2)(a), it would be
inconsistent with 34 CFR §300.307(a)(1), because it would require the use of a severe
discrepancy between intellectual ability and achievement for making an SLD determination.

Page 2 – Buckley J. Hugo
Further, this requirement appears to be inconsistent with Maine’s own regulation, in MUSER
§V.2.G(1), which states that a school administrative unit “shall not be required to take into
consideration whether a child has a severe discrepancy between achievement and intellectual
ability in oral expression, listening comprehension, written expression, basic reading skill,
reading comprehension, mathematical calculation, or mathematical reasoning.” Our concern
about MUSER is reinforced by what appear in Maine’s LDR to be further inconsistencies with
IDEA Part B requirements.
Maine Department of Education’s LDR
In conducting the evaluation of a child suspected of having an SLD, the requirements in 34 CFR
§§300.304–300.311 apply. Specifically, a public agency must use a variety of assessment tools
and strategies to gather relevant functional, developmental, and academic information about the
child, including information provided by the parent, that may assist in determining whether the
child is a child with a disability and the educational needs of the child. 34 CFR §300.304(b)(1).
Additionally, a public agency must not rely on 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. 34 CFR §300.304(b)(2).
According to Maine’s LDR, if either MUSER §VII.2.L(2)(a)(ii) or §VII.2.L(2)(a)(iii) is not met,
a student does not qualify for special education as a student with an SLD. Specifically, the LDR
requires an IEP Team to determine that the criterion outlined in MUSER §VII.2.L(2)(a)(ii) – i.e.,
that a child score 1.5 standard deviations below the mean in at least one area of psychological
processing or 1 standard deviation below the mean in two or more areas of psychological
processing – is satisfied in order for the child to qualify for special education as a student with an
SLD as defined in 34 CFR §300.8(c)(10). The LDR also requires that the criterion in MUSER
§VII.2.L(2)(a)(iii) – i.e., that a child in grades 4 through 12 obtains a composite standardized
score no lower than 1.5 standard deviations below the mean on at least one index/scale of
cognitive functioning – is satisfied in order for the IEP Team to determine that a child in grades 4
through 12 has an SLD. Therefore, OSEP construes the LDR as using a single assessment –
here, a test of psychological processing or of cognitive functioning – as the sole criterion for
determining whether a child has an SLD. If this is an accurate interpretation of the LDR, it
would be inconsistent with §300.304(b) for Maine to use such a form because it could result in
children with SLD not being properly identified.
As a result of the concerns discussed above regarding the relevant provisions of MUSER and the
LDR, OSEP has had conversations with officials of the Maine Department of Education (MDE)
and will work with the Maine State Director of Special Education to resolve this matter.
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.

Page 3 – Buckley J. Hugo
Thank you for bringing this matter to our attention. 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,

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

State Director of Special Education


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
October 23, 2013
Luke E. Kelly, Ph.D., CAPE
Director of Adapted Physical Education
Curry School of Education, University of Virginia
202 Emmet Street South
P.O. Box 400407
Charlottesville, VA 22904-4407
Dear Dr. Kelly:
This is in response to your May 5, 2013 letter to Michael K. Yudin, Acting Assistant Secretary,
Special Education and Rehabilitative Services, United States Department of Education,
requesting clarification of provisions of the Individuals with Disabilities Education Act (IDEA)
and its implementing regulations at 34 CFR Part 300. We understand your letter to be asking
whether physical education is required for high school students with disabilities ages 16-21, if it
is in their individualized education programs (IEPs), even though physical education is not
provided to their non-disabled peers in those grades. Your letter also notes that the IEPs for
some of these students with disabilities, particularly those ages 18-21, are implemented in
community-based transition programs.
Your fundamental question (i.e., whether a student with disability, for whom physical education
is included on his or her IEP, is entitled to physical education even if physical education is not
available to his or her same-age typically developing peers) was recently addressed in the Office
of Special Education Programs’ (OSEP) response to Garth Tymeson dated July 31, 2013 (Letter
to Tymeson) located at http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/index.html.
Letter to Tymeson states –
The Part B regulations, at 34 CFR §300.108, address the requirements of school
districts to provide physical education services to students with disabilities.
Section 300.108(a) requires schools to provide physical education to all children
receiving a free appropriate public education, unless the school does not provide
physical education to children without disabilities in the same grades. That
exception, however, only relieves schools of the 34 CFR §300.108(a) requirement
to provide general physical education to all students with disabilities regardless of
the unique needs of any given student and regardless of any student’s IEP.
Section 300.108(a) does not relieve schools of the duty to provide physical
education to those students who have unique needs requiring physical education
and have IEPs setting out physical education as part of that student’s special
education and related services.
Under 34 CFR §300.108(c), “[i]f specially designed physical education is
prescribed in a child’s IEP, the public agency responsible for the education of that
child must provide the services directly or make arrangements for those services

Page 2 – Luke E. Kelly, Ph.D. CAPE
to be provided through other public or private programs.” Thus, under Part B, “if
physical education is specially designed to meet the unique needs of a child with a
disability and is set out in that child’s IEP, those services must be provided
whether or not they are provided to other children in the agency.” Analysis of
Comments and Changes of the final Part B regulations, 71 Fed. Reg. 46540,
46583 (August 14, 2006).
Letter to Tymeson specifically addresses pre-school aged children with disabilities. However, we
believe that the same analysis applies to students with disabilities ages 16-21.
Your letter states that the placement for some students with IEPs ages 18-21 is a communitybased transition program. The Department’s longstanding position is that placement refers to the
provision of special education and related services rather than a specific place, such as a specific
classroom or specific school. 71 Fed. Reg. 46540, 46687 (August 14, 2006). Neither the statute
nor 34 CFR §300.108 distinguish between the potential locations, i.e., a high school setting or a
community-based transition program, where a student with physical education on his or her IEP
should receive it. We believe that the placement decision is best left to the team that determines
the educational placement, under 34 CFR §300.327, of the student with a disability.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the 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 Rebecca Walawender at 202-245-7399 or
by email at Rebecca.Walawender@ed.gov.
Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
September 24, 2013
Jan Breton, Director
Special Services
Maine Department of Education
23 State House Station
Augusta, Maine 04333
Dear Ms. Breton:
This is in response to your May 29, 2013 letter to me regarding the position the Office of Special
Education Programs (OSEP) took in Letter to Northrop dated May 21, 2013 (Letter to Northrop)
(113 LRP 24303) concerning a Maine school district’s policy requiring parents to submit written
statements of concern in advance of the individualized education program (IEP) Team meeting.
Specifically, your letter provided further information concerning the district’s policy and asked if
OSEP concurs with Maine’s assessment that the district’s procedure is consistent with the
Individuals with Disabilities Education Act (IDEA).
Your letter explained that while the district has a policy requiring parents to provide any
evaluation reports or written statements of concern at least three days before the scheduled IEP
Team meeting in order for their concerns to be addressed at the meeting, it does not require the
parent to submit their concerns in writing, nor prohibit the parent from verbally expressing their
concerns during the IEP Team meeting. The Maine Department of Education accepted the
district’s policy, in part, based on OSEP’s Letter to Anonymous dated January 19, 2011 (Letter to
Anonymous) (111 LRP 68370).
As stated in Letter to Northrop, the analysis in Letter to Anonymous was specific to the facts
presented by the writer and provides guidance to public agencies developing criteria specific to
the introduction at IEP Team meetings of a privately-obtained evaluation. Under 34 CFR
§300.502(c)(1), a public agency may establish criteria that a parent must meet when obtaining an
independent educational evaluation at public expense or when an evaluation obtained at private
expense is shared with the public agency in order for the public agency to consider that
evaluation. However, the IDEA does not permit a public agency to establish criteria for parental
participation in an IEP Team meeting. Therefore, we maintain that it would be inconsistent with
the intent and requirements of the IDEA for a local educational agency to adopt a blanket policy
requiring parents to provide a written copy of their concerns to the IEP Team three days before
an IEP Team meeting in order to have their concerns addressed at that meeting.
In cases where parents submit a lengthy statement or report at an IEP Team meeting, it would be
reasonable for a district to ask parents to verbally summarize, at the IEP Team meeting, their
main concerns so that the district may address those concerns at the meeting. If parents seek a
more comprehensive or written response to a lengthy statement or report, it is not inconsistent
with the intent and requirements of the IDEA for the district to take a reasonable time to respond
in detail.

Page 2 – Jan Breton
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have any further questions, please do not hesitate to contact Jennifer Wolfsheimer, of my
staff, at 202-245-6090 or by email at Jennifer.Wolfsheimer@ed.gov.

Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
September 24, 2013
Marilyn Arons, M.S.
Melody Arons Center of Applied Preschool
Research & Education, Inc.
210 Carlton Terrace
Teaneck, New Jersey 07666
Dear Ms. Arons:
This letter is in response to your May 31, 2013 letter to me asking for clarification on the central
directory requirements in 34 CFR §303.117 of the regulations implementing Part C of the
Individuals with Disabilities Education Act (IDEA). From your letter, it appears that you are
concerned that your organization is not included in your State’s central directory and you ask if
there is a Federal statutory or regulatory basis for excluding an organization from a State’s
central directory.
First, to provide clarification on the central directory requirements, I note that your letter cites to
the previous Part C regulations, which included certain requirements for the central directory at
prior 34 CFR §303.301. 1 The requirements for the central directory were revised and moved to
34 CFR §303.117 in the Part C regulations published on September 28, 2011.
Specifically, the Part C regulations, at 34 CFR §303.117, require each State’s Part C system to
have a central directory that is accessible to the general public (i.e., through the lead agency’s
Web site and other appropriate means) and to include accurate, up-to-date information about –
a) Public and private early intervention services, resources, and experts available in the
State;
b) Professional and other groups (including parent support, and training and information
centers, such as those funded under IDEA) that provide assistance to infants and toddlers
with disabilities under IDEA Part C and their families; and
c) Research and demonstration projects being conducted in the State relating to infants and
toddlers with disabilities.
Second, with regard to which entities should be included in the central directory, neither the
IDEA nor its implementing regulations prescribe a selection process for determining which
services, resources, experts, and professional and other groups, and research and demonstration
projects will be included in the central directory. In the absence of such requirements, we
believe that a State is in the best position to decide the specific criteria it will use to determine
which information is included in the State’s central directory, as long as the information included
is consistent with the requirements of 34 CFR §303.117.

1

OSEP is not commenting in this letter on the New Jersey State Plan you refer to in your letter, which appears to be
an old version of the State Plan.

Page 2 – Ms. Melody Arons
Your letter to me was also addressed to the State lead agency for Part C (lead agency). It alleges
that your organization was inappropriately excluded from the State’s central directory and
provides a summary of why your organization should be included in the State’s central directory.
It is not clear if you intended your letter to be a request for a State complaint investigation. If
that was your intention, and you believe that the lead agency has violated a requirement of the
IDEA, you may wish to re-send your letter to the State, and indicate that you are filing a State
complaint with the lead agency. Under Part C, a State has 60 days from the date of receipt of a
formal complaint to investigate and provide the complainant with a written decision that
addresses each allegation in the complaint, and contains findings of fact and conclusions, and the
reasons for the final decision. The 60-day time limit can only be extended for exceptional
circumstances with respect to a particular complaint, or if the parties agree to extend the time to
engage in mediation (if mediation is available to the individual or organization under State
procedures).
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 and interpretation of the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have further questions, please do not hesitate to contact Rebecca Walawender at (202)
245-7399 or by email at Rebecca.Walawender@ed.gov.
Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
September 10, 2013
Perry A. Zirkel, Ph.D. JD
University Professor of Education and Law
Lehigh University
Mountaintop Campus
111 Research Drive
Bethlehem, PA 18015-4794
Dear Dr. Zirkel:
I am writing in response to your letter to the United States Department of Education’s
(Department) Office of Special Education Programs (OSEP) dated February 13, 2013, asking for
OSEP’s determination as to whether a longstanding general education intervention process
constitutes a process based on a child’s response to scientific, research-based intervention
(commonly referred to as “response to intervention” (RTI)) that meets the requirements in 34
CFR §300.307(a)(2) of the regulations implementing the Individuals with Disabilities Education
Act (IDEA). You describe a general education intervention process as often taking the “form of
a school-based student assistance team that recommends strategies for individual children that
are evidencing learning and/or behavioral problems.” As part of this general education
intervention process, you state that “the general education teacher typically refers the child to the
team and implements [the team’s] recommendations for a trial period, with the team reviewing
the resulting progress or lack thereof at the end of the period. Depending on the local or [S]tate
variation, the next step may be either another team review with recommendations or referral for a
special education eligibility evaluation.” 1
A multi-tiered instructional framework such as RTI is a schoolwide approach that addresses the
needs of all students, including struggling learners and students with disabilities, and integrates
assessment and intervention within a multi-level instructional and behavioral system to
maximize student achievement and reduce problem behaviors. OSEP supports State and local
implementation of RTI strategies to ensure that children who are struggling academically and
behaviorally are identified early and provided needed interventions in a timely and effective
manner. There are a number of RTI models, and, while the Department does not endorse a
particular RTI model, essential components must be present in RTI. These components include:
(1) high quality, evidence-based instruction in general education settings; (2) screening of all
students for academic and behavioral problems; (3) two or more levels (sometimes referred to as
“tiers”) of instruction that are progressively more intense and based on the student’s response to
instruction; and (4) progress monitoring of student performance. See OSEP’s “Questions and

1

You refer to the “Student Teacher Assessment Team” (STAT), used in the El Paso Independent School District in
Texas, as an example of a general education intervention process. In the case you cite, El Paso Independent School
District v. Richard R., 567 F.Supp.2d 918, 923 n.2 (W.D. Tex. 2008), the STAT is described as “a pre-referral
committee that reviews student information, implements interventions to meet the student’s needs, and documents
the success of the interventions. If the interventions are unsuccessful, the [c]ommittee should refer the student for a
special education evaluation. The STAT handbook states that a ‘referral for evaluation for consideration of special
education should be a last resort.”

Page 2 – Dr. Perry Zirkel
Answers on Response to Intervention (RTI) and Early Intervening Services (EIS),” January
2007; Letter to Dale, November 14, 2012 (60 IDELR 166).
When evaluating an intervention process to determine if it meets the requirements in 34 CFR
§300.307(a)(2), the evaluator should compare the components of the questioned intervention to
the essential RTI components mentioned above. As a matter of practice, OSEP does not evaluate
local educational agencies’ RTI processes.
It is important to note that no intervention process, whether it includes the components listed
above or not, may be used to delay or deny the provision of a full and individual evaluation that
meets the requirements of 34 CFR §§300.304-300.311 to a child suspected of having a disability
under 34 CFR §300.8. Consistent with IDEA section 612(a)(3), a State must have in effect
policies and procedures to ensure that the State identifies, locates and evaluates all children with
disabilities residing in the State, including children with disabilities who are homeless or are
wards of the State, and children with disabilities attending private schools, regardless of the
severity of their disability, and who are in need of special education and related services. It is
critical that this identification occur in a timely manner. See OSEP Memo 11-07, A Response to
Intervention (RTI) Process Cannot Be Used to Delay-Deny an Evaluation for Eligibility under
the Individuals with Disabilities Education Act (IDEA), January 21, 2011.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have any further questions, please do not hesitate to contact Rebecca Walawender, of my
staff, at 202-245-7399 or by email at Rebecca.Walawender@ed.gov.
Sincerely,

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


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

September 5, 2013
Vicky McKinney, Director
Parent Training and Information Program
PAVE
Partnerships for Action, Voices for the Empowerment
6316 S. 12th Street
Tacoma, WA 98465-1900
Dear Ms. McKinney:
This letter is in response to your June 17, 2013 electronic mail (email) correspondence to me
regarding the new parental consent and written notification requirements in the Part B of the
Individuals with Disabilities Education Act (IDEA) regulations published on February 14, 2013.
In your email, you ask if the use of a parent or child’s public insurance or benefits by the school
district will affect the use by the family outside the school. You stated that when you ask school
districts and the State agency that administers Medicaid this question, you receive different
answers; and therefore, have requested guidance from the Office of Special Education Programs
on this issue.
Under the new regulations, a public agency must provide written notification, consistent with 34
CFR §300.503(c), to the child’s parents prior to accessing a child’s or parent’s public benefits or
insurance for the first time, and annually thereafter. 34 CFR §300.154(d)(2)(v). The notification
must include, among other things, the “no cost” provisions in 34 CFR §300.154(d)(2)(i)-(iii).
These “no cost” requirements are not new and were in place during the previous regulations.
They include: 1) The school district may not require parents to sign up for, or enroll in, a public
benefits or insurance program in order for their child to receive a free appropriate public
education. This means that the school district may not make enrollment in a public benefits or
insurance program a condition of providing a child the services it is required to provide under
IDEA at no charge to the parent or child; 2) The school district may not require the parent to pay
an out-of-pocket expense, such as the payment of a deductible or co-pay amount for filing a
claim for services that the school district is otherwise required to provide the child without
charge. For example, if a child’s individualized education program includes speech and
language therapy and the parent’s insurance requires a $25 co-pay or deductible payment for a
session, the parent could not be charged the $25. The school district would need to pay the cost
of the co-pay or deductible in order to bill the parent’s or child’s public benefits or insurance
program for the particular service; and 3) The school district may not use the child’s parent’s
public benefits or insurance if using those benefits or insurance would:
a. Decrease the available lifetime coverage or any other insured benefit, such as a
decrease in the plan’s allowable number of physical therapy sessions available to
the child or a decrease in the plan’s allowable number of sessions for mental
health services;

Page 2 – W. Kelly Dude

b. Cause the parent to pay for services that would otherwise be covered by the
public benefits or insurance program because the child also requires those
services outside of the time the child is in school;
c. Increase the premium or lead to the cancelation of the public benefits or
insurance; or
d. Cause the parent or child to risk the loss of their eligibility for home and
community-based waivers that are based on total health-related expenditures.
A school district must ensure all of these “no cost” provisions are met if it intends to use a
parent’s or child’s public benefits or insurance to pay for services under Part B. If, for example,
the school district’s use of public benefits or insurance to pay for speech and language therapy
will limit the amount of speech and language therapy a child may receive outside of school, the
school district may not use the parent’s or child’s public benefits or insurance to pay for that
service. It is the the school district’s responsibility to make this determination and ensure it is in
compliance with all of the “no cost” provisions in 34 CFR §300.154(d) (2)(i)-(iii) before it
provides the written notification to the parent and requests consent from the parent to use their
public benefits or insurance.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have any further questions, please do not hesitate to contact Laura Duos at 202-245-7324
or by email at Laura.Duos@ed.gov.
Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
September 3, 2013
W. Kelly Dude
Anderson, Dude & Lebel, P.C.
Attorneys at Law
Plaza of the Rockies North
111 South Tejon, Suite 400
Colorado Springs, Colorado 80902
Dear Mr. Dude:
This is in response to your letter to the Office of Special Education Programs (OSEP), written on
behalf of “several school districts in the Pike’s Peak region of Colorado,” requesting clarification
regarding the secondary transition requirements in Part B of the Individuals with Disabilities
Education Act (IDEA or Part B). In general, your questions relate to whether services at
postsecondary institutions can be provided as part of a student’s transition services identified in
the student’s individualized education program (IEP) under 34 CFR §300.320(b). I apologize for
the delay in responding.
Ensuring that all students, including students with disabilities, have the skills and knowledge
necessary to succeed in college and the workforce will require higher standards of educational
excellence. The Department is committed to ensuring that all students have the resources and
supports needed for success in college and in a competitive workforce including the opportunity
to enroll in educational programs that develop necessary knowledge and skills. OSEP believes
that providing a high school student with a disability the opportunity to take one or more courses
at a community college or other postsecondary institution prior to high school graduation can be
critical in facilitating the student’s transition from secondary school to college or the workforce.
This letter will address how participation in courses at a postsecondary institution can occur
consistent with Part B of IDEA.
If under State law, attending classes at a postsecondary institution, whether auditing or for credit,
is considered secondary school education for students in grade 12 or below and the education
provided meets applicable State standards, those services can be designated as transition services
on a student’s IEP and paid for with IDEA Part B funds, consistent with the student’s entitlement
to a free appropriate public education (FAPE). 1

1

There are, however, exceptions to FAPE for certain ages in 34 CFR §300.102. Students with disabilities who have
graduated from high school with a regular high school diploma are not entitled to FAPE. The IEP Team for a
student who has not graduated from high school with a regular high school diploma has the full range of options
available to provide FAPE, including providing appropriate transition services “to facilitate the child's movement
from school to post-school activities, including postsecondary education, vocational education, integrated
employment (including supported employment), continuing and adult education, adult services, independent living,
or community participation.” 34 CFR §300.43.

Page 2 – W. Kelly Dude
See the definitions of FAPE at 34 CFR §300.17 and secondary school at 34 CFR §300.36. 2 If a
State does not consider attendance at a postsecondary institution as part of secondary school
education, Part B funds may not be used to pay for the services. However, the State may elect to
use State and local funds to provide or pay for services for a student with a disability that would
be in addition to those special education and related services required under IDEA. In these
situations, as discussed below, IDEA does not prohibit a State or school district from choosing to
include those additional services in a student’s IEP.
Your specific questions and OSEP’s responses follow.
Question 1: Does the IDEA require that school districts include language in a transition plan
indicating that a student shall have access to attend a junior college, college or university
(hereafter collectively “postsecondary”) upon the student’s or parents’ request? In a related
issue, on what basis can a school district determine that such a student cannot reasonably benefit
from attending post-secondary schools?
OSEP’s Response: As you know, transition services must be a part of a student’s IEP
beginning not later than the first IEP to be in effect when the student is 16 years of age, or
younger, if determined appropriate by the IEP Team. 34 CFR §300.320(b). The term
transition services is defined by 34 CFR §300.43 as follows:
(a) A coordinated set of activities for a child with a disability that—
(1) Is designed to be within a results-oriented process, that is focused on
improving the academic and functional achievement of the child with a disability
to facilitate the child's movement from school to post-school activities, including
postsecondary education, vocational education, integrated employment (including
supported employment), continuing and adult education, adult services,
independent living, or community participation;
(2) Is based on the individual child's needs, taking into account the child's
strengths, preferences, and interests; and includes(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult living
objectives; and
(v) If appropriate, acquisition of daily living skills and provision of a functional
vocational evaluation.

2

Under 34 CFR §300.17, FAPE means special education and related services that—(a) are provide at public
expense, under public supervision and direction, and without charge; (b) meet the standards of the SEA, including
the requirements of this part; (c) include an appropriate preschool, elementary school, or secondary school education
in the State involved; and (d) are provided in conformity with an individualized education program (IEP) that meets
the requirements of §§300.320 through 300.324. Under 34 CFR §300.36, secondary school means a nonprofit
institutional day or residential school, including a public secondary charter school that provides secondary
education, as determined under State law, except that it does not include any education beyond grade 12.

Page 3 – W. Kelly Dude

(b) Transition services for children with disabilities may be special education, if
provided as specially designed instruction, or a related service if required to assist
a child with a disability to benefit from special education.
Decisions related to the specific content of postsecondary goals and transition services
are the responsibility of the IEP Team, the required members of which are identified in
34 CFR §300.321(a) and (b). The parent and the student are required IEP Team members
at IEP Team meetings where transition services and postsecondary goals are discussed.
The IEP Team must consider the student’s needs, taking into account the student’s
strengths, preferences and interests. 34 CFR §§300.320(b)(2) and 300.43(a)(2). The IEP
Team is required by 34 CFR §300.324(a)(ii) to consider “the concerns of the parent for
enhancing the education of their child;” however, the IEP Team is not required to include
a particular transition service or services in a student’s IEP based solely on a parent's or
student's request.
The IDEA does not specify criteria for determining whether a student would or would not
“reasonably benefit” 3 from specific transition services. The IEP requirements in 34 CFR
§300.320(b) for “appropriate measurable postsecondary goals based upon age appropriate
transition assessments related to training, education, employment, and, where
appropriate, independent living skills” should inform the IEP Team’s decisions regarding
“transition services (including courses of study) needed to assist the child in reaching
those goals.” If the IEP Team determines that services in a community, technical, or
other postsecondary program are necessary to assist the secondary school student in
reaching his/her postsecondary goals and receiving FAPE, and those services are
considered secondary school education as discussed above, the student’s IEP Team could
designate those as transition services and the school district could pay for those services
with IDEA Part B funds.
If attendance at postsecondary classes cannot be supported with IDEA Part B funds, as
noted above, a State may elect to use State and local funds to provide or pay for those
services. OSEP recognizes that school districts and students and parents may wish to use
the IEP as the vehicle to document that the child is receiving services at a postsecondary
institution that cannot be paid for with Part B funds as a transition service. However,
there is no IDEA requirement to include additional information in a child’s IEP beyond
what is explicitly required in section 614 of the Act. See 34 CFR §300.320(d)(1). Thus,
if a State provides or pays for transition services on college campuses with State or local
funds and wishes to require that the child’s IEP include those services, consistent with
section 608(b) of IDEA, it must inform local educational agencies in the State and the
Department in writing that this is a State-imposed requirement that is not required by Part
B of the Act. See 34 CFR §300.199(a)(2).

3

OSEP interprets “reasonably benefit” to mean that the child’s IEP, including transition services where appropriate,
is reasonably calculated to enable the child to receive educational benefit. See Board of Education of the Hendrick
Hudson Central School District v. Rowley, 458 U.S. 176 (1982).

Page 4 – W. Kelly Dude

Question 2: If a special education student with a transition plan attends a postsecondary
institution, either auditing or taking one or more classes for credit, is the school district obligated
to provide, and pay for, transportation, tuition and/or a paraprofessional to attend classes with the
student?
OSEP’s Response: In general, IDEA requires that the special education and related
services provided to a student under his or her IEP, including the transition services
identified in the student’s IEP, must be provided at public expense and at no cost to the
parents. 34 CFR §§300.101 and 300.17. Whether the school district is obligated to
provide, and pay for, transportation, tuition and/or a paraprofessional to attend classes
with the student is a determination that must be made on an individual, case-by-case basis
by the student’s IEP Team.
Question 3: If a special education student with a transition plan who is attending a postsecondary institution wants to experience living in a dormitory, what obligation, if any does a
school district have to provide a paraprofessional on site at the dormitory, and does a school
district have an obligation to pay for the cost of the room and board?
OSEP’s Response: Unless this experience is being provided to carry out a
postsecondary goal included by the IEP Team on the student’s IEP as part of the
student’s transition services and is considered secondary school education as described
above, the LEA is under no obligation to provide, or pay for, either a paraprofessional or
the cost of room and board.
Question 4: If school districts have any of the obligations described above, how would these
obligations reasonably be imposed on rural school districts that may be located significant
distances from a post-secondary institution?
OSEP’s Response: Rural school districts have the same obligation as other school
districts with respect to developing postsecondary goals and providing transition services
for a student with a disability. Based on the clarification set out in this letter, if IEP
Teams in rural school districts incur additional costs to meet a student’s transition
services needs, they may seek to use funds reserved for State-level activities for the
“development and implementation of transition programs, including coordination of
services with agencies involved in supporting the transition of students with disabilities to
postsecondary activities.” See 34 CFR §300.704(b)(4)(vi).
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.

Page 5 – W. Kelly Dude

If you have additional questions, please do not hesitate to contact Robert MacGillivray, the
OSEP State contact for Colorado, at 202-245-7433 or by email at Robert.MacGillivray@ed.gov.
Sincerely,

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

cc: State Director of Special Education