UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
August 1, 2013
Michael I. Inzelbuch, Esq.
Sovereign Bank Building
555 Madison Avenue
Lakewood, New Jersey 08701
Dear Mr. Inzelbuch:
This is in response to your September 14, 2012 electronic mail (email) correspondence to, and follow
up conversation on March 12, 2013 with, staff in the Office of Special Education Programs (OSEP),
U.S. Department of Education, regarding provisions in the Individuals with Disabilities Education
Act (IDEA) and its implementing regulations at 34 CFR Part 300. You ask for clarification
regarding two scenarios, the first pertaining to the dispute resolution procedures in 34 CFR §300.507
and the second pertaining to observations conducted as a part of an independent educational
evaluation (IEE) in 34 CFR §300.502. Your specific questions and OSEP’s responses follow.
Scenario: An individual files a due process complaint consistent with 34 CFR §300.507 that is
deemed sufficient by the due process hearing officer consistent with 34 CFR §300.508(d).
Subsequently, the local educational agency (LEA) allegedly violates another IDEA provision when it
fails to issue the parent a response to the due process complaint stating why the LEA is refusing to
take action as required by 34 CFR §300.508(e)(1)(i).
Question 1: In addressing the subsequent concern, may the parent file a State complaint that could
be simultaneously addressed through the State complaint procedures in 34 CFR §§300.151 through
300.153 or must the parent wait to file the State complaint until the first matter is fully adjudicated by
the due process hearing officer? Alternately, may the parent include the subsequent allegation as a
part of the due process complaint that has already been deemed sufficient?
OSEP’s Response: First, it should be noted that under 34 CFR §300.508(e)(1), the requirement to
provide a response within 10 days of receiving a due process complaint only applies if the LEA has
not sent a prior written notice under 34 CFR §300.503 regarding the subject matter of the complaint.
We will address your question under the assumption that, in the scenario above, no prior written
notice had been sent and the failure to provide such notice under 34 CFR §300.503 was raised in the
due process complaint.
In your inquiry, you stated that your understanding was that the due process complaint procedures
would be the appropriate remedy. That understanding is correct. In your scenario, the parent seeks
relief because of the LEA’s failure to comply with 34 CFR §300.508(e)(1), where the LEA failed to
provide the parent with either a prior written notice about the matter that is the subject of the parent’s
due process complaint, or a response to the due process complaint stating why the LEA is refusing to
take the action sought by the complaint. Because this is the type of relief that is related to the due
process complaint, and could eventually be the subject of the due process hearing if the matter is not
otherwise resolved, we believe that, under the specific scenario you described, this is a matter that
falls within the jurisdiction of a due process hearing officer.

Page 2 – Michael I. Inzelbuch
Question 2: Where the parents of a student with a disability have selected an evaluator for the
purpose of conducting an IEE at public expense pursuant to 34 CFR §300.502, may the LEA prohibit
the evaluator from observing the child in the educational setting, or limit the observation by requiring
that all of the evaluators questions be pre-approved by the LEAs counsel?1
OSEP’s Response: Section 300.502(e) of the Part B regulations requires that 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. Further, as stated in the Analysis of Comments and Changes section of the August 14, 2006
final Part B regulations, the purpose of an evaluation under the IDEA is:
to determine whether the child is a child with a disability, and in the
case of a reevaluation, whether the child continues to have a
disability, and the educational needs of the child. It would be
inconsistent with the IDEA for a public agency to limit the scope of
an IEE in a way that would prevent an independent evaluator from
fulfilling these purposes.
71 Fed. Reg. 46690 (August 14, 2006).
A determination must be made on a case-by-case basis as to whether public agency criteria prevent
an evaluator from fulfilling these purposes.
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

1

The wording of this question is reflective of the clarification you verbally posed to staff during your March 12,
2013 phone conversation and differs from that posed in your original email.


Enclosure
Effective Evidence-based Practices for Preventing and Addressing Bullying
There is no one-size-fits-all or simple solution for addressing bullying behavior. Rather, efforts to
prevent and address bullying behavior should be embedded within a comprehensive, multitiered
behavioral framework used to establish a positive school environment, set high academic and
behavioral expectations for all students, and guide delivery of evidence-based instruction and
interventions that address the needs of students, including students with disabilities. In such a
framework, policies and practices would be aligned and consistently implemented school wide; that
is, across general and special education, each grade level, and in all school settings and activities.
Data-based decision making would be used to identify needs, analyze problem situations, outline
clear evidence-based practices to be used in delivery of instruction and implementation of
interventions, and monitor progress toward clear, positive academic and behavioral outcomes as
part of an ongoing, continuous improvement model.
When deciding which strategy or strategies to use to address bullying behavior, each school needs
to consider the relevant factors given its school environment, students’ social and cognitive
development, and the evidence on programmatic prevention and intervention. Teachers,
administrators, and staff understand that students’ social behavior affects their academic learning.
In many high-performing schools, academic instruction is combined with effective behavioral
supports to maximize academic engagement and in turn, student achievement. That is, successful
schools focus on decreasing academic failure and problem behaviors, including bullying, and
increasing opportunities for all students to fully participate in learning. There is a growing body of
research on promising school bullying interventions that can inform practice. For example, a metaanalysis of research across a 25-year period found that school bullying prevention programs led to
changes in knowledge, attitudes, and self-perceptions of those targeted by bullying, engaging in
bullying, and bystanders. 1 Another meta-analysis of school-based programs implemented in the
United States and internationally to reduce bullying concluded that overall school-based
antibullying programs were often effective in reducing bullying, and identified program elements
(i.e., critical practices or strategies) associated with effective programs; but results varied based on
context. 2 Experimental research has also demonstrated lower rates of bullying and peer rejection
when critical practices or strategies were used within a multitiered behavioral framework. 3
The following effective evidence-based practices are found in many multitiered behavioral
frameworks. We encourage you to carefully consider each of these practices as part of any bullying
prevention and intervention program you undertake to help ensure that your school and classroom
settings are positive, safe, and nurturing environments for all children and adults.

1

Merrell, K. W., Gueldner, B. A., Ross, S. W., & Isava, D. M. (2008). How effective are school bullying intervention
programs? Meta-analysis of intervention research. School Psychology Quarterly, 23, 26-42.

2

Farrington, D. P., & Ttofi, M. M. (2009). School-based programs to reduce bullying and victimization. Campbell
Systemic Reviews, 2009:6.
3
Bradshaw, C. P., Mitchell, M. M., & Leaf, P. J. (2010). Examining the effects of school-wide Positive Behavioral
Interventions and Supports on student outcomes: Results from a randomized controlled effectiveness trial in
elementary schools. Journal of Positive Behavior Interventions, 12, 133-148.

Use a comprehensive multitiered behavioral framework
Just as important as determining which strategies will be used is knowing how, when, and by whom
those strategies will be implemented. Evidence-based instructional and intervention strategies for
preventing and addressing bullying of students, including students with disabilities, are most
effective when used as part of a comprehensive multitiered behavioral framework that engages the
whole school community, and establishes and maintains positive, safe, and nurturing school
environments conducive to learning for all students. Providing clear and formal instruction for all
students, and staff on how to behave in respectful and responsible ways across all school settings
and activities is a vital component of this approach.
Issues related to the bullying of students with disabilities should be included in the topics addressed
by the school’s comprehensive multitiered behavioral framework, and also as a specific area of
focus in policies and practices addressing behavioral expectations. In addition to implementing
certain steps for the whole school (e.g., consistent rules and rewards for good behavior), a
comprehensive multitiered behavioral framework of instruction and interventions also includes
using strategies that address bullying and other problematic behaviors, such as steps for groups of
students exhibiting at-risk behavior and individual services for students who continue to exhibit
troubling behavior.
Using a comprehensive multitiered behavioral framework for making decisions on identifying,
implementing, and evaluating effective evidence-based practices helps schools to: (a) organize
evidence-based practices, including those that will be used to address bullying of students with
disabilities; (b) support the use of evidence-based practices according to the practice guidelines; and
(c) monitor the outcomes for students to determine the effectiveness of the evidence-based practices
and need for any additional instruction and intervention. Preventing and addressing bullying of
students with disabilities needs to be aligned with, and embedded as part of each school’s
comprehensive multitiered behavioral planning, and given explicit consideration to ensure that the
individual needs of each student with a disability are addressed fully in the school-wide plans for
creating and sustaining a positive, safe, and nurturing school environment.
One example of a multitiered behavior framework that school personnel can use to plan, implement,
and evaluate evidence-based instruction and intervention practices is Positive Behavioral
Interventions and Supports (PBIS). The PBIS framework can help to create an appropriate social
culture, learning and teaching environment, achieve academic and social success, and minimize
problem behavior, including reducing the risks and decreasing the occurrence of bullying. Using
this multitiered framework, school personnel establish a continuum of evidence-based behavioral
practices that include school-wide strategies, more intense strategies for groups of students
exhibiting at-risk behaviors, and individual services for students who continue to exhibit
problematic behavior and need additional support. 4 Rather than offering a packaged curriculum, a
manualized strategy, or a prescripted intervention, PBIS provides school personnel with a decisionmaking structure that they can use to identify, implement, and evaluate effective evidence-based
instruction and intervention strategies within a comprehensive multitiered framework to prevent and
respond to bullying in their school setting. 5 By outlining a comprehensive school-wide approach
4

Bradshaw et al. (2010).
Sugai, G., Horner, R.H., Algozzine, R., Barrett, S., Lewis, T., Anderson, C., Bradley, R., Choi, J. H., Dunlap, G., Eber,
L., George, H., Kincaid, D., McCart, A., Nelson, M., Newcomer, L., Putnam, R., Riffel, L., Rovins, M., Sailor, W., &

5

2

with multitiered instruction and intervention, schools work to create school cultures that prevent the
development and reduce the occurrence of bullying. In addition, schools are prepared to respond to
problematic behavior using a team-based, data-driven problem-solving process when needed.
The following are practices found in many effective, evidence-based behavioral prevention and
intervention school-wide frameworks.
Teach appropriate behaviors and how to respond
Preventing bullying begins by actively and formally teaching all students and all school personnel:
(1) what behaviors are expected at school and during school activities; (2) what bullying looks like;
and (3) how to appropriately respond to any bullying that does occur. Specifically, clear behavioral
expectations are taught to students and adults in the same manner as any core curriculum subject. 6
Consistency in behavioral expectations from class to class, adult to adult, and across settings is very
important in establishing shared and predictable expectations that both students and school
personnel understand and follow.
Provide active adult supervision
Adults play an important role in actively supervising and intervening early to correct behavior
problems, especially in common areas (e.g., hallways, cafeteria, playgrounds, and extracurricular
events). By moving continuously throughout an area and having positive interactions with students,
adults are able to teach and model expected behavior and routines, notice and reward appropriate
behavior, and intervene early so that minor rule violations are handled effectively before
problematic behaviors escalate.
Train and provide ongoing support for staff and students
Training, ongoing professional development, and support, including coaching, to all personnel on
the use of effective evidence-based strategies for responding to inappropriate behavior, including
bullying, as well as evidence-based instruction and classroom management practices, are important
tools to ensure that school staff are equipped to effectively address bullying. In addition, clear
guidance on legal requirements, policy, and practice implications for students with disabilities needs
to be explicitly provided in training.
School personnel need to be aware that students with disabilities are significantly more likely than
their peers without disabilities to be the targets of bullying. 7 Any number of factors may explain
their increased risk of being bullied, including but not limited to the student’s physical

Simonsen, B. (2010). School-Wide Positive Behavior Support: Implementers’ Blueprint and Self-Assessment. Eugene,
OR: University of Oregon.
6

Sugai et al. (2010).

7

Young, J., Ne’eman, A., & Gelser, S. (2011). Bullying and Students with Disabilities. A Briefing Paper from the
National Council on Disability. Washington, DC: National Council on Disability (available at:
http://www.ncd.gov/publications/2011/March92011http://www.ncd.gov/publications/2011/March92011).

3

characteristics, processing and social skills, or simply being in environments with others who are
intolerant. 8
Training is essential in helping school personnel recognize the different forms of bullying that may
be directed at students with disabilities, and the unique vulnerabilities these students may have to
social isolation, manipulation, conditional friendships, and exploitive behaviors. Students, with and
without disabilities, do not always recognize problem behaviors as bullying, or may be reluctant to
stand up for themselves or others, seek help, or report bullying due to fear of retaliation, particularly
if adults are involved. Due to the complexities of their disabilities, students with intellectual,
communication, processing, or emotional disabilities may not understand manipulation or exploitive
behavior as harmful, or have the knowledge and skills to explain the situation to an adult who can
help.
All students should receive clear, explicit instruction on how to respond to and report bullying. For
students with disabilities, instruction on how to respond to and report bullying needs to be provided
in a manner consistent with their IEPs and any accommodations that are provided to support
learning. In addition, school staff should monitor for bullying and its possible effects on FAPE for
students with disabilities, as it is not sufficient for school personnel to rely only on students to
report bullying or identify how the bullying is interfering with FAPE.
Develop and implement clear policies to address bullying
We encourage schools to develop clear policies and procedures, consistent with Federal, State, and
local laws, to prevent and appropriately address bullying of students, including students with
disabilities. 9 In these antibullying policies, schools may want to include a reminder that harassment
against a student on the basis of disability and retaliation against any student or other person are
also prohibited under Section 504, Title II, and other Federal civil rights laws enforced by the U.S.
Department of Education’s Office for Civil Rights. 10
Schools should widely disseminate their antibullying policies and procedures to staff, parents, and
students, and post the policies in the school and on the school’s website. Any published policies
and procedures must be accessible to students with visual or other disabilities. Schools should
provide ongoing training to staff, parents, and students on their antibullying policies and procedures
so that everyone in the school community is aware that bullying behavior will not be tolerated.
8

Young et al. (2011).

9

Under Title II and Section 504, school districts must notify students, parents, and school personnel (including persons
with impaired vision or hearing) that the district does not discriminate on the basis of disability; must adopt grievance
procedures providing for the prompt and equitable resolution of complaints alleging disability discrimination (including
harassment); and must designate at least one person to coordinate compliance with those laws. See 28 C.F.R. § 35.106;
28 C.F.R. § 35.107; 34 C.F.R. § 104.7; 34 C.F.R. § 104.8.

10

It is unlawful to retaliate against an individual for the purpose of interfering with any right or privilege secured by
Section 504, Title II, Title VI of the Civil Rights Act of 1964 (Title VI), Title IX of the Education Amendments of 1972
(Title IX), the Age Discrimination Act of 1975 (Age Act), or the Boy Scouts of America Equal Access Act (BSA Act).
See 34 C.F.R. § 100.7(e) (Title VI); 34 C.F.R. § 104.61 (Section 504) (incorporating 34 C.F.R. § 100.7(e) by reference);
28 C.F.R. § 35.134 (Title II); 34 C.F.R. § 106.71 (Title IX) (incorporating 34 C.F.R. § 100.7(e) by reference); 34 C.F.R.
§ 110.34 (Age Act); and 34 C.F.R. § 108.9 (BSA Act) (incorporating 34 C.F.R. § 100.7(e) by reference).

4

When bullying occurs, school personnel need to respond quickly, to act in accordance with school
policies and procedures, and to address the issue in a professional manner. School personnel should
be sure to document the response to a bullying incident in writing.
Monitor and track bullying behaviors
Collecting and analyzing data on bullying behaviors can provide a clearer picture of what is
happening in school and school activities, guide planning of prevention, instruction, and
intervention efforts, and inform decision making on the effectiveness of current policies and
practices over time. Adults tend to underestimate the rates of bullying because students rarely
report it, and it often happens when adults are not around. 11 Thus, data collected from multiple
sources, including surveys of students, will help establish a more accurate understanding of bullying
behaviors occurring in school and school activities. Data collection should be linked to existing
data systems (e.g., attendance, discipline) when possible, and include information such as the
frequency, types, and location of bullying behavior, other contextual factors, adult and peer
responses, and also perceptions of safety and school climate.
Notify parents when bullying occurs
Parents or guardians should be promptly notified of any report of bullying that directly relates to
their child in accordance with Federal, State, and local law, policies, and procedures. Clear and
accurate communication is needed to inform the parents or guardians of both the student who was
the target of bullying behavior and the student who engaged in the bullying behavior. 12 Parents and
guardians should also be encouraged to work with their child’s teachers and other school personnel
to determine the steps that need to be taken to address the bullying and prevent its recurrence.
Address ongoing concerns
Expected school behaviors and routines should be taught to and known by all students and staff.
Students whose school behavior is not safe, responsible, and respectable, and consistent with the
established school expectations may need: (a) more focused social skills instruction; (b) frequent,
specific feedback on their behavior, or (c) increased adult engagement. 13 School personnel should
use data measuring an individual student’s responsiveness to antibullying instruction and
intervention to determine the need for continued, more intensive, and specialized assistance for each
student.
Additionally, if a school suspects that bullying is becoming a problem school-wide, a team-based
and data-driven problem-solving process should be initiated. Such an approach should examine
discipline and performance data to determine: (1) the current status of bullying, including how
11

Cohen et al. (2009).

12

The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, restricts the nonconsensual disclosure
of personally identifiable information from a student’s education record, including information on disciplinary actions
taken against a student. State and local officials are encouraged to seek guidance to be sure that all policies are
implemented consistent with these provisions.
13

Sugai et al. (2010).

5

often, when, and where specific bullying incidents occur, how many and which students are
involved, including whether any are students with disabilities, and which adults, if any, are
involved; (2) the extent to which positive school-wide behavioral expectations have been explicitly
taught, as well as the extent to which students easily and naturally meet those expectations by
routinely behaving in a manner consistent with the expectations at school and school activities; and
(3) whether all students are actively academically engaged, successful, and appropriately
challenged. Based on the data, a common strategy should be outlined to address the settings (e.g.,
hallways, cafeterias, and buses) and situations (e.g., unstructured class time, transitions, field trips,
and during assemblies) in which bullying frequently occurs. The strategy should include certain
steps that will be taken for the whole school (e.g., consistent rules and rewards for good behavior),
more intense steps that will be taken for groups of students exhibiting at-risk behavior, and
individual services that will be provided for students who continue to exhibit problematic behavior.
Sustain bullying prevention efforts over time
Prevention of bullying should be ongoing, and accepted as an integral component of the school’s
overall behavioral framework that delineates a school’s environment and routine operation. We
must remain mindful of the importance of providing positive, safe, and nurturing environments in
which all children can learn, develop, and participate. Just as each year schools work to maximize
academic engagement and learning outcomes for all students, including students with disabilities,
we also must take steps to prevent and address bullying behavior. Effective, evidence-based
practices created and sustained within a comprehensive multitiered framework will prevent the
occurrence and reduce the impact of bullying in our schools, and also enhance learning and
developmental outcomes for all students.
Resources on Preventing and Addressing Bullying
Additional information about preventing and addressing bullying behavior is available from the
resources listed below.
•

•

StopBullying.gov - This U.S. government website is hosted by the U.S. Department of Health
and Human Services in partnership with the U.S. Department of Education. It provides
information on how kids, teens, young adults, parents, educators, and others in the community
can address bullying behaviors. Information about cyberbullying also is available.
http://www.stopbullying.gov
PACER.org/bullying/ - This National Parent Center funded by the Office of Special Education
Programs (OSEP) supports families with children with disabilities by providing assistance to
individual families, conducting workshops, and providing information through materials and
websites. PACER’s National Bullying Prevention Center educates communities nationwide to
address bullying through creative, relevant, and interactive resources. PACER’s bullying
prevention resources are designed to benefit all students, including students with disabilities.
PACER also hosts TeensAgainstBullying.org, created by and for teens to address bullying. In
addition, PACER hosts KidsAgainstBullying.org, designed by and for elementary school
students to learn about bullying prevention. http://www.pacer.org/bullying/

6

•

PBIS.org – The Technical Assistance Center on Positive Behavioral Interventions and Supports
(PBIS), funded by OSEP, gives schools capacity-building information and technical assistance
for identifying, adapting, and sustaining effective school-wide disciplinary practices. It also: (a)
provides technical assistance to encourage large-scale implementation of PBIS; (b) provides the
organizational models, demonstrations, dissemination, and evaluation tools needed to
implement PBIS with greater depth and fidelity across an extended array of contexts; and (c)
extends the lessons learned from PBIS implementation to the broader agenda of educational
reform. http://www.pbis.org

•

NICHCY.org - This national dissemination center funded by OSEP provides a wealth of
information on disabilities in children and youth; programs and services available for infants,
toddlers, children, and youth with disabilities under IDEA; and research-based information on
effective practices for children with disabilities (birth through 21 years of age). Information and
links to resources that address bullying relative to children with disabilities are also provided.
http://nichcy.org/schoolage/behavior/bullying/

•

FindYouthInfo.gov - This U.S. government website was developed by 12 Federal agencies,
including the Department of Education, in partnership with the White House, to disseminate
information and to leverage resources to support programs and services focusing on positive,
healthy outcomes for youth. The website provides facts and information on a wide range of
topics including bullying, cyberbullying, and positive youth development. It also contains
information on assessing community assets, generating maps of local and Federal resources,
searching for evidence-based youth programs, and keeping up-to-date on the latest, youthrelated news. Information is provided on funding opportunities available to those interested in
addressing bullying and related topics, as well as on Federal funds awarded to states and
communities for use in locating potential resources or partners already available.
http://www.FindYouthInfo.gov/

•

Safesupportiveschools.ed.gov - The National Center on Safe Supportive Learning
Environments is funded by the U.S. Department of Education’s Office of Safe and Healthy
Students, and the U.S. Department of Health and Human Services’ Substance Abuse and Mental
Health Services Administration (SAMHSA) to help schools and communities contend with
many factors that impact the conditions for learning, such as bullying, harassment, violence, and
substance abuse. The Center provides resources, training, and technical assistance for State and
local educational agency administrators, teachers, and staff; institutions of higher education;
communities, families, and students seeking to improve schools’ conditions for learning through
measurement and program implementation, so that all students have the opportunity to realize
academic success in safe and supportive environments.
http://safesupportiveschools.ed.gov/index.php?id=01

7


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
August 5, 2013
Diana Bowman, Director
National Center for Homeless Education
SERVE Center at UNCG
5900 Summit Avenue, #201
Browns Summit, NC 27214
Dear Ms. Bowman:
This letter is in response to your questions to the Office of Special Education and Rehabilitative
Services (OSERS), U.S. Department of Education (Department) regarding children with
disabilities who are homeless. In your discussions with Laura Duos, a member of OSERS staff,
you asked questions regarding a child’s school of origin and the transportation of children who
are homeless. Answers to your questions are included below.
Question 1: Are Individuals with Disabilities Education Act (IDEA) funds or McKinney-Vento
funds used to transport students with disabilities to their school of origin?
Answer: Depending on the circumstances, both McKinney-Vento Act and IDEA Part B funds
can be used to transport homeless children with disabilities to their school of origin.
Transportation is defined as a related service under 34 CFR §300.34(a) of the IDEA regulations
and, under 34 CFR §300.34(c)(16), could include travel to and from school and between schools.
A child’s individualized education program (IEP) Team is responsible for determining if
transportation is required to assist a child with a disability to benefit from special education, and
how the transportation services should be provided. If a child’s IEP Team determines that a
child requires transportation as a related service, then IDEA funds can be used to provide
transportation to the child. Transportation for a child with a disability who is homeless may
include transportation to the child’s school of origin if attending the school of origin is
determined to be in the child’s best interest. 34 CFR §300.34(c)(16) and 42 U.S.C.
11432(g)(1)(J)(iii). If a child with a disability who is homeless does not require transportation as
a related service, IDEA funds may not be used to provide transportation to the child’s school of
origin. However, McKinney-Vento funds may be used to transport the child to the school of
origin. 42 U.S.C. 11432(g)(1)(J)(iii).
Question 2: Under what circumstances may a homeless child without a disability ride a "special
education" school bus to their school of origin?
Answer: Generally, IDEA Part B funds must be used only to pay the excess costs of providing
special education and related services to children with disabilities. 34 CFR §300.202(a)(2) and
20 U.S.C. 1413(a)(2)(A)(i). Under the permissive use of funds provisions in IDEA section
613(a)(4)(A)(i) and 34 CFR §300.208(a)(1), IDEA Part B funds may be used for “the costs of
special education and related services . . . provided in a regular class or other education-related
setting to a child with a disability in accordance with the IEP of the child, even if one or more

Page 2 – Chief State School Officer
nondisabled children benefit from these services.” It is permissible to use IDEA funds in cases
such as this, where an “incidental benefit” is provided to nondisabled children as a result of
special education and related services provided under IDEA to children with disabilities. There
could be situations where, although buses are purchased for the express purpose of transporting
students with disabilities, those buses are not full. Buses should not be purchased with IDEA
funds with the expectation that the buses will be used, in whole or in part, to transport children
without disabilities. For example, if a school district purchases more buses or larger buses than
are necessary to provide transportation to all students with disabilities within their district
requiring such transportation, with the purpose of using those buses (or extra seats resulting from
those buses) to provide transportation to children without disabilities, it would constitute an
improper expenditure of IDEA funds on children without disabilities.
Under circumstances in which buses are purchased exclusively to transport children with
disabilities but are not full and are able to pick up nondisabled homeless children along the usual
bus routes, and no additional IDEA funds would need to be expended to transport those
nondisabled children, buses purchased with IDEA funds may be used to transport nondisabled
homeless children under the permissive use of funds provisions because the use of IDEA Part B
funds in this situation would confer an incidental benefit on the nondisabled homeless children.
Whether LEAs could rely on this provision in other situations would depend on the specific facts
involved. We would suggest that if LEAs are seeking to rely on the permissive use of funds
provisions in IDEA and 34 CFR §300.208(a)(1) to transport disabled and nondisabled homeless
children in a vehicle purchased with Part B funds to transport children with disabilities, they
would need to consult with officials of their State Department of Education to confirm whether
the particular use of Part B funds would be permissible and whether the benefit conferred on the
nondisabled children could be considered an incidental benefit.
OSEP also notes that the IDEA does not require LEAs to transport children with disabilities in
separate vehicles isolated from their peers. In fact, many children with disabilities can receive
the same transportation provided to nondisabled children, consistent with the least restrictive
environment requirements in 34 CFR §§300.114 through 300.120. For more information, see
Questions and Answers on Serving Children with Disabilities Eligible for Transportation, which
is posted on the Department’s Web site at:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C12%2C
Question 3: If a child with a disability who is homeless is allowed to attend his or her school of
origin, rather than a school in the LEA where the child is located, is there a change in placement
or a change in the least restrictive environment (LRE) for the child with a disability?
Answer: The McKinney-Vento Act defines “school of origin” as the school the child or youth
attended when permanently housed or the school in which the child or youth was last enrolled.
42 U.S.C. 11432(g)(3)(G). If a child becomes homeless, LEAs must, depending on what is in
the best interest of the child, either continue the child’s education in the school of origin or enroll
the child in any public school that non-homeless students who live in the attendance area where
the child is actually living are eligible to attend. In determining the best interest, LEAs must, to
the extent feasible, keep children in the school of origin, unless it is against the wishes of the
parent or guardian. 42 U.S.C. 11432(g)(3)(B)(i).

Page 3 – Chief State School Officer

Under the IDEA, placement decisions for all children with disabilities, including homeless
children with disabilities, must be made annually, on an individual basis, in accordance with
their IEPs by a group of knowledgeable persons, including the child’s parents. Further, each
child with a disability is educated in the school the child would attend if not disabled unless the
child's IEP requires some other arrangement. 34 CFR §300.116(b)-(c). Historically, the
Department has referred to ‘placement’ as points along the continuum of placement options
available for a child with a disability (i.e., regular class, special school or separate school) and
“location'' as the physical surrounding, such as the classroom, in which a child with a disability
receives special education and related services. Analysis of Comments and Changes to the final
Part B regulations, 71 FR 46540, 46588 (Aug. 14, 2006). In the case of a child with a disability
who is homeless, providing the set of services included in the child’s IEP in the school of origin
does not necessarily mean a change in placement has occurred. If the child’s services are
essentially the same and are being provided in a setting that is the same option on the continuum
and the level of interaction with nondisabled peers is the same, then the change in location of
services to the school of origin would not constitute a change in placement under IDEA. These
determinations are fact-specific and would need to be made on a case-by-case basis.
Question 4: Some state regulations require the LEA of residence to be responsible for the child’s
free appropriate public education (FAPE). If a homeless child moves to a shelter in a new school
district but attends the school of origin in the previous school district, how does the new LEA of
residence ensure FAPE is provided?
Answer: Under IDEA, one public agency generally is responsible for ensuring the provision of a
free appropriate public education (FAPE) to children with disabilities in its jurisdiction. While
most States allocate responsibility for providing FAPE based on the district in which the child’s
parents reside, States have discretion in determining which LEA or school district is responsible
for providing FAPE to children with disabilities who are homeless. If State regulations require
the LEA of residence to be responsible for FAPE, that LEA is responsible for obtaining parental
consent, conducting evaluations and reevaluations, and determining eligibility in accordance
with 34 CFR §§300.300 through 300.311, developing and implementing the child’s IEP in
accordance with 34 CFR §§300.320 through 300.324, ensuring placement in accordance with the
LRE provisions in 34 CFR §§300.114 through 300.117, and affording eligible children and their
parents the procedural safeguards and due process rights, including the discipline procedures in
34 CFR §§300.500 through 300.536. Because the child is attending a school in another district
the school districts must coordinate with one another to ensure the child receives FAPE. Section
300.323(g) of the IDEA regulations requires school districts to promptly exchange relevant
records when a child changes school districts. Relevant records include existing evaluation data,
consistent with 34 CFR §300.305. Coordinating assessments and exchanging relevant records
promptly is critical to providing FAPE, and we encourage school districts to be as proactive as
possible in providing and securing this information.
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 4 – Chief State School Officer
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
July 31, 2013
Garth Tymeson, Ph.D.
Center on Disability Health and
Adapted Physical Activity
College of Science and Health
University of Wisconsin, La Crosse
131 Mitchell Hall
La Crosse, Wisconsin 54601
Dear Dr. Tymeson:
This is in response to your March 1, 2013 letter to Michael K. Yudin, Acting Assistant Secretary,
Special Education and Rehabilitative Services, U.S. Department of Education, and follow-up
phone conversation with Jennifer Wolfsheimer, Education Program Specialist, on March 25,
2013. In your letter, you ask whether it is consistent with Part B of the Individuals with
Disabilities Education Act (IDEA) and its implementing regulations for a school district to deny
the provision of physical education services as part of a preschool-aged child’s individualized
education program (IEP), when physical education is not available to all children in preschool.
As an example, you state that a local school district refused to provide a preschool-aged child
with a disability physical education as part of the child’s IEP because children without
disabilities in preschool in the school district are not offered physical education.
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 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). Furthermore, the requirements of Part B of the IDEA regarding IEPs for children with
disabilities apply to preschool-aged children.

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

Sincerely,

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