November 23, 2015
Michael Lovato
Director of Special Education
New Mexico Public Education Department
120 South Federal Place
Santa Fe, New Mexico 87501
Dear Mr. Lovato:
This is in response to the electronic mail (email) communication to me dated August 27, 2014,
from Gabriel C. Baca, New Mexico’s former special education director, in which he posed
several questions seeking written guidance regarding the application of the exception to
maintenance of effort (MOE) in 34 CFR §300.204(a). Under that provision, a local educational
agency (LEA) may reduce the level of expenditures by the LEA for the education of children
with disabilities under Part B of the Individuals with Disabilities Education Act (IDEA) below
the level of those expenditures for the preceding fiscal year if the reduction is attributable to “the
voluntary departure, by retirement or otherwise, or departure for just cause, of special education
or related services personnel.” His questions and the Office of Special Education Programs’
(OSEP) responses are below.
Question 1:
“Is an LEA able to take the deduction pursuant to 34 CFR §300.204(a) if the services were
provided in the prior year by a special education and related service provider or contractor, and
that contractor leaves his or her position by voluntary departure, retirement, or for cause, and
now employees of the LEA are providing the same services?
Example 1
In 2010-2011 an LEA pays [$]100,000.00 for the fiscal year to a contractor to provide
occupational therapist services. Then that contractor decides to leave the position voluntarily to
pursue other personal interests or just decides not to renew the contract. In 2011-2012, instead of
contracting for the services the LEA hires an occupational therapist as a full time employee with
an annual salary of $50,000.00.
Example 2
In 2010-2011, an LEA paid a total of $100,000 for the fiscal year, to a contractor to provide
occupational therapist services. In 2011-2012, instead of contracting for the services, the LEA
decides to save money on travel and other costs that do not directly relate to a student’s services,
and in order to improve the quality of the services being provided to students in the LEA, the
LEA hires an occupational therapist as a full time employee with an annual salary of $50,000.00.
In both cases, may the LEA take the $50,000.00 difference as a qualified reduction in MOE
pursuant to §300.204(a)?”

Page 2 – Mr. Michael Lovato
OSEP’s Response:
In Example 1 above, the LEA may take the $50,000 reduction in MOE because of the voluntary
departure of the related service provider. On the other hand, in Example 2, the LEA may not take
the reduction in MOE because the related service provider did not depart voluntarily, or for just
cause, but rather departed because the LEA decided to terminate the contract with the related
service provider as a cost-saving measure.
Question 2:
“Is an LEA able to take the deduction pursuant to [34 CFR §] 300.204(a), if the services
provided in the prior year were being provided by a full-time employee who leaves his/her
position by voluntary departure, retirement, or for just cause, and then the same services are
provided by an independent contractor in the following year at a lower cost?”
OSEP’s Response:
In the situation provided in your question, the employee departed “his/her position by voluntary
departure, retirement, or for just cause.” Therefore, based on the information you provided, the
LEA may take an MOE reduction based on the difference between the salary paid to the full-time
employee and the amount paid to the independent contractor. For example, if the salary paid to
the full-time employee was $100,000 and the amount paid to the independent contractor was
$50,000, the LEA may take a $50,000 reduction in its MOE obligation.
Question 3:
“Is an LEA able to take the deduction pursuant to [34 CFR §] 300.204(a), if the services
provided in the prior year were being provided by a contractor and then a less costly contractor
provides the same services the following year?
Example 3
In 2010-2011 an LEA pays $50,000.00 for the fiscal year to a contractor to provide occupational
therapist services. Then that contractor decides to leave the position voluntarily to pursue other
personal interests or just decides not to renew the contract. In 2011-2012 the LEA finds another
contractor to cover the services but the expenditures for the new contractor are $40,000.00.
May the LEA take the $10,000.00 difference as a qualified reduction in MOE pursuant to
34 CFR §300.204(a)?”
OSEP’s Response:
In Example 3, the contractor “voluntarily” departed the position; therefore, the LEA may take the
$10,000 reduction in MOE. (Your general question immediately preceding Example 3 does not
indicate whether the contractor in the prior year voluntarily departed the position. If the
contractor in that situation voluntarily departed the position, the LEA may take an MOE
reduction.)

Page 3 – Mr. Michael Lovato
Question 4:
On page 2 of the OSEP Letter to Albert V. Gonzales, dated September 7, 2012, each of the
examples provided “references a replacement of a ‘departing special education teacher’ but there
is no context as to whether the teacher was paid as an employee of the LEA or as a contractor of
the LEA. How does OSEP apply the exceptions in 34 CFR §300.204(a) to questions 1-3 above,
in light of the guidance in the Letter to Gonzales?” You also ask “[i]n the context of the
questions above, what is the definition of ‘personnel’ in [34 CFR §] 300.204(a)?”
OSEP’s Response:
As noted above, the provision in 34 CFR §300.204(a) refers to the voluntary departure, or
departure for just cause of special education and related services personnel. Neither Part B of the
IDEA, nor its implementing regulations, define special education or related services personnel.
An LEA may take the reduction under 34 CFR §300.204(a) for the voluntary departure, or
departure for just cause of a special education teacher or related service provider, regardless of
whether the special education teacher or related services provider is an employee of the public
agency or an independent contractor.
Question 5:
Lastly, you ask for clarification of “just cause” in 34 CFR §300.204(a). Specifically, “How
would ‘just cause’ be defined in the case of a breach or material breach of contract of a
contractor? And also, “How would ‘just cause’ be defined in the case of an occurrence of a
violation of a contract by a contractor?”
OSEP’s Response:
Neither Part B of the IDEA, nor its implementing regulations, define “just cause.” In prior
guidance, the Department has stated that departure “for just cause” is usually related to some
kind of disciplinary dismissal.1 “Just cause” is a legal term that must be defined consistent with
State law. With respect to an employee of a public agency, a termination for “just cause” would
generally occur when an employer makes a factual determination that the employee’s
performance or conduct warranted the termination of the employee. With respect to an
independent contractor, a termination for “just cause” would generally occur when the contractor
fails to meet the terms of the contract.
1

Please see the 2009 Integrated Fiscal Accountability presentation on LEA MOE on the GRADS website at
https://osep.grads360.org/#communities/pdc/documents/9437. On April 28, 2015, the Department published final
regulations on LEA MOE, which took effect on July 1, 2015. 80 Fed. Reg. 23644 (Apr. 28, 2015). In the final
regulations, the eligibility standard precedes the compliance standard in order to provide clarity. Therefore, the
eligibility standard is set out in 34 CFR §300.203(a), and the compliance standard is set out in 34 CFR §300.203(b).
In addition, in order to clarify that LEAs may meet the eligibility standard and the compliance standard using any of
the four methods ((i) local funds only, (ii) the combination of State and local funds, (iii) local funds only on a per
capita basis, or (iv) the combination of State and local funds on a per capita basis), the final regulations list the four
methods individually in both the eligibility standard in §300.203(a)(1) and the compliance standard in 34 CFR
§300.203(b)(2). The ability to use any of the four methods is not a change in the final LEA MOE regulations, as the
prior LEA MOE regulation also provided for the use of the four methods.

Page 4 – Mr. Michael Lovato
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 specific facts presented.
If you have any further questions, please do not hesitate to contact Jennifer Finch, of my staff, at
202-245-6610 or by email at Jennifer.Finch@ed.gov.
Sincerely,
/s/
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs


November 23, 2015
Michael I. Inzelbuch, Esq.
Santander Bank Building – 2nd Floor
555 Madison Avenue
Lakewood, New Jersey 08701
Dear Mr. Inzelbuch:
This is in response to your June 10, 2015 letter to me requesting guidance from the Office of
Special Education Programs (OSEP) regarding the manner in which a local educational agency
(LEA) may dedicate an amount of the LEA’s proportionate share of Federal funds required to be
set aside to provide equitable services to eligible children with disabilities placed by their parents
in private schools (proportionate share). Specifically, you ask whether an LEA may dedicate a
portion of its proportionate share funds as a part of a settlement agreement without timely and
meaningful consultation as required under 34 CFR §300.134 of the regulations implementing the
Individuals with Disabilities Education Act (IDEA).
Your letter indicates that an LEA placed a student in a private school as a means of providing
special education and related services in accordance with the student’s individualized education
program (IEP), but the parents initiated the due process procedures because of a dispute about
the services provided to their child in the private school placement. Your letter also indicates that
the LEA and the student have a proposed settlement agreement whereby the student would
withdraw from the LEA and enroll directly in the private school as a parentally placed student,
and the LEA would use a portion of their proportionate share to continue providing services.
OSEP does not review or interpret settlement agreements, and therefore expresses no view as to
the terms of this settlement agreement. In general, settlement agreements are enforced by courts.
A settlement agreement reached through a mediation or resolution session may also be enforced
through a voluntary mechanism established by a State educational agency, pursuant to 34 CFR
§300.537, provided that use of the State mechanism does not deny or delay a party’s right to seek
enforcement of a settlement agreement in an appropriate State or Federal court.
OSEP has previously provided guidance on the process for making decisions with respect to the
services to be provided to eligible parentally placed private school children with disabilities.
Specifically, we have stated that timely and meaningful consultation must occur before any
decisions are made that will affect the participation of parentally placed children in Part B
programs. See Question D-1 of the Questions and Answers on Serving Children with Disabilities
Placed by Their Parents in Private Schools, April 2011 available at:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C1%2C. Thus,
decisions about services for parentally-placed students with disabilities and expenditure of Part B
funds reserved for equitable services may not be made in advance or in the absence of timely and
meaningful consultation. After the LEA has engaged in timely and meaningful consultation with
representatives of private schools and representatives of parents of parentally placed private school
children with disabilities, the LEA is responsible for making final decisions about all aspects of the
services to be provided to parentally placed private school children with disabilities.

Page 2 – Michael I. Inzelbuch
See 34 CFR §300.137(b). If the LEA disagrees with the views of the private school officials on the
provision of services or the types of services, whether provided directly or through a contract, the
LEA must provide to the private school officials a written explanation of the reasons why the LEA
chose not to accept the recommendations of the private school officials. See 34 CFR §300.134(e).
Therefore, it would be inconsistent with the IDEA for an LEA unilaterally to dedicate a portion
of its proportionate share funds to carry out the terms of a settlement agreement regarding the
provision of services to a particular student with a disability without complying with the
consultation requirements of 34 CFR §300.134.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have questions, please do not hesitate to contact Jennifer Wolfsheimer, at 202-245-6090 or
by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,
/s/
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs


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

November 16, 2015
Dear Colleague:
Ensuring that all children, including children with disabilities, are held to rigorous academic
standards and high expectations is a shared responsibility for all of us. To help make certain that
children with disabilities are held to high expectations and have meaningful access to a State’s
academic content standards, we write to clarify that an individualized education program (IEP)
for an eligible child with a disability under the Individuals with Disabilities Education Act
(IDEA) must be aligned with the State’s academic content standards for the grade in which the
child is enrolled.1 Research has demonstrated that children with disabilities who struggle in
reading and mathematics can successfully learn grade-level content and make significant
academic progress when appropriate instruction, services, and supports are provided. 2
Conversely, low expectations can lead to children with disabilities receiving less challenging
instruction that reflects below grade-level content standards, and thereby not learning what they
need to succeed at the grade in which they are enrolled.
The cornerstone of the IDEA is the entitlement of each eligible child with a disability to a free
appropriate public education (FAPE) that emphasizes special education and related services
designed to meet the child’s unique needs and that prepare the child for further education,
employment, and independent living. 20 U.S.C. §1400(d)(1)(A). Under the IDEA, the primary
vehicle for providing FAPE is through an appropriately developed IEP that is based on the
individual needs of the child. An IEP must take into account a child’s present levels of academic
achievement and functional performance, and the impact of that child’s disability on his or her
involvement and progress in the general education curriculum. IEP goals must be aligned with
grade-level content standards for all children with disabilities. The State, however, as discussed

1

The Department has determined that this document is a “significant guidance document” under the Office of
Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007),
available at www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf. The purpose of
this guidance is to provide State and local educational agencies (LEAs) with information to assist them in meeting
their obligations under the IDEA and its implementing regulations in developing IEPs for children with disabilities.
This guidance does not impose any requirements beyond those required under applicable law and regulations. It
does not create or confer any rights for or on any person. If you are interested in commenting on this guidance or if
you have further questions that are not answered here, please e-mail iepgoals@ed.gov or write to us at the following
address: U.S. Department of Education, Office of Special Education and Rehabilitative Services, 550 12th Street
SW., PCP Room 5139, Washington, DC 20202-2600.
2
For a discussion of this research see Improving the Academic Achievement of the Disadvantaged; Assistance to
States for the Education of Children With Disabilities, Final Rule, 80 Fed. Reg. 50773, 50776 (Aug. 21, 2015).

Page 2 – Dear Colleague
on page five, is permitted to define alternate academic achievement standards for children with
the most significant cognitive disabilities.3
Application of Provisions in the Elementary and Secondary Education Act of 1965 to Children
with Disabilities
Since 2001, the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the
No Child Left Behind Act of 2001 (NCLB), has required each State to apply the same
challenging academic content and achievement standards to all schools and all children in the
State, which includes children with disabilities. 20 U.S.C. §6311(b)(1)(B). The U.S.
Department of Education (Department), in its regulations implementing Title I of the ESEA, has
clarified that these standards are grade-level standards. 34 CFR §200.1(a)-(c). To assist children
with disabilities in meeting these grade-level academic content standards, many States have
adopted and implemented procedures for developing standards-based IEPs that include IEP goals
that reflect the State’s challenging academic content standards that apply to all children in the
State.
Interpretation of “General Education Curriculum”
Under the IDEA, in order to make FAPE available to each eligible child with a disability, the
child’s IEP must be designed to enable the child to be involved in and make progress in the
general education curriculum. 20 U.S.C. §1414(d)(1)(A). The term “general education
curriculum” is not specifically defined in the IDEA. The Department’s regulations implementing
Part B of the IDEA, however, state that the general education curriculum is “the same curriculum
as for nondisabled children.” 34 CFR §300.320(a)(1)(i). In addition, the IDEA Part B
regulations define the term “specially designed instruction,” the critical element in the definition
of “special education,” as “adapting, as appropriate to the needs of an eligible child, the content,
methodology, or delivery of instruction to address the unique needs of the child that result from
the child’s disability and to ensure access of the child to the general curriculum, so that the child
can meet the educational standards within the jurisdiction of the public agency that apply to all
children.” 34 CFR §300.39(b)(3) (emphasis added). Otherwise, the IDEA regulations do not
specifically address the connection between the general education curriculum and a State’s
academic content standards.

3

In accordance with 34 CFR §200.1(d), for children with the most significant cognitive disabilities who take an
alternate assessment, a State may define alternate academic achievement standards provided those standards are
aligned with the State’s academic content standards; promote access to the general curriculum; and reflect
professional judgment of the highest achievement standards possible. See also 34 CFR §300.160(c)(2)(i).

Page 3 – Dear Colleague
Analysis
The Department interprets “the same curriculum as for nondisabled children” to be the
curriculum that is based on a State’s academic content standards for the grade in which a child is
enrolled. This interpretation, which we think is the most appropriate reading of the applicable
regulatory language, will help to ensure that an IEP for a child with a disability, regardless of the
nature or severity of the disability, is designed to give the child access to the general education
curriculum based on a State’s academic content standards for the grade in which the child is
enrolled, and includes instruction and supports that will prepare the child for success in college
and careers. This interpretation also appropriately harmonizes the concept in the IDEA
regulations of “general education curriculum (i.e., the same curriculum as for nondisabled
children),” with the ESEA statutory and regulatory requirement that the same academic content
standards must apply to all public schools and children in the State, which includes children with
disabilities.
The IDEA statutory and regulatory provisions discussed above, the legislative history of the
IDEA, and clarification the Department has provided on the alignment of the IEP with a State’s
content standards in the Analysis of Comments and Changes to the 2006 IDEA Part B
regulations also support this interpretation. When it last reauthorized the IDEA in 2004,
Congress continued to emphasize, consistent with the provisions in the ESEA, the importance of
“having high expectations for [children with disabilities] and ensuring their access to the general
education curriculum in the regular classroom, to the maximum extent possible.” 20 U.S.C.
§1400(c)(5)(A). The Senate Report accompanying the 2004 reauthorization of the IDEA also
explained that “[f]or most children with disabilities, many of their IEP goals would likely
conform to State and district wide academic content standards and progress indicators consistent
with standards based reform within education and the new requirements of NCLB.” S. Rep. No.
108-185, 105th Cong., 1st Sess. 29 (Nov. 3, 2003).
The Analysis of Comments and Changes accompanying the 2006 IDEA Part B regulations also
included important discussion that further clarifies the alignment of an IEP with a State’s
academic content standards under the ESEA, explaining: “section 300.320(a)(1)(i) clarifies that
the general education curriculum means the same curriculum as all other children. Therefore, an
IEP that focuses on ensuring that the child is involved in the general education curriculum will
necessarily be aligned with the State’s content standards.”4

4

See Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with
Disabilities, Final Rule, 71 Fed. Reg. 46540, 46662 (Aug. 14, 2006); see also 71 Fed. Reg. 46579.

Page 4 – Dear Colleague
The Department’s interpretation of the regulatory language “general education curriculum (i.e.,
the same curriculum as for nondisabled children)” to mean the curriculum that is based on the
State’s academic content standards for the grade in which a child is enrolled is reasonable. This
interpretation is also necessary to enable IDEA and ESEA requirements to be read together so
that children with disabilities receive high-quality instruction that will give them the opportunity
to meet the State’s challenging academic achievement standards and prepare them for college,
careers and independence. Therefore, in order to make FAPE available to each eligible child
with a disability, the special education and related services, supplementary aids and services, and
other supports in the child’s IEP must be designed to enable the child to advance appropriately
toward attaining his or her annual IEP goals and to be involved in, and make progress in, the
general education curriculum based on the State’s academic content standards for the grade in
which the child is enrolled.
Implementation of the Interpretation
Based on the interpretation of “general education curriculum” set forth in this letter, we expect
annual IEP goals to be aligned with State academic content standards for the grade in which a
child is enrolled. This alignment, however, must guide but not replace the individualized
decision-making required in the IEP process.5 In fact, the IDEA’s focus on the individual needs
of each child with a disability is an essential consideration when IEP Teams are writing annual
goals that are aligned with State academic content standards for the grade in which a child is
enrolled so that the child can advance appropriately toward attaining those goals during the
annual period covered by the IEP. In developing an IEP, the IEP Team must consider how a
child’s specific disability impacts his or her ability to advance appropriately toward attaining his
or her annual goals that are aligned with applicable State content standards during the period
covered by the IEP. For example, the child’s IEP Team may consider the special education
instruction that has been provided to the child, the child’s previous rate of academic growth, and
whether the child is on track to achieve grade-level proficiency within the year.

5

The IEP must include, among other required content: (1) a statement of the child’s present levels of academic
achievement and functional performance, including how the child’s disability affects the child’s involvement and
progress in the general education curriculum; (2) a statement of measurable annual goals, including academic and
functional goals, designed to meet the child’s needs that result from the child’s disability to enable the child to be
involved in and make progress in the general education curriculum; and (3) the special education and related
services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be
provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school
personnel that will 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 in accordance with the child’s present levels
of performance. 34 CFR §300.320(a).

Page 5 – Dear Colleague
The Department recognizes that there is a very small number of children with the most
significant cognitive disabilities whose performance must be measured against alternate
academic achievement standards, as permitted in 34 CFR §200.1(d) and §300.160(c). As
explained in prior guidance,6 alternate academic achievement standards must be aligned with the
State’s grade-level content standards. The standards must be clearly related to grade-level
content, although they may be restricted in scope or complexity or take the form of introductory
or pre-requisite skills. This letter is not intended to limit a State’s ability to continue to measure
the achievement of the small number of children with the most significant cognitive disabilities
against alternate academic achievement standards, but rather to ensure that annual IEP goals for
these children reflect high expectations and are based on the State’s content standards for the
grade in which a child is enrolled.
In a case where a child’s present levels of academic performance are significantly below the
grade in which the child is enrolled, in order to align the IEP with grade-level content standards,
the IEP Team should estimate the growth toward the State academic content standards for the
grade in which the child is enrolled that the child is expected to achieve in the year covered by
the IEP. In a situation where a child is performing significantly below the level of the grade in
which the child is enrolled, an IEP Team should determine annual goals that are ambitious but
achievable. In other words, the annual goals need not necessarily result in the child’s reaching
grade-level within the year covered by the IEP, but the goals should be sufficiently ambitious to
help close the gap. The IEP must also include the specialized instruction to address the unique
needs of the child that result from the child’s disability necessary to ensure access of the child to
the general curriculum, so that the child can meet the State academic content standards that apply
to all children in the State.
An Example of Implementation
We provide an example of how an IEP Team could apply the interpretation of “general education
curriculum” set forth in this letter. For example, after reviewing recent evaluation data for a
sixth grade child with a specific learning disability, the IEP Team determines that the child is
reading four grade levels below his current grade; however, his listening comprehension is on
grade level. The child’s general education teacher and special education teacher also note that
when materials are read aloud to the child he is able to understand grade-level content. Based on
these present levels of performance and the child’s individual strengths and weaknesses, the IEP

6

See U.S. Department of Education Non-regulatory guidance: Alternate achievement standards for students with
the most significant cognitive disabilities August 2005) available at:
https://www2.ed.gov/policy/elsec/guid/altguidance.pdf

Page 6 – Dear Colleague
Team determines he should receive specialized instruction to improve his reading fluency. Based
on the child’s rate of growth during the previous school year, the IEP Team estimates that with
appropriate specialized instruction the child could achieve an increase of at least 1.5 grade levels
in reading fluency. To ensure the child can learn material based on sixth grade content standards
(e.g., science and history content), the IEP Team determines the child should receive
modifications for all grade-level reading assignments. His reading assignments would be based
on sixth grade content but would be shortened to assist with reading fatigue resulting from his
disability. In addition, he would be provided with audio text books and electronic versions of
longer reading assignments that he can access through synthetic speech. With this specialized
instruction and these support services, the IEP would be designed to enable the child to be
involved and make progress in the general education curriculum based on the State’s sixth grade
content standards, while still addressing the child’s needs based on the child’s present levels of
performance.7 This example is provided to show one possible way that an IEP could be designed
to enable a child with a disability who is performing significantly below grade level to receive
the specialized instruction and support services the child needs to reach the content standards for
the grade in which the child is enrolled during the period covered by the IEP. 8 We caution,
though that, because the ways in which a child’s disability affects his or her involvement and
progress in the general education curriculum are highly individualized and fact-specific, the
instruction and supports that might enable one child to achieve at grade-level may not necessarily
be appropriate for another child with the same disability.
Summary
In sum, consistent with the interpretation of “general education curriculum (i.e., the same
curriculum as for nondisabled children)” based on the State’s academic content standards for the

7

For information on developing, reviewing, or revising the IEP for a child with limited English proficiency, see:
Questions and Answers Regarding Inclusion of English Learners with Disabilities in English Language Proficiency
Assessments and Title III Annual Measurable Achievement Objectives
https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/q-and-a-on-elp-swd.pdf.
8
While the Department does not mandate or endorse specific products or services, we are aware that many States
have issued guidance addressing standards-based IEPs . For example see Minnesota Department of Education,
Developing Standards-Based IEP Goals and Objectives A Discussion Guide available at:
https://education.state.mn.us/mdeprod/idcplg?IdcService=GET_FILE&dDocName=050483&RevisionSelectionMet
hod=latestReleased&Rendition=primary. States and LEAs also may consider reviewing the following examples
from OSEP-funded projects regarding implementation of standards-based IEPs: inForum: Standards-Based
Individualized Education Program Examples available at: www.nasdse.org/portals/0/standardsbasediepexamples.pdf. For an example of annual goals aligned with State academic content standards for a child
taking the alternate assessment based on alternate academic achievement standards, see: an issue brief provided by
the OSEP-funded National Center and State Collaborative (NCSC), NCSC Brief 5: Standards-based Individualized
Education Programs (IEPs) for Children Who Participate in AA-AAS available at:
http://www.ncscpartners.org/Media/Default/PDFs/Resources/NCSCBrief5.pdf.

Page 7 – Dear Colleague
grade in which a child is enrolled set forth in this letter, an IEP Team must ensure that annual IEP
goals are aligned with the State academic content standards for the grade in which a child is
enrolled. The IEP must also include the specially designed instruction necessary to address the
unique needs of the child that result from the child’s disability and ensure access of the child to
the general education curriculum, so that the child can meet the State academic content standards
that apply to all children, as well as the support services and the program modifications or
supports for school personnel that will be provided to enable the child to advance appropriately
toward attaining the annual goals.
Opportunities for Input
We are interested in receiving comments on this document to inform implementation of this
guidance. If you are interested in commenting on this document, please e-mail your comments
to iepgoals@ed.gov or write to us at the following address: US Department of Education,
550 12th Street SW, PCP Room 5139, Washington, DC 20202-2600. Note that we are
specifically interested in receiving input from the field on examples of models of alignment of
IEP goals with State content standards that are working well at the State and local level, and how
this guidance could be implemented for children with disabilities who are English learners and
children with the most significant cognitive disabilities. We will share appropriate models with
you in further communications as they become available. We would also be glad to help answer
your questions and help with your technical assistance needs in this important area.
We ask you to share this information with your local school districts to help ensure all children
with disabilities are held to high standards and high expectations. Thank you for your continued
interest in improving results for children with disabilities.
Sincerely,
/s/
Michael K. Yudin
Assistant Secretary

/s/
Melody Musgrove
Director
Office of Special Education Programs


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
THE ASSISTANT SECRETARY

October 23, 2015
Dear Colleague:
Ensuring a high-quality education for children with specific learning disabilities is a critical
responsibility for all of us. I write today to focus particularly on the unique educational needs of
children with dyslexia, dyscalculia, and dysgraphia, which are conditions that could qualify a
child as a child with a specific learning disability under the Individuals with Disabilities
Education Act (IDEA). The Office of Special Education and Rehabilitation Services (OSERS)
has received communications from stakeholders, including parents, advocacy groups, and
national disability organizations, who believe that State and local educational agencies (SEAs
and LEAs) are reluctant to reference or use dyslexia, dyscalculia, and dysgraphia in evaluations,
eligibility determinations, or in developing the individualized education program (IEP) under the
IDEA. The purpose of this letter is to clarify that there is nothing in the IDEA that would
prohibit the use of the terms dyslexia, dyscalculia, and dysgraphia in IDEA evaluation, eligibility
determinations, or IEP documents.
Under the IDEA and its implementing regulations “specific learning disability” is defined, in
part, as “a disorder in one or more of the basic psychological processes involved in
understanding or in using language, spoken or written, that may manifest itself in the imperfect
ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including
conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and
developmental aphasia.” See 20 U.S.C. §1401(30) and 34 CFR §300.8(c)(10) (emphasis added).
While our implementing regulations contain a list of conditions under the definition “specific
learning disability,” which includes dyslexia, the list is not exhaustive. However, regardless of
whether a child has dyslexia or any other condition explicitly included in this definition of
“specific learning disability,” or has a condition such as dyscalculia or dysgraphia not listed
expressly in the definition, the LEA must conduct an evaluation in accordance with 34 CFR
§§300.304-300.311 to determine whether that child meets the criteria for specific learning
disability or any of the other disabilities listed in 34 CFR §300.8, which implements IDEA’s
definition of “child with a disability.”
For those students who may need additional academic and behavioral supports to succeed in a
general education environment, schools may choose to implement a multi-tiered system of
supports (MTSS), such as response to intervention (RTI) or positive behavioral interventions and
supports (PBIS). MTSS is a schoolwide approach that addresses the needs of all students,
including struggling learners and students with disabilities, and integrates assessment and
intervention within a multi-level instructional and behavioral system to maximize student
achievement and reduce problem behaviors.
MTSS, which includes scientific, research-based interventions, also may be used to identify
children suspected of having a specific learning disability. With a multi-tiered instructional
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Page 2 – Dear Colleague: Dyslexia Guidance

framework, schools identify students at risk for poor learning outcomes, including those who
may have dyslexia, dyscalculia, or dysgraphia; monitor their progress; provide evidence-based
interventions; and adjust the intensity and nature of those interventions depending on a student’s
responsiveness. Children who do not, or minimally, respond to interventions must be referred for
an evaluation to determine if they are eligible for special education and related services (34 CFR
§300.309(c)(1)); and those children who simply need intense short-term interventions may
continue to receive those interventions. OSERS reminds SEAs and LEAs about previous
guidance regarding the use of MTSS, including RTI, and timely evaluations,1 specifically that a
parent may request an initial evaluation at any time to determine if a child is a child with a
disability under IDEA (34 CFR §300.301(b)), and the use of MTSS, such as RTI, may not be
used to delay or deny a full and individual evaluation under 34 CFR §§300.304-300.311 of a
child suspected of having a disability.
In determining whether a child has a disability under the IDEA, including a specific learning
disability, and is eligible to receive special education and related services because of that
disability, the LEA must conduct a comprehensive evaluation under §300.304, which requires
the use of a variety of assessment tools and strategies to gather relevant functional,
developmental, and academic information about the child. This information, which includes
information provided by the parent, may assist in determining: 1) whether the child is a child
with a disability; and 2) the content of the child’s IEP to enable the child to be involved in, and
make progress in, the general education curriculum. 34 CFR §300.304(b)(1). Therefore,
information about the child’s learning difficulties, including the presenting difficulties related to
reading, mathematics, or writing, is important in determining the nature and extent of the child’s
disability and educational needs. In addition, other criteria are applicable in determining whether
a child has a specific learning disability. For example, the team determining eligibility considers
whether the child is not achieving adequately for the child’s age or to meet State-approved
grade-level standards when provided with learning experiences and instruction appropriate for
the child’s age or the relevant State standards in areas related to reading, mathematics, and
written expression. The team also must determine that the child’s underachievement is not due to
lack of appropriate instruction in reading or mathematics. 34 CFR §300.309(a)(1) and (b).
Section 300.311 contains requirements for specific documentation of the child’s eligibility
determination as a child with a specific learning disability, and includes documentation of the
information described above. Therefore, there could be situations where the child’s parents and
the team of qualified professionals responsible for determining whether the child has a specific
learning disability would find it helpful to include information about the specific condition (e.g.,
dyslexia, dyscalculia, or dysgraphia) in documenting how that condition relates to the child’s
eligibility determination. 34 CFR §§300.306(a)(1), (c)(1) and 300.308.

1

See OSEP Memo 11-07 (January 21, 2011) available at:
www.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11-07rtimemo.pdf Under 34 CFR §300.307(a)(2)-(3), as part
of their criteria for determining whether a child has a specific learning disability, States must permit the use of a
process based on the child’s response to scientific, research-based intervention, and may permit the use of other
alternative research-based procedures in making this determination.

Page 3 – Dear Colleague: Dyslexia Guidance

Stakeholders also requested that SEAs and LEAs have policies in place that allow for the use of
the terms dyslexia, dyscalculia, and dysgraphia on a child’s IEP, if a child’s comprehensive
evaluation supports use of these terms. There is nothing in the IDEA or our implementing
regulations that prohibits the inclusion of the condition that is the basis for the child’s disability
determination in the child’s IEP. In addition, the IEP must address the child’s needs resulting
from the child’s disability to enable the child to advance appropriately towards attaining his or
her annual IEP goals and to enable the child to be involved in, and make progress in, the general
education curriculum. 34 CFR §§300.320(a)(1), (2), and (4). Therefore, if a child’s dyslexia,
dyscalculia, or dysgraphia is the condition that forms the basis for the determination that a child
has a specific learning disability, OSERS believes that there could be situations where an IEP
Team could determine that personnel responsible for IEP implementation would need to know
about the condition underlying the child’s disability (e.g., that a child has a weakness in decoding
skills as a result of the child’s dyslexia). Under 34 CFR §300.323(d), a child’s IEP must be
accessible to the regular education teacher and any other school personnel responsible for its
implementation, and these personnel must be informed of their specific responsibilities related to
implementing the IEP and the specific accommodations, modifications, and supports that must
be provided for the child in accordance with the IEP. Therefore, OSERS reiterates that there is
nothing in the IDEA or our implementing regulations that would prohibit IEP Teams from
referencing or using dyslexia, dyscalculia, or dysgraphia in a child’s IEP.
Stakeholders requested that OSERS provide SEAs and LEAs with a comprehensive guide to
commonly used accommodations2 in the classroom for students with specific learning
disabilities, including dyslexia, dyscalculia, and dysgraphia. The IDEA does not dictate the
services or accommodations to be provided to individual children based solely on the disability
category in which the child has been classified, or the specific condition underlying the child’s
disability classification. The Office of Special Education Programs (OSEP) funds a large
network of technical assistance centers that develop materials and resources to support States,
school districts, schools, and teachers to improve the provision of services to children with
disabilities, including materials on the use of accommodations. The U.S. Department of
Education does not mandate the use of, or endorse the content of, these products, services,
materials, and/or resources; however, States and LEAs may wish to seek assistance from entities
such as the National Center on Intensive Intervention at: http://www.intensiveintervention.org,
the Center for Parent Information and Resources available at: http://www.parentcenterhub.org,
and the National Center on Accessible Educational Materials available at: http://aem.cast.org/.
For a complete list of OSEP-funded technical assistance centers please see:
http://ccrs.osepideasthatwork.org/.
In implementing the IDEA requirements discussed above, OSERS encourages SEAs and LEAs
to consider situations where it would be appropriate to use the terms dyslexia, dyscalculia, or
dysgraphia to describe and address the child’s unique, identified needs through evaluation,
eligibility, and IEP documents. OSERS further encourages States to review their policies,
2

Although the IDEA uses the term “accommodations” primarily in the assessment context, OSERS understands the
request to refer to the various components of a free appropriate public education, including special education, related
services, supplementary aids and services, and program modifications or supports for school personnel, as well as
accommodations for students taking assessments.

Page 4 – Dear Colleague: Dyslexia Guidance

procedures, and practices to ensure that they do not prohibit the use of the terms dyslexia,
dyscalculia, and dysgraphia in evaluations, eligibility, and IEP documents. Finally, in ensuring
the provision of free appropriate public education, OSERS encourages SEAs to remind their
LEAs of the importance of addressing the unique educational needs of children with specific
learning disabilities resulting from dyslexia, dyscalculia, and dysgraphia during IEP Team
meetings and other meetings with parents under IDEA.
I hope this clarification is helpful to both parents and practitioners in ensuring a high-quality
education for children with specific learning disabilities, including children with dyslexia,
dyscalculia, and dysgraphia. If you have additional questions or comments, please email them to
sld@ed.gov.
Sincerely,
/s/
Michael K. Yudin


September 18, 2015
Ms. Marcie Lipsitt
27260 Willowgreen Court
Franklin, Michigan 48025
Dear Ms. Lipsitt:
This is in response to your August 9, 2014 correspondence requesting clarification from the
Office of Special Education Programs (OSEP) regarding a State educational agency’s (SEA)
responsibility for resolving a State complaint under 34 CFR §§300.151-300.153 of the
regulations implementing the Individuals with Disabilities Education Act (IDEA). I apologize for
the delay.
You ask whether an SEA must issue a written decision under 34 CFR §§300.151-300.153 when
the SEA accepts a local educational agency’s (LEA) proposal for resolution of a State complaint
under 34 CFR §300.152(a)(3)(i). As stated in the Analysis of Comments and Changes—
34 CFR §300.152(a)(3) was proposed to encourage meaningful,
informal, resolution of disputes between the public agency and
parents, organizations, or other individuals by providing an
opportunity for parties to resolve disputes at the local level without
the need for the SEA to resolve the matter. We believe that, at a
minimum, the State’s complaint procedures should allow the
public agency that is the subject of the complaint the opportunity
to respond to a complaint by proposing a resolution and provide an
opportunity for a parent who has filed a complaint and the public
agency to resolve a dispute by voluntarily engaging in mediation.
71 Fed. Reg. 46540, 46603 (Aug. 14, 2006).
Once an SEA resolves a State complaint, whether it be through its investigation or by accepting
the LEA’s proposal developed pursuant to 34 CFR §300.152(a)(3)(i) to resolve the complaint,
within 60 days of the date that the complaint was filed, subject to allowable extensions, an SEA
is required to issue a written decision to the complainant that addresses each allegation in the
complaint and contains: (1) findings of fact and conclusions; and (2) the reasons for the SEA's
final decision. 34 CFR §300.152(a)(5).
Your correspondence also raises a series of questions regarding an SEA’s ability to use the U.S.
Department of Education’s Office for Civil Rights (OCR) guidance and other SEAs’ policies and
procedures to reach a resolution in a State complaint under 34 CFR §§300.151-300.153. Neither
the IDEA, nor its implementing regulations, specifically address whether an SEA may rely on
OCR guidance or another SEAs’ policies and procedures to resolve a State complaint. The SEA
is in the best position, and should have the flexibility, to determine what information is necessary
to resolve a complaint, based on the facts and circumstances of the individual case. The
minimum State complaint procedures in 34 CFR §300.152 are intended to be broad in
recognition of the fact that States operate differently and standards appropriate to one State may
not be appropriate in another State. 71 Fed. Reg. 46540, 46602 (Aug. 14, 2006).

Page 2 – Marcie Lipsitt
OSEP is the office within the U.S. Department of Education that is responsible for administering
the IDEA. Therefore, if an SEA elects to use guidance from other sources, in its resolution of
Part B State complaints, an SEA should ensure that such guidance is consistent with the IDEA
and its implementing regulations, and applicable written policy guidance from OSEP interpreting
these IDEA requirements.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have questions, please do not hesitate to contact Jennifer Wolfsheimer at 202-245-6090 or
by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,
/s/
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
cc: Teri Johnson Chapman, Ed.S., Michigan State Director of Special Education