UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
February 22, 2019
Karen J. Olex
Executive Director for Special Populations
Oakland Schools
2111 Pontiac Lake Road
Waterford, Michigan 48328
Dear Ms. Olex:
This letter responds to your electronic correspondence (email) to me regarding the Michigan
Department of Education’s policy addressing transition assessments administered under the
Individuals with Disabilities Education Act (IDEA). Specifically, you asked whether parental
consent is required prior to conducting “age appropriate transition assessments” referenced in the
IDEA Part B transition services provisions.
We note that section 607(d) of the IDEA prohibits the Secretary from issuing policy letters or
other statements that establish a rule that is required for compliance with, and eligibility under,
IDEA without following the rulemaking requirements of section 553 of the Administrative
Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is
provided as informal guidance and is not legally binding. This response represents an
interpretation by the Department of the requirements of IDEA in the context of the specific facts
presented, and does not establish a policy or rule that would apply in all circumstances.
In brief, while there is nothing in IDEA that would prevent a State from requiring parental
consent for age appropriate transition assessments related to appropriate measurable
postsecondary goals, it is the position of the Office of Special Education Programs that in
general, IDEA does not require a public agency to obtain parental consent before conducting
those assessments, unless the assessments are part of an initial evaluation or reevaluation. Our
explanation of relevant IDEA requirements follows.
Under 34 C.F.R. § 300.320(b), beginning with the first individualized education program (IEP)
to be in effect when a child turns 16, or younger if determined appropriate by the IEP Team, and
updated annually thereafter, the IEP must include: (1) appropriate measurable postsecondary
goals based on age appropriate transition assessments related to training, education, employment,
and where appropriate, independent living skills; and (2) the transition services, including
courses of study, needed to assist the child in reaching those goals. The term “evaluation,” under
IDEA, means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to
determine whether a child has a disability and the nature and extent of the special education and
related services that the child needs. Once a child has been fully evaluated for the first time
in a State, a decision has been rendered that a child is eligible under IDEA, and the
required services have been determined, any subsequent evaluation of a child to determine
whether the child is a child with a disability and the nature and extent of special education
and related services that the child needs would constitute a reevaluation. 20 U.S.C. § 1414(a)(2).
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Page 2 – Karen J. Olex
IDEA requires a public agency to obtain parental consent prior to conducting an initial
evaluation or reevaluation. 20 U.S.C. §§ 1414(a)(1)(D)(i)(I) and 1414(c)(3) and 34 C.F.R. §
300.300(a) and (c). Under 34 C.F.R. § 300.300(a)(1), a public agency proposing to conduct
an initial evaluation to determine if a child qualifies as a child with a disability under
34 C.F.R. § 300.8 must, after providing notice consistent with 34 C.F.R. §§ 300.503 and
300.504, obtain informed consent, consistent with 34 C.F.R. § 300.9, from the parent of
the child before conducting the evaluation. If the parent of a child enrolled in public school,
or seeking to be enrolled in public school, does not provide consent for the initial evaluation,
or the parent fails to respond to a request to provide consent, the public agency may, but
is not required to, pursue the initial evaluation of the child by utilizing the IDEA
procedural safeguards (including the mediation procedures under 34 C.F.R. § 300.506
or the due process procedures under 34 C.F.R. §§ 300.507 through 300.516). See 20 U.S.C.
§ 1414(a)(1)(D)(ii)(I) and 34 C.F.R. § 300.300(a)(3)(i).
A public agency also must obtain informed parental consent, in accordance with 34 C.F.R. §
300.300(a)(1), prior to conducting any reevaluation of a child with a disability. If the
parent of a child who is enrolled or seeking to be enrolled in public school refuses to
consent to the reevaluation, the public agency may, but is not required to, pursue the
reevaluation by using the consent override procedures described in 34 C.F.R. §
300.300(a)(3). Also, the informed parental consent to conduct a reevaluation need not be
obtained if the public agency can demonstrate that it made reasonable efforts to obtain
such consent and the child’s parent has failed to respond. See 20 U.S.C. § 1414(c)(3) and 34
C.F.R. § 300.300(c)(1)-(2). Finally, parental consent is not required before reviewing existing
evaluation data on the child as part of an evaluation or a reevaluation or administering a test or
other evaluation that is administered to all children unless, before administration of that test or
evaluation, consent is required of parents of all children. 34 C.F.R. § 300.300(d)(1).
In your correspondence you state that the assessments at issue are competency-based transition
assessments that are administered to all transition-aged students on a yearly basis, in order to
develop postsecondary goals. If those assessments are administered to all students, both with and
without disabilities, consistent with 34 C.F.R. § 300.300(d)(1)(ii), parental consent would not be
required unless it is required before the administration of the assessment to all children. Further,
we believe that generally, parental consent is not required prior to conducting an age appropriate
transition assessment because the purpose of the assessment is to develop appropriate
postsecondary IEP goals and not to determine whether a child has or continues to have a disability,
and the nature and extent of the special education and related services that the child needs. If,
however, the IEP Team determines that a reevaluation of the child is warranted in order to obtain
additional data, based on the student’s educational or related services needs including improved
academic achievement and functional performance, the public agency is required to obtain parental
consent consistent with 34 C.F.R. § 300.300(c). See also 34 C.F.R. § 300.303(a)(1). Under 34
C.F.R. § 300.300(d)(2), a State may require parental consent for other services and activities under
Part B of IDEA if it ensures that each public agency in the State establishes and implements
effective procedures to ensure that a parent’s refusal to consent does not result in a failure to
provide the child with a free appropriate public education. Consequently, if a State chooses to
require consent for transition assessments it would be required to inform its local educational

Page 3 – Karen J. Olex
agencies and the Secretary of Education of this State-imposed requirement. 20 U.S.C. § 1407(a)(2)
and 34 C.F.R. § 300.199(a)(2).
If you have any further questions, please do not hesitate to contact Ms. Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs


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

February 21, 2019
Lawrence Siegel, Esq.
101 Lucas Valley Road
Suite 265
San Rafael, California 94903
Dear Mr. Siegel:
This letter is in response to your electronic mail (email) correspondence to Lisa Pagano in the
Office of Special Education Programs. You asked a series of questions regarding a child with a
disability who transfers to a new local educational agency (LEA) during the summer.
Specifically, you ask whether the new LEA is required to hold an individualized education
program (IEP) Team meeting prior to the start of the school year in the following scenario —
•

•

A child goes to a new LEA and is also moving to a new educational level, e.g., K-8 to
high school where the programs/options are likely entirely different from the child’s
previous program and IEP. In short, in many, if not all cases, the high school LEA district
cannot implement the old IEP.
The new LEA refuses to hold an IEP or informal discussions before the new year starts,
which means the new IEP/program will not be offered until sometime after school starts.

We note that section 607(d) of the Individuals with Disabilities Education Act (IDEA) prohibits
the Secretary from issuing policy letters or other statements that establish a rule that is required
for compliance with, and eligibility under, IDEA without following the rulemaking requirements
of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of
IDEA section 607(e), this response is provided as informal guidance and is not legally binding.
This response represents an interpretation by the Department of the requirements of IDEA in the
context of the specific facts presented, and does not establish a policy or rule that would apply in
all circumstances.
IDEA includes specific requirements for IEPs for children who transfer public agencies within
the same school year. If a child with a disability, who had an IEP that was in effect in a previous
public agency in the same State, transfers to a new public agency in the same State, and enrolls
in a new school within the same school year, the new public agency, in consultation with the
parents, must provide a free appropriate public education to the child. This includes providing
services comparable to those described in the child’s IEP from the previous public agency, until
the new public agency either —
(1) adopts the child’s IEP from the previous public agency; or
(2) develops, adopts, and implements a new IEP that meets the applicable requirements in
§§ 300.320 through 300.324. 20 U.S.C. § 1414(d)(2)(C); 34 C.F.R. § 300.323(f).

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Page 2 – Lawrence Siegel, Esq.
This provision does not specifically address a situation where a child with a disability transfers to
a new public agency during the summer. However, IDEA also requires that at the beginning of
each school year, each LEA, State educational agency, or other State agency, must have in effect,
for each child with a disability in the agency’s jurisdiction, an IEP. 20 U.S.C. § 1414(d)(2)(A)
and 34 C.F.R. § 300.323. Therefore, public agencies must ensure that an IEP is in effect at the
beginning of the school year for children who move into a new public agency during the
summer. How a public agency meets this requirement is a matter to be decided by each
individual new public agency.
If the parent requests that the new public agency convene the IEP Team prior to the start of the
school year and the public agency refuses to do so, the agency must provide written notice to the
parent of the refusal. The prior written notice must include, among other content, an explanation
of why the agency determined that conducting the meeting is not necessary to ensure the
provision of appropriate services to the student. 20 U.S.C. §§ 1415(b)(3) - (4) and 1415(c)(1);
and 34 C.F.R. § 300.503. See Analysis of Comments and Changes accompanying the final IDEA
Part B regulations. 71 FR 12406, 12476-12477, (March 12, 1999) available at:
https://www.gpo.gov/fdsys/pkg/FR-1999-03-12/pdf/99-5754.pdf
If you have any further questions, please do not hesitate to contact Ms. Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.

Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs


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

January 29, 2019
Mr. Joshua Wayne
Director, Non-Public Unit
Office of Teaching and Learning
District of Columbia Public Schools
1200 First Street, N.E., 8th Floor
Washington, D.C. 20002
Dear Mr. Wayne:
This letter responds to your correspondence to the Office of Special Education Programs (OSEP)
and follow-up discussions with members of my staff. You ask about a local educational agency’s
(LEA’s) obligation to a parentally placed private school child with a disability when the child’s
parent does not request a free appropriate public education (FAPE) for the child. In the scenario
you present, the LEA made FAPE available through an individualized education program (IEP),
and though the parent did not disagree that FAPE was made available, the parent made clear the
child would continue attending the private school. You ask whether in this circumstance the LEA
is obligated to offer the child an IEP the following year (and annually, thereafter) if the parent
does not contact the LEA and request FAPE for the child.
We note that section 607(d) of the Individuals with Disabilities Education Act (IDEA) prohibits
the Secretary from issuing policy letters or other statements that establish a rule that is required
for compliance with, and eligibility under, IDEA without following the rulemaking requirements
of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of
IDEA section 607(e), this response is provided as informal guidance and is not legally binding.
This response represents an interpretation by the U.S. Department of Education of the
requirements of IDEA in the context of the specific facts presented, and does not establish a
policy or rule that would apply in all circumstances.
Under IDEA’s child find provisions, the LEA where the child’s parents reside has an ongoing,
independent responsibility to locate, identify, and evaluate all children in its jurisdiction in
connection with its responsibility to make FAPE available to eligible children, including children
attending private schools. 20 U.S.C. 1412(a)(3). Further, in accordance with the child find
requirements in 20 U.S.C. 1412(a)(10)(A)(ii), the LEA where the private school the child attends
is located has an ongoing child find responsibility to locate, identify, and evaluate children
enrolled in private, including religious, elementary and secondary schools by their parents in
connection with determining eligibility for equitable services (special education and related
services). This child find responsibility includes scheduling and holding a meeting to discuss
with parents who have consented to an evaluation or reevaluation, the results of the evaluation or
reevaluation, the child’s educational needs, and whether the child is eligible under Part B, or in
the case of a reevaluation, whether the child continues to be a child with a disability. Assistance
to States for the Education of Children with Disabilities and the Early Intervention Program for
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Page 2 - Mr. Joshua Wayne
Infants and Toddlers with Disabilities, Final Rule, 64 Fed. Reg. 12406, 12601 (Mar 12, 1999);
20 U.S.C. § 1414(c) and 34 C.F.R. §§ 300.300 and 300.303.
If a determination is made through IDEA’s child find process that a child needs special education
and related services and a parent makes clear his or her intent to keep the child enrolled in the
private school, the LEA where the child’s parent resides, is not required to make FAPE available
to the child. Assistance to States for the Education of Children with Disabilities and Preschool
Grants for Children with Disabilities, Final Rule, 71 Fed. Reg. 46540, 46593 (Aug. 14, 2006).
However, the LEA where the child’s parents reside must make FAPE available and be prepared
to develop an IEP if the parent enrolls the child in public school. 20 U.S.C. 1412(a)(1) and 20
U.S.C. 1413(a)(1).
If you have any further questions, please do not hesitate to contact Ms. Lisa Pagano at 202-2457413 or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs


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

January 29, 2019
Perry A. Zirkel, Ph.D., J.D.
University Professor of Education and Law
Lehigh University Perry A. Zirkel, Ph.D., J.D.
Department of Education and Human Services
111 Research Drive
Bethlehem, Pennsylvania 18015-4793
Dear Dr. Zirkel:
This letter is in response to your electronic mail (email) addressed to Lisa Pagano of the Office
of Special Education Programs (OSEP), U.S. Department of Education (Department). In that
email, you asked a series of questions regarding the implementation of response to intervention
(RTI) and multi-tiered systems of support (MTSS). Each of your questions is answered below.
We apologize for the delay in providing this response.
We note that section 607(d) of the Individuals with Disabilities Education Act (IDEA) prohibits
the Secretary from issuing policy letters or other statements that establish a rule that is required
for compliance with, and eligibility under, IDEA without following the rulemaking requirements
of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of
IDEA section 607(e), this response is provided as informal guidance and is not legally binding.
This response represents an interpretation by the Department of the requirements of IDEA in the
context of the specific facts presented, and does not establish a policy or rule that would apply in
all circumstances.
Question 1: Is there a difference between RTI and MTSS under IDEA?
Answer: IDEA does not define RTI or MTSS. RTI is only mentioned in IDEA when
determining eligibility for specific learning disability. 20 U.S.C. § 1414(b)(6)(B) and 34 C.F.R. §
300.307(a)(2).
Question 2: Is it permissible for a school district to provide special education services (e.g.,
resource room instruction in reading via multisensory approach) under Tier 2 or 3 prior to an
evaluation for IDEA eligibility? If so, what are the legal and related funding limitations?
Answer: Under IDEA Part B, special education and related services are provided to an eligible
child with a disability as an element of a free appropriate public education (FAPE) in conformity
with the child’s individualized education program (IEP). 20 U.S.C. § 1401(9) and 34 C.F.R. §
300.17. The provision of special education and related services occurs only after a child is
evaluated in accordance with 34 C.F.R §§ 300.304–300.311 as having a disability, as defined in
34 C.F.R § 300.8 and, who by reason thereof, needs special education and related services. 20
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Page 2 - Mr. Perry Zirkel
U.S.C. §§ 1414(a)(1)(A) and (b)(4), and 34 C.F.R. §§ 300.301(a) and 300.306. In addition,
special education services cannot be provided without parental consent after completing an
evaluation and eligibility determination. 20 U.S.C. §§ 1414(a)(1)(A), (a)(1)(D)(i)(II), and (b)(4),
and 34 C.F.R. §§ 300.300(b), 300.301(a), and 300.306. Therefore, IDEA Part B funds cannot be
used to provide special education and related services during the secondary or tertiary level of an
RTI framework to a child who has not been evaluated and found to be a child with a disability
and eligible under IDEA, and whose parents have not provided parental consent for the initial
provision of services.
Question 3: Is an RTI approach applicable to special education students (i.e., after rather than
before an eligibility evaluation) as a framework for implementing least restrictive environment
and/or FAPE under IDEA?
Answer: As discussed in response to Question 2, FAPE includes the provision of special
education and related services provided in conformity with an IEP. While there is nothing in
IDEA that prohibits children with disabilities who are receiving special education and related
services under IDEA from receiving instruction using RTI strategies, all special education and
related services must continue to be provided consistent with each child’s IEP.
If you have any further questions, please do not hesitate to contact Ms. Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs


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

January 29, 2019
Judy Nathan
Executive Deputy Counsel for
Risk Management and Litigation
Office of Legal Services
52 Chambers Street, Room 308
New York, NY 10007
Dear Ms. Nathan:
This letter responds to your correspondence to the U.S. Department of Education (Department),
Office of Special Education Programs (OSEP). In that letter, you asked OSEP to provide
clarification on a series of questions regarding the protections for children not yet determined
eligible for special education and related services under the Individuals with Disabilities
Education Act (IDEA). Each of your questions is answered separately below in this response.
We regret the delay in responding.
We note that section 607(d) of IDEA prohibits the Secretary from issuing policy letters or other
statements that establish a rule that is required for compliance with, and eligibility under, IDEA
without following the rulemaking requirements of section 553 of the Administrative Procedure
Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as
informal guidance and is not legally binding. This response represents an interpretation by the
Department of the requirements of IDEA in the context of the specific facts presented, and does
not establish a policy or rule that would apply in all circumstances.
Question 1: Once it has been established that a child is a child who the local educational agency
(LEA) is deemed to know is a child with a disability; can the LEA postpone the manifestation
determination meeting until after the completion of the initial evaluation or the initial
individualized education program (IEP) Team meeting? Must the evaluation, in these cases, be
expedited?
Response: Under 20 U.S.C. § 1415(k)(5)(B), 34 C.F.R. § 300.534(b), a school is deemed to have
knowledge that a student has a disability when –
(i)

(ii)
(iii)

the parent of the child has expressed concern in writing to supervisory or
administrative personnel of the appropriate educational agency, or a teacher of the
child, that the child is in need of special education and related services;
the parent of the child requested an evaluation of the child pursuant to section
1414(a)(1)(B) of this title; or
the teacher of the child, or other personnel of the LEA, has expressed specific
concerns about a pattern of behavior demonstrated by the child directly to the

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The Department of Education’s mission is to promote student achievement and preparation for global competiveness
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Page 2 – Ms. Judy Nathan
director of special education of such agency or to other supervisory personnel of the
agency. 1
If a child engages in behavior that violates a code of student conduct prior to a determination of
his or her eligibility for special education and related services and the public agency is deemed to
have knowledge of the child’s disability, the child may assert the disciplinary protections under
IDEA, including the manifestation determination review (MDR) provisions under 20 U.S.C. §
1415(k)(1)(E) and 34 C.F.R. § 300.530(e) even if the child has not been found eligible for
special education and related services. Thus, within 10 school days of any decision to change the
placement of a child with a disability because of a violation of a code of student conduct, the
LEA, the parent, and relevant members of the child’s IEP team (as determined by the parent and
the LEA) must conduct an MDR. This provision does not include an exception to allow
additional time to complete an evaluation prior to conducting the MDR.
While an LEA may choose or find it necessary to expedite evaluations in these circumstances,
under IDEA expedited evaluations are only required in situations where the LEA is not deemed
to have knowledge that the child may have a disability and a request is made for an evaluation of
a child during the time period in which the child is subjected to disciplinary measures under 34
C.F.R. § 300.530. See 20 U.S.C. § 1415(k)(5)(D).
Question 2: If the LEA cannot postpone the MDR pending completion of the initial evaluation,
how should the LEA conduct the MDR, given the fact that: 1) the LEA may have little to no
information about the student’s disability; and 2) the purpose of the MDR is to determine
whether the behavior is the result of the student’s disability?
Response: Under 20 U.S.C. § 1415(k)(1)(E)(i) and 34 C.F.R. §300.530(e)(1)(ii), when
conducting the MDR, the LEA, the parent, and relevant members of the IEP Team (as
determined by the parent and the LEA), must review all relevant information in the child’s file,
including any teacher observations and any relevant information provided by the parents, to
determine if the conduct in question was caused by, or had a direct and substantial relationship
to, the child’s disability. 2 We appreciate that the LEA would not have the IEP to use in its
assessment of whether the behavior was a manifestation of the child’s disability in these
situations. See 20 U.S.C. § 1415(k)(1)(E)(i)(II). Nevertheless, it would still be possible for the
LEA to convene a group of knowledgeable persons, as determined by the parent and the LEA,
who would be able to conduct the MDR even before the LEA has made its eligibility
determination, if the LEA cannot conduct the evaluation before the MDR. The group would

1

Under 20 U.S.C. § 1415(k)(5)(C), the LEA is considered not to have knowledge that a child is a child with a
disability if the parent has not allowed the evaluation of the child under Part B of the IDEA, the parent has refused
services, or if the child is evaluated and determined not to be a child with a disability under Part B of the IDEA. In
these instances, the child would be subject to the same disciplinary measures applicable to children without
disabilities.

2

Because the LEA has not yet developed an IEP for the child, the LEA would be unable to determine whether the
child’s conduct was the direct result of the LEA’s failure to implement the child’s IEP. See 20 U.S.C. §
1415(k)(1)(E)(i)(II) and 34 C.F.R.§ 300.534(e)(1)(ii).

Page 3 – Ms. Judy Nathan
likely consider the information that served as the LEA’s basis of knowledge that the child may
be a child with a disability under IDEA, such as concerns expressed by a parent, a teacher or
other LEA personnel about a pattern of behavior demonstrated by the child. Based upon its
review and consideration of the available information, the group would determine whether the
conduct in question was caused by, or had a direct and substantial relationship to the child’s
suspected disability. There is nothing in IDEA that would prevent the LEA from conducting the
MDR in connection with its evaluation and eligibility determination, so long as the MDR is
conducted within 10 school days of the decision to change the student’s placement due to a
violation of a student code of conduct.
Question 3: Does posting the Procedural Safeguards notice on the LEA’s web site and providing
a link in the suspension notice letters constitute sufficient notice of a parent’s rights to assert the
due process protections?
Response: Under 20 U.S.C. § 1415(k)(1)(H) and 34 C.F.R. § 300.530(h), on the date on which
the decision is made to make a removal that constitutes a change of placement of a child with a
disability because of a violation of a code of student conduct, the LEA must notify the parents of
that decision, and of all procedural safeguards accorded under Part B of IDEA. This is
accomplished by providing the parents a copy of the procedural safeguards notice described in
20 U.S.C. § 1415(d) and 34 C.F.R. § 300.504(a). 34 C.F.R. § 300.504(a)(3). Although IDEA
permits an LEA to post a copy of the procedural safeguards notice on its web site, the public
agency would not meet its obligation to provide a parent the notice of procedural safeguards by
simply directing a parent to the web site. Rather, a public agency must still offer parents a
printed copy of the procedural safeguards notice. If, however, a parent declines the offered
printed copy of the notice and indicates a clear preference to obtain the notice electronically on
his or her own from the agency’s web site, it would be reasonable for the public agency to
document that it offered a printed copy of the notice and that the parent declined.
Posting the procedural safeguards notice on a public agency’s web site is clearly optional and for
the convenience of the public and does not replace the distribution requirements in IDEA. See
Assistance to States for the Education of Children with Disabilities and Preschool Grants for
Children With Disabilities; Final Rule 71 FR 46540, 46693 (August 14, 2006) available at:
https://www.gpo.gov/fdsys/pkg/FR-2006-08-14/pdf/06-6656.pdf.
Please note that by copy of this letter, we are notifying Michael Scheinkman of this information.
Mr. Scheinkman also wrote to this Office requesting guidance on the same issues raised in your
correspondence related to the conduct of MDRs for children in asserting the protections under 20
U.S.C. § 1415(k)(5). In addition, by copy of this letter we are notifying the New York State
Education Department of the information in this letter for their follow up on your inquiry and our
response.
If you have any further questions, please do not hesitate to contact Lisa Pagano of my staff at
202-245-7413 or by email at Lisa.Pagano@ed.gov.

Page 4 – Ms. Judy Nathan
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs
cc: Michael Scheinkman
Davis Polk & Wardwell, LLP
Christopher Suriano
State Director of Special Education


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

January 29, 2019
Melissa Duncan
Legal Aid Society of Palm Beach County
423 Fern Street, Suite 200
West Palm Beach, Florida 33401
Dear Ms. Duncan,
This letter responds to your correspondence to the Office of Special Education Programs and
follow-up discussions with members of my staff. You ask whether the Florida Department of
Corrections fails to provide a free appropriate public education (FAPE) under Part B of the
Individuals with Disabilities Education Act (Part B or IDEA) to students with disabilities when
the State offers such students only a General Education Development (GED) credential rather
than the opportunity to earn a regular high school diploma because the students are incarcerated
in a particular adult corrections facility. We regret the delay in responding.
We note that section 607(d) of the IDEA prohibits the Secretary from issuing policy letters or
other statements that establish a rule that is required for compliance with, and eligibility under,
IDEA without following the rulemaking requirements of section 553 of the Administrative
Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is
provided as informal guidance and is not legally binding. This response represents an
interpretation by the U.S. Department of Education of the requirements of IDEA in the context
of the specific facts presented, and does not establish a policy or rule that would apply in all
circumstances.
Under IDEA, States must make FAPE available to all children with disabilities residing in the
State between the ages of 3 and 21, inclusive, consistent with State law. 20 U.S.C. §
1412(a)(1)(A). IDEA limits FAPE for children aged 18 through 21 to the extent that State law
does not require that special education and related services under Part B be provided to students
with disabilities who, in the last educational placement prior to their incarceration in an adult
correctional facility, were not actually identified as being a child with a disability under 34
C.F.R. § 300.8, and did not have an individualized education program (IEP) under Part B. 20
U.S.C. § 1412(a)(1)(B)(ii) and 34 C.F.R. § 300.102(a)(2)(i). This exception does not apply to a
child with a disability aged 18 through 21 who –
1) Had been identified as a child with a disability under 34 C.F.R. § 300.8 and had received
services in accordance with an IEP, but left school prior to their incarceration. 34 C.F.R.
§ 300.102(a)(2)(ii)(A); or
2) Did not have an IEP in their last educational setting, but who had actually been identified
as a child with a disability under 34 C.F.R. § 300.8. See 34 C.F.R. § 300.102(a)(2)(ii).

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Page 2 – Ms. Melissa Duncan
If, under 20 U.S.C § 1412(a)(1)(B) and 34 C.F.R. § 300.102, a child with a disability aged 18
through 21 incarcerated in an adult correctional facility is eligible for FAPE, additional
limitations regarding transition planning and services, participation in general assessments, and
IEPs and least restrictive environment (LRE) requirements may apply. The requirements in 20
U.S.C. § 1414(d)(1)(A)(i)(VIII) and 34 C.F.R. § 300.320(b) (relating to transition planning and
transition services) do not apply with respect to the children whose eligibility under Part B of the
IDEA will end, because of their age, before they will be eligible to be released from prison based
on consideration of their sentence and eligibility for early release. 20 U.S.C § 1414(d)(7)(A)(ii)
and 34 C.F.R. § 300.324(d)(1)(ii). Additionally, the requirements contained in 20 U.S.C. §
1412(a)(16) and 34 C.F.R. § 300.320(a)(6), relating to the participation of children with
disabilities in general assessments, do not apply to children with disabilities who are convicted as
adults under State law and incarcerated in adult prisons. 20 U.S.C § 1414(d)(7)(A)(i) and 34
C.F.R. § 300.324(d)(1)(i).
Finally, limitations on FAPE apply to students where there is a bona fide security interest or
compelling penological interest that cannot otherwise be accommodated. Under 20 U.S.C. §
1414(d)(7)(B) and 34 C.F.R. § 300.324(d)(2), the IEP Team of a child with a disability who is
convicted as an adult under State law and incarcerated in an adult prison may modify the child's
IEP or placement if the State has demonstrated a bona fide security or compelling penological
interest that cannot otherwise be accommodated. Specifically, the requirements of 34 C.F.R. §§
300.320 (relating to IEPs), and 300.114 (relating to LRE), need not apply when considering
modifications based on a bona fide security or compelling penological interest. The Department
declined to define the term bona fide security or compelling penological interest, “given the
individualized nature of the determination and the countless variables that may impact on the
determination.” However, the Department stated that “a State’s interest in not spending any
funds on the provision of special education and related services or in administrative convenience
will not rise to the level of a compelling penological interest that cannot otherwise be
accommodated, because States must accommodate the costs and administrative requirements of
educating all eligible individuals with disabilities.” See Assistance to States for the Education of
Children with Disabilities and the Early Intervention Program for Infants and Toddlers with
Disabilities, Final Rule, 64 FR 12406, 12577 (March 12, 1999).
The IEP Team for each child with a disability who is convicted as an adult under State law and
incarcerated in an adult correctional facility must determine the special education and related
services necessary to provide the child FAPE, taking into account the exceptions described
above. Absent a demonstration by the State of a bona fide security or compelling penological
interest that cannot be accommodated, under 34 C.F.R. § 300.320(a)(4), the child’s IEP must
include, among other things, a statement of the special education and related services, and
supplementary aids and services to be provided to enable the child to advance appropriately
toward attaining the annual goals and to be involved in and make progress in the general
education curriculum (i.e., the same curriculum as for nondisabled children). Depending on the
individual needs of the child, this could include the special education and related services
necessary to enable the child to be awarded a regular high school diploma. However, if the State
demonstrates to the IEP team that there is a bona fide security or compelling penological interest
that cannot otherwise be accommodated for that child, the IEP Team may modify the child’s IEP
and the IEP requirements in 34 C.F.R. § 300.320 need not apply. Therefore, where there is a

Page 3 – Ms. Melissa Duncan
bona fide security or compelling penological interest that cannot be accommodated so as to allow
the child to receive the special education and related services necessary to enable the child to be
awarded a regular high school diploma, the child’s IEP may be modified to include the special
education and related services necessary to enable the child to be awarded the GED credential.
It also is important to note that a student’s right to FAPE generally ends upon graduation from
high school with a regular high school diploma. Under the IDEA regulations at 34 C.F.R. §
300.102(a)(3)(iv), a “regular high school diploma does not include a recognized equivalent of a
diploma, such as a general equivalency diploma, certificate of completion, certificate of
attendance, or similar lesser credential” (such as a GED credential). Therefore, if the IEP Team
determines that GED courses would be an appropriate modification to the IEP because the State
has demonstrated a bona fide security or compelling penological interest that cannot be
accommodated, the student in question would continue to have a right to FAPE after completing
the GED program, subject to any relevant limitations discussed above and the State’s age limit
for the provision of FAPE. 20 U.S.C. § 7801(43); 34 C.F.R. § 300.102(a)(3).
If you have any further questions, please do not hesitate to contact Ms. Lisa Pagano at 202-2457413 or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Laurie VanderPloeg
Director
Office of Special Education Programs
cc: Monica Verra-Tirado, Ed.D.
State Director of Special Education


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF ELEMENTARY AND SECONDARY EDUCATION

TO:

State Assessment Directors
State Title I Directors
State Special Education Directors

FROM:

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

DATE:

August 27, 2018

SUBJECT:

Additional Information Regarding the Requirements to Request a Waiver from the One
Percent Cap on the Percentage of Students Who May Be Assessed with an Alternate
Assessment Aligned with Alternate Academic Achievement Standards (AA-AAAS)

The purpose of this memorandum is to provide an update on the requirement, in Title I of the Elementary
and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA),
related to participation on an alternate assessment aligned with alternate academic achievement standards
(AA-AAAS) for the 2018-2019 school year (SY). As a reminder, the ESEA requires that only students
with the most significant cognitive disabilities may take an AA-AAAS and limits the number of students
that a State may assess with an AA-AAAS to no more than 1.0 percent of all students in the grades
assessed in a State.1 However, a State that is able to meet a number of requirements may apply to the
U.S. Department of Education (the Department) for a one-year waiver from the 1.0 percent participation
requirement. On May 16, 2017, the Department posted information regarding the procedures for a State
to apply for such a waiver for SY 2017-2018.2 The Department granted the waiver to States that
demonstrated compliance with the waiver requirements.3
For a State that was not granted this waiver last year, the same requirements apply. In addition, any State
that was approved for a waiver of this requirement in SY 2017-2018 and that needs to extend the waiver
1

See http://www2.ed.gov/documents/essa-act-of-1965.pdf
See https://www2.ed.gov/admins/lead/account/saa/onepercentcapmemo51617.pdf
3
See https://www2.ed.gov/admins/lead/account/stateplan17/waivers/index.html.
2

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Page 2
for SY 2018-2019 is required to demonstrate substantial progress towards achieving each component of
the prior year’s plan and timeline to ensure that the State is making progress towards meeting the 1.0
percent cap and assessing only students with the most significant cognitive disabilities with an AAAAAS. The requirements associated with demonstrating substantial progress are described in more detail
below.
Information for States Applying for a Waiver for the First Time in SY 2018-2019
The letter on May 16, 2017, describes the requirements and procedures to request a waiver from the 1.0
percent cap. States applying for a waiver should ensure that their request addresses each requirement.
Among waiver requests submitted in 2017-2018, the Department noted that some States did not provide:
 Data from the current or previous school year4 to show the number and percentage of students
overall and from each subgroup of students who will take or took the AA-AAAS with respect
to each subject for which the State seeks a waiver;
Example (this is sample data only, it does not represent any single State’s data):
# Taking
State
Total
ELA AA
Grades 3-8 AAAS Gr. % Taking State
and 10
3-8 and
ELA AA AAAS
Group
ELA
10
Gr. 3-8 and 10
475,611
7,453
1.57%
All Students
(=7,453/475,611)
41,232
911
2.21%
English learners
46,258
1,116
2.41%
Black
95,464
2,168
2.27%
Hispanic/Latino
31,956
432
1.35%
Asian
260,701
3,919
1.50%
White
172,190
4,754
2.76%
Econ. Disadv.


Data to show that the State has assessed the achievement of at least 95 percent of all students and
95 percent of children with disabilities who are enrolled in grades for which the assessment is
required (note: include data separately for each requested subject – reading/language arts (R/LA),
mathematics and/or science). This percentage must include all students assessed with the general
assessment and the AA-AAAS for each applicable subject;

Example (this is sample data only, it does not represent any single State’s data):
Subject Area/Group
Enrolled
Assessed
% Assessed
R/LA–All Students Total
Gr. 3-8, 10
424,382
409,439
96.5%
R/LA–Children With
Disabilities (CWD)
Totals Gr. 3-8, 10
93,121
89,369
96.0%
4

A State applying for a waiver for the 2018-2019 school year could submit data from either 2018-2019 (current school year) or
2017-2018 (previous school year).

Page 3
Math–All Students
Totals
Gr. 3-8, 10
Math–CWD Totals Gr.
3-8, 10
Science–All Students
Totals
Gr 4, 7, 10
Science–CWD Totals
Gr. 4, 7, 10




424,653

409,978

96.5%

92,745

89,745

96.8%

141,460

138,957

98.2%

30,528

29,852

97.8%

Evidence that the SEA has verified that each LEA that the State anticipates will assess more than
1.0 percent of its assessed students in any subject using an AA-AAAS:
o followed the State’s guidelines for participation in the AA-AAAS5; and
o will address any disproportionality in the percentage of students in any subgroup taking an
AA-AAAS.
A plan and timeline with clear, actionable steps and milestones that includes:
o A clear description of how the State will improve the implementation of its guidelines for
participation in the AA-AAAS, including by reviewing and, if necessary, revising its
definition of students with the most significant cognitive disabilities (see 34 CFR 200.6(d)(1)),
so that the State meets the 1.0 percent cap in each subject for which assessments are
administered in future school years;
o A clear description of how it will monitor and regularly evaluate each LEA to ensure that
the LEA provides sufficient training such that school staff who participate as members of an
individualized education program (IEP) team or other placement team understand and
implement the guidelines established by the State for participation in an AA-AAAS so that all
students are appropriately assessed; and
o A clear description of how the State will address any disproportionality in the percentage of
students taking an AA-AAAS as identified through the data provided.6

Information for States Applying to Extend a Previously Granted Waiver
A State that wishes to request an extension of a waiver that they received in SY 2017-2018 should provide
updated information regarding each requirement in the previous year’s submission, as outlined in the
May 16, 2017, memorandum. In preparing a waiver renewal request, States must continue to meet each
requirement associated with a first-year waiver. Additionally, a State must demonstrate substantial
progress towards achieving each component of the prior year’s plan and timeline. As noted above, in
creating a plan and timeline, a State must address three areas within its plan and timeline:
 How the State will improve the implementation of its guidelines for participation in the AAAAAS including by reviewing and, if necessary, revising its definition of students with the most
significant cognitive disabilities (see 34 CFR 200.6(d)(1)), so that the State meets the 1.0 percent
cap in each subject for which assessments are administered in future school years;
 How the State will monitor and regularly evaluate each LEA to ensure that the LEA provides
sufficient training such that school staff who participate as members of an IEP team or other
placement team understand and implement the guidelines established by the State for participation
5
6

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

Page 4


in an AA-AAAS so that all students are appropriately assessed; and
How the State will address any disproportionality in the percentage of students taking an AAAAAS as identified through the data provided.7

The Department will base decisions about extensions of any 1.0 percent cap waivers by evaluating
whether the State met the requirements as well as the degree to which it has demonstrated progress against
the previous year’s plan for improvement.
States with questions about these waiver requests should contact their Office of State Support contacts at:
OSS.[State]@ed.gov (e.g., OSS.Nebraska@ed.gov) and their Office of Special Education Programs State
Lead. Thank you for your continued commitment to our nation’s students.

7

34 CFR 200.6(c)(4)(iv)


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

August 2, 2018
Lawrence Siegel, Esq.
101 Lucas Valley Road
Suite 265
San Rafael, California 94903
Dear Mr. Siegel:
This letter is in response to your electronic mail correspondence to the Office of Special
Education Programs and follow-up phone conversation with Lisa Pagano of my staff. You
requested clarification as to whether there is a general notification requirement to all parents
regarding special education laws and processes. Specifically, you asked if a local educational
agency (LEA) has a duty to notify parents of the Individuals with Disabilities Education Act
(IDEA) prior to their child being referred for an evaluation and identified as a child with a
disability. We regret the delay in responding.
We note that section 607(d) of the Individuals with Disabilities Education Act (IDEA) prohibits
the Secretary from issuing policy letters or other statements that establish a rule that is required
for compliance with, and eligibility under, IDEA without following the rulemaking requirements
of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of
IDEA section 607(e), this response is provided as informal guidance and is not legally binding.
This response represents an interpretation by the Department of the requirements of IDEA in the
context of the specific facts presented, and does not establish a policy or rule that would apply in
all circumstances.
The provisions related to child find in section 612(a)(3) of the IDEA require that States have in
effect policies and procedures to ensure that all children with disabilities residing in the State,
including children with disabilities who are homeless children or are wards of the State, children
with disabilities attending private schools, regardless of the severity of their disability, and who
are in need special education and related services are identified, located, and evaluated. 20
U.S.C. §1412(a)(3) and 34 CFR §300.111. This requirement, known as child find, applies to all
children suspected of having a disability under the IDEA, including highly mobile and migrant
children with disabilities, as well as those suspected of having developmental delays, as defined
in 34 CFR §300.8(b). 34 CFR §300.111(a), (b), and (c). LEAs must also have child find policies
and procedures in effect that are consistent with the State’s policies and procedures. 34 CFR
§§300.200-300.201. In addition, a State must ensure that a practical method is developed and
implemented to determine which children with disabilities are currently receiving needed special
education and related services. 34 CFR §300.111(a)(ii). Therefore, as part of a State’s child find
responsibilities, a State must carry out activities to determine whether a child is a child suspected
of having a disability who should be referred for an evaluation to determine eligibility for special
education and related services under Part B.
While LEAs have specific child find responsibilities, there are no specific provisions under
IDEA that require LEAs to provide information about IDEA to all parents, regardless of whether
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their child is suspected of having a disability. We note, however, that States may have specific
public awareness requirements as part of their State policies and procedures.
If you have any further questions, please do not hesitate to contact Ms. Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs


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

August 2, 2018

Linda McDowell, Ph.D.
Director
National Center on Deaf-Blindness
The Research Institute/Western Oregon University
345 N. Monmouth Avenue
Monmouth, Oregon 97361
Dear Dr. McDowell:
This letter responds to your December 7, 2017 letter and January 13, 2018 electronic mail
communication addressed to me. In your correspondence, you request that the U.S. Department
of Education (Department), Office of Special Education Programs (OSEP), provide clarification
that individualized education program (IEP) Teams “may consider interveners as an appropriate
related service for children who are deaf-blind, even though interveners are not specifically
identified in the list of examples of related services in the [Individuals with Disabilities
Education Act] IDEA.” We regret the delay in responding.
We note that section 607(d) of the IDEA prohibits the Secretary from issuing policy letters or
other statements that establish a rule that is required for compliance with, and eligibility under,
the IDEA without following the rulemaking requirements of section 553 of the Administrative
Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is
provided as informal guidance and is not legally binding. This response represents an
interpretation by the Department of the requirements of the IDEA in the context of the specific
facts presented, and does not establish a policy or rule that would apply in all circumstances.
The term “related services,” as defined in 20 U.S.C. §1401(26)(a) means:
transportation, and such developmental, corrective, and other supportive services
(including speech-language pathology and audiology services, interpreting
services, psychological services, physical and occupational therapy, recreation,
including therapeutic recreation, social work services, school nurse services
designated to enable a child with a disability to receive a free appropriate public
education as described in the individualized education program of the child,
counseling services, including rehabilitation counseling, orientation and mobility
services, and medical services, except that such medical services shall be for
diagnostic and evaluation purposes only) as may be required to assist a child with
a disability to benefit from special education, and includes the early identification
and assessment of disabling conditions in children.

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The definition of “related services” in the IDEA’s implementing regulation in 34 CFR
§300.34(a) mirrors the statutory definition provided above. The IDEA Part B regulations
also contain a definition of the term include which means “that the terms named are not
all of the possible items that are covered, whether like or unlike the ones named.” 34 CFR
§300.20.
Section 602(26) of the IDEA and 34 CFR §300.34(a) state that related services include other
supportive services designed to assist a child with a disability to benefit from special education.
Accordingly, the Department’s longstanding interpretation is that the list of related services in
the IDEA and the Part B regulations is not meant to be exhaustive and may include other
developmental, corrective, or supportive services, if they are required to assist a child with a
disability to benefit from special education in order for the child to receive a free appropriate
public education (FAPE). As is true regarding consideration of any related services for a child
with a disability under Part B of the IDEA, the members of the child’s IEP Team (which include
the parents, school officials, and whenever appropriate, the child with a disability) must make
individual determinations in light of each child’s unique abilities and needs about whether the
service, such as an intervener, is required to assist the child to benefit from special education.
If the IEP Team determines that a particular service, including the services of an intervener, is an
appropriate related service for a child and is required to enable the child to receive FAPE, the
Team’s determination must be reflected in the child’s IEP, and the service must be provided at
public expense and at no cost to the parents. 20 U.S.C. §1414(d)(1)(A)(i)(IV) and §1401(9).
We hope that the information in this letter is helpful to you and others working to ensure that
children who have been evaluated and identified as having deaf-blindness receive the necessary
services that have been determined appropriate to meet their unique needs. We appreciate the
work of the National Center on Deaf-Blindness and recognize that it has developed resources to
assist IEP Teams with making a determination as to whether such children may need the services
of an intervener in order to receive FAPE.
If you have further questions, please contact Lisa Pagano, Policy Specialist, at 202-245-7413 or
by writing to Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs


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

August 2, 2018

REDACTED
Dear XXXXXXX:
This letter responds to your electronic mail (email) correspondence to the Office of Special
Education Programs (OSEP) and follow-up phone conversation with Laura Duos of my staff.
You requested clarification on OSEP’s Letter to Champagne (November 17, 2008), regarding the
provisions in the Individuals with Disabilities Education Act (IDEA) addressing children with
disabilities who transfer to a new State within the same school year. Specifically, you ask
whether the new local educational agency (LEA) must evaluate a child who transfers from
another State if the child already meets the new State’s eligibility criteria. You also ask, when
reviewing existing evaluation data available for the child, if a formal review of that data (by a
school psychologist) is required or if an individualized education program (IEP) Team
discussion/decision that is then documented on the prior written notice would be sufficient. We
regret the delay in responding.
We note that section 607(d) of the IDEA prohibits the Secretary from issuing policy letters or
other statements that establish a rule that is required for compliance with, and eligibility under,
the IDEA without following the rulemaking requirements of section 553 of the Administrative
Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is
provided as informal guidance and is not legally binding. This response represents an
interpretation by the Department of the requirements of the IDEA in the context of the specific
facts presented, and does not establish a policy or rule that would apply in all circumstances.
Under the IDEA, if a child with a disability who had an IEP in effect in a previous public agency in
another State, transfers to a new public agency in a new State and enrolls in a new school within the same
school year, the new public agency (in consultation with the parents) must provide the child with a free
appropriate public education (FAPE) (including services comparable to those described in the child’s IEP
from the previous public agency) until the new public agency:
(1) conducts an evaluation of the child that meets the requirements of 34 CFR §§300.304 through
300.306 (if the new public agency determines it is necessary); and
(2) develops, adopts, and implements a new IEP, if appropriate, that meets the applicable
requirements in 34 CFR §§300.320 through 300.324.
20 U.S.C. 1414(d)(2)(C)(i)(II); 34 CFR §300.323(f).

As stated in 34 CFR §300.323(f), the public agency in the new State conducts an evaluation of
the child if the public agency determines it is necessary. The purpose of an evaluation is to assist
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in determining whether the child is a child with a disability under 34 CFR §300.8; and the
content of the child’s IEP, including information related to enabling the child to be involved in
and progress in the general education curriculum. 34 CFR §300.304(b). This evaluation would be
considered an initial evaluation that is subject to the notice and prior consent requirements. 34
CFR §300.300(a). Therefore, if the new public agency does not need additional information to
determine the child’s eligibility and the content of the child’s IEP, it may not need to conduct an
evaluation. This is a fact-based decision that must be made on a case-by-case basis.
Regarding your question concerning the review of existing evaluation data on the child under 34
CFR §300.305, the IEP Team and other qualified professionals, as appropriate, must review the
existing evaluation data on the child as part of an initial evaluation (if appropriate) and as part of
any reevaluation. This information includes evaluations and information provided by the parents
of the child; current classroom-based, local, or State assessments, and classroom-based
observations; and observations by teachers and related services providers. 20 U.S.C. 1414(c)(1).
This review can occur without conducting a meeting (and parental consent is not required for the
review of existing evaluation data on the child. 34 CFR §§300.305(c)) and 300.300(c)(1)(i). On
the basis of that review, and input from the child’s parents, the IEP Team must identify what
additional data, if any, are needed to determine: 1) whether the child is a child with a disability,
as defined in 34 CFR §300.8, and the educational needs of the child; or in the case of a
reevaluation of a child, whether the child continues to have such a disability, and the educational
needs of the child; 2) the present levels of academic achievement and related developmental
needs of the child; 3) whether the child needs special education and related services; or in the
case of a reevaluation of a child, whether the child continues to need special education and
related services; and 4) whether any additions or modifications to the special education and
related services are needed to enable the child to meet the measurable annual goals set out in the
IEP of the child and to participate, as appropriate, in the general education curriculum. 34 CFR
§300.305(a)(2)(B). While a school psychologist may participate in this review either as a
member of the child’s IEP Team or as another qualified professional, a school psychologist is not
solely responsible for conducting the review of existing evaluation data under 34 CFR §300.305
because this is a determination to be made by the child’s IEP Team, which includes the child’s
parents, and other qualified professionals, as appropriate.
If you have any further questions, please do not hesitate to contact Lisa Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs


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

July 27, 2018

Carrie Mason
Education Attorney
Metro Defender Juvenile Division
Education Rights Project
100 Woodland Street
Nashville, Tennessee 37213
Dear Ms. Mason:
This letter responds to your correspondence to the U.S. Department of Education (Department),
Office of Special Education Programs (OSEP). In that letter, you asked OSEP to provide
clarification on partial day exclusions from school counting toward a disciplinary change in
placement. You asked, “specifically, what factors should school staff consider in determining, on
a case by case basis, whether shortened school days are considered in the disciplinary change of
placement analysis?” We regret the delay in responding.
In your letter, you provide a description of one of your client’s cases in which a child
experienced an administratively shortened school day to address problem behavior at the child’s
school. You stated that the shortened school days did not occur as a result of the individualized
education program (IEP) Team process. You further stated that you reached an agreement with
the school for the child to be returned to full school days and for compensatory services.
However, you disagree with the school administrators about whether the daily exclusions from
school should be considered disciplinary removals when evaluating whether a pattern of
removals has occurred that would constitute a change of placement. You stated that you are
concerned that students with disabilities in this school are not being provided with the
disciplinary protections required under the Individuals with Disabilities Education Act (IDEA).
While we cannot comment specifically on the facts of your case, we can provide clarification on
the regulatory requirements surrounding this issue.
We note that section 607(d) of the IDEA prohibits the Secretary from issuing policy letters or
other statements that establish a rule that is required for compliance with, and eligibility under,
IDEA without following the rulemaking requirements of section 553 of the Administrative
Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is
provided as informal guidance and is not legally binding. This response represents an
interpretation by the Department of the requirements of IDEA in the context of the specific facts
presented, and does not establish a policy or rule that would apply in all circumstances. In
addition, this response does not address issues under Section 504 of the Rehabilitation Act of
1973 or Title II of the Americans with Disabilities Act.

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The IDEA authorizes school personnel to implement a short-term disciplinary removal from the
current placement, such as an out-of-school suspension, for a child with a disability who violates
a code of student conduct, for up to 10 consecutive school days, to the extent those alternatives
are applied to children without disabilities, and for additional removals of up to 10 consecutive
school days for separate incidents of misconduct, so long as those removals do not constitute a
change of placement. 34 CFR §300.530(b)(1). For purposes of removals of a child with a
disability from the child’s current educational placement under 34 CFR §§300.530 through
300.536, a change of placement occurs if 1) the removal is for more than 10 consecutive school
days; or 2) the child has been subjected to a series of removals that constitute a pattern (i)
because the series of removals total more than 10 school days in a school year; (ii) because the
child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted
in the series of removals; and (iii) because of such additional factors as the length of each
removal, the total amount of time the child has been removed, and the proximity of the removals
to one another. 34 CFR §300.536(a). Additionally, the public agency must determine on a caseby-case basis whether a pattern of removals constitutes a change of placement, and this
determination is subject to review through due process and judicial proceedings. 34 CFR
§300.536(b).
In general, the Department does not consider the use of exclusionary disciplinary measures to be
disciplinary removals from the current placement for purposes of 34 CFR §300.530, so long as
children with disabilities are:




Afforded the opportunity to continue to be involved in and make progress in the general
education curriculum;
Receive the instruction and services specified on their IEPs; and
Participate with nondisabled children to the extent they would have in their current
placement.

The use of short-term disciplinary measures under the circumstances you described, if
implemented repeatedly (emphasis added), could constitute a disciplinary removal from the
current placement, and thus the discipline procedures set out in 34 CFR §§300.530-300.536
would apply.
If you have any further questions, please do not hesitate to contact Lisa Pagano of my staff at
202-245-7413 or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder,
Acting Director
Office of Special Education Programs


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

May 10, 2018

Perry A. Zirkel, Ph.D., J.D.
University Professor of Education and Law
Lehigh University
Department of Education and Human Services
111 Research Drive
Bethlehem, Pennsylvania 18015-4793
Dear Dr. Zirkel:
This letter is in response to your electronic mail (email) addressed to Melody Musgrove, former
Director, Office of Special Education Programs (OSEP), U.S. Department of Education
(Department), requesting clarification regarding the regulation in 34 CFR §300.309(b)(2). You
have asked that OSEP clarify the requirements for evaluating a child suspected of having a
specific learning disability (SLD) to determine whether the child is eligible to receive special
education and related services under the Individuals with Disabilities Education Act (IDEA).
Specifically, you asked, “[i]f, in a [S]tate that does not mandate [response to intervention] RTI as
the approach for SLD identification, a district uses the severe discrepancy approach without
collecting any RTI data, does the district meet this consideration requirement [in 34 CFR
§300.309(b)(2)] by relying [on] a variety of other sources of evaluative information or, instead,
must the district collect continuous progress monitoring data for consideration by the
[individualized education program] IEP [T]eam?” We apologize for the delay in providing this
response.
We note that section 607(d) of IDEA prohibits the Secretary from issuing policy letters or other
statements that establish a rule that is required for compliance with, and eligibility under, IDEA
without following the rulemaking requirements of section 553 of the Administrative Procedure
Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as
informal guidance and is not legally binding. This response represents an interpretation by the
Department of the requirements of IDEA in the context of the specific facts presented, and does
not establish a policy or rule that would apply in all circumstances.
As you are aware, States have discretion to allow their local educational agencies (LEAs) to use
multiple methods for determining SLD eligibility, so long as the methods are consistent with
IDEA Part B. Section 300.307(b) makes clear that LEAs must use the State criteria adopted
pursuant to 34 CFR §300.307(a) in making SLD eligibility determinations. Under 34 CFR
§300.307(a), States must adopt SLD eligibility criteria that are consistent with 34 CFR §300.309
and that meet the minimum requirements prescribed in §300.307(a)(1), (2), and (3). Therefore, as
long as the SLD eligibility criteria adopted by a State meet these minimum requirements, the
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State has the discretion to provide flexibility for its LEAs to use more than one method for
determining SLD eligibility. 1
If a school district uses a severe discrepancy model for determining whether a child has an SLD,
it is not required to implement an RTI process to meet the requirements of 34 CFR
§300.309(b)(2). Rather, a school district can meet this requirement through the IDEA evaluation
process or through formal assessments based on the regular instructional program. Specifically,
34 CFR §300.309(b)(2) requires that the group making the SLD eligibility determination
consider, as part of the evaluation described in 34 CFR §§300.304 through 300.306, data-based
documentation of repeated assessments of achievement at reasonable intervals, reflecting formal
assessment of student progress during instruction, which was provided to the child’s parents.
This consideration is necessary to ensure that underachievement in a child suspected of having
an SLD is not due to a lack of instruction in reading or math.
If you have any further questions, please do not hesitate to contact Lisa Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs

1

The Department states in the Analysis of Comments and Changes accompanying the final 2006 Part B regulations:
“There is nothing in the Act that would require a State to use one model of identification to identify a child with an
SLD. We do not believe the regulations should include such a requirement, because section 614(b)(6) of the Act
indicates that some flexibility in the selection of models of identification by LEAs can be appropriate, if permitted
by the State.” See 71 Fed. Reg. 46540, 46649 (August 14, 2006). Further, “State eligibility criteria [for SLD] must
meet the requirements in §§300.307 through 300.111 and LEAs must use these State-adopted criteria. We believe
that, although these provisions allow States some flexibility in how children with SLD are identified, the
requirements in these provisions will ensure that SLD criteria do not vary substantially across States.” 71 Fed. Reg.
46653. Also see OSEP’s August 15, 2007 Letter to Zirkel, available at
https://sites.ed.gov/idea/files/idea/policy/speced/guid/idea/letters/2007-3/zirkel081507eval3q2007.pdf.


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

April 19, 2018

Perry A. Zirkel, Ph.D., J.D.
University Professor of Education and Law
Lehigh University
Department of Education and Human Services
111 Research Drive
Bethlehem, Pennsylvania 18015-4793
Dear Dr. Zirkel:
This letter responds to your electronic mail (email) correspondence to me. In your emails, you
ask for clarification regarding the status of dissenting opinions from individualized education
program (IEP) Team members. Specifically, you have asked:
Is it permissible under the [Individuals with Disabilities Education Act] IDEA for
a teacher or other district member on the IEP [Team] to enter a dissenting opinion
on the IEP or elsewhere in the student’s record? For example, if a general
education teacher, who is on the IEP Team, objects to the placement of the
student in his or her class based on behavioral and/or academic issues, may the
teacher record a dissenting opinion about the placement if the [T]eam determines
that it is appropriate for the child?
We note that section 607(d) of IDEA prohibits the Secretary from issuing policy letters or other
statements that establish a rule that is required for compliance with, and eligibility under, IDEA
without following the rulemaking requirements of section 553 of the Administrative Procedure
Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as
informal guidance and is not legally binding. This response represents an interpretation by the
Department of the requirements of IDEA in the context of the specific facts presented, and does
not establish a policy or rule that would apply in all circumstances.
The Office of Special Education Programs has previously addressed the situation in which an
IEP Team member wishes to offer a dissenting opinion in Letter to Anonymous dated October
29, 1996 (Letter to Anonymous) regarding dissenting opinions of evaluation reports, and believes
that this same analysis applies to your question.
Letter to Anonymous states, in part:
Part B does not address whether it is permissible for any member of the
multidisciplinary team to file a dissenting opinion as part of the child’s evaluation

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report, except in the case of evaluations of students suspected of having learning
disabilities. 1
If a recommendation (whether written or verbal) constitutes only the views or
opinions of an individual team member, and not the determination of the
multidisciplinary team as a whole, the public agency is not responsible for
implementing that recommendation.
The IDEA does not address how the public agency should handle dissenting opinions within the
IEP Team in circumstances outside of an evaluation of a child suspected of having a learning
disability. However, a State educational agency or local educational agency may have policies
and procedures regarding how or whether differences of opinion that occur in other situations
should be documented.
If you have any further questions, please do not hesitate to contact Lisa Pagano of my staff at
202-245-7413 or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs

1

The requirement that the documentation of the determination for a child suspected of having a specific learning
disability include a statement whether the child has a specific learning disability is found in current 34 CFR
§300.311(a). Current 34 CFR §300.311(c) requires that each group member who does not support the report’s
conclusion that the child has a specific learning disability must submit a separate statement presenting the member’s
conclusions.


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

April 19, 2018

Ms. Marcie Lipsitt
27260 Willowgreen Court
Franklin, Michigan 48025
Dear Ms. Lipsitt:
This letter responds to your correspondence addressed to Melody Musgrove, former Director,
Office of Special Education Programs (OSEP), U.S. Department of Education (Department), and
Daniel Schreier, OSEP’s State Lead for Michigan. We regret the delay in responding to your
request.
In your initial and follow-up communications with this Office, you shared information about a
specific State complaint filed with the Michigan State educational agency (SEA), and asked
whether the noncompliance identified by the SEA through its resolution of the complaint would
“rise to the standard to be considered for compensatory education.” You requested that OSEP
provide written guidance to clarify the circumstances under which it would be appropriate for an
SEA to consider compensatory services to redress violations it identifies through the State
complaint procedures in the regulations implementing the Individuals with Disabilities Education
Act (IDEA).
We note that section 607(d) of IDEA prohibits the Secretary from issuing policy letters or other
statements that establish a rule that is required for compliance with, and eligibility under, IDEA
without following the rulemaking requirements of section 553 of the Administrative Procedure
Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as
informal guidance and is not legally binding. This response represents an interpretation by the
Department of the requirements of IDEA in the context of the specific facts presented, and does
not establish a policy or rule that would apply in all circumstances.
Generally, it is not OSEP’s practice to comment on the merits or factual accuracy of a State
complaint filed with an SEA or on the SEA’s resolution of the complaint. As such, our response
is limited to your general question about the requirements in 34 CFR §300.151(b) that address an
SEA’s authority to order compensatory services as a remedy for the failure to provide
appropriate services to a child or group of children with disabilities and we are not making any
judgement concerning the State’s resolution of this specific complaint.
The IDEA regulations require each SEA to adopt procedures for resolving complaints filed by an
organization or individual, including those from another State, alleging that a public agency has
violated a requirement of Part B of the Act or the Part B regulations. 34 CFR §300.151(a)(1). In
resolving a complaint in which the SEA has found a failure to provide appropriate services, an
SEA, pursuant to its general supervisory authority under Part B, must address: (1) the failure to
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provide appropriate services, including corrective action appropriate to address the needs of the
child (such as compensatory services or monetary reimbursement); and (2) appropriate future
provision of services for all children with disabilities. 34 CFR §300.151(b)(1) and (2). In
resolving State complaints, the SEA is responsible for ensuring that all public agencies within its
jurisdiction meet IDEA requirements, and appropriate implementation of the State complaint
procedures is critical to the SEA’s exercise of its general supervision responsibilities. An SEA,
pursuant to its general supervisory authority, has broad flexibility to determine appropriate
remedies to address the denial of appropriate services to an individual child or group of children.
The purpose of a compensatory services award is to remedy the public agency’s failure to
provide a child with a disability with “appropriate services” during the time that the child is (or
was) entitled to a free appropriate public education and was denied appropriate services. An SEA
has broad discretion in determining a suitable remedy when it concludes that a violation of an
IDEA requirement has resulted in a failure to provide appropriate services to a particular child or
group of children. There is nothing in the IDEA or its implementing regulations that would limit
an SEA’s authority in resolving a State complaint to award compensatory services, or require
such an award, based on a specific set of facts and circumstances, or a particular finding of
noncompliance.
If you have any questions, please do not hesitate to contact Lisa Pagano at 202-245-7413 or by
email Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs


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

April 18, 2018

David Kane, Esq.
Sargent Rehabilitation Center
800 Quaker Lane
Warwick, Rhode Island 02818
Dear Mr. Kane:
This letter responds to your correspondence to Lisa Pagano, State Lead/Policy Specialist, Office
of Special Education Programs (OSEP), U.S. Department of Education (Department). In your
letter, you ask that OSEP clarify the obligation of local educational agencies (LEAs) to provide
compensatory services to make up special education and related services missed when children
with disabilities participate in required scheduled State assessment testing. We regret the delay in
responding.
We note that section 607(d) of the Individuals with Disabilities Education Act (IDEA) prohibits
the Secretary from issuing policy letters or other statements that establish a rule that is required
for compliance with, and eligibility under, IDEA without following the rulemaking requirements
of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of
IDEA section 607(e), this response is provided as informal guidance and is not legally binding.
This response represents an interpretation by the Department of the requirements of IDEA in the
context of the specific facts presented, and does not establish a policy or rule that would apply in
all circumstances.
In your letter, you present two scenarios and ask whether an LEA has a responsibility to provide
compensatory services to make up any special education and related services missed: (1) during
the time a child participates in a required State or districtwide assessment program; and (2) when
the parent withholds his or her child from participating in the State or districtwide assessment
program (e.g., the parent keeps the child home from school during the time that assessments are
being administered).
Part B of the IDEA requires each LEA, along with the State educational agency, to ensure that a
free appropriate public education (FAPE) is made available to all eligible children with
disabilities within the jurisdiction of the LEA. 20 U.S.C. 1412(a)(1) and 20 U.S.C. 1413(a)(1). In
order to make FAPE available, each child’s individualized education program (IEP) must be
developed and implemented in accordance with the requirements in 20 U.S.C 1414(d). 20 U.S.C.
1401(9). The IEP for each child must include, among other content, a statement of the specific
special education and related services to be provided to the child, the projected dates for
initiation of the services, and the anticipated frequency, location, and duration of the services.
(Emphasis added). 20 U.S.C 1414(d)(1)(A)(i)(IV). 34 CFR §300.320(a)(4) and (7).
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In addition, all children with disabilities must be included in all general State and districtwide
assessment programs, including assessments described under section 1111 of the Elementary and
Secondary Education Act of 1965 (ESEA), with appropriate accommodations, and alternate
assessments where necessary and as indicated in their respective IEPs. 20 U.S.C. 1412(a)(16).
All children, including children with disabilities, benefit from participating in State and
districtwide assessments, which are an integral part of the educational accountability system
under Title I of the ESEA and Part B of the IDEA, and are often used to measure student
progress for the purpose of promotion, graduation, and access to educational services. In
addition, assessment is an integral aspect of educational accountability systems that provide
valuable information which benefits individual students by measuring individual progress against
standards or by evaluating programs.
Participation in assessments is also addressed in the child’s IEP. The IEP Team determines how
the child will be assessed, including whether any individual appropriate accommodations are
necessary to measure the academic achievement and functional performance of the child and
whether the child must take an alternate assessment. 20 U.S.C. 1414(d)(1)(A)(i)(VI). Thus,
children with disabilities must participate in all general State and/or districtwide assessments and
during the administration of such tests, the LEA must implement the child’s IEP by providing
any required accommodations or an alternate assessment if determined necessary by the child’s
IEP Team.
Generally, a special education or related service missed due to participation in required
scheduled assessments would not constitute a denial of FAPE and the LEA would not be
required to make up the missed service. For a child who is absent from school on testing days
due to a parent’s choice, the LEA would not be obligated to make other arrangements to make up
the missed services.
If you have any further questions, please do not hesitate to contact Ms. Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs