The Individuals with Disabilities Education Act (IDEA): Final Regulations for P.L. 108-446
Prepared for Members and Committees of Congress
The 108th Congress passed P.L. 108-446, which reauthorized and revised the Individuals with
Disabilities Education Act (IDEA). IDEA is the major federal statute authorizing funds for special
education and related services for children with disabilities, and providing detailed due process
provisions to ensure that these children receive a free appropriate public education (FAPE).
Although much of the basic structure of IDEA has been retained, P.L. 108-446 does make a
number of significant changes. Among these are the definition of “highly qualified” teachers,
requirements for children’s participation in state and local assessments, changes in the private
school provisions, exceptions to certain financial requirements, changes in procedural safeguards,
and changes in compliance monitoring to focus on student performance.
On June 21, 2005, the Department of Education (ED) issued proposed regulations for P.L. 108-
446. ED issued final regulations on August 14, 2006. Although many of the regulatory provisions
simply track the statutory language, reflect comments in the conference report, or include
provisions in prior IDEA regulations, there are places where the regulations provide more
guidance. This report analyzes the regulations, with an emphasis on those areas where additional
guidance is provided. The report also discusses provisions in P.L. 108-446 related to multi-year
individualized education program (IEP) demonstration programs and the infants and toddlers with
disabilities provisions under Part C of IDEA, for which ED has provided separate final notice or
This report will be updated as appropriate.
Introduction and Background..........................................................................................................1
Overview of the Regulations...........................................................................................................2
Highly Qualified Teachers...............................................................................................................3
Private School Placement................................................................................................................6
Procedural Safeguards and Discipline.............................................................................................8
Procedural Safeguards in the Regulations.................................................................................9
Procedural Safeguards Notice.............................................................................................9
Mediation .......................................................................................................................... 10
Non-Attorney Representation in Due Process Hearings...................................................10
Discipline Provisions in the Regulations.................................................................................11
Consideration of Unique Circumstances on a Case-by-Case Basis...................................11
Ten Day Suspensions........................................................................................................12
Interim Alternative Educational Setting............................................................................12
Appeals Requests and the Stay Put Provision...................................................................13
Protections for Children Who Have Not Yet Been Determined Eligible for Special
IDEA and Medicaid.......................................................................................................................15
Other Selected Regulations...........................................................................................................17
Definition of “a Child with a Disability”................................................................................17
Definition of “Parent”.............................................................................................................17
Definition of “Related Services”.............................................................................................17
Exceptions to Local Maintenance of Effort............................................................................18
Evaluation of Children Who Are Limited English Proficient.................................................19
Evaluation of Children with Specific Learning Disabilities...................................................19
Individualized Education Program (IEP)................................................................................20
Monitoring and Enforcement..................................................................................................20
April 2007 Revisions to the IDEA Amendments...........................................................................21
Selected P.L. 108-446 Provisions Not Addressed in the August 2006 Final Regulations.............22
IDEA Part C Proposed Regulations........................................................................................23
Author Contact Information..........................................................................................................27
The Individuals with Disabilities Education Act (IDEA)1 is both a grants statute and a civil rights
statute. It provides federal funding for the education of children with disabilities and requires, as a
condition for the receipt of such funds, the provision of a free appropriate public education
(FAPE). The statute also contains detailed due process provisions to ensure the provision of
FAPE. Originally enacted in 1975, the act responded to an increasing focus on the education of
children with disabilities, including judicial decisions requiring that states provide an education 2
for children with disabilities if they provide an education for children without disabilities.
The 108th Congress passed major IDEA legislation (P.L. 108-446), which reauthorized and
revised IDEA. Although much of the basic structure of IDEA has been retained, P.L. 108-446
does make a number of significant changes. Among these are the definition of “highly qualified”
teachers, requirements for children’s participation in state and local assessments, changes in the
private school provisions, exceptions to certain financial requirements, changes in procedural 3
safeguards, and changes in compliance monitoring to focus on student performance.
Legislative action impacting IDEA could result in connection with consideration of the
Elementary and Secondary Education Act (ESEA), which is authorized through FY2008. It is th
generally assumed that the 110 Congress will actively consider legislation to amend and extend
the ESEA. Such legislation could impact IDEA—for example, regarding how adequate yearly
progress (AYP) is assessed for children with disabilities and how special education teachers are
determined to be highly qualified.
The U.S. Department of Education (ED) issued proposed regulations for P.L. 108-4464 and issued 5
final regulations on August 14, 2006. Although many of the regulatory provisions simply track 6
the statutory language, reflect comments in the conference report, or include provisions in prior 7
IDEA regulations, there are places where the regulations provide more guidance. This report will
1 20 U.S.C. §1400 et seq.
2 For a more detailed discussion of the congressional intent behind the enactment of the 1975 law (P.L. 94-142), see
CRS Report 95-669, The Individuals with Disabilities Education Act: Congressional Intent, by Nancy Lee Jones.
3 For a more detailed discussion of the statutory provisions see CRS Report RL32716, Individuals with Disabilities
Education Act (IDEA): Analysis of Changes Made by P.L. 108-446, by Richard N. Apling and Nancy Lee Jones.
4 70 Federal Register 35782, June 21, 2005.
5 71 Federal Register 46540, August 14, 2006. Note: The U.S. Department of Education (ED) has also issued proposed
IDEA regulations related to a National Instructional Materials Accessibility Standard (NIMAS). (70 Federal Register
37302-37306, June 29, 2005). NIMAS is published as Appendix C of the final regulations. (See 71 Federal Register
46814-46817, August 14, 2006). ED is maintaining a website on IDEA which contains topic briefs on various topics as
well as the statute and regulations, at http://idea.ed.gov.
6 H.Rept. 779, 108th Cong., 2nd sess. (2004).
7 The definition of “limited English proficient,” which P.L. 108-446 added to the Individuals with Disabilities
Education Act (IDEA), is an example of a regulation that is nearly a verbatim wording from the statutory language
(34.C.F.R. §300.27). An example of a wording change with no substantive impact is the definition of “core academic
subjects” in the regulations. The definition in P.L. 108-446 cross-references the definition in the Elementary and
Secondary Education Act (ESEA); the regulations contain the ESEA definition verbatim (34.C.F.R §300.10). More
generally, the regulations appear to consistently change the verb “shall,” which the act uses to indicate required actions
of states, school districts, the Secretary of Education, etc., to “must.” In some instances, P.L. 108-446 language is not
tracked. Rather the regulations incorporate verbatim or nearly verbatim language from prior regulations. For example,
prior regulations required that, in providing free appropriate public education (FAPE), public agencies must ensure that
hearing aids work properly (§300.303). This requirement is now contained in §300.113(a).
analyze the regulations with an emphasis on those areas where additional guidance is provided.
The report also discusses provisions in P.L. 108-446 related to multi-year individualized
education program (IEP) demonstration programs and the infants and toddlers with disabilities 8
provisions under Part C of IDEA, for which ED has provided separate final notice or proposed 9
In its discussion of the proposed regulations, which presumably applies to the final rule, the
Department of Education stated that
we have elected to construct one comprehensive, freestanding document that incorporates
virtually all requirements from the new law along with the applicable regulations, rather than
publishing a regulation that does not include statutory provisions. The rationale for doing this
is to create a single reference document for parents, State personnel, school personnel, and
others to use, rather than being forced to shift between one document for regulations and a 10
separate document for the statute.
The organization of the final regulations differs from the previous regulations, with the final
regulations generally following the structure of P.L. 108-446.
• Subpart A of 34 C.F.R. Part 300 discusses the purpose and applicability of the
regulations and includes definitions;
• Subpart B contains provisions relating to state eligibility and includes
requirements for FAPE, the least restrictive environment, private schools, state
complaint procedures and Department of Education procedures;
• Subpart C contains provisions for local educational agency eligibility;
• Subpart D contains provisions on evaluations, eligibility determinations,
individualized education programs (IEPs), and educational placements;
• Subpart E contains the applicable procedural safeguards, including discipline
• Subpart F contains provisions on monitoring and enforcement, confidentiality
and program information;
• Subpart G contains provisions on the grants, allotment, use of funds and
authorization of appropriations; and
• Subpart H contains provisions on preschool grants for children with disabilities.
P.L. 108-446 includes a provision relating to regulations that was added to IDEA by P.L. 98-199 11
in 1983 in response to attempts at regulatory reform by the Reagan administration. This
subsection prohibits certain changes in the IDEA regulations
8 72 Federal Register 36985-36999, July 6, 2007.
9 72 Federal Register 26456-26531, May 9, 2007.
10 70 Federal Register 35783, June 21, 2005.
11 20 U.S.C. §1406(b); P.L. 108-446, §607(b).
which would procedurally or substantively lessen the protections provided to children with
disabilities under this Act, as embodied in regulations in effect on July 20, 1983 (particularly
as such protections related to parental consent to initial evaluation or initial placement in
special education, least restrictive environment, related services, timelines, attendance of
evaluation personnel at individualized education program meetings, or qualifications of
personnel) except to the extent that such regulation reflects the clear and unequivocal intent 12
of Congress in legislation.
This listing of areas in the statute is helpful in determining what changes Congress might have
interpreted as lessening the protections available to children with disabilities but it is not
determinative as the list is illustrative, not limiting. It is worth noting as the regulations are
examined, that some of the provisions carried over from prior regulations are included due to the
requirements of this section. In addition, in at least one situation, an argument by a commenter
that a proposed section of the regulations would violate this statutory requirement led ED to 13
remove the section.
The Elementary and Secondary Education Act (ESEA), as amended by No Child Left Behind Act 14
(NCLB), requires that each state educational agency (SEA) receiving ESEA Title I, Part A 15
funding (compensatory education of disadvantaged students) must have a plan to ensure that all 16
public-school teachers teaching in core academic subjects within the state will meet the 17
definition of a “highly qualified” teacher, by no later than the end of the 2005-2006 school year.
IDEA, as amended by P.L. 108-446, cross-references the ESEA “highly qualified” definition but
makes several additions to the definition as it applies to special education teachers. The IDEA
definition requires that all special education teachers—not just those who teach core subjects—
must meet certain requirements. In addition, P.L. 108-446 modifies the ESEA requirements with
respect to two groups of special education teachers: those who teach only the most severely
disabled children and those who teach more than one core subject.
Both new and veteran special education teachers teaching core subjects exclusively to children
with disabilities who are assessed against alternative achievement standards under ESEA (i.e., the
13 See 71 Federal Register 46725-46726, August 14, 2006.
14 P.L. 107-110; 20 U.S.C. §6301 et seq.
15 All states currently receive ESEA Title I-A grants.
16 Core subjects are defined as “English, reading or language arts, mathematics, science, foreign languages, civics and
government, economics, arts, history, and geography.” ESEA §9101(11). For further information on the highly
qualified teacher definition, see CRS Report RL32913, The Individuals with Disabilities Education Act (IDEA):
Interactions with Selected Provisions of the No Child Left Behind Act (NCLB), by Richard N. Apling and Nancy Lee
Jones (cited hereafter as IDEA Interactions with NCLB).
17 The relevant sections of ESEA are §1119 (20 U.S.C. §6319) regarding qualifications for teachers and
paraprofessionals, and §9101(23)(20 U.S.C. §7801(23)), the definition of “highly qualified.”
most severely cognitively disabled)18 can, of course, meet the definition of highly qualified by 19
meeting their applicable ESEA standards. Alternatively, new, as well as veteran, teachers of
these students at the elementary level may meet the highly qualified definition by demonstrating
“competence in all the academic subjects in which the teacher teaches based on a high objective 20
uniform State standard of evaluation” (HOUSSE). Teachers of these students at levels above
elementary school can meet the definition by demonstrating “subject matter knowledge
appropriate to the level of instruction ... as determined by the State, needed to effectively teach to
those standards [i.e., alternative achievement standards]” (§602(10)(C)(ii)).
New and veteran special education teachers who teach two or more core subjects exclusively to
children with disabilities may qualify as highly qualified by meeting the requirements in each
core subject taught under applicable ESEA provisions. Alternatively, veteran special education
teachers teaching two or more core subjects may also qualify as highly qualified based on the
ESEA HOUSSE option (§602(10)(D)(ii)), which may include a single evaluation covering 21
multiple subjects. Finally, newly hired special education teachers teaching two or more core
subjects who are already highly qualified in mathematics, language arts, or science are given two
years from the date of employment to meet the highly qualified definition with respect to the
other core subjects taught. This could occur through the HOUSSE option (§602(10)(D)(iii)). This 22
two-year window is the only exception to the 2005-2006 deadline (ESEA, §1119(a)(2)),
explicitly applied to special education teachers, for meeting the “highly qualified” definition
under either IDEA or ESEA.
The regulations regarding highly qualified teacher requirements repeat much of the statutory 23
definition verbatim. They add language related to alternative routes to certification (which the
statute includes as a permissible means for special education teachers to satisfy the requirement of
full state certification) by including requirements that alternative certification programs must 24
meet. For example, a teacher certified under this provision must demonstrate “satisfactory 25
progress toward full certification as prescribed by the State.” The regulations include specific 26
language (following clarifying language in Note 21 of the conference report) that special
18 The ESEA requires that nearly all students must be held to the same high state achievement standards. One exception
with respect to children with disabilities is that those who are the most severely cognitively disabled can be held to
alternative achievement standards.
19 That is, special education teachers at the elementary level can meet the standards by passing a rigorous state subject
matter and teaching skills test, and special education teachers at the middle school and high school level can pass such
a test or earn a degree or take a minimum number of courses in the relevant core subject or subjects.
20 Thus IDEA broadens the application of the HOUSSE option, which is available only for veteran teachers under
ESEA (ESEA §9101(23)(C)(ii))(20 U.S.C. §7801(23)(C)(ii)).
21 The Conference Report notes that the use of options, such as a single evaluation of multiple subjects “must not ...
establish a lesser standard for the content knowledge requirements of special education teachers compared to the thnd
standards for general education teachers.” H.Rept. 108-779, 108 Cong., 2 sess., at 171 (2004).
22 See P.L. 108-446, §612(a)(14)(C) (20 U.S.C. §1412(a)(14)(C)).
23 34 C.F.R. §300.18.
24 According to ED discussion of comments on the proposed regulations, the standards for alternative certification are
included in the IDEA regulations “to provide consistency with the requirements in 34 CFR 200.56(a)(2)(ii)(A) and the
ESEA, regarding alternative route to certification programs” 71 Federal Register 46557, August 14, 2006.
25 34 C.F.R. §300.18(b)(2)(i)(D).
26 H.Rept. 108-779, 108th Cong., 2nd sess., at 169 (2004).
education teachers who do not provide instruction in core academic subjects need only meet the
requirements of a baccalaureate degree and a full special education certification to meet the
highly qualified definition. In addition, the regulations add explicit language that the highly 27
qualified definition does not apply to teachers in private schools.
The regulations permit states to develop separate HOUSSE procedures for special education
teachers, including a single procedure assessing multiple core subject areas, “provided that any
adaptations of the State’s HOUSSE would not establish a lower standard for the content
knowledge requirements for special education teachers and meets all the requirements for a
HOUSSE for regular education teachers ...” (34 C.F.R. §300.18(e)).
The statute declares that there is no right of action based on an employee not meeting the highly 28
qualified requirements of the act. The regulations reiterate this provision. In addition, the
regulation clarifies that parents still have the right to file a complaint related to staff qualifications 29
under state complaint procedures under 34 C.F.R. §300.151 and §300.153.
As noted above, the definition of a highly qualified teacher differs depending on whether the
teacher is new to the profession or not. The regulations clarify a situation in which a regular
teacher subsequently becomes certified as a special education teacher. Even though such a teacher
is not new to the profession, he or she is considered a new special education teacher for the 30
purposes of the highly qualified teacher definition as it applies to special education teachers.
As suggested above, the IDEA definition of highly qualified with respect to special education
teachers for the most severely cognitively disabled children appears to differentiate between such
teachers at the elementary level and those teaching students “above the elementary level.” For the
former teachers (whether they are new or veteran teachers), the statute cross-references the
HOUSSE alternative in the ESEA definition. For the latter teachers, the statutory language does
not explicitly reference the ESEA HOUSSE alternative but states the following:
or, in the case of instruction above the elementary level, has subject matter knowledge
appropriate to the level of instruction being provided, as determined by the State, needed to 31
effectively teach to those standards.
For this second group of special education teachers, the regulations do reference the ESEA
HOUSSE alternative as follows:
27 The regulations at 34 C.F.R. §300.18(g) clarify that requirements for highly qualified teachers do not apply to private
school teachers hired or contracted by LEAs to provide equitable services to parentally-placed private school children
with disabilities under §300.138. This exception is also contained in §300.138(a)(1). Advocates for children with
disabilities, such as the Council for Exceptional Children (CEC), oppose this exception:
CEC is dismayed to report that the final regulations do not require private school teachers to be
highly qualified. CEC believes all teachers should be highly qualified, and we will renew our
efforts to ensure all students with disabilities, including those in private schools, receive instruction
from teachers who meet highly qualified requirements. CEC, “CEC Pleased that IDEA Regulations
Are Released, Urges Department of Education to Act on Missing Pieces,” press release, August 7,
2006. Downloaded from http://www.cec.org.
28 20 U.S.C. §1402(10)(E).
29 34 C.F.R. §300.18(f).
30 34 C.F.R. §300.18(g)(2).
31 P.L. 108-446 §602(10)(C)(ii).
or, in the case of instruction above the elementary level, meet the requirements of
subparagraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school
teacher and have subject matter knowledge appropriate to the level of instruction being 32
provided, as determined by the State, needed to effectively teach to those standards.
§300.156(a) contains the general requirement that states must have personnel qualifications to
ensure that teachers, paraprofessionals, providers of related services, and other personnel carrying
out the purposes of part 300 “are appropriately and adequately prepared and trained, including
that those personnel have the content knowledge and skills to serve children with disabilities.”
Note 21 of the conference report clarifies that the statute is not intended to prevent highly
qualified general education teachers who lack certification in special education from providing 33
children with disabilities with instruction in core subjects. ED’s discussion accompanying the
regulations paraphrases this conference report language and points to §300.156(a) in relation to 34
the clarification in Note 21.
P.L. 108-446 provides that a child with a disability may be placed in a private school by the LEA
or SEA as a means of fulfilling the FAPE requirement for the child, in which case the cost is paid
for by the LEA. The provisions relating to children placed in private schools by public agencies
were not changed from previous law. A child with a disability may also be unilaterally placed in a
private school by his or her parents. In the latter situation, the cost of the private school placement
is not paid by the LEA unless a hearing officer or a court makes certain findings. However, IDEA
does require some services for children in private schools, even if they are unilaterally placed
there by their parents. Exactly what these services are or should be has been a contentious subject
for many years. The 1997 reauthorization of IDEA expanded the private school provisions, and
the 2004 reauthorization includes several changes to the provisions relating to children with 35
disabilities who are placed in private school by their parents.
Generally, children with disabilities enrolled by their parents in private schools are to be provided
special education and related services based on where the private school is located, not on where 36
the child resides. This provision was changed from previous law, which made the LEA where
the child resided responsible for providing services. Thus the LEA responsible for providing
services to parentally placed children with disabilities has changed from the LEA of residence to
the LEA of attendance. The Senate report described this change as protecting “LEAs from having
to work with private schools located in multiple jurisdictions when students attend private schools 37
across district lines.” P.L. 108-446 adds requirements that the LEA consult with private school
32 34 C.F.R. §300.18(c)(2), emphasis added.
33 H.Rept. 108-779, 108th Cong., 2nd sess., at 171 (2004).
34 71 Federal Register 46556, August 14, 2006.
35 For further information, see CRS Report RL33368, The Individuals with Disabilities Education Act (IDEA):
Parentally Placed Children in Private Schools, by Richard N. Apling and Nancy Lee Jones.
36 20 U.S.C. §1412(a)(10)(A)(i).
37 S.Rept. 108-185, 108th Cong., 1st sess., at 15-16 (2003).
officials and representatives of the parents of parentally placed private school children with
disabilities. In addition, the current law adds compliance procedures which allow a private school
official to submit a complaint to the SEA about the consultation and, if the private school official
is dissatisfied with the SEA’s response, he or she may submit a complaint to the Secretary of
The final regulations track the statutory requirements and add provisions to address some issues
raised by comments on the proposed regulations. The regulations reiterate that it is the LEA of
attendance that is responsible for locating, identifying, and evaluating all parentally placed
children in private schools within their geographic boundaries (the so called “child find”
requirement). The regulations stipulate that the LEA of attendance is responsible for child find 38
and proportional provision of services even if the child resides in another state. The regulations
clarify that children with disabilities ages three to five are considered to be “parentally placed”
only if they attend private schools that meet the definition of “elementary school” contained in 39
the act. As noted above, the highly qualified teacher requirements do not apply to private school 40
teachers providing services to parentally placed children with disabilities.
The regulations follow the act in requiring that an LEA use a share of its IDEA grants in
proportion to the number of parentally placed children with disabilities in private schools within
the LEA to provide equitable services for these children. In addition, the regulations present a 41
hypothetical example of how a proportional share of an LEA’s IDEA grant is to be calculated.
Again, following the language of the statute, the regulations exclude the cost of child find from
this proportional share. While requiring consultation on the child find process and the provision
of services as the statute requires, the regulations specify that “[n]o parentally-placed private
school child with a disability has an individual right to receive some or all of the special 42
education and related services that the child would receive if enrolled in a public school.” In
addition, the LEA makes the final decisions about the nature of services, and the LEA is
responsible for devising a service plan for every parentally placed child with a disability receiving
special education or related services.
Some commenters proposed that “the LEA where the private school is located to provide [sic] the
district of residence the results of an evaluation and eligibility determination of the parentally-43
placed private school child.” ED is concerned that the privacy rights of the child be protected
and added the following requirement:
If a child is enrolled, or is going to enroll in a private school that is not located in the LEA of
the parent’s residence, parental consent must be obtained before any personally identifiable
38 34 C.F.R. §300.130(f).
39 See 20 U.S.C §1402(6).
40 34 C.F.R. §300.138(a)(1).
41 See Appendix B to Part 300.
42 34 C.F.R. §300.137(a).
43 71 Federal Register 46592, August 14, 2006.
information about the child is released between officials in the LEA where the private school 44
is located and officials in the LEA of the parent’s residence.
Some public school advocates, who had hoped that ED might relax the statutory requirements,
continue to express concerns. Reggie Felton, director of federal relations for the National School
Boards Association, noted that “[i]t creates an additional burden for school districts that happen to 45
have a higher number of private schools physically located in their district.” Mary Kunstler,
assistant director of government relations for the American Association of School Administrators
(AASA), argues that “[c]hild find costs can be extravagantly high, and local taxpayers are footing 46
the bill to find students who aren’t living in their area.” She notes that AASA “has every 47
intention of going back to Congress with this.”
Section 615 of IDEA provides procedural safeguards for children with disabilities and their 48
parents. Procedural safeguards are provisions protecting the rights of parents and children with
disabilities regarding a free appropriate public education (FAPE) and include notice of rights,
mediation, resolution sessions, and due process procedures. Section 615 has been a continual
source of controversy, especially the provisions relating to the discipline of children with
disabilities. The changes made by P.L. 108-446 include adding provisions relating to homeless
children, adding a two-year statute of limitations for the filing of a complaint and a two-year
statute of limitations regarding requests for a hearing, adding additional requirements for hearing
officers, changing the mediation provision, and specifically allowing the local educational
agency, not just the parents, to file for a due process hearing. The discussion of the provisions of
P.L. 108-446 in this report regarding procedural safeguards and discipline is not comprehensive.
There were significant changes made by the new law in areas such as attorneys’ fees which are
not discussed here as the regulations do not make significant additions to the statutory language.
One of the major changes was the addition of a “resolution session.” This is a preliminary
meeting between the parents and the LEA and IEP team held within 15 days of receiving the
parent’s complaint. The reason for this addition was to attempt to resolve disputes prior to the
more adversarial due process hearing. The House report noted that the resolution session “is
intended to improve the communication between parents and school officials, and to help foster
greater efforts to resolve disputes in a timely manner so that the child’s interests are best 49
served.” If an agreement is reached during the resolution session, the parties must execute a
legally binding agreement signed by both parties and which is enforceable in court.
44 34 C.F.R. 622(a)(3).
45 “Child find requirements will be costly for districts,” Education Daily, August 9, 2006, p. 2.
46 Id., p. 2.
47 Id., p. 1.
48 20 U.S.C. §1415.
49 H.Rept. 108-77, 108th Cong., 1st sess., at 114 (2003).
Disciplinary issues relating to children with disabilities were a contentious issue during the 2004 50
reauthorization. Although P.L. 108-446 made significant changes to §615(k), it did keep many
of the provisions of the previous law. One of the changes was the addition of a provision allowing
school personnel to consider, on a case-by-case basis, any unique circumstances when
determining whether to order a change in placement for a child with a disability who violates a
code of student conduct.
Another major change was in the language regarding manifestation determinations. The concept
of a manifestation determination originated in policy interpretations of IDEA by the Department
of Education. The theory is that when behavior, even inappropriate behavior, is caused by a
disability, the response of a school must be different that when the behavior is not related to the
disability. The concept of a manifestation determination was placed in statutory language in the
P.L. 108-446 reauthorization provides that, within 10 days of a 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 appropriate members of the IEP team shall review all relevant information in the
student’s file, including the IEP, 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 or if the conduct in question was the direct result of the LEA’s
failure to implement the IEP. If the LEA, the parent and relevant members of the IEP team
determine that the conduct in question was caused by or had a direct and substantial relationship
to the child’s disability or if the conduct in question was the direct result of the LEA’s failure to
implement the IEP, the conduct is determined to be a manifestation of the child’s disability.
Except for situations involving weapons, drugs, or serious bodily injury, when the conduct is a
manifestation of the disability, the child shall return to the placement from which he or she was
removed unless the parent and the LEA agree to a change of placement as part of the modification 51
of the behavioral intervention plan.
The majority of the regulatory language regarding procedural safeguards mirrors the statutory
language in P.L. 108-446. However, the regulations do make several additions. For example,
regarding the procedural safeguards notice, ED clarifies that a procedural safeguards notice must
be provided upon receipt of the first filing of a state complaint or request for a due process 52
hearing in a school year, not just the first request at any point in the child’s education. In
addition, ED attempts to reduce the confusion about the distinctions between a due process
complaint and a complaint under the state complaint procedures by requiring that the procedural
safeguards notice explain the differences between the two procedures, including the jurisdiction
50 For a detailed discussion of the discipline provisions of P.L. 108-446 see CRS Report RL32753, Individuals with
Disabilities Education Act (IDEA): Discipline Provisions in P.L. 108-446, by Nancy Lee Jones.
51 20 U.S.C. §1415(k)(1)(F).
52 34 C.F.R. §300.504.
of the procedures, the issues that may be raised, filing and decisional time lines and relevant 5354
procedures. ED has provided a model procedural safeguards notice on its website.
Several changes were made by ED regarding the manner in which mediators are chosen. The
previous regulations provided that the states shall maintain a list of individuals who are qualified
mediators and knowledgeable about special education and that if the mediator is not selected on a 55
rotational basis from the list, both parties must be involved in selecting the mediator. The new
regulations keep the listed requirements but also require that the SEA must select mediators on a
random, rotational or other impartial basis, and delete the language regarding involvement by the 56
other party. ED noted in its discussion of this section that “[t]hese provisions are sufficient to
ensure that the selection of the mediator is not biased, while providing SEAs additional flexibility
in selecting mediators. Selecting mediators on an impartial basis would include permitting the 57
parties involved in a dispute to agree on a mediator.” The final regulations eliminate a provision
relating to the signing of confidentiality pledges prior to the commencement of mediation. ED
observed that this removal was “not intended to prevent States from allowing parties to sign a
confidentiality pledge to ensure that discussions during the mediation process remain 58
confidential, irrespective of whether the mediation results in a resolution.”
Several commenters on the proposed regulations suggested that the final regulations permit a
party in a due process hearing to be represented by a non attorney advocate in order to “allow
more uniform access to assistance across all socio-economic groups and decrease the formality of 59
hearings.” ED responded by noting that this issue of non-attorney representation in due process
hearings had been considered in light of state rules regarding the unauthorized practice of law. ED 60
further commented that a notice of proposed rulemaking is anticipated “in the near future.”
Another issue raised by a commenter concerning non-attorney advocates was whether a court
could award fees to a lay person who accompanied and advised the parents at a due process
hearing. ED stated that “[l]ay advocates are, by definition, not attorneys and are not entitled to 61
compensation as if they were attorneys.” ED also noted that the Supreme Court’s recent 62
decision in Arlington Central School District Board of Education v. Murphy held that if
53 34 C.F.R.§300.504(c)(5).
54 See http://www.ed.gov/policy/speced/guid/idea/idea2004.html. ED has also published model forms concerning the
IEP, and prior written notice at the same website. The introduction to the model forms indicates that although states are
required to comply with the statutory and regulatory requirements, they do not have to use the specific language of the
model forms, and may add their own content as long as it does not conflict with the law or regulations.
55 34 C.F.R. §300.506(b)(2) (2004).
56 34 C.F.R. §300.506(b).
57 71 Federal Register 46695, August 14, 2006.
58 72 Federal Register 46696, August 14, 2006.
59 72 Federal Register 46699, August 14, 2006.
61 71 Federal Register 45708, August 14, 2006.
62 126 S.Ct. 2455, 165 L.Ed. 526, 2006 U.S. LEXIS 5162 (June 26, 2006). For a more detailed discussion of this case
see CRS Report RS22465, The Individuals with Disabilities Education Act (IDEA): The Supreme Court Denies Expert
Congress wishes to allow recovery of experts’ fees by prevailing parents, it must include explicit
language authorizing such a recovery. Such explicit language was not added in the 2004
reauthorization of IDEA. The Supreme Court’s rationale was found by ED to be controlling
concerning the fees of non-attorney experts and the Department of Education declined to add a 63
regulatory provision on the subject.
ED provides guidance regarding the new statutory requirement for a resolution session in its
regulations. For example, the regulations state that unless the parties have jointly agreed to waive
the resolution process or to use mediation, the failure of the parent filing the due process
complaint to participate in the resolution session will delay the timeline for the resolution session 64
and due process hearing until the resolution session is held. If the parent refuses to participate in
the resolution session, the regulations provide that the LEA may request that the hearing officer 65
dismiss the parent’s due process complaint. Similarly, a parent may seek intervention by a
hearing officer if the LEA fails to hold the resolution meeting within 15 days of receiving notice 66
or fails to participate in the resolution session. The regulations also specifically discuss when 67
the timeline for the due process hearing starts. One of the issues commenters on the proposed
regulations had raised concerning the resolution session was whether the discussions were
confidential. ED declined to discuss this issue in the regulations since the statute is silent but
noted that “nothing in the Act or these regulations ... would prohibit the parties from entering into
a confidentiality agreement as part of their resolution agreement. A State could not, however,
require that the participants in a resolution meeting keep the discussions confidential or make a 68
confidentiality agreement a condition of a parent’s participation in the resolution meeting.”
The previous regulatory provisions regarding the discipline of children with disabilities are
significantly changed in the 2006 regulations, generally reflecting the changes in the statute and
comments in the conference report. However, the new regulations do provide some additional
guidance not found in the statute or conference report.
P.L. 108-446 allows school personnel to consider unique circumstances on a case-by-case basis 69
when deciding whether a change in placement would be appropriate for a particular child. The
regulations require that this consideration be “consistent with the other requirements of this
Fees in Arlington Central School District v. Murphy, by Nancy Lee Jones.
63 71 Federal Register 45708, August 14, 2006.
64 34 C.F.R. §510(b)(3).
65 34 C.F.R. §510(b)(4).
66 34 C.F.R. §510(b)(5).
67 34 C.F.R. §510(c).
68 71 Federal Register 46704, August 14, 2006.
69 20 U.S.C. §1415(k)(1).
section.”70 These unique circumstances, ED noted, were “best determined at the local level by
school personnel who know the individual child and all the facts and circumstances regarding a 71
child’s behavior” and, therefore, ED did not include more detailed discussion in the regulations.
However, in the comments to the regulations, ED did observe that certain factors, such as a
child’s disciplinary history, ability to understand consequences, expression of remorse, and 72
supports provided to the child prior to the violation, could be unique circumstances. The 2006
regulation also states in part that the ability of school personnel to remove a child with a disability
is to be applied “to the extent those alternatives are applied to children without disabilities” and as 73
long as the removals do not constitute a change in placement.
Although the statutory language giving school personnel the authority to suspend a child with a
disability for not more than 10 school days is similar in both the 1997 IDEA and P.L. 108-446, the
2006 regulations make several changes from the previous regulations. The 2006 regulations add a
subsection stating that where a child has been removed for more than 10 school days in the same
school year, and the current removal is for not more than 10 consecutive school days and is not a
change of placement, school personnel, in consultation with the child’s teacher or teachers,
determine the extent to which services are needed so as to enable the child to continue to 74
participate in the general education curriculum. The regulations also provide that a child subject
to this removal must continue to receive educational services “as provided in §300.101(a),” which 75
is the regulatory provision guaranteeing FAPE. ED commented:
while children with disabilities removed for more than 10 school days in a school year for
disciplinary reasons must continue to receive FAPE, we believe the Act modifies the concept
of FAPE in these circumstances to encompass those services necessary to enable the child to
continue to participate in the general curriculum, and to progress toward meeting the goals
set out in the child’s IEP. An LEA is not required to provide children suspended for more
than 10 school days in a school year for disciplinary reasons, exactly the same services in
exactly the same settings as they were receiving prior to the imposition of discipline.
However, the special education and related services the child does receive must enable the
child to continue to participate in the general curriculum, and to progress toward meeting the 76
goals set out in the child’s IEP.
P.L. 108-446 provides that school personnel may remove a student to an interim alternative
educational setting for not more than 45 school days in situations involving weapons or drugs, or 77
where the student has inflicted serious bodily injury on another person. In addition, an LEA that
70 34 C.F.R. §300.530(a).
71 71 Federal Register 46714, August 14, 2006.
73 34 C.F.R. §300.530(b)(1).
74 34 C.F.R. §300.530(d)(4). ED noted in comments the requirement to continue to participate in the curriculum does
not mean that every aspect of the child’s services must be continued. 71 Federal Register 46716, August 14, 2006.
75 34 C.F.R. §300.530(d)(1)(i).
76 71 Federal Register 46716, August 14, 2006.
77 20 U.S.C. §615(k)(1)(G).
believes that maintaining the current placement of the child is substantially likely to result in 78
injury to the child or others may request a hearing.
Numerous commenters on the proposed regulations suggested that the final regulations clarify
that the public agency has the burden of proof in arguing that removing a child is necessary
because maintaining the current placement is substantially likely to result in injury to self or 79
others. The IDEA statute is silent on this issue and ED declined to address it in the regulations.
However, ED did observe that the burden of proof in IDEA proceedings was at issue in Schaffer 80
v. Weast, a recent Supreme Court decision. The Court held there that the burden of persuasion in
a hearing challenging the validity of an IEP is on the party seeking relief. Noting the Supreme
Court’s decision, ED stated that “[w]here the public agency has requested that a hearing officer
remove a child to an interim alternative educational setting, the burden of persuasion is on the 81
The 2006 regulations add a new section specifically allowing a school district to seek a
subsequent hearing to continue the child in an interim alternative educational placement if the
school district believes that returning the child to the original placement is substantially likely to 82
result in injury to the child or others.
P.L. 108-446 provides for expedited timelines for hearings under the disciplinary procedures.83
The regulations reflect the statutory language and also shorten time lines for the resolution 84
session process when expedited hearings are involved. ED stated that the timeline was
shortened in order to ensure that the resolution meeting does not delay the expedited hearing if an 85
agreement is not reached.
P.L. 108-446 also changed the “stay put” provision in the appeals section. Under the 2004
reauthorization, when an appeal has been requested by either a parent or the LEA under 86
§615(k)(3), the child is to remain in the interim alternative educational setting pending the 87
decision of the hearing officer or until the time period for the disciplinary infraction ends. Under
previous law, the child was to remain in the interim alternative educational setting for 45 days
78 20 U.S.C. §615(k)(3).
79 71 Federal Register 46723, August 14, 2006.
80 126 S.Ct. 528, 163 L.Ed.2d 387, 2005 LEXIS 8554 (November 14, 2005). For a more detailed discussion of this case
see CRS Report RS22353, The Individuals with Disabilities Education Act (IDEA): Schaffer v. Weast Determines Party
Seeking Relief Bears the Burden of Proof, by Nancy Lee Jones.
81 71 Federal Register 46723, August 14, 2006.
82 34 C.F.R. §300.532(b)(3).
83 20 U.S.C. §1415(k)(4)(B).
84 34 C.F.R. §300.532(c)(3).
85 71 Federal Register 46725, August 14, 2006.
86 20 U.S.C. §1415(k)(3).
87 20 U.S.C. §1415(k)(4).
unless the school and the parents agreed or a hearing officer rendered a decision.88 The current
law requires that the SEA or LEA must arrange for an expedited hearing that must occur within
within 10 school days after the hearing.
Although it was suggested in a comment to the proposed regulations that ED retain the previous
stay-put requirement, ED noted that P.L. 108-446 changed the stay-put requirements and the
regulations reflect that change. For example, ED observed:
if a child’s parents oppose a proposed change in placement at the end of a 45-day interim
alternative educational placement, during the pendency of the proceeding to challenge the
change in placement, the child remains in the interim alternative educational setting pending
the decision of the hearing officer or until the expiration of the time period for the
disciplinary action, whichever occurs first, unless the parent and the public agency agree 90
P.L. 108-446, like the previous version of IDEA, provides for protections for children who have
not yet been determined to be eligible for special education and related services and who have
engaged in behavior that violates a code of student conduct. However, several changes are made
regarding when an LEA is deemed to have knowledge that a child is a child with a disability.
Generally, an LEA is deemed to have knowledge that a child is a child with a disability if, before
the behavior that precipitated the disciplinary action:
• the parent of the child expressed concern, in writing, to supervisory or
administrative personnel of the LEA or the child’s teacher that the child is in need
of special education and related services,
• the parent has requested an evaluation, or
• the teacher of the child or other LEA personnel has expressed specific concerns
about a pattern of behavior directly to the director of special education or other 91
Although the proposed regulations had required that the teacher or other LEA personnel must
express concerns regarding a child’s pattern of behavior in accordance with the agency’s
established child find or special education referral system, the final regulations deleted this
requirement since not all states and LEA’s have child find or referral processes that permit
teachers to express concerns directly to the director of special education or other supervisory
personnel. ED encouraged states that do not permit this direct referral by teachers “to change 92
these processes to meet this requirement.”
88 P.L. 105-17, §615(k)(7).
89 20 U.S.C. §1415(k)(4).
90 71 Federal Register 46726, August 14, 2006.
91 20 U.S.C. §1415(k)(5).
92 71 Federal Register 46727, August 14, 2006.
IDEA requires that children with disabilities be provided with special education and related
services so that they can benefit from their guaranteed public education. For some children,
benefitting from, or even attending, school depends on health-related services. For example, a
child dependent on a ventilator for life support could require in-school staff to ensure the proper
operation of the equipment in order to attend school. For such a child, IDEA requires that
necessary staff and services be provided.
While IDEA mandates special education and related services, it is not intended to pay for the total
cost of this education and these services. One approach Congress has taken to ease the burden on
states and school districts of fulfilling the requirements of IDEA is to allow the use of funds
available under Medicaid, a federal-state entitlement program providing medical assistance to
certain low-income individuals, to finance health services delivered to special education students
who are enrolled in Medicaid.
Prior to 1988, Medicaid did not pay for coverable services that were listed in a child’s IEP since
special education funds were available to pay for these services, and because generally (with a
few explicit exceptions) Medicaid is always the payer of last resort. Congress changed this
connection between IDEA and Medicaid in 1988. Section 411(k)(13) of the Medicare
Catastrophic Coverage Act of 1988 (P.L. 100-360) amended Medicaid (Title XIX of the Social
Security Act) at Section 1903 as follows:
c) Nothing in this title shall be construed as prohibiting or restricting, or authorizing the
Secretary to prohibit or restrict, payment under subsection (a) for medical assistance for
covered services furnished to a child with a disability because such services are included in
the child’s individualized education program established pursuant to part B of the Individuals
with Disabilities Education Act or furnished to an infant or toddler with a disability because
such services are included in the child’s individualized family service plan adopted pursuant 93
to part H of such Act.
Section 612(a)(12) of IDEA reflects this provision as follows:
If any public agency other than an educational agency is otherwise obligated under Federal
or State law, or assigned responsibility under State policy pursuant to subparagraph (A), to
provide or pay for any services that are also considered special education or related services
... that are necessary for ensuring a free appropriate public education to children with
disabilities within the State, such public agency shall fulfill that obligation or responsibility, 94
either directly or through contract or other arrangement....
93 The 1997 IDEA Amendments (P.L. 105-17) redesignated Part H as Part C, the Infants and Toddlers with Disabilities
94 20 U.S.C 1412(a)(12)(B)(i). There is not universal agreement about the interpretation of the 1988 legislative changes.
For additional information, see CRS Report RS22397, Medicaid and Schools, by Elicia J. Herz. In addition, CRS
Report RS22397, Medicaid and Schools discusses recent regulations and action by Congress concerning possible
improper Medicaid payments to schools.
The final regulations authorize schools to “use the Medicaid or other public benefits or insurance
programs in which a child participates to provide or pay for services required under this part, as
permitted under the public benefits or insurance program” (§300.154(d)(1)) based on certain
requirements. Although the current IDEA provisions related to public insurance such as Medicaid
are virtually the same as those in the 1997 IDEA amendments and although the 2006 final IDEA
regulations track the 1999 regulations implementing the 1997 amendments, the final regulations
add a requirement that has raised some concerns: Parental consent must be obtained “each time 95
that access to public benefits or insurance is sought” (§300.154(d)(2)(iv)(A)).
ED justifies this new provision, which was added to the final regulations, based on maintaining
the confidentiality of personally identifiable data as required by the Family Educational Rights
and Privacy Act of 1974 (FERPA - Section 444 of the General Education Provisions Act (GEPA))
and by Section 617(c) of IDEA. According to ED’s discussion of comments on the proposed
In order for a public agency to use the Medicaid or other public benefits or insurance
program in which a child participates to provide or pay for services required under the Act,
the public agency must provide the benefits or insurance program with information from the
child’s education records (e.g., services provided, length of the services). Information from a
child’s education records is protected under the Family Educational Rights and Privacy Act
of 1974, 20 U.S.C. 1232(g) (FERPA), and section 617(c) of the Act. Under FERPA and
section 617(c) of the Act, a child’s education records cannot be released to a State Medicaid
agency without parental consent, except for a few specified exceptions that do not include
the release of education records for insurance billing purposes....
We believe obtaining parental consent each time the public agency seeks to use a parent’s
public insurance or other public benefits to provide or pay for a service is important to
protect the privacy rights of the parent and to ensure that the parent is fully informed of a
public agency’s access to his or her public benefits or insurance and the services paid by the 96
public benefits or insurance program.
Some observers have expressed concern that this provision will result in undue paperwork and
basically bring the Medicaid claiming process to a halt. According to Cathy Griffin, president of
the National Alliance for Medicaid in Education, “If we have to get consent each time you send a 97
claim in, that would be a nightmare.” Alexa Posny, former director of ED’s Office of Special
Education Programs, noted that “parental consent must be obtained every time public benefits or 98
insurance is sought whether it be within the same year or month. According to Posny, “[t]he
intent is to inform parents of the number of times their benefits are being accessed.” More
recently Posny clarified the intent of the requirement, which, she claims, is not to create “a deluge
of paperwork. If a child is supposed to receive three hours of occupational therapy each week for
95 According to the discussion of comments on the proposed regulations, ED added this requirement based on one
comment. See 71 Federal Register 46608, August 14, 2006.
96 71 Federal Register 46608, August 14, 2006, emphasis in the original.
97 “Final regs add significant paperwork to Medicaid claims,” Education Daily, August 11, 2006, p. 5.
98 Id., p. 5.
36 weeks, ‘that doesn’t mean we want 108 consent forms.’”99 Presumably program advocates and
school officials will seek further clarification of the parental consent requirement.
The IDEA statute defines “a child with a disability” based on various disability categories, such
as specific learning disability, emotional disturbance, and mental retardation, and stipulates that
the child must require special education and related services. In addition to specified disability
categories, the definition also includes “other health impairments.” Regulations have included
examples of chronic or acute health impairments, such as attention deficit disorder or attention
deficit hyperactivity disorder. ED points out that these are examples of other health impairment 100
and are not meant to be all inclusive. Commenters on the proposed regulations have argued that
other disabilities should be included in the definition of other health impairments. ED has denied
these requests with one exception: Tourette syndrome. ED declined to include various
neurological disorders, such as bipolar disorders in the definition
because these conditions are commonly understood to be health impairments. However, we
do believe that Tourette syndrome is commonly misunderstood to be a behavioral or
emotional condition, rather than a neurological condition. Therefore, including Tourette
syndrome in the definition of other health impairment may help correct the misperception of
Tourette syndrome as a behavioral or conduct disorder and prevent the misdiagnosis of their 101
P.L. 108-446 elaborated on the definition of “parent” to include other individuals beside the
natural parents, such as guardians (under certain circumstances), who may act as parents of a
child with a disability. The regulations add language to clarify situations in which there are
multiple candidates for a child’s parent. In general, the biological or adoptive parent is presumed
to act for the child “unless the biological or adoptive parent does not have legal authority to make
educational decisions for the child.” In addition, “[i]f a judicial decree or order identifies a
specific person or persons ... to act as the ‘parent’ of a child or to make educational decisions on
behalf of a child,” that person is deemed to be the “parent” of the child.
In general, related services are “designed to enable a child with a disability to receive a free
appropriate public education as described in the individualized education program of the
99 “Posny: Consent rules not meant to overburden districts,” Education Daily, August 31, 2006, p. 3.
100 See discussion of comments on proposed regulations at 71 Federal Register 46550, August 14, 2006.
101 71 Federal Register 46550, August 14, 2006.
102 34 C.F.R. §300.30.
103 34 C.F.R. §300.34.
child.”104 Under IDEA, public agencies are required to provide such services if the IEP team
determines that these services are necessary for the child to benefit from the public education
provided. P.L. 108-446 provided an explicit exception: The definition “does not include a medical 105
device that is surgically implanted, or the replacement of such device.” The regulations
elaborate on this exception by specifically referring to cochlear implants and expand the
exception to include “the optimization of that device’s functioning (e.g., mapping), maintenance 106
of that device, or the replacement of that device.” With respect to implant mapping, ED notes
[a]lthough the cochlear implant must be properly mapped in order for the child to hear well
in school, the mapping does not have to be done in school or during the school day in order
for it to be effective. The exclusion of mapping from the definition of related services
reflects the language in [S.Rept. 108-185], p. 8, which states that the Senate committee did
not intend that mapping a cochlear implant, or even the costs associated with mapping, such
as transportation costs and insurance co-payments, be the responsibility of a school 107
At the same time, the regulations do not free LEAs from all responsibilities related to surgically
implanted devices. For example, the regulations do not prevent “the routine checking of an 108
external component of a surgically implanted device to make sure it is functioning properly.”
Maintenance of effort (MOE) is a financial principle in many federal educational statutes that
penalizes state and local grant recipients if they reduce their non-federal spending on the program
or activity that the particular statute supports—in this case state and local spending on special
education. The 1997 IDEA amendments (P.L. 105-17) recognized that there are circumstances in
which LEAs may legitimately reduce local spending and not be penalized under the local MOE
requirement. One of these exceptions may occur if senior special education personnel retire or
otherwise leave the LEA and are replaced by more junior (and lower paid) personnel. P.L. 108-
report language accompanying P.L. 105-17) elaborated on the statutory language. For example,
the prior regulations required that the departing staff are to be “replaced by qualified, lower-110
salaried staff.” In addition, the LEA had to ensure that the departures conform with school 111
policies, collective bargaining agreements, and state law. The current IDEA regulations keep 112
these exceptions but eliminate the elaborating language in the prior regulation. According to
the commentary accompanying the proposed regulations:
104 P.L. 108-446 §602(26).
105 P.L. 108-446 §602(26)(B).
106 34 C.F.R. §300.34(b)(1).
107 71 Federal Register 46569-46570, August 14, 2006.
108 34 C.F.R. §300.34(b)(2)(iii).
109 S.Rept. 105-17, 105th Cong. 1st sess., at 16 (1997).
110 34 C.F.R. §300.232(a)(1).
111 34 C.F.R. §300.232(a)(2).
112 See 34 C.F.R. §300.204.
These changes would reduce regulatory burden on school districts and provide increased
flexibility in funding decisions. However, the basic requirement that LEAs must ensure the 113
provision of FAPE to eligible children, regardless of the costs, would remain the same.
IDEA has extensive requirements on assessments to be used to evaluate whether a child is a child
with a disability under the act and therefore is eligible for special education and related services.
One such requirement relates to evaluating children who are limited English proficient (LEP).
Current law requires that LEAs “ensure that assessments and other evaluation materials used to
assess a child ... are provided and administered in the language and form most likely to yield 114
accurate information ... unless it is not feasible to so provide and administer.” The regulations 115
incorporate this language, except the regulations use the phrase “clearly not feasible.” This was
the language used in prior law (see P.L. 105-17 §614(b)(3)(A)(ii) 111 Stat. 82). ED provides no
justification for returning to prior-law language.
Because of concerns that children may be “over-identified” as learning disabled, in part because
of evaluation procedures that depend on severe discrepancies between achievement scores and IQ
tests, P.L. 108-446 adds specific requirements regarding the determination of specific learning
disabilities. In determining whether a child has a specific learning disability, an LEA “shall not be
required to take into consideration whether a child has a severe discrepancy between achievement 116
and intellectual ability...” (§614(b)(6)(A)). In addition, the act states that LEAs “may use a
process that determines if a child responds to scientific, research-based intervention as a part of 117
the evaluation procedures.” The regulations (§§300.307-300.311) require states to adopt criteria
for the determination of specific learning disabilities, and in doing so states “must not require the 118
use of a severe discrepancy between intellectual ability and achievement.” Apparently this
language does not rule out some use of the discrepancy model by LEAs. ED removed a statement
in the proposed regulations that would have explicitly permitted states to prohibit the use of this 119
identification procedure in response to “[n]umerous commenters [who] stated that
113 70 Federal Register 35795, June 21, 2005.
114 P.L. 108-446 §614(b)(3)(A)(ii), emphasis added.
115 34 C.F.R. §300.304(c)(1)(ii).
116 The Senate report explains the rationale for this provision: “The committee believes that the IQ-achievement
discrepancy formula, which considers whether a child has a severe discrepancy between achievement and intellectual
ability, should not be a requirement for determining eligibility under the IDEA. There is no evidence that the IQ-
achievement discrepancy formula can be applied in a consistent and educationally meaningful (i.e., reliable and valid)
manner. In addition, this approach has been found to be particularly problematic for students living in poverty or
culturally and linguistically different backgrounds, who may be erroneously viewed as having intrinsic intellectual
limitations when their difficulties on such tests really reflect lack of experience or educational opportunity.” S.Rept. thnd
108-185, 108 Cong., 2 sess., at 26 (2003).
117 P.L. 108-446 §614(b)(6)(B).
118 ED notes that it has removed §300.541, which required the use of the discrepancy model because that requirement
is now “inconsistent with the Act.” 71 Federal Register 46647, August 14, 2006.
119 See 70 Federal Register 35864, June 21, 2005, §300.307(a)(1).
§300.307(a)(1) exceeds statutory authority and ... that Congress did not intend to prohibit LEAs 120
from using discrepancy models.”
The regulations lay out requirements for states in adopting their criteria. The determination of
whether a child has a specific learning disability must be determined “based on the child’s
response to scientific, research-based intervention ... by the child’s parents and a team of qualified
professionals” including the child’s “regular teacher, or ... [i]f the child does not have a regular
teacher, a regular classroom teacher qualified to teach a child of his or her age.” Determination is
to be based on the child’s achievement relative to his or her age or relative to the state’s approved
grade-level standards when the child is provided with age-appropriate instruction. Determination
cannot be primarily the result of “a visual, hearing, or motor disability; mental retardation;
emotional disturbance; cultural factors; environmental or economic disadvantage; or limited
English proficiency.” The child’s performance and behavior must be observed and documented 121
“in the child’s learning environment (including the regular classroom setting).”
The regulations deal with implementing the IEP process in §§300.320-300.328. In most respects,
they incorporate language from the act, and in several cases, model language on provisions in
prior regulations. For example, §300.321(c) concerning the determination of IEP team members’
expertise and knowledge use the same language as §300.344(c) in prior regulations. In a few
cases, the regulations modify language in the act. For example, members of the IEP team can be
excused from attending an IEP meeting even if the meeting deals with the curriculum or related
service in which they are involved if both the parent and the LEA agree. The regulations add the
requirement that the parent’s consent must be in writing; the act simply says that the parent and 122
the LEA must consent.
In P.L. 108-446, Congress determined that the previous law on monitoring focused too much on 123
compliance with procedures and shifted the emphasis to focus on student performance. Under
the new law, the Secretary of Education monitors implementation of IDEA Part B by oversight of
the general supervision by the states and by the state performance plans. The Secretary enforces
Part B as described in §616(e) and requires states to monitor implementation by LEAs and to
enforce Part B. If the Secretary makes certain determinations regarding state performance, the
Secretary must provide reasonable notice and an opportunity for a hearing on the
120 71 Federal Register 46646, August 14, 2006. Elsewhere in the discussion of comments, ED note that “Discrepancy
models are not essential for identifying children with SLD who are gifted. However, the regulations clearly allow
discrepancies in achievement domains, typical of children with SLD who are gifted, to be used to identify children with
SLD.” 71 Federal Register 46647, August 14, 2006.
121 34 C.F.R. §300.310(a).
122 See 34 C.F.R. §300.321(e)(2)(i) and P.L. 108-446 §614(d)(1)(C)(ii)(I). Note: ED has issued a model IEP form,
available at http://www.ed.gov/policy/speced/guid/idea/idea2004.html.
123 See S.Rept. 108-185, 108th Cong., 1st sess., at 46 (2003); H.Rept. 108-77, 108th Cong., 1st sess., at 120 (2003).
determination.124 The regulations describe this hearing as an opportunity to meet with the 125
Assistant Secretary for the Office of Special Education and Rehabilitative Services.
On April 9, 2007, ED published final regulations regarding flexibility for determining adequate 126
yearly progress (AYP) under NCLB. These regulations amend the regulations related to the
Elementary and Secondary Education Act (ESEA) as amended by NCLB as well as amending
IDEA regulations. The added provisions allow states to develop modified achievement standards
for “a small group of students whose disability has precluded them from achieving grade-level
proficiency and whose progress is such that they will not reach grade-level achievement standards 127
in the same time frame as other students.” Because only 2% of students tested can be 128
considered to achieve AYP under this rule, it is sometimes termed the “2% rule.”
In addition to amendments to the ESEA regulations, the Federal Register of April 9, 2007, also 129
amends the IDEA regulations. In addition to reiterating several requirements added to the Title
I regulations, a new paragraph adds several requirements, including the following:
• That states must ensure the participation of all children with disabilities in state
and district-wide assessments, including those required under ESEA as amended
• that states must provide guidelines on testing accommodations so that 130
accommodations do not invalidate assessment results;
• that states and LEAs (with respect to district-wide assessments) must report the
number of children with disabilities assessed under the various alternatives
assessment alternatives; and
• that states and LEAs (with respect to district-wide assessments) must use
principles of “universal design,” to the extent possible, in the development and 131
administration of assessments.
124 20 U.S.C. §1416(d)(2)(B).
125 34 C.F.R. §300.603(b)(2)(ii).
126 72 Federal Register, April 9, 2007. For further information, see IDEA Interactions with NCLB.
127 72 Federal Register, 17748, April 9, 2007.
128 These provisions follow earlier regulatory flexibility that allows states to include in AYP calculations test scores
based on alternate achievement standards for students with the most significant cognitive disabilities, as long as the
percentage of these students at the school district or state level who are counted as “proficient” or “advanced” does not
exceed 1% of all students assessed. See 68 Federal Register, December 9, 2003.
129 A new paragraph is added to the IDEA regulations (34 CFR §300.160) at 72 Federal Register 17781, April 9, 2007.
130 According to draft non-regulatory guidance,
If a student uses an accommodation that results in an invalid score, the student is considered to be a
nonparticipant under both Title I and the IDEA. If a student takes an assessment with an
accommodation that invalidates the score, the assessment is no longer measuring the concepts it
was intended to measure. Therefore, the score does not accurately reflect the student’s academic
achievement. U.S. Department of Education. Modified Academic Achievement Standards Non-
regulatory Guidance, Draft, April 2007, p. 32.
131 The general principle of universal design is that products and services (in this case assessments of academic
The act authorizes the Secretary of Education to approve demonstration proposals from up to 15
states for implementing the multi-year IEP pilot demonstration that P.L. 108-446 authorizes
(§614(d)(5)). These demonstrations would allow parents and LEAs to adopt IEPs covering up to 132
three years that coincide with the child’s “natural transition points.” The multi-year IEPs must
be optional for parents and based on their informed consent. They must contain measurable
annual goals linked to natural transition points. The IEP team must review the IEP at each
transition point and annually determine if progress is being made toward annual goals. More
frequent reviews are required if sufficient progress is not being made. The Secretary is required to
report on the effectiveness of the demonstration programs.
In December 2005, ED released proposed requirements and selection criteria for the multi-year 133
IEP demonstration. The August 2006 final regulations provide no further guidance on this
demonstration. On July 6, 2007, the Secretary issued a notice of final additional requirements and 134
selection criteria for the demonstration. The additional requirements note that states requiring
assistance or intervention, as determined by the Secretary under Section 616(d), could have their
participation in the demonstration terminated or be denied participation. The additional
requirements also provide materials and information that a state must provide in its proposal to
participate in the demonstration. These include provisions for implementing requirements of the
act, such as assurances that participating LEAs will inform parents in writing and in their native
language about the differences between the multi-year and IEP and a standard IEP and the
parents’ right to revoke their consent for the multi-year IEP at any time.
The notice also included criteria for evaluating state proposals to participate in the demonstration.
(The notice does not solicit state proposals; a separate Federal Register note will invite the 135
submission of proposals “for a single one-time only competition.”) These criteria include the
significance of the proposal, the quality of the project design, and the quality of the management
achievement) be devised so that they may be used by as many people (regardless of circumstance) as possible.
132 These transition points are defined to include the transition “from preschool to elementary grades, from elementary
grades to middle or junior high school grades, from middle or junior high school grades to secondary school grades,
and from secondary school grades to post-secondary activities, but in no case a period longer than 3 years” P.L. 108-
133 70 Federal Register 75158-75161, December 19, 2005.
134 72 Federal Register 36985-36999, July 6, 2007.
135 72 Federal Register 36985, July 6, 2007.
P.L. 108-446 authorizes a paperwork reduction pilot program (§609), which permits the Secretary
to waive for up to four years for up to 15 states statutory or regulatory requirements (except civil
rights requirements) that applying states link to excessive paperwork or other non-instructional
burdens. The report accompanying the House bill explained the rationale for such a pilot:
Reducing the paperwork burden of the Act is one of the Committee’s top priorities for the
reauthorization of the Act. Studies from the Department show that the Nation is facing a
significant shortage of special education teachers, and many special educators leaving the
field cite the burden of unnecessary paperwork as one of the primary reasons for their
departure. The bill includes a pilot program to allow States to demonstrate innovative and
creative measures to reduce the paperwork burden. This program is not meant to decrease
any of the rights children have under the Act, but is intended to allow those States who
choose to participate to think creatively and innovatively about how to best meet the
demands of the Act while reducing the paperwork burden so school personnel can focus on 136
educating children with disabilities.
In December 2005, ED released proposed requirements and selection criteria for the paperwork 137
reduction demonstration. At the time of the release of the final IDEA regulations, final
requirements for the demonstration had not been released.
Part C of IDEA authorizes grants to states to develop and maintain early intervention programs
for infants and toddlers with disabilities. The IDEA infants and toddlers program has parallels
with the provisions and requirements of Part B; however, these provisions and requirements differ
in important respects from those of Part B because this disabled population differs in significant
ways from the mainly school-aged population served under Part B. For example, while Part B
eligibility is based on categories of disabilities (§602(3)), eligibility for Part C programs is often
based on a diagnosis of “development delay” that requires early intervention services (§632(5)).
Instead of an IEP, Part C programs have individualized family service plans (IFSPs) (§636), in
recognition that services must be provided to the family as well as to the infant or toddler.
Because infants and toddlers are served in a variety of locations (including the home), Part C
services are to be provided in “natural environments in which children without disabilities
participate” (§632(4)(G)) “to the maximum extent appropriate” (§635(a)(16)(A)).
The 2004 reauthorization of IDEA (P.L. 108-446) maintains the overall purposes and structure of
Part C with some additions and revisions. Arguably the most extensive addition is the option for
states to adopt policies that would permit parents of a child receiving Part C early intervention
services to extend those services until the child is eligible to enter kindergarten (§635(c)). Under
previous law and in states that choose not to adopt such a policy, these children would likely
transition into a preschool program under Section 619, which authorizes funding for services for
pre-school children with disabilities.
136 H.Rept. 108-77, 108th Cong., 1st sess., at 122 (2003).
137 70 Federal Register 75161-75165, December 19, 2005.
P.L. 108-446 has a series of requirements for a state policy to extend Part C services (§635(c)(2)),
including the following:
• informed written consent from parents that they choose this alternative;
• annual notices to parents explaining the differences between the services received
under the extended Part C program and services that would be received under
Part B, and describing their rights under IDEA to move their child to a Part B
• program educational components promoting school readiness and providing pre-
literacy, language, and numeracy skills.
P.L. 108-446 clarifies that providing services under extended Part C programs does not obligate
the state to provide FAPE to children when they become eligible for the preschool program under
Section 619 (states are obligated to provide FAPE under §619) (§635(c)(5)). In addition, the act 138
requires the Secretary of Education, once Part C appropriations exceed $460 million, to reserve
15% of the appropriations for state incentive grants to states implementing extended Part C
P.L. 108-446 makes other changes and additions to Part C, including
• the addition of registered dietitians139 and vision specialists to the list of qualified
personnel to provide Part C services (§632(4)(F)(viii and x));
• addition of references to homeless infants and toddlers with disabilities and
infants and toddlers with disabilities who are wards of the state, for example
regarding the state eligibility requirement that early intervention services be
made available to all infants and toddlers with disabilities (§634(1));
• addition to the requirements for the state application requiring policies and
procedures for referral for services for infants and toddlers “involved in a
substantiated case of child abuse” or “affected by illegal substance abuse, or
withdrawal symptoms resulting from prenatal drug exposure” (§637(a)(6)) and
requiring state cooperation with Early Head Start programs and other child care
and early education programs (§637(a)(10)).
On May 9, 2007, the Secretary published proposed regulations for Part C of IDEA, which
authorizes grants to support programs for infants and toddlers with disabilities and their 140
families. The following discusses selected provisions of the proposed regulations.
The proposed regulations would add some definitions not currently included in the Part C
regulations and would modify certain current definitions. The proposed regulations would add
138 FY2007 Part C appropriations are about $436.4 million.
139 Nutritionists have been removed from the list.
140 72 Federal Register 26456-26531, May 9, 2007.
certain definitions that are currently included in Part B regulations. Examples include definitions
of “elementary school,” “free appropriate public education (FAPE),” “local educational agency
(LEA),” and “state educational agency (SEA).” These are examples of a general strategy to
include in Part C regulations provisions currently in other parts of the statute and other IDEA
regulations that also apply to the Part C program.
In addition, the proposed regulations add and modify definitions to reflect changes and
modifications in the statute resulting from P.L. 108-446. For example, a definition of a “ward of
the state” would be added to reflect the addition of that definition to the act (§602(36)). Examples
of modifications to existing definitions include the following:
• adding provisions related to cochlear implants in the definition of health services;
• adding to the definition of an infant or toddler with a disability a child previously
served under Part C who is eligible for services under the preschool program but
who, at the state’s discretion, continues to be served under Part C until he or she
enters kindergarten or elementary school to reflect the provision added by P.L.
• adding registered dieticians and vision specialists to the list of qualified
personnel in the definition of early intervention services and eliminating the
terms “nutritionist” and “nurses” from the definition; and
• adding clarifying language to the definition of a parent, which was expanded by
P.L. 108-446, to specify that the biological/natural parent is considered the parent
unless a judicial order or decree identifies some other individual. This
clarification is similar to that in the Part B final regulations (34 C.F.R. §300.30).
As noted above, an important change resulting from the 2004 IDEA amendments was to authorize
states to adopt policies that would permit parents of a child receiving Part C early intervention
services to extend those services until the child is eligible to enter kindergarten (§635(c)). The
proposed regulations would provide requirements for implementing this state option. In many
cases, the proposed regulations repeat language in the act. In addition, they would add further
requirements. For example, §303.211(a)(2) would require state plans to specify the age range to
which these services will be made available: whether it is ages 3 to 5 inclusive or a shorter time
span, such as “from age three until the beginning of the school year following the child’s fourth
In addition to standard requirements against commingling funds and against supplanting state and
local funding that are in the statute (§635(a)(5)), the proposed regulations would add exceptions
to prohibitions against reducing the level of expenditure that the act provides for LEAs under Part 141
B. For example, if the number of infants and toddlers with disabilities decreases
(§303.225(b)(2)(i) through(iv)), a state could reduce its level of expenditure without violating the
141 Note that these exceptions under Part B apply to LEAs, not to states. See 20 U.S.C. 1413(a)(2)(B) and 34 CFR
300.204(a) through (d).
maintenance of effort requirement. There appears to be no parallel provision in this regard in Part
C of the act.
§303.225(c) of the proposed regulations would add language that would prohibit Part C lead 142
agencies from charging indirect costs unless approved by the agency’s “cognizant Federal 143
agency” or by the Secretary of Education. In addition, the proposed regulations state that “the
lead agency may not charge rent, occupancy, or space maintenance costs directly to the Part C
grant, unless those costs are specifically approved in advance by the Secretary.” (§303.225(c)(3))
The proposed regulations provide for procedural safeguards for parents and their infants and
toddlers. These include confidentiality provisions (§§303.401-303.417), provisions for parental
consent, notice and surrogate parents (§§303.420-303.422), and dispute resolution options
The confidentiality provisions incorporate the provisions in part B in order to make it easier for 144
parents to access information. The provisions relating to parental consent and notice and those
relating to surrogate parents are largely unchanged from existing regulations. The proposed
regulations contain requirements for ensuring that parental consent is obtained before
administering screening procedures, providing an evaluation and assessment, providing early
intervention services, using public or private insurance, and exchanging personally identifiable
information among agencies (§303.420). If parental consent is not obtained, the proposed
regulations provide that the lead agency may use the due process hearing procedures to challenge
the parent’s refusal for an evaluation and assessment but may not use these procedures to
challenge the parent’s refusal to consent to the provision of an early intervention service or the
use of insurance (§303.420(c)).
The proposed regulations contain various dispute resolution options, including mediation, state
complaints, and due process hearing procedures. The mediation requirements are largely
unchanged; however, the proposed regulations add that if mediation resolves a complaint, the
parties must execute a legally binding agreement that is signed by the parent and an agency
representative who has authority to bind the agency. In addition, the agreement is to be
enforceable in state or federal court (§303.431).
§§303.230 through 303.236 of the proposed regulations add detailed departmental procedures,
which parallel those in Part B regulations (§§300.179-300.183) regarding the Secretary
disapproving a state’s application, including requirements for notice and hearing before initial and
final disapproval decisions are made.
142 Part C requires that the governor of a state select a lead state agency to oversee and carry out the Part C program
(§1435(a)(10)). This agency may be the SEA, but it can also be other state agencies, such as the state public health
agency or the agency overseeing children’s programs.
143 The proposed regulations make reference to indirect cost requirements under Education Department General
Administrative Regulations (EDGAR) at 34 CFR Part 76.
144 72 FED. REG. 26475 (May 9, 2007).
Following the requirement that applies provisions of in Sections 616, 617, and 618 of Part B
dealing with certain federal administrative requirements to Part C (§642), the proposed
regulations would include extensive requirements that parallel Part B regulations §§300.601-
300.608 and §§300.640-300.645 dealing with federal monitoring and enforcement related to state
performance standards and reporting requirements (§§303.700 through 303.708 and §§303.720
§303.520 would add extensive requirements about use of public and private insurance to pay for
services provided under Part C. For example, the state would be required to obtain parental
consent to use public insurance or program benefits of a parent or child enrolled or participating
in a public insurance or public benefit program. Similarly, states would be able to use private
insurance if parental consent is provided. Parental consent would not be required if the state has
enacted certain statutes related to the use of private insurance for Part C services (e.g., that the use
of such insurance “cannot . . . be the basis for increasing the health insurance premiums of the
infant or toddler with a disability or the child’s family.” (§303.520(b)(2)(iii))
Part C permits states to charge fees for some Part C services under certain circumstances.
§303.521 would add requirements on the system of fees and payments that the state could charge
parents. For example, states would not be able to charge parents who are unable to pay (as
defined by the state). Fees could not be charged for certain Part C services, such as child find and
evaluation. States that provide FAPE below the age of 3 or that use Part B funds to provide
services for infants and toddlers with disabilities could not charge fees for services provided as
part of FAPE.
Richard N. Apling Nancy Lee Jones