POLICY LETTER: February 27, 2017 to Anonymous
Home » Policy Documents » POLICY LETTER: February 27, 2017 to Anonymous
February 27, 2017 to Anonymous: Due Process Hearings—Record Retention (PDF)
PDFView PDF
February 27, 2017 to Anonymous: Due Process Hearings—Record Retention (PDF)
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
February 27, 2017
REDACTED
Dear :
This letter responds to your electronic mail correspondence to this office concerning the
applicable Federal time period for which the New York State educational agency (SEA) must
retain and make available to the general public , findings and decisions issued in due process
hearings and State- level reviews conducted pursuant to the Individuals with Disa bilities
Ed ucation Act (IDEA). This letter does not address other record retention requirements under
State statutes of limitations or other laws . We apologize for the delayed response.
Under 34 CFR §300.513(d)(2), the public agency, and under §300.514(c)(2), the SEA, after
deleting any personally identifiable information, must make the findings and decisions issued in
due process hearings and State-level reviews conducted pursuant to the IDEA available to the
public. You asked about the minimal time period that the SEA must make the findings and
decisions available to the public . Below we describe the minimal time period that an SEA
awarded a grant under Part B of the IDEA must maintain grant records.
The SEA must ensure that records under Part B of the IDEA are retained under the three-year
period set forth in the record retention requirements in 2 CFR §200.333. Under that provision:
Financial records, supporting documents, statistical records, and all other
non- Federal entity records perti nent to a Federal award must be retained for
a period of three years from the date of submission of the final expenditure
report .
U nder 2 CFR §200.343(a) , the three -year period runs from when the final expenditure report is
submitted on a grant (and it is due 90 days from the end of the performance period, which is
typically when specific Federal fiscal year (FFY) funds are no longer available for obligation
under a grant ). Under 34 CFR §76.709, if an SEA do es not obligate all of its IDEA Part B grant
funds by the end of the fiscal year for which Congress appropriated the funds, it may obligate
those funds during a carryover period of one additional year. For example, under an IDEA Part B
grant for FFY 2014 awarded on July 1, 2014, a State could obligate such FFY 2014 funds during
the period July 1, 2014 through September 30, 2016. The final expenditure report for that FFY
2014 award is due and generally submitted on December 30, 2016. Thus, all records created
during that period pertinent to that FFY 2014 grant would need to be retained until December 30,
2019, regardless of whether the record pertains to an obligation entered into on the first or the
last day those funds are available for obligation.
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202 -2600
www.ed.gov
The Department of Education’s mission is to promote student achievement and prepar ation for global competiveness by
fostering educational excellence and ensuring equal access.
Given that the State generally submits its final expenditure report two and a half years after it
receives its IDEA Part B grant, the record retention period can extend to five and a half years
from the date the record was created . We view that five and a half year time period as the most
reasonable minimum time period during which States must make due process and State- level
review findings and decisions available to the public under 34 CFR §§300.513(d)(2) and
300.514(c)(2). We encourage States to establish longer required time periods in which to make
these findings and decisions available to the public, in order to promote the public policies
underlying the requirement to make these decisions available, namely accessibility in the future
by pa rties to these documents to help resolve potential future disputes . The SEA , of course, has
the discretion to keep the records longer than the required retention period if necessary to meet
State record retention requirements (subject to the parent ’s right in 34 CFR §300.624 under the
IDEA to request destruction of records ).
It is important to note that if any litigation, claim, or audit is started before the expiration of the
three- year period, the records must be retained until all litigation, claims, or audit findings
involving the records have been r esolved and final action taken. 2 CFR §200.333(a). See also
Questions and Answers on IDEA Part B Dispute Resolution Procedures, Question C -24.
1
Also, w e note that a State cannot have a policy that limits the public’s access to due process
hearing and State -level review findings and decisions by making the information available only
when requested through the mechanism set up under the State’s Freedom of Information Act.
Such a policy does not meet the requirement under 34 CFR §§300.513(d)(2) and 300.514( c)(2)
to make the findings and decisions available to the public. If a member of the public wishes to
obtain a personal copy of the decisions, the State may charge a fee for copies but may not charge
a fee to search for, or to retrieve the information. See 34 CFR §300.617(b).
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
i nformal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have any further questions, you may contact Rebecca Walawender of my staff, at
202- 245-7399 or by email at Rebecca.Walawender@ ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs
1 Questions and Answers on IDEA Part B Dispute Resolution Procedures can be found at:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqafinalmemo -7 -23-
13.pdf .
TOPIC: Due Process Hearings—Record Retention
idea_file-template-default single single-idea_file postid-43351 wp-custom-logo wp-embed-responsive with-font-selector no-anchor-scroll footer-on-bottom animate-body-popup social-brand-colors hide-focus-outline link-style-standard has-sidebar content-title-style-normal content-width-normal content-style-boxed content-vertical-padding-show non-transparent-header mobile-non-transparent-header kadence-elementor-colors elementor-default elementor-kit-82278
Last modified on May 9, 2017