Order Code RL32716
CRS Report for Congress
Received through the CRS Web
Individuals with Disabilities Education Act (IDEA):
Analysis of Changes Made by P.L. 108-446
January 5, 2005
Richard N. Apling
Specialist in Social Legislation
Domestic Social Policy Division
Nancy Lee Jones
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Individuals with Disabilities Education Act (IDEA):
Analysis of Changes Made by P.L. 108-446
Summary
The Individuals with Disabilities Education Act (IDEA) is the main federal
program authorizing state and local aid for special education and related services for
children with disabilities. On December 3, 2004, President Bush signed the
Individuals with Disabilities Education Improvement Act (P.L. 108-446), a major
reauthorization and revision of IDEA. The new law preserves the basic structure and
civil rights guarantees of IDEA but also makes significant changes in the law. Most
provisions of P.L. 108-446 go into effect on July 1, 2005. This report, which will
not be updated, details the changes made by P.L. 108-446, which include the
following:
! An extensive definition of “highly qualified” special education teachers and
requirement that all special education teachers be highly qualified;
! Provisions aimed at reducing paperwork and other non-educational activities
(for example, a paperwork reduction pilot program);
! Extensive provisions aimed at ensuring special education and related services
for children with disabilities who are homeless or otherwise members of
highly mobile populations;
! Increased funds and increased requirements for statewide activities;
! Authorization for states to use IDEA funds to establish and maintain “risk
pools” to aid local educational agencies (LEAs) that provide high-cost IDEA
services;
! Modifications to requirements for parents who unilaterally place their children
with disabilities in private schools to help ensure equal treatment and
participation for such children;
! Revised state performance goals and requirements for children’s participation
in state and local assessments to align these requirements with those in the
Elementary and Secondary Education Act of 1965 (ESEA);
! Authority for LEAs that qualify to off-set some expenditures for special
education with annual increases in their federal IDEA grant;
! Authority for LEAs to use some of their local IDEA grant for “early
intervening services” aimed at reducing or eliminating the future need for
special education for children with educational needs who do not currently
qualify for IDEA;
! Significant changes to procedural safeguards, including:
-
The addition of a resolution session prior to a due process hearing to
encourage the parties to resolve their dispute;
-
Revised test regarding the manifestation determination;
-
Addition of a new category — where a child has inflicted serious
bodily injury on another person — to the school’s ability to place a
child with a disability in an interim alternative educational setting;
! Major changes in compliance monitoring to focus on student performance, not
compliance with procedures;
! Authority to extend Part C services for infant and toddler services beyond the
age of 2.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Title I — Amendments to the Individuals with Disabilities Education Act . . . . . 2
Part A — General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Highly Qualified Teachers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Other Definitions in §602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
General Administrative Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Part B — Assistance for Children with Disabilities Ages 3 to 21 . . . . . . . . . . . . . 7
Allotment and Authorization (§611) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Maximum Grant Calculation and Authorizations (§611(a)(2)) . . . . . . . 7
Set-Asides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Funds for State Administration and Other State-Level
Activities (§611(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Risk Pools for High-Need Children with Disabilities (§611(e)(3)) . . . . 9
State Eligibility (§612) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Children with Disabilities in Private Schools . . . . . . . . . . . . . . . . . . . 11
Personnel Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Performance Goals and Indicators . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Participation in Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
New State Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Local Educational Agency Eligibility (§613) . . . . . . . . . . . . . . . . . . . . . . . 17
Exceptions to Local Maintenance of Effort . . . . . . . . . . . . . . . . . . . . . 17
Early Intervening Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Other Changes and Additions to §613 . . . . . . . . . . . . . . . . . . . . . . . . . 18
Evaluations, Eligibility, and Individual Education Programs (§614) . . . . . 19
Evaluation and Reevaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Individualized Education Program (IEP) . . . . . . . . . . . . . . . . . . . 22
The IEP Team and the IEP Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Procedural Safeguards (Section 615) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Homeless Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Statute of Limitations Regarding Complaints . . . . . . . . . . . . . . . . . . . 24
Due Process Complaint Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Procedural Safeguards Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Impartial Due Process Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Administrative Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Stay Put . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Disciplinary Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Rule of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Transfer of Parental Rights at the Age of Majority . . . . . . . . . . . . . . . 33
Electronic Mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Separate Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Monitoring, Technical Assistance, and Enforcement (Section 616) . . . . . . 33
Federal and State Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
State Performance Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Approval Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Secretary’s Review and Determination . . . . . . . . . . . . . . . . . . . . . . . . 35
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
State Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Rule of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Divided State Agency Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . 38
Data Capacity and Technical Assistance Review . . . . . . . . . . . . . . . . 38
Administration (Section 617) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Secretary’s Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Prohibition Against Federal Mandates, Direction, or Control . . . . . . . 38
Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Model Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Program Information (Section 618) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Preschool Grants (Section 619) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Part C — Infants and Toddlers with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . 39
Part D — National Activities to Improve Education of Children with
Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Title II — National Center for Special Education Research . . . . . . . . . . . . . . . . 42
Title III — Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
List of Tables
Table 1. Summary of Requirements to Be a Highly Qualified Special
Education Teacher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Table 2. Authorizations for the IDEA Part B Grants-to-States Program . . . . . . . . 8
Individuals with Disabilities Education Act
(IDEA): Analysis of Changes Made
by P.L. 108-446
Introduction
The Individuals with Disabilities Education Act (IDEA — 20 U.S.C. §1400 et
seq.) 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 increased awareness of the need to
educate children with disabilities, and to judicial decisions requiring that states
provide an education for children with disabilities if they provided an education for
children without disabilities.1
IDEA has been amended several times, most comprehensively (prior to the 108th
Congress) by the 1997 IDEA reauthorization, P.L. 105-17, the Individuals with
Disabilities Education Act Amendments of 1997. The 108th Congress completed
another wide-ranging reauthorization of IDEA. The following is a brief legislative
history:
! On April 30, 2003, House passed H.R. 1350 by a vote of 251 to 171.
! On May 13, 2004, the Senate incorporated its bill (S. 1248) in H.R. 1350 and
passed H.R. 1350 in lieu of S. 1248 by a vote of 95 to 3.
! The conference committee filed its report on the bill (H.Rept. 108-779) on
November 17, 2004.
! The House agreed to the conference report on November 19, 2004, by a vote
of 397 to 3.
! The Senate approved the conference report on November 19, 2004, by
unanimous consent.
! President Bush signed the bill on December 3, 2004 (P.L. 108-446 — The
Individuals with Disabilities Education Improvement Act of 2004).
Most provisions of P.L. 108-446 go into effect on July 1, 2005. (See the discussion
of Title III at the end of the report for certain exceptions.)
1For a more detailed discussion of the congressional intent behind the enactment of P.L. 94-
142, see CRS Report 95-669, The Individuals with Disabilities Education Act:
Congressional Intent, by Nancy Lee Jones.
CRS-2
This report details the changes made by P.L. 108-446 covering all parts of IDEA
but concentrates on Part B, which authorizes grants for children with disabilities ages
3 to 21 and contains key provisions regarding the structure of special education and
related services and the procedural safeguards that guarantee the provision of FAPE
to children with disabilities. Section references, unless specified otherwise, refer to
sections of P.L. 108-446. The prior version of IDEA is referenced with respect to
P.L. 105-17 (the 1997 reauthorization of IDEA). The report follows the organization
of P.L. 108-446: Title I, which amends IDEA, contains amendments to Part A
(general provisions), Part B (which authorizes two state grants programs: the grants-
to-states program serving mainly school-aged children with disabilities and the
preschool state grants program, authorized in §619), Part C (which authorizes the
state grants program of infants and toddlers with disabilities), and Part D (which
authorizes various national programs and grants); Title II, which creates the National
Center for Special Education Research within the National Institute of Education
Sciences; and Title III, which contains miscellaneous provisions, such as the
effective dates of the legislation.
Title I — Amendments to the Individuals with
Disabilities Education Act
Part A — General Provisions
Part A of IDEA contains findings, purposes, definitions, and certain
administrative and general provisions, such as the establishment of the Office of
Special Education Programs (OSEP) within the U.S. Department of Education (ED)
(§603). The findings and purposes of the 2004 reauthorization largely track the
provisions of the 1997 reauthorization. However, there are some changes, particularly
in the findings section, which emphasize the need to reduce irrelevant and
unnecessary paperwork and to expand opportunities to resolve disagreements
between parents and schools in “positive and constructive ways” (§601).
Definitions2
P.L. 108-446 retains most of the IDEA definitions (§602); however, the Act
adds some important definitions and modifies others.
Highly Qualified Teachers. Arguably one of the most significant new
definitions is that of “highly qualified” teachers (§602(10)). P.L. 108-446 links its
definition to the definition of “highly qualified” in Section 9101(23) of the
Elementary and Secondary Education Act (ESEA)3 but modifies that definition as it
applies to special education teachers. Most notably, it addresses concerns that have
2Definitions in Part A of IDEA apply to the entire Act. Additional definitions are included
in, and only apply to, other parts, sections, subsections, etc. Such definitions are discussed
elsewhere in this report as warranted.
3For information on ESEA requirements, see CRS Report RL30834, K-12 Teacher Quality:
Issues and Legislative Action, by James Stedman.
CRS-3
been raised about certain groups of special education teachers, such as those who
teach more than one “core academic subject.”4
The ESEA definition of “highly qualified” applies only to teachers of core
academic subjects and differentiates between new and veteran teachers and between
those teaching at the elementary level and above the elementary level. Thus, under
ESEA, the “highly qualified” definition applies only to those special education
teachers who teach core subjects (although this is probably most special education
teachers).
P.L. 108-446 provides additional requirements and options to the definition with
respect to special education teachers.5 (See Table 1 below for a summary of these
requirements.) First of all, to be highly qualified under IDEA, all special education
teachers (whether they teach core subjects or not) must hold at least a bachelor’s
degree and must obtain full state special education certification or equivalent
licensure (§602(10)(B)). Special education teachers who have emergency, temporary,
or provisional certification do not meet the IDEA definition. 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. (If the teachers in these two groups meet the
IDEA criteria, they are considered to have met the ESEA requirements.)
Both new and veteran special education teachers who teach core subjects
exclusively to children with disabilities who are assessed against alternative
achievement standards under ESEA6 can, of course, meet the definition of highly
qualified by meeting their applicable ESEA standards. Alternatively, new and veteran
teachers of these severely cognitive disabled students at the elementary level may
meet the highly qualified definition by passing a rigorous state subject-matter test,
completing a major or majors in the academic subjects taught, or demonstrating
“competence in all the academic subjects in which the teacher teaches based on a
high objective uniform State standard of evaluation” (often referred to as HOUSSE).7
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)).
4ESEA §9101(11) defines “core academic subjects” to include: “English, reading or
language arts, mathematics, science, foreign languages, civics and government, economics,
arts, history, and geography.” P.L. 108-446 cross-references this definition (§602(4)).
5P.L. 108-446 does not amend the ESEA definition of “highly qualified.”
6Presumably, reference to students assessed on alternative standards is another way of
indicating the most severely cognitive disabled students. ESEA requires that nearly all
students be held to the same high state achievement standards. The exception with respect
to children with disabilities is that those who are the most severely cognitively disabled
(estimated to account for about 1% of total enrollment and 10% of children with disabilities)
can be held to alternative achievement standards.
7Under ESEA, the HOUSSE option is available only for veteran teachers (ESEA
§9101(23)(C)(ii)).
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Table 1. Summary of Requirements to Be a Highly Qualified
Special Education Teacher
Category of special education teachers
Requirements under P.L. 108-446
All special education teachers
Hold at least a B.A.
Must obtain full state special education
certification or equivalent licensure
Cannot hold an emergency or temporary
certificate
New or veteran elementary school teachers
In addition to the general requirements above,
teaching one or more core academic subjects
may demonstrate academic subject
only to children with disabilities held to
competence through “a high objective uniform
alternative academic standards (most severely
State standard of evaluation” (the HOUSSE
cognitively disabled)
process)
New or veteran middle or high school
In addition to the general requirements above,
teachers teaching one or more core academic
may demonstrate “subject matter knowledge
subjects only to children with disabilities held
appropriate to the level of instruction being
to alternative academic standards (most
provided, as determined by the State, needed
severely cognitively disabled)
to effectively teach to those standards”
New teachers of two or more academic
In addition to the general requirements above,
subjects who are highly qualified in either
has two-year window in which to become
mathematics, language arts, or science
highly qualified in the other core academic
subjects and may do this through the
HOUSSE process
Veteran teachers who teach two or more
In addition to the general requirements above,
core academic subjects only to children with
may demonstrate academic subject
disabilities
competence through the HOUSSE process
(including a single evaluation for all core
academic subjects)
Consultative teachers and other special
Only meet general requirements above
education teachers who do not teach core
academic subjects
Other special education teachers teaching core
In addition to the general requirements above,
academic subjects
meet relevant ESEA requirements for new
elementary school teachers, new middle/high
school teachers, or veteran teachers
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 multiple
subjects.8 Finally, newly hired special education teachers teaching two or more core
8The Conference Report notes that the use of options, such as a single evaluation of multiple
(continued...)
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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 through the HOUSSE option
(§602(10)(D)(iii)). This two-year window is the only exception to the deadline,
explicitly applied to special education teachers, for meeting the “highly qualified”
definition under either IDEA or ESEA, which is the end of school year 2005-2006
(ESEA, Section 1119(a)(2)).9
Regarding other classifications of special education teachers, one can infer that:
those who do not teach core subjects would meet the IDEA definition if they meet
the IDEA criteria for all special education teachers (full certification and at least a
bachelor’s degree). With respect to special education teachers who provide only
consultative services to other teachers, the Conference Report observes that:
a special education teacher who provides only consultative services to a highly
qualified teacher ... should be considered a highly qualified special education
teacher if such teacher meets the requirements of Section 602(10)(A).... Such
consultative services do not include instruction in core academic subjects, but
may include adjustments to the learning environment, modifications of
instructional methods, adaptation of curricula, the use of positive behavioral
supports and interventions, or the use of appropriate accommodations to meet the
needs of individuals children.10
The apparent intent is that consultative teachers who do not provide direct instruction
in a core subject need only meet the requirements of having obtained at least a
baccalaureate degree and be fully state certified as a special education teacher.
Other special education teachers who teach only one core subject would appear
to have to meet the relevant criteria under the ESEA definition (in addition to the
overarching IDEA certification and degree criteria) and would then also be
considered highly qualified under IDEA.11 Finally, §602(10)(E) provides that the
definition does not create a right of action based on an employee’s failure to meet the
“highly qualified” requirements of the Act.12
Other Definitions in §602. Other general definitions added by P.L. 108-446
include:
8(...continued)
subjects “must not ... establish a lesser standard for the content knowledge requirements of
special education teachers compared to the standards for general education teachers.”
H.Rept 779, 108th Cong., 2nd Sess. 171 (2004).
9See §612(a)(14)(C).
10H.Rept. 779, 108th Cong., 2d Sess. 171 (2004).
11See H.Rept. 779, 108th Cong., 2d Sess. 171 (2004) regarding new and “not new” special
education teachers teaching one core subject.
12See also the discussion of personnel qualifications under State Eligibility below.
CRS-6
! “Core academic subjects” (§602(4)), which cross-references the definition in
the ESEA;
! “Homeless children” (§602(11)), which cross-references the McKinney-Vento
Homeless Assistance Act;13
! “Limited English proficient” (§602(18)), also an ESEA cross-reference;
! “Universal design” (§602(35)), which cross-references the Assistive
Technology Act of 1998;14
! “Ward of the state” (§602((36)), which includes a foster child (unless the child
has a foster parent, who would meet the definition of “parent”), a ward of the
state, or a “child in the custody of a public child welfare agency.”
Modified definitions include:
! Adding an exception to the definition of “assistive technology device”
(§602(1)) to exclude surgically implanted medical devices;
! Expanding the definition of “parent” (§602(23)) to include, in addition to the
natural parent, an adoptive or foster parent, a guardian, an individual with
whom the child lives (such as a grandparent), or an individual legally
responsible for the child;
! Adding specific services to the definition of “related services” (§602(26)),
including interpreting services and certain school nursing services and
excluding surgically implanted medical devices.
General Administrative Provisions
P.L. 108-446 continues certain general administrative provisions with respect
to the Office of Special Education Services in the U.S. Department of Education
(ED) (§603): the abrogation of state sovereign immunity (§604), acquisition of
equipment and facilities construction or alteration (§605); and employment of
individuals with disabilities (§606). P.L. 108-446 modifies §607 dealing with the
Secretary of Education’s authority to prescribe IDEA regulations. For example, the
Secretary is directed to regulate only as “necessary to ensure that there is compliance
with the specific requirements of [IDEA].” This provision was previously found in
section 617(b).15 P.L. 108-446 reduces the public comment period on regulations
from 90 days to 75 days.
P.L. 108-446 adds a section dealing with state regulations, which, among other
requirements, requires states to identify in writing any “State-imposed requirement
that is not required by [IDEA] and Federal regulations.” (§608(a)(2)) P.L. 108-446
also adds a paperwork reduction pilot program (§609), which permits the Secretary
1342 U.S.C. §11434a.
14“The term ‘universal design’ means a concept or philosophy for designing and delivering
products and services that are usable by people with the widest possible range of functional
capabilities, which include products and services that are directly usable (without requiring
assistive technologies) and products and services that are made usable with assistive
technologies.” 29 U.S.C §3002(17).
15P.L. 105-17, §617(b).
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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 noninstructional burdens. Finally, P.L. 108-446 adds a section continuing
eligibility for competitive IDEA grants for the freely associated states16 “to the extent
that such grants continue to be available to States and local educational agencies
under [IDEA]” (§610).
Part B — Assistance for Children with Disabilities
Ages 3 to 21
Allotment and Authorization (§611)
Section 611 of IDEA deals with allocations of Part B grants-to-states funds,
including set-asides and state and substate formulas. P.L. 108-446 makes only
technical changes to some §611 provisions (most notably the state and substate
formulas are not substantively changed (§611(d) and §611(f)). At the same time,
some changes to §611 are significant.
Maximum Grant Calculation and Authorizations (§611(a)(2)). Prior to
the enactment of P.L. 108-446, the maximum amount states could receive under the
Part B grants-to-states program was based on 40% of the national average per pupil
expenditure (APPE) times the number of children with disabilities the state serves.17
The sum of these maximum grants is often referred to as IDEA “full funding.” P.L.
108-446 maintains this maximum-grant calculation through FY2006. Thereafter, the
maximum grant will be 40% of APPE times the number of children with disabilities
the state served in school year 2004-2005 adjusted by the annual rates of change in
the state’s population in the age range comparable to ages for which the state
provides FAPE for children with disabilities18 (85% of the adjustment) and in the
state’s children living in poverty in the same age range (15% of the adjustment).19
The prior law authorized “such sums as may be necessary” to carry out the
provisions of the grants-to-states program, and this authorization was permanent.20
P.L. 108-446 provides specific authorization levels for FY2005-FY2011 and
authorizes “such sums” for succeeding fiscal years (preserving the permanent
authorization (§611(i)). Table 2 lists the authorization amounts.
16The freely associated states are: the Republic of the Marshall Islands, the Federated States
of Micronesia, and the Republic of Palau (§611(b)(1)(C)).
17P.L. 105-17 §611(a)(2).
18For most states this age range is 3 to 20 or 3 to 21.
19For example, if a state’s relevant population for school year 2007-2008 rose by 3% above
its 2004-2005 population and its number of children living in poverty rose by 2% above the
2004-2005 number, then its 2007-2008 maximum grant would be the appropriate APPE for
that year times the 2004-2005 number of children with disabilities serviced increased by
2.85% (85% of 3% plus 15% of 2% = 2.55% + 0.3% = 2.85%).
20P.L. 105-17 §611(j).
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Table 2. Authorizations for the IDEA Part B
Grants-to-States Program
Fiscal year
Authorization
2005
$12,358,376,571
2006
$14,648,647,143
2007
$16,938,917,714
2008
$19,229,188,286
2009
$21,519,458,857
2010
$23,809,729,429
2011
$26,100,000,000
2012 and subsequent years
such sums as may be necessary
Set-Asides. P.L. 108-446 continues to require certain set-asides from the
amount appropriated for the grants-to-states program but changes some of these
provisions. The Secretary is authorized to reserve up to 1% of the grants-to-states
appropriation for outlying areas21 and the freely associated states;22 however, the
allocation of these funds has been changed (§611(b)(1)). The freely associated states
receive the amounts they received for FY2003; the remainder is allocated to the
outlying areas according to their population ages 3 to 21. P.L. 108-446 eliminates the
competitive allocation of a portion of the set-aside funds through the Pacific Regional
Educational Laboratory.23
P.L. 108-446 maintains the set-aside for assistance for children with disabilities
in Bureau of Indian Affairs (BIA) schools provided through the Secretary of the
Interior (§611(b)(2)).24 P.L. 108-446 creates a maximum reserve of 0.5% (or $25
million,25 whichever is less) for technical assistance provided by the Secretary
21The outlying areas are defined as “the United States Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands” (§602(22)).
22The Secretary provides less than this authorized percentage.
23P.L. 105-17 §611(b)(2).
24P.L. 108-446 retains the reservation of 1.226% of the total appropriation for the grants-to-
states program; however, this percentage has been overridden in recent years through the
appropriations process, which has provided annual increases for BIA schools based on the
rate of inflation (for example, see language in the Special Education account in Title III of
Division F of P.L. 108-447 (Consolidated Appropriations Act, 2005)).
25This maximum amount is to be adjusted annually by the rate of inflation.
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(required under §616(i)) to improve state data collection (§611(c)). This provision
replaces a set-aside from Part B and Part C funds for studies and evaluations.26
Funds for State Administration and Other State-Level Activities
(§611(e)). IDEA permits states to reserve funds for state administration and for other
state-level activities. P.L. 108-446 makes only a minor substantive change in the state
administration set-aside (§611(e)(1)): namely, it raises the minimum amount that may
be reserved to $800,000 (annually adjusted by the rate of inflation). A state may
reserve the maximum amount it could reserve for FY2004 (also adjusted by the rate
of inflation),27 unless the minimum amount is greater. P.L. 108-446 permits states to
use amounts resulting from these inflationary increases for certain other state-level
activities (§611(e)(6)).
P.L. 108-446 changes the amount states may reserve for other state-level
activities and expands those activities (§611(e)(2)). For FY2005 and FY2006, states
may reserve 10% of their grant (or 10.5% if the maximum amount for state
administration is $850,000 or less (§611(e)(2)A)(ii)).28 For subsequent fiscal years,
the maximum amount is adjusted by the rate of inflation.
In addition to the changed maximum amount of this set-aside, P.L. 108-446
adds to the list of state-level activities. P.L. 108-446 makes two activities mandatory,
which were permitted under the prior Act: (1) monitoring, enforcement, and
complaint investigation and (2) establishing and maintaining a parental mediation
process (§611(e)(2)(B)). Other activities are permitted (§611(e)(2(C)), including
some that were available under the prior Act (such as direct services and assisting
LEAs to meet personnel shortages) and others that have been added (such as
paperwork reduction activities, assistance for local development of positive behavior
interventions, support for local capacity building to improve services,29 and
alternative programming for expelled children with disabilities).
Risk Pools for High-Need Children with Disabilities (§611(e)(3)). The
core requirement of IDEA is providing all children with disabilities with a free
26Studies and evaluations are still authorized in Part D, §664, but funds for these activities
must be appropriated under an authorization provided in Part D, §667.
27The mechanism for determining a state’s maximum amount for administration has changed
but, with exception of the increased minimum amount (for FY2004 the minimum was
$572,401), the resulting amount would be the same as under the prior law because under
P.L. 105-17 and under P.L. 108-446 maximum state administration funding is based on
annual inflationary increases.
28These maximum percentages are reduced to 9% and 9.5% if the state does not reserve
funds for the local education agencies (LEAs) risk pool (discussed below)
(§611(e)(2)(A)(iii)). For FY2004, the average percentage for the maximum set-aside of
other state-level activities was about 7%.
29Under P.L. 105-17, states reserved funds for local capacity building grants (sometimes
known as “sliver grants”). P.L. 108-446 eliminates these grants.
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appropriate public education (FAPE),30 which the Act defines as meaning special
education and related services.31 Related services are defined to include certain
medical services.32 Provision of medical or other expensive services to ensure FAPE
has resulted in very high costs for some school districts. P.L. 108-446 aims to address
these high costs by permitting states to reserve up to 10% of the funds reserved for
other state activities (or 1 to 1.05% of the overall state grant) to establish and
maintain a risk pool to assist local education agencies (LEAs) serving high-need
children with disabilities.33 States taking advantage of this option must develop and
annually review a state plan in which the state determines which children with
disabilities are high need,34 sets out the procedures by which LEAs participate in the
risk pool,35 and determines how funds are distributed. Funds distributed from the risk
pool must only pay for “direct special education and related services” for high-need
children with disabilities and may not be used for legal fees or related costs. If some
funds are not distributed for services for high-need children, they are to be distributed
to LEAs according to the substate formula (§611(e)(3)(I)).
State Eligibility (§612)
Section 612 spells out requirements that states must meet to be eligible for Part
B funding. These requirements provide for state guarantees of some of the central
provisions of IDEA. In many important respects, P.L. 108-446 retains these
guarantees.36 For example, state eligibility still hinges on its providing FAPE to all
children with disabilities in the state, including those who have been suspended or
30§612(a)(1).
31§602(9).
32§602(26). These provisions, contained in previous law and continued in the 2004
reauthorization, have been interpreted by the Supreme Court to mean that schools must
provide medical services unless they are provided by a doctor or hospital. Independent
School District v. Tatro, 468 U.S. 883 (1984); Cedar Rapids Community School District v.
Garret F., 526 U.S. 66 (1999).
33P.L. 108-446 permits states to reserve up to 5% of the 10% reserve “to support innovative
and effective” cost-sharing (§611(e)(3)(B)(ii)).
34P.L. 108-446 requires that the cost for serving these children must be greater than three
times the national average per pupil expenditure (APPE) as defined in Section 9101 of the
ESEA (§611(e)(3)(C)(ii)(I)(bb)).
35State-determined LEA eligibility criteria must take “into account the number and
percentage of high need children with disabilities served. ...” (§611(e)(3)(C)(ii)(II)).
36The introductory language of the previous version of §612(a) under P.L. 105-17 provided
for state eligibility “if the State demonstrates to the satisfaction of the Secretary that the
State has in effect policies and procedures to ensure that it meets each of the following
conditions ...” (emphasis added). P.L. 108-446 changes the introductory language of §612(a)
by replacing “demonstrates to the satisfaction of” with “submits a plan that provides
assurances to.” According to the committee report accompanying the Senate IDEA bill, the
Secretary of Education had interpreted the prior law “to require the States to submit
thousands of pages of documents” based on this language. The change was made to
eliminate these administrative procedural requirements. (See S.Rept. 185, 108th Congress,
1st Sess. 14 (2003)).
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expelled (§612(a)(1)(A)), basing that education on an individualized education
program (IEP) (§612(a)(4), and providing that education be provided in the least
restrictive environment (§612(a(5)).37 At the same time, P.L. 108-446 makes
significant changes to some state eligibility requirements: most notably those
regarding children enrolled by their parents in private schools, personnel
qualifications, performance goals and indicators, and participation in assessments.
Children with Disabilities in Private Schools. 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. 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 on the private school provisions, and the 2004 reauthorization includes
several changes to the provisions relating to children who are placed in private school
by their parents. The provisions relating to children placed in private schools by
public agencies were not changed.
Generally, children with disabilities enrolled by their parents in private schools
are to be provided special education and related services to the extent consistent with
the number and location of such children in the school district served by a LEA
pursuant to several requirements (§612(a)(10)(A)(i)). This provision was changed
from previous law by the addition of the requirement that the children be located in
the school district served by the LEA. 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 across district lines.”38
There are five requirements regarding this provision of special education. The
first is that the funds expended by the LEA, including direct services to parentally
placed private school children, shall be equal to a proportionate amount of federal
funds made available under part B of IDEA. The 2004 reauthorization added the
phrase regarding direct services. The Senate report stated that “it is the committee’s
intent that school districts place a greater emphasis on services provided directly to
37P.L. 108-446 strengthens provisions regarding certain state funding mechanisms or
formulas by prohibiting mechanisms based on the setting in which services are delivered if
that mechanism results “in the failure to provide a child with a disability a free appropriate
public education according to the unique needs of the child as described in the child’s IEP
[individualized education program]” §612(a)(5)(B). The Conference Report notes that: “The
conferees are concerned that some States continue to use funding mechanisms that provide
financial incentives for, and disincentives against, certain placements. It is the intent of the
changes to Section 612(a)(5)(B) to prevent State funding mechanisms from affecting
appropriate placement decisions for students with disabilities.... The new provisions in this
section were added to prohibit States from maintaining funding mechanisms that violate
appropriate placement decisions, not to require States to change funding mechanisms that
support appropriate placements decisions.” H.Rept. 779, 108th Cong., 2d Sess., 186 (2004).
38S.Rept. 185, 108th Cong., 1st Sess., 15-16 (2003).
CRS-12
such children — like specifically designed instructional activities and related services
— rather than devoting funds solely to indirect services such as professional
development for private school personnel.”39
Second, a new provision relating to the calculation of the proportionate amount
is added. In calculating this amount, the LEA, after timely and meaningful
consultation with representatives of private schools, shall conduct a thorough and
complete child find process to determine the number of children with disabilities who
are parentally placed in private schools.
Third, the new law keeps the previous requirement that the services may be
provided to children on the premises of private schools, including religious schools,
to the extent consistent with law. The 2004 reauthorization added the term
“religious” while deleting the term “parochial.”
Fourth, a specific provision regarding supplementing funds, not supplanting
them, is added. State and local funds may supplement and not supplant the
proportionate amount of federal funds required to be expended.
Fifth, each LEA must maintain records and provide to the SEA the number of
children evaluated, the number of children determined to have disabilities, and the
number of children served under the private school provisions. The Senate report
stated that this requirement was “to help to ensure that these funds are serving their
intended purpose.”40
The general requirement regarding child find is essentially the same as previous
law. The requirement for finding children with disabilities is the same as that
delineated in §612(a)(3) for children who are not parentally placed in private schools,
including religious schools. As was done in the previous section, the former use of
the term “parochial” is replaced by the term “religious” in the new law. New
provisions are added concerning equitable participation, activities, cost and the
completion period. Child find is to be designed to ensure the equitable participation
of parentally placed private school children with disabilities and their accurate count.
The cost of child find activities may not be considered in meeting the LEA’s
proportional spending obligation. Finally, the child find for parentally placed private
school children with disabilities is to be completed in a time period comparable to
that for students attending public schools (§612(a)(10)(A)(ii)).
P.L. 108-446 adds requirements that the LEA consult with private school
officials and representatives of the parents of parentally placed private school
children with disabilities. This consultation is to include
! The child find process and how parentally placed private school children with
disabilities can participate equitably;
39Ibid.
40Ibid, p. 15.
CRS-13
! The determination of the proportionate amount of federal funds available to
serve parentally placed private school children with disabilities, including how
that amount was calculated;
! The consultation process among the LEA, private school officials and
representatives of parents of parentally placed private school children with
disabilities, including how the process will operate;
! How, where, and by whom special education and related services will be
provided for parentally placed private school children with disabilities,
including a discussion of the types of services, including direct services and
alternate service delivery mechanisms, how the services will be apportioned
if there are insufficient funds to serve all children and how and when these
decisions will be made; and
! How the LEA shall provide a written explanation to private school officials
of the reasons why the LEA chose not to provide services if the LEA and
private school officials disagree (§612(a)(10)(A)(iii)).
The Senate report described the consultation procedure as similar to that in the No
Child Left Behind Act and “therefore, the committee does not believe including these
provisions places an undue burden on LEAs.”41
The new law also requires a written affirmation of the consultation signed by the
representatives of the participating private schools. If the private school
representatives do not sign within a reasonable period of time, the LEA shall forward
the documentation to the SEA (§612(a)(10)(A)(iv)).
Compliance procedures are added by P.L. 108-446. Generally, a private school
official has the right to submit a complaint to the SEA alleging that the LEA did not
engage in meaningful and timely consultation or did not give due consideration to the
views of the private school official. If a private school official submits a complaint,
he or she must provide the basis of the noncompliance to the SEA, and the LEA must
forward the appropriate documentation. If the private school official is dissatisfied
with the SEA’s determination, he or she may submit a complaint to the Secretary of
Education, and the SEA shall forward the appropriate documentation to the Secretary
(§612(a)(10)(A)(v)).
The 2004 reauthorization contains a specific subsection regarding the provision
of equitable services. Services are to be provided by employees of a public agency
or through contract by the public agency. In addition, the services provided are to be
“secular, neutral, and nonideological” (§612(a)(10)(A)(vi)). The new law further
states that the funds that are available to serve pupils attending private schools shall
be controlled and administered by a public agency (§612(a)(10)(A)(vii)).
As noted above, when a child with a disability is unilaterally placed in a private
school by his or her parents, the cost of the private school placement is not paid by
the LEA unless a hearing officer or a court makes certain findings. As in previous
law, this reimbursement may be reduced or denied if the child’s parents did not give
certain notice (§612(a)(10)(C)(iii)). Both the 1997 and 2004 reauthorizations contain
41Ibid.
CRS-14
an exception to this limitation, but this exception is changed somewhat in the new
law. Under the new law, the cost of reimbursement is not to be reduced or denied for
the failure to provide notice if:
! the school prevented the parent from providing such notice;
! the parents had not received notice of the notice requirement; or
! compliance would likely result in physical harm to the child.
Previous law had included a provision that reimbursement not be reduced or denied
if a parent is illiterate and had included “serious emotional harm.”
P.L. 108-446 also contains a new provision allowing, at the discretion of a court
or hearing officer, the reimbursement not to be reduced or denied if:
! the parent is illiterate or cannot write in English; or
! compliance with the notice requirement would likely result in serious
emotional harm to the child (§612(a)(10)(C)(iv)).
Personnel Qualifications. P.L. 108-446 repeals the requirement that states
have comprehensive personnel development systems42 and makes substantial changes
to state requirements with respect to personnel qualifications (§612(a)(14)). P.L. 108-
446 continues to mandate that states require qualifications “to ensure that personnel
necessary to carry out this part are appropriately and adequately prepared and trained”
and adds that personnel serving children with disabilities have “content knowledge
and skills to serve” those children (§612(a)(14)(A)). These qualification requirements
“shall ensure that [all special education teachers in the state are] highly qualified by
the deadline established in section 1119(a)(2) of the Elementary and Secondary
Education Act of 1965” (§612(a)(14)(C)).43 P.L. 108-446 adds a subparagraph
dealing with paraprofessionals and providers of related services, which is similar to
provisions in the 1997 IDEA except that the current law removes language related
to standards that “are not based on the highest requirements in the State.”44
42P.L. 105-17 §612(a)(14). According to the report accompanying the Senate IDEA bill, the
provision was removed because “the committee [was] not convinced that the current
requirement has provided any added value to State efforts to secure an adequate supply of
qualified personnel.” See S.Rept. 185, 108th Congress, 1st Sess., 16 (2003).
43The ESEA requires states to ensure that all teachers of “core subjects” are highly qualified
by school year 2005-2006. Note that the IDEA modifies the definition of “highly qualified”
for special education teachers (see above) to apply to all special education teachers, not just
to those teaching core subjects. In addition, the definition extends this deadline for certain
new special education teachers who teach more than one core subject.
44P.L. 105-17 §612(a)(15)(B)(ii). According to the Conference Report, “Conferees are
concerned that language in current law regarding the qualifications of related services
providers has established an unreasonable standard for State educational agencies to meet,
and as a result, has led to a shortage of the availability of related services for students with
disabilities.
“Conferees intend for State educational agencies to establish rigorous qualifications
for related services providers to ensure that students with disabilities receive the appropriate
(continued...)
CRS-15
P.L. 108-446 strengthens the state requirement regarding its policy with respect
to LEAs’ personnel qualifications. Under the prior law, states could have adopted
a policy that LEAs “make an ongoing good-faith effort” to “hire appropriately and
adequately trained personnel.”45 P.L. 108-446 now requires states to have a policy
that LEAs “take measurable steps to recruit, hire, train, and retain highly qualified
personnel” (§612(a)(14)(D). Despite this strengthened requirement, P.L. 108-446
adds language noting that these requirements for personnel qualification do not create
an individual right of action (i.e., the right to sue a state) based on the failure of a
“State educational agency or local educational agency staff person to be highly
qualified” (§612(a)(14)(E).
Performance Goals and Indicators. P.L. 108-446 revises state
requirements for performance goals and indicators mainly by linking these to
requirements under the Elementary and Secondary Education Act (ESEA). In the
prior version of IDEA, states were required to have performance goals for children
with disabilities that were “consistent, to the maximum extent appropriate, with other
goals and standards for children established by the state” and to establish indicators
to measure performance.46 P.L. 108-446 changes this provision to require that states’
performance goals “are the same as the State’s definition of adequate yearly progress
(AYP),47 including the State’s objectives for progress by children with disabilities”
under ESEA (§612(a)(15)(A)(ii). P.L. 108-446 also links performance indicators to
ESEA requirements: a state’s indicators for measuring progress must include
“measurable annual objectives for progress by children with disabilities” under
ESEA (§612(a)(15)(B)). Finally, P.L. 108-446 changes states’ reporting requirements
on progress made toward performance goals from every two years (under the
previous law)48 to every year (under current law) (§612(a)(15)C)).49
Participation in Assessments. Under the previous version of IDEA, states
were required to include children with disabilities “in general State and district-wide
assessment programs, with appropriate accommodations, where necessary.”50 For
children who could not participate in these assessments, states had until July 1, 2000,
to develop and implement alternative assessments and guidelines for participation in
these alternative assessments.51 P.L. 108-446 amends assessment participation
requirements to align them with ESEA requirements. IDEA now requires that all
children with disabilities be included in all state and district-wide assessments,
44(...continued)
quality and quantity of care.” H.Rept. 779, 108th Cong., 2d Sess. 192 (2004).
45P.L. 105-17 §612(a)(15)(C).
46P.L. 105-17 §612(a)(16)(A)(ii) and (B).
47For further information on AYP, see CRS Report RL32495, Adequate Yearly Progress
(AYP): Implementation of the No Child Left Behind Act, by Wayne Riddle.
48P.L. 105-17 §612(a)(16)(C).
49 See also the discussion of performance plans under §616 infra.
50P.L. 105-17 §617(a)(17)(A).
51P.L. 105-17 §612(a)(17)(A)(ii).
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including assessments required under ESEA, with accommodations or alternative
assessments if necessary and as included in the child’s individualized education
program (IEP) (§612(a)(16)(A)). P.L. 108-446 now assumes that states have
developed guidelines for accommodations (§612(a)(16)(B)), and that states have
implemented guidelines for alternative assessments (§612(a)(16)(C)). Such
alternative assessments must follow ESEA requirements — most notably they must
be “aligned with the State’s challenging academic content standards and challenging
student academic achievement standards” (§612(a)(16)(C)(ii)(I)). P.L. 108-446 also
provides states with the option of adopting alternative academic standards as
permitted by ESEA regulations. If the number of those tested is sufficient to ensure
statistical reliability and confidentiality, the achievement of children with disabilities
is to be compared with the achievement of all children and such comparisons are to
be publically reported. Finally, P.L. 108-466 requires the state and districtwide tests
adhere to “universal design principles” to the extent feasible.52
New State Requirements. P.L. 108-446 adds several new requirements to
state eligibility determination:
! In complying with the state non-supplanting and maintenance of effort
requirements (§612(a)(17) and (18)), “a State may not use funds paid to it
under this part to satisfy State-law mandated funding obligations to local
educational agencies, including funding based on student attendance or
enrollment, or inflation” ((§612(a)(20)).53
! After the publication in the Federal Register of the National Instructional
Materials Accessibility Standard for instructional material for blind persons
and others with print disabilities by the National Instructional Materials
Access Center, states are to adopt the standard and either coordinate with the
center (authorized in §674(e)) or assure the Secretary of Education that
instructional materials will be provided in a timely fashion (§612(a)(23)).
! States must have policies and procedures in effect to prevent over-
identification and mis-identification of children with disabilities
(§612(a)(24)).
! SEAs and LEAs are prohibited from requiring that “a child obtain a
prescription for a substance covered by the Controlled Substances Act (21
U.S.C. §801 et seq.) as a condition of attending school, receiving an
evaluation [under IDEA], or receiving services under [IDEA]” (§612(a)(25)).
52See the definition of “universal design” above.
53The intent of this language apparently is explained in a floor statement by Rep. Woolsey:
“The language makes it clear that Federal funds for IDEA go to schools to use for special
education, not for States to use to get out of paying for their required funding or not for
States to use to solve their general budget problems. That is something that my home State
of California has been doing, and according to the American Association of School
Administrators, this practice cost California and their schools $120 million in the year 2003
alone.” Congressional Record, vol. 150, no. 134, Nov. 19, 2004, p. H10015.
CRS-17
Local Educational Agency Eligibility (§613)
Section 613 of IDEA provides requirements that LEAs must meet to qualify for
assistance under Part B.54 P.L. 108-446 maintains the general requirement that local
“policies, procedures, and programs” are consistent with state policies and
procedures laid out in §612 (§613(a)(1)). At the same time, P.L. 108-446 makes
several important changes to the section, including changes to local maintenance of
effort requirements and addition of permitted early intervention services.
Exceptions to Local Maintenance of Effort. Like many other federal
education programs, IDEA requires states and LEAs to follow certain financial
principles to ensure that federal funds add to, rather than substitute for, state and local
educational funding. One of these principles is the maintenance of effort (MOE)
requirement, which, generally in IDEA, requires that state and local spending on
special education not be reduced from one year to the next (i.e., a 100% MOE). Prior
law allowed certain exceptions to local MOE, one of which allowed LEAs to “treat
as local funds” for the purpose of meeting the MOE requirement up to 20% of any
annual increase in their IDEA grant.55 ED regulations interpreted this provision to be
non-cumulative, that is, the provision would be applied on a year-to-year basis. For
example, if an LEA’s grant increased by $10,000 from year 1 to year 2, it could have
treated $2,000 (20%) of that increase as local funds to meet the MOE requirement.
If the LEA’s grant again rose by $10,000 from year 2 to year 3, it could again treat
$2,000 as local funds — not $4,000.56
P.L. 108-446 makes major changes to this exception. First of all, LEAs may use
up to 50% of the increase in their IDEA grant to “reduce the level of expenditure”
for special education (§613(a)(2)(C)(i)). The intent of this language appears to be that
the reductions would be cumulative, that is the reduction for the current year would
be taken from the reduced amount of local spending resulting from the reduction
allowed for that year.57 The prior law gave no indication of how the freed-up local
funds could be used. P.L. 108-446 requires LEAs exercising this option to use the
funds for “activities authorized under the Elementary and Secondary Education Act
of 1965” (§613(a)(2)(C)(ii)) and for early intervention services discussed below. P.L.
108-446 continues to provide state authority to prohibit LEAs from using this
authority, except that it modifies the criteria for exercising the prohibition and
requires states (prior law permitted states) to exercise the prohibition if warranted.58
54P.L. 108-446 makes comparable changes to the introductory language in §613 as it makes
to the introductory language in §612 by changing the requirement that the LEA
“demonstrates to the satisfaction of” to “submits a plan that provides assurances to” the SEA
that requirements of §613 are met.
55P.L. 105-17 §613(a)(2)(C).
56According to ED’s discussion accompanying final regulations on the MOE exception
under P.L. 105-17, “there is no statutory authority to allow the provision to be applied on
a cumulative basis.” 66 Federal Register, Jan. 8, 2001, p. 1475.
57See report language in H.Rept. 779, 108th Cong., 2d Sess. 197 (2004).
58P.L. 105-17 provided that states could prohibit an LEA from using this option if the LEA
(continued...)
CRS-18
Under the prior law, this exception applied only to LEAs, not to states. P.L. 108-
446 extends this MOE exception to a state that “pays or reimburses all local
educational agencies within the State from State revenue 100 percent of the non-
Federal share of the costs of special education and related services” (§613(j)). The
Secretary of Education would have similar obligations to deny this option to a state
that the state has for LEAs. In addition, a state could not take advantage of this
exception “if any local educational agency in the State would, as a result of such
reduction, receive less than 100 percent of the amount necessary to ensure that all
children with disabilities served by the local educational agency receive a free
appropriate public education” based on the combined federal IDEA and state funds
(§613(j)(5)).
Early Intervening Services. P.L. 108-446 permits LEAs to use up to 15%
of their IDEA Part B funding for early intervening services for children who have not
been identified as children with disabilities “but who need additional academic and
behavioral support to succeed in a general education environment” (§613(f)). These
services may be provided for students in kindergarten through 12th grade but should
be concentrated on those in kindergarten through 3rd grade. Funds may be used for
professional development for those serving this population as well as educational and
behavioral services and support. These funds may be used to supplement early
intervening services carried out under the ESEA (§613(f)(5)). If a LEA chooses to
use funds for these purposes and takes advantage of the exception to the MOE
requirement discussed above, those local funds that would have been used to
maintain spending on special education must be used for early intervening services.59
Other Changes and Additions to §613. P.L. 108-446 makes additional
changes and adds new provisions to local eligibility requirements, including:
! LEAs are permitted to use IDEA funds to implement funding mechanisms
(such as cost- or risk-sharing funds) to help pay for high cost education and
related services and for administrative case management technology.
! While P.L. 105-17 made special provisions for public charter schools serving
children with disabilities, P.L. 108-446 modifies these provisions, including
the requirement that supplementary and related services be provided at the
charter school to the same extent that such services are provided at other
public schools served by the LEA and that IDEA funds be provided to these
58(...continued)
did not meet “the requirements of this part” (P.L. 105-17 §613(a)(2)(C)(ii). P.L. 108-446
requires states to prohibit the use of this MOE exception for LEAs that are “unable to
establish and maintain programs of free appropriate public education” (P.L. 108-446
§613(a)(2)C)(iii)) or for LEAs that do not meet targets in the state’s performance plan (P.L.
108-446 §616(f)).
59P.L. 108-446 specifies that an LEA “may not use more than 15 percent of [its Part B
funding], less any amount reduced by the agency pursuant to [the MOE exception]”
(§613(f)(1)). This would appear to mean that local funds from the MOE reduction would
first have to be used for the early intervening services (if the LEA decided to provide these
services). If there are additional funds available from the MOE reduction, they would have
to be used for ESEA authorized activities.
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schools in proportion to their enrollment of children with disabilities, if this
is the basis for distributing funds to other public schools in the LEA
(§613(a)(5));
! P.L. 108-446 provides similar provisions to those for states for printed
instructional material for blind persons and others with print disabilities
(§613(a)(6)) (see the discussion above of the state provisions);
! P.L. 108-446 requires LEA cooperation with efforts to improve electronic
transfer of health and educational records of migratory children with
disabilities (§613(a)(9)).
Evaluations, Eligibility, and Individual Education Programs
(§614)
Section 614 of IDEA contains many of the key provisions that undergird the
special education and related services that are provided for children with disabilities.
These include the processes of evaluation and reevaluation, which determine whether
a child is eligible for special education, and inform the planning and provision of that
child’s services; the process of creating the individualized education program (IEP)
and the requirements for the IEP; and the composition of the IEP team that creates
and revises the IEP. P.L. 108-446 maintains the general structure of the evaluation,
eligibility determination, and IEP but makes significant changes to these provisions
— many of which aim to reduce paperwork and non-instructional activities.
Evaluation and Reevaluation. Subsections (a) through (c) of Section 614
of IDEA contain requirements for the initial evaluation, parental consent,
reevaluation, and eligibility determination.
Initial Evaluation and Reevaluations. LEAs60 are required to “conduct a
full and individual initial evaluation” of a child before special education and related
services are provided, and to conduct reevaluations as warranted to determine if the
education and services provided require revisions or if the child no longer needs
special education and related services. P.L. 108-446 adds language that clarifies that
either the parent or the LEA may request an initial evaluation. If the LEA makes the
request, the parent generally must provide consent for the evaluation to take place
(§614(a)(1)(D)). P.L. 108-446 also establishes a timeframe after a parental request
for an initial evaluation has been received by the LEA. Such evaluation must take
place either within 60 days or within an alternative timeframe established by the state
(§614(a)(1)(C)).61
Reevaluations are required if the child’s teacher or parent makes a request or if
the LEA determines that the child’s educational and service needs, academic
60Requirements discussed in this section also apply to the SEA or other state agencies if they
provide direct services to children with disabilities.
61P.L. 108-446 provides two exceptions to the timeframe: if the child changes LEAs during
the timeframe or if the child’s parent “repeatedly fails or refuses to produce the child for the
evaluation” (§614(a)(1)(C)(ii).
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achievement, or functional performance warrants a reevaluation. (§614(a)(2)).62 For
example, a reevaluation might be warranted if the child’s performance in school
significantly improves, suggesting that he or she no longer requires special education
and related services, or if the child is not making progress toward the goals set out
in his or her IEP, indicating that changes are needed in the education or related
services the LEA is providing. The prior version of IDEA required that reevaluations
take place at least every three years.63 P.L. 108-446 permits the parent and the LEA
to override this requirement if they agree that a reevaluation is not necessary. In
addition, P.L. 108-446 prohibits reevaluations more frequently than once a year,
unless the parent and the LEA agree.
Parental Consent. If the LEA proposes to conduct an initial evaluation of a
child to determine a child’s eligibility for IDEA services, it must generally obtain
consent from the parent of the child. Provision of parental consent for the evaluation
does not commit the parent to consenting to special education and related services
for the child (§614(a)(1)(i)(I)). Rather the LEA must seek “informed consent” from
the parent before initiating IDEA services (§614(a)(1)(i)(II)).
P.L. 108-446 provides extensive new language to deal with situations in which
the parent fails to provide consent or does not respond to the LEA’s request for the
initial evaluation. Under those circumstances, the LEA may use procedures described
in §615 (dealing with procedural safeguards) to initiate the evaluation
(§614(a)(1)(ii)(I)). If the parent refuses the provision of special education and related
services for the child based on the initial evaluation, P.L. 108-446 directs the LEA
not to “provide special education and related services to the child by utilizing the
procedures described in section 615” (§614(a)(1)(ii)(II)). Under such circumstances,
the LEA would not be considered to be violating its obligation to provide FAPE, nor
would it be obligated to develop an IEP for the child (§614(a)(1)(ii)(III)).
P.L. 108-446 provides specific procedures dealing with parental consent for
children who are wards of the state (§614(a)(1)(iii)). The LEA is to make “reasonable
efforts” to obtain parental consent for the initial evaluation. However, parental
consent is unnecessary if the LEA, after reasonable efforts, cannot locate the parent,
the parent’s rights have been terminated by state law, or a judge has subrogated the
parent’s right to make educational decisions for the child (§614(a)(1)(iii)(II)).
Evaluation Procedures and Eligibility Determination.64 P.L. 108-446
continues many of the evaluation requirements of the prior version of IDEA: for
example, multiple measures or assessments must be used to determine eligibility for
IDEA services, and these measures or assessments must be technically sound. One
notable change to these requirements deals with the language or mode of
62P.L. 108-446 continues to require parental consent for reevaluations initiated by the LEA,
unless the parent fails to respond after the LEA has “taken reasonable measures to obtain
such consent” (§614(c)(3)).
63P.L. 105-17 §614(a)(2)(A).
64The Conference Report emphasizes that the evaluation process should “fully inform” the
team developing the child’s individualized education plan (IEP) (discussed below). See
H.Rept. 779, 108th Cong., 2d Sess. 204 (2004).
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communication used to administer assessments. Prior law required that “tests and
other evaluation materials” be “provided and administered in the child’s native
language or other mode of communication, unless it is clearly not feasible [emphasis
added] to do so....”65 P.L. 108-446 rephrases this requirement as follows:
“assessments and other evaluation materials” must be “provided and administered in
the language and form most likely to yield accurate information on what the child
knows and can do academically, developmentally, and functionally, unless it is not
feasible [emphasis added] to so provide or administer....” (§614(b)(3)(A)(ii)). P.L.
108-446 also addresses concerns about children with disabilities who transfer from
one LEA to another during the school year by requiring coordination between “such
children’s prior and subsequent schools, as necessary and as expeditiously as
possible, to ensure prompt completion of full evaluations” (§614(b)(3)(D)).66
P.L. 108-446 continues to require that the eligibility for special education and
related services be determined by “a team of qualified professionals” and the child’s
parent (§614(b)(4)(A)) and that eligibility not be predominantly based on the lack of
appropriate reading or mathematics instruction or on limited English proficiency.
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 and intellectual ability ...” (§614(b)(6)(A)).67
P.L. 108-446 continues to require an evaluation before determining that a child
no longer requires special education and related services. The Act adds new
exceptions to this requirement making the change-in-eligibility evaluation
65P.L. 105-17 §614(b)(3)(A)(ii).
66Report language recognizes that evaluations can be delayed for highly mobile children,
such as children in state welfare systems and homeless children and notes:
In order to minimize such delays, the Conferees intend that local education agencies ensure
that assessments for these children and youth be completed expeditiously, taking into
consideration the date on which such children and youth were first referred for assessment in
any local educational agency. Such assessments shall be made in collaboration with parents
(including foster parents) and, where applicable, surrogate parents, homeless liaisons
designated under Section 723(g)(1)(j)(ii) of the McKinney-Vento Homeless Assistance Act,
court appointed special advocates, a guardian ad litem, or a judge.
H.Rept. 779, 108th Cong., 2d Sess. 204 (2004).
67The 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. 185, 108th Cong., 2d Sess. 26 (2003).
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unnecessary if the child graduates from high school with a regular diploma or reaches
the age at which state law no longer provides for FAPE (§614(c)(5)(B)(i)). For
children whose eligibility for IDEA services ends as a result of graduation or age
termination, the LEA is required to provide a summary of his or her academic and
functional performance, including “recommendations on how to assist the child in
meeting the child’s postsecondary goals” (§614(c)(5)(B)(ii)).
The Individualized Education Program (IEP). The IEP is the blueprint
for the education and related services that the LEA provides for a child with a
disability, together with the goals, academic assessment procedures, and placement
of the child (§614(d)). P.L. 108-446 maintains the general requirements for the IEP
but changes or deletes some requirements and adds some new requirements. P.L.
108-446 continues to require an articulation of the child’s current academic and
functional performance levels and a discussion of measurable annual goals. A notable
change is the elimination of the requirement for “benchmarks and short-term
objectives” for all children with disabilities68 except those who are the most severely
cognitively disabled69 (§614(d)(1)(A)(i)(I)(cc)). The IEP is to detail any
accommodations that the IEP team determines are necessary for measuring the
child’s achievement and functional performance on state and districtwide
assessments (§614(d)(1)(A)(i)(VI)(aa)). If the IEP determines that the child is to take
an alternative assessment rather than the regular state or districtwide assessments, the
IEP must explain why an alternative assessment is necessary and why that assessment
is appropriate (§614(d)(1)(A)(i)(VI)(bb)).70
Prior law required that the IEP contain a statement of “transition service needs”
beginning at age 14 and annually updated to ease and support the transition from the
IDEA program in public school to education, employment, and (when necessary)
independent living after public schooling ended.71 P.L. 108-446 changes the timing
of this requirement to “not later than the first IEP to be in effect when the child is 16”
and continues the requirement for annual updates (§614(d)(1)(A)(i)(VIII). P.L. 108-
446 adds a transition-services requirement for postsecondary goals for appropriate
education, training, employment, and independent living skills
(§614(d)(1)(A)(i)(VIII)(aa)).
68P.L. 105-17 §614(d)(1)(A)(ii).
69P.L. 108-446 refers to “children with disabilities who take alternate assessments aligned
to alternate achievement standards.” This provision presumably refers to those children with
the most severe cognitive disabilities that ESEA regulations permit to be assessed based on
alternative achievement standards for the purposes of determining adequate yearly progress
(AYP). In general, this group is to account for no more than 1% of all students tested. All
other children with disabilities are to be assessed on the same achievement standards as
other children (a key principle of No Child Left Behind), although some may be assessed
based on alternative assessments or based on assessments with accommodations.
70To follow ESEA requirements, these alternative assessments would still have to be aligned
with the same challenging achievement standards on which other children are assessed.
71P.L. 105-17 §614(d)(1)(A)(vii).
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Finally, P.L. 108-446 adds a rule of construction that no additional information
is required for the IEP beyond that explicitly required in §614 and that information
in one part of the IEP need not be contained in another part (§614(d)(1)(A)(ii)).
The IEP Team and the IEP Process. P.L. 108-446 maintains the general
composition of the IEP team, including the parent, one or more special education
teachers, one or more regular education teachers (if appropriate), and other LEA
representatives (§614(d)(1)(B)).72 P.L. 108-446 does make additions and alterations
to the IEP team requirements aimed at reducing paperwork and other burdens of the
IEP process and providing procedures for the IEPs of children with disabilities who
change LEAs during the school year.
P.L. 108-446 permits members of the IEP team to be excused from IEP
meetings if the parent and the LEA agree (§614(d)(1)(C)). If the meeting topic does
not deal with the member’s areas of concern, there are no further requirements. If the
meeting deals with the excused member’s areas, he or she must provide written input
to the parent and to the team. In all cases, the parent’s agreement or consent must be
obtained in writing.
P.L. 108-446 continues to require that each LEA have an IEP for each child with
a disability in place at the beginning of the school year (§614(d)(2)(A)). The Act adds
requirements for children who transfer from one school district to another during the
school year (§614(d)(2)(C)). For those children changing districts within a state, the
new LEA must provide “services comparable to those described in the previous IEP”
until it adopts the previous IEP or develops and implements a new IEP. For children
transferring between states, the new LEA must also continue comparable services
until it conducts an evaluation of the child (if the LEA determines it to be necessary)
and “develops a new IEP, if appropriate, that is consistent with Federal and State
law.” (§614(d)(2)(C)(i)). Both the old and new schools are required to “take
reasonable steps” to ensure that the child’s IEP, supporting documentation, and other
records are promptly transferred (§614(d)(2)(C)(ii)).
P.L. 108-446 makes certain revisions to expedite changes to the IEP. If the
parent and the LEA agree, changes to the IEP after the annual IEP meeting may be
made via a written document without holding an IEP meeting (§614(d)(3)(D)). In
addition, LEAs are encouraged to consolidate reevaluation meetings with IEP
meetings for other purposes if possible (§614(d)(3)(E)). Finally, changes to the IEP
may be made by amending it, rather than completely redrafting it (§614(d)(3)(F)).
P.L. 108-446 authorizes a multi-year demonstration (§614(d)(5)). The Secretary
of Education is authorized to approve demonstration proposals from up to 15 states.
These demonstrations would allow parents and LEAs to adopt IEPs covering up to
72For a child moving from the infants and toddlers program under Part C of IDEA, P.L.
108-446 provides that a representative of the Part C program (such as the program
coordinator), at the parent’s request, be invited to the initial IEP meeting “to assist with the
smooth transition of services” (§614(d)(1)(D)).
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three years that coincide with the child’s “natural transition points.”73 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 to determine if progress is
being made toward annual goals. More frequent reviews are required if sufficient
progress is not being made. Beginning in 2006 and annually thereafter, the Secretary
must report on the effectiveness of the demonstration programs.
Finally, P.L. 108-446 permits alternatives to physical meetings, such as video
conferencing and conference telephone calls. These alternatives can take the place
of physical IEP meetings and administrative meetings related to procedural
safeguards under §615 (such as scheduling and exchange of witness lists) (§614(f)).
Procedural Safeguards (Section 615)
Section 615 provides procedural safeguards for children with disabilities and
their parents. This section has been a continual source of controversy, especially the
provisions relating to the discipline of children with disabilities. The House and
Senate bills differed dramatically in their §615 language. The enacted version
contains some provisions from both the House and Senate versions but most closely
tracks the Senate version. The following is a brief discussion of the major changes
made in §615 by the new law.
Homeless Children. The requirement, found in §615(a), that state
educational agencies establish and maintain procedures to ensure procedural
safeguards regarding a free appropriate public education (FAPE) is the same as
previous law. Many of the types of procedures are also the same but several changes
have been made; notably, more detailed procedures have been added regarding the
appointment of an individual to act as a surrogate for parents in situations where the
child is a ward of the state or is an unaccompanied homeless youth. The state is
required to make reasonable efforts to ensure the assignment of a surrogate not more
than thirty days after there is a determination by the agency that the child needs a
surrogate (§615(b)).
Statute of Limitations Regarding Complaints. The types of procedural
safeguards required by §615(b) include an opportunity for any party to present a
complaint but provides that such complaint may only be presented concerning
violations that occurred not more than two years before the date the parent or public
agency knew or should have known about the alleged action. There are several
exceptions to this statute of limitations. First, if state law has an explicit time
limitation for presenting a complaint, that provision shall control. In addition, the
time requirement does not apply to a parent if the parent was prevented from
presenting the complaint due to specific misrepresentations by the LEA that it had
73These 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” §614(d)(5)(C).
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resolved the problem or the local educational agency withheld information from the
parent that was required to be provided under Part B (§615(b)(6)).
Due Process Complaint Notice. The due process procedures must require
that either party or the attorney representing a party provide a due process complaint
notice to the other party and forward a copy to the state educational agency (SEA).
This notice, found at §615(b)(7), must include the name, home address, and school
the child is attending as well as a description of the nature of the problem and a
proposed resolution. New provisions are added allowing available contact
information to be used for a homeless child. Another new provision requires that a
party may not have a due process hearing until the notice is filed.
There are further requirements for the due process complaint notice contained
in §615(c)(2). Generally, the due process complaint notice shall be deemed sufficient
unless the party receiving the notice notifies in writing both the hearing officer and
the other party that the receiving party believes the notice does not meet the
requirements of §615(b)(7). This notice must be provided within fifteen days of
receiving the complaint (§615(c)(2)(C)), and within five days of the receipt of this
notification, the hearing officer shall make a determination of whether the notice
meets the requirements of §615(b)(7) and immediately notify the parties in writing.
There are detailed requirements concerning the response to the complaint at
§615(c)(2)(B). The due process complaint may be amended only if the other party
consents in writing and is given the opportunity to resolve the complaint through the
resolution session or if the hearing officer grants permission not later than five days
before a due process hearing occurs.
Procedural Safeguards Notice. The procedural safeguards notice
requirements are amended to reduce the paperwork burden on schools. The new law
requires that a copy of the procedural safeguards available to the parents of a child
with a disability shall be given to the parents only one time a year except that a copy
shall also be given upon initial referral or parental request for evaluation, upon the
first occurrence of the filing of a complaint, and upon the request of a parent
(§615(d)(1)). The description of the contents of the procedural safeguards notice
generally tracks previous law except that there are additions relating to the
opportunity to resolve complaints, including the time period in which to make a
complaint, the opportunity for the agency to resolve the complaint, the availability
of mediation, and the time period in which to file civil actions (§615(d)(2)).
Mediation. The 1997 reauthorization of IDEA added provisions relating to the
mediation of disputes. The 2004 reauthorization kept much of the 1997 language
while adding subheadings. Two more significant changes are made, however. Under
the 1997 law, SEAs or LEAs could establish procedures to require a parent who
chose not to use mediation to meet with a disinterested party who could explain and
encourage the use of mediation. The new law does not allow the SEAs or LEAs to
“require” such meetings; rather, the SEAs or LEAs may establish procedures “to
offer” such meetings (§615(e)(2)(B)). Second, the 2004 law provides for a written,
legally binding, agreement if resolution is reached during mediation. This document
is (1) to state that all discussions are confidential and may not be used as evidence
in any subsequent due process or civil proceeding, (2) to be signed by both the parent
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and agency representative, and (3) to be enforceable in a state court of competent
jurisdiction or in U.S. district court (§615(e)(2)(F)).
Impartial Due Process Hearing. The cornerstone of the procedural
safeguards under IDEA is the impartial due process hearing which is available after
a complaint has been filed. The new law adds several provisions to the requirement.
For example, the opportunity for a due process hearing is extended not only to the
parents of a child with a disability but also to the local educational agency
(§615(f)(1)(A)).
Resolution Session. A new provision for a “resolution session” is added as
a requirement prior to a due process hearing. This preliminary meeting involves the
parents, the relevant members of the IEP team, and a representative of the local
educational agency who has decision-making authority. The session must be
convened within 15 days of receiving notice of the parent’s complaint. During the
resolution session, the parents of the child with a disability discuss their complaint
and the LEA is provided the opportunity to resolve the complaint. The LEA may not
include its attorney unless the parent is accompanied by an attorney. The resolution
session may be waived by the LEA and the parents in writing or if they agree to use
the mediation process. If the LEA has not resolved the problem within thirty days
from the receipt of the parents’ complaint, the due process hearing may occur and the
applicable time lines shall commence. If an agreement is reached at the resolution
session, the parties must execute a legally binding agreement signed by both parties
and which is legally enforceable in any state court or U.S. district court. A party may
void the agreement within three business days (§615(f)(1)(B)).
Hearing Officer Requirements. An IDEA hearing officer plays a key role
in the protection of procedural rights and the new law adds to the requirements for
this position. In addition to the previous requirement that the hearing officer not be
an employee of the SEA or LEA involved in the education or care of the child, the
new law adds that the hearing officer may not be a person who has a personal or
professional interest that conflicts with the person’s objectivity. The Senate report
notes that the committee does not intend this provision to exclude members of
professional associations or exclude special educators from other school districts
from serving as hearing officers if they meet the other qualifications.74 In addition,
the new law provides that the hearing officer must possess knowledge of the IDEA
statute, regulations and federal and state case law; possess the knowledge and ability
to conduct hearings in accordance with appropriate, standard legal practice; and
possess the knowledge and ability to render and write decisions in accordance with
appropriate, standard legal practice (§615(f)(3)(A)).
Subject Matter of Hearing. The new law specifically states that the party
requesting the due process hearing is not allowed to raise issues at the due process
hearing that were not raised in the due process complaint notice (§615(f)(3)(B)). In
addition, the decision of the hearing officer must be made on substantive grounds
based on a determination of whether the child with a disability received a free
appropriate public education (FAPE). However, there is an exception to this
74S.Rept. 185, 108th Cong., 1st Sess., 39 (2003).
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requirement. A hearing officer may find that a child with a disability did not receive
a free appropriate public education only if the procedural inadequacies impeded the
child’s right to FAPE, significantly impeded the parents’ opportunity to participate
in the decision-making process regarding the provision of FAPE, or caused a
deprivation of educational benefits. In addition, a hearing officer may order a LEA
to comply with the procedural safeguards of section 615 and, in addition, the
limitations regarding procedural inadequacies do not prevent a parent from filing a
complaint with the SEA.
The Senate report discussed this provision noting that there have been cases “in
which a hearing officer has found that a school denied FAPE to a child with a
disability based upon a mere procedural technicality, rather than an actual showing
that the child’s education was harmed by the procedural flaw.... The ramifications of
this are great when considering that such a finding can subject a school district to the
payment of attorneys’ fees.”75 However, the Senate report also observed that there are
procedural violations which can deny a child FAPE. “For example, a school’s failure
to give a parent access to initial evaluation information to make an informed and
timely decision about their child’s education can amount to a FAPE violation.”76 The
2004 reauthorization added exceptions to the requirement that decisions be made on
substantive grounds to address these concerns.
Statute of Limitations Regarding Requests for a Hearing. The 2004
reauthorization includes statutes of limitations in various sections. As previously
discussed Section 615(b) provides for a two-year statute of limitations regarding the
filing of a complaint. There is also a two-year statute of limitations regarding requests
for a hearing. The two years is from the date the parent or agency knew or should
have known about the alleged action. In addition, if the state has an explicit time
limitation for requesting a hearing, the state law on the subject shall prevail
(§615(f)(3)(C)). However, the statute of limitations provisions in §615(f)(3)(C) shall
not apply to a parent if the parent was prevented from requesting a hearing because
of specific misrepresentations by the LEA that it had resolved the problem, or the
LEA’s withholding of information that was required to be provided to the parent
(§615(f)(3)(D)).
Appeals. The 1997 reauthorization provided that if the due process hearing
was conducted by an LEA, it could be appealed to the SEA. The 2004 reauthorization
keeps this provision, adding subheadings (§615(g)).
Safeguards. Previous law contained a provision on safeguards that were
available to parties to a hearing, including the right to be accompanied and advised
by counsel, to present evidence and confront witnesses, and to a written or electronic
record. This section was substantively unchanged by the 2004 reauthorization
(§615(h)).
Administrative Procedures. The 1997 reauthorization contained a number
of provisions relating to what happens after the due process hearing. Decisions made
75Ibid., p. 40.
76Ibid., p. 41.
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in the hearing were to be final except that they could be appealed to the SEA, in
which case that decision would be final. However, any party had a right to bring a
civil action in state court or U.S. district court. These provisions continue in the 2004
reauthorization.
Statute of Limitations to Appeal to Court. The new law adds another
statute of limitations; the party bringing the action has ninety days from the date of
the hearing officer’s decision to appeal to a court, or if the state has an explicit time
limitation for bring such actions, the state law on the subject shall prevail
(§615(i)(2)(B)).
Attorneys’ Fees. As under previous law, a court, in its discretion, may award
reasonable attorneys’ fees as part of the costs to a prevailing party who is the parent
of a child with a disability (§615(i)(3)(B)). However, the 2004 reauthorization also
allows for attorneys’ fees against the attorney of a parent for a SEA or LEA who is
a prevailing party where the complaint is frivolous, unreasonable, or without
foundation or where the parents’ attorney continues to litigate after the litigation
clearly becomes frivolous, unreasonable, or without foundation (§615(i)(3)(B)(i)(II)).
In addition, attorneys’ fees may be awarded to a prevailing SEA or LEA against the
attorney of a parent or against the parent if the parent’s complaint or subsequent
cause of action is presented for an improper purpose such as to harass, cause
unnecessary delay or needlessly increase the cost of litigation (§615(i)(3)(B)(i)(III)).
These provisions are not applicable to the limitations on attorneys’ fees that affect the
District of Columbia77 (§615(i)(3)(B)(ii)).
The previous requirements for attorneys’ fees to be based on rates prevailing in
the community and the prohibition of the use of bonuses or multipliers are kept in the
new law as is the prohibition of attorneys’ fees and related costs if a written offer of
settlement is made and certain conditions apply (§615(i)(3)(C) and (D)). The new law
also retains the exception to the provision regarding settlement contained in the
previous law allowing attorneys’ fees and related costs to a parent who is a prevailing
party and who was substantially justified in rejecting the settlement offer
(§615(i)(3)(E)). The 2004 reauthorization adds a new provision essentially
prohibiting attorneys’ fees for the resolution session. Previous law provided for a
reduction in the amount of attorneys’ fees when the court finds that the parent
unreasonably protracted the final resolution of the controversy, the amount
unreasonably exceeds the hourly rate prevailing in the community, the time spent was
excessive or the attorney did not provide the appropriate information in the notice of
the complaint. The new law keeps these provisions and also allows a court to reduce
attorneys’ fees if the parents’ attorney unreasonably protracts the final resolution of
the controversy (§615(i)(3)(F)).
Stay Put. The 2004 reauthorization keeps the stay put provision at §615(j).
This provision states that except as provided in §615(k)(4) (discussed below) or if the
SEA or LEA and the parents agree, a child with a disability remains in his or her
current education placement during the pendency of §615 proceedings.
77See §327, District of Columbia Appropriations Act, 2005.
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Disciplinary Procedures. Disciplinary provisions relating to children with
disabilities were a contentious issue during the 1997 reauthorization, and they
remained a contentious issue in the 2004 reauthorization. Schools have often argued
that the discipline provisions for children with disabilities should be the same as
those for children without disabilities, and that the provisions of IDEA regarding
discipline created too much of a paperwork burden. Advocates for children with
disabilities, on the other hand, often argued that IDEA was enacted in 1975, in part,
to prevent schools from unilaterally denying services to children with disabilities
when they misbehaved, that due process procedures are necessary to prevent this
denial of education, and that children with disabilities should not be punished for
behavior that was caused by their disability. Although the 2004 reauthorization made
significant changes to §615(k), it did keep many of the provisions of the previous
law, including the concept of a manifestation determination. A manifestation
determination, as discussed in more detail below, is a procedure to determine whether
or not the behavior of a child with a disability was caused by a child’s disability.
Suspensions and Conduct That is Not a Manifestation of a
Disability. New provisions were added by the 2004 reauthorization concerning the
authority of school personnel. School personnel may 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
(§615(k)(1)(A)). The authority of school personnel to remove a child to another
placement or suspension for not more than ten school days is retained from previous
law (§615(k)(1)(B)). Also kept from previous law is the provision that allows school
personnel to apply the same disciplinary procedures to children with disabilities as
children without disabilities if the violation of a school code of conduct is not a
manifestation of the child’s disability, except that educational services may not cease
(§615(k)(1)(C)).
Educational Services. The 2004 reauthorization adds a section on the
services which must be provided when a child with a disability is removed from his
or her current placement, whether or not the behavior that triggered the move is
determined to be a manifestation of the child’s disability. Under the new law,
children with disabilities must continue to receive educational services that enable
the child to continue to participate in the general education curriculum and to
progress toward meeting his or her IEP goals. In addition, children with disabilities
must receive, as appropriate, a functional behavior assessment, behavioral
intervention services and modifications that are designed to address the behavior
violation (§615(k)(1)(D)).
Manifestation Determination. The concept of a manifestation determination
originated in policy interpretations of IDEA by the Department of Education.78 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 1997 reauthorization. Although the House- passed bill would have
78OSEP Memorandum 95-16, 22 Individuals with Disabilities Education Law Report
(IDELR) 531 (Apr. 26, 1995).
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deleted the concept, Congress kept the manifestation determination in the 2004 law
but attempted to clarify its application.
The 2004 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 relevant 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. This framework does not apply, however, to
situations involving the school personnel’s authority to remove a child with a
disability for not more than ten school days (§615(k)(1)(E)).
This current manifestation determination differs from previous law, which had
the manifestation determination review conducted by the IEP team and other
qualified personnel. The previous law provided that the IEP team may determine that
the behavior of the child was not a manifestation of the child’s disability only if the
IEP team considered certain listed factors and then determined that the child’s IEP
and placement were appropriate and special education services, supplementary aids
and services, and behavior intervention strategies were provided consistent with the
child’s IEP and placement. In addition, under previous law, the IEP team had to
determine that the child’s disability did not impair the ability of the child to
understand the impact and consequences of the behavior and that the child’s
disability did not impair the ability of the child to control the behavior (P.L. 105-17,
§615(k)(4)).
Under the 2004 reauthorization, if the LEA, the parent, and relevant members
of the IEP team determine that the conduct was a manifestation of the child’s
disability, the IEP team must conduct a functional behavior assessment and
implement a behavior intervention plan for the child if this has not been done before.
If there was a behavioral intervention plan, it shall be reviewed and modified as
necessary to address the behavior. 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 of the
behavioral intervention plan (§615(k)(1)(F)).
Interim Alternative Educational Settings. As in previous law, school
personnel may remove a student with a disability to an interim alternative education
setting regardless of whether the behavior is a manifestation of the disability in
certain circumstances and for a limited amount of time. Under previous law, the time
limitation was not more than 45 days; under the new law the time limitation is for not
more than 45 school days. The regulations promulgated under the 1997
reauthorization defined “day” as meaning calendar day unless otherwise indicated.
“School day” is defined in the regulation as any day that students are in attendance
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at school for instructional purposes.79 Thus the new law would appear to add
additional time to the limit on a child’s placement in an interim alternative setting.
Both the old and new laws permitted this placement in an interim alternative
educational setting if a child carries or possesses a weapon to or at school or at a
school function, or if a child knowingly possesses or uses illegal drugs or sells or
solicits the sale of a controlled substance while at school or on school premises or at
a school function. The 2004 reauthorization adds another situation to the school
personnel’s authority: where a child has inflicted serious bodily injury upon another
person while at school, on school premises, or at a school function (§615(k)(1)(G)).
P.L. 108-446 also adds a notification provision. Not later than the date on which
the decision to take disciplinary action is made, the LEA must notify the parents of
the decision and of the relevant procedural safeguards (§615(k)(1)(H)).
Both previous and new law provide that the determination of the interim
alternative educational setting shall be determined by the IEP team. However, in the
1997 law, this applied only to situations involving weapons or drugs. The 2004
reauthorization includes situations where the child’s behavior is determined not to
be a manifestation of the child’s disability and school personnel seek to change the
child’s placement, and situations involving the infliction of serious bodily injury
(§615(k)(2)).
Appeals. The 2004 reauthorization allows a parent who disagrees with any
decision regarding placement or the manifestation determination, or a LEA that
believes that maintaining the current placement of the child is substantially likely to
injure the child or others, to request a hearing (§615(k)(3)(A)). The new law
specifically delineates the authority of a hearing officer. First, a hearing officer is to
hear and make a determination regarding any hearings requested pursuant to
§615(k)(3)(A). In making this determination, the hearing officer may order a change
of placement which may include:
! returning a child with a disability to the placement from which he or she was
removed, and
! ordering a change in placement to an appropriate interim alternative
educational setting for not more than 45 school days if the hearing officer
determines that maintaining the current placement of the child is substantially
likely to result in injury to the child or others.
The new law also changes 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 §615(k)(3), the child is to remain in the interim alternative educational
setting pending the 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 unless the school and the parents
agreed or a hearing officer rendered a decision (P.L. 105-17, §615(k)(7)). The new
law requires that the SEA or LEA must arrange for an expedited hearing that must
7934 C.F.R. §300.9 (2002).
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occur within 20 school days from when the hearing is requested. The hearing
determination must be made within ten school days after the hearing (§615(k)(4)).
Protections for Children Not Yet Eligible for Special Education and
Related Services. The 2004 reauthorization keeps much of the previous law
regarding the protections afforded children who have not yet been identified as
eligible for special education. However, several changes were made regarding when
a LEA is deemed to have knowledge that a child is a child with a disability.
Generally, a 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 supervisory personnel (§615(k)(5)).
Under previous law, a LEA was deemed to have knowledge that a child is a child
with a disability if the behavior or performance of the child demonstrated the need
for such services. This section was deleted from P.L. 108-446. The Senate report
stated that this provision was deleted because a teacher could make an isolated
comment to another teacher expressing concern about behavior and that could trigger
the protections.80
The 2004 reauthorization also contains a new exception stating that a LEA shall
not be deemed to have knowledge that a child is a child with a disability if the parent
of the child has not allowed an evaluation of the child, or has refused services, or the
child has been evaluated and it was determined that the child was not a child with a
disability (§615(k)(5)(C)).
The provisions of previous law regarding the conditions that apply if the LEA
has no basis of knowledge that a child is a child with a disability were kept by the
2004 reauthorization. If a LEA does not have such knowledge, the child may be
subjected to disciplinary measures that are applied to children without disabilities
who engage in similar behaviors.
Referral to and Action by Law Enforcement and Judicial
Authorities. The 2004 reauthorization keeps the previous requirements concerning
referral to law enforcement authorities. Nothing in Part B is to be construed to
prohibit an agency from reporting a crime committed by a child with a disability to
appropriate authorities. Like previous law, an agency reporting a crime committed
by a child with a disability shall ensure that copies of certain records are transmitted
(§615(k)(6)).
80S.Rept. 185, 108th Cong., 1st Sess., 45-46 (2003).
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Definitions. The definitions of “controlled substance,” “illegal drug,” and
“weapon” are the same as in the 1997 reauthorization. The previous definition of
substantial evidence is deleted and a new definition of “serious bodily injury” is
added. Serious bodily injury is defined as having the meaning given in 18 U.S.C.
§1365 (h)(3), which states: “the term ‘serious bodily injury’ means bodily injury
which involves — (A) a substantial risk of death; (B) extreme physical pain; (C)
protracted and obvious disfigurement; or (D) protracted loss or impairment of the
function of a bodily member, organ, or mental faculty” (§615(k)(7)).
Rule of Construction. The 1997 reauthorization provided that nothing in this
title shall be construed to restrict or limit rights under the Constitution, the
Americans with Disabilities Act, title V of the Rehabilitation Act of 1973 or other
federal laws protecting the rights of children with disabilities. The 2004
reauthorization kept this language except that instead of “nothing in this title,” the
new law reads “nothing in this part” (§615(l)).
Transfer of Parental Rights at the Age of Majority. P.L. 108-446 keeps
the same language as in previous law. Generally, a state may provide that when a
child with a disability reaches the state age of majority, the state may transfer certain
rights to the child (§615(m)).
Electronic Mail. The 2004 reauthorization adds a new provision allowing a
parent of a child with a disability to receive required notices by electronic mail if the
agency makes such an option available (§615(n)).
Separate Complaint. The new law adds a provision stating that nothing in
§615 shall be construed to preclude a parent from filing a separate due process
complaint on an issue separate from a due process complaint already filed (§615(o)).
Monitoring, Technical Assistance, and Enforcement
(Section 616)
Federal and State Monitoring. Major changes were made to Section 616
by P.L. 108-446. Generally, Congress determined that the previous law on
monitoring focused too much on compliance with procedures and in the 2004
reauthorization, shifted the emphasis to focus on student performance.81 Under the
new law, the Secretary of Education is to monitor implementation of Part B by
oversight of the general supervision by the states and by the state performance plans.
The Secretary is to enforce Part B as described in §616(e) and to require states to
monitor implementation by LEAs and to enforce Part B. Under P.L. 108-446, the
primary focus of federal and state monitoring activities is to be on improving
educational results and functional outcomes for children with disabilities and
ensuring that states meet the program requirements (§616(a)(2)). The new law lists
certain priority areas for monitoring which are to be monitored using quantifiable
indicators. The priority areas are:
81 See S.Rept. 185, 108th Cong., 1st Sess., 46 (2003); H.Rept. 77, 108th Cong., 1st Sess., 120
(2003).
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! the provision of a free appropriate public education in the least restrictive
environment;
! state exercise of general supervisory authority, including child find, effective
monitoring, the use of resolution sessions, mediation, voluntary binding
arbitration,82 and a system of transition services; and
! disproportionate representation of racial and ethnic groups in special
education and related services to the extent the representation is the result of
inappropriate identification (§616(a)(3)).
In addition to these priority areas, the Secretary of Education is also required to
consider other relevant information and data (§616(a)(4)).
The conference report emphasizes the rigorous nature of the Secretary’s
monitoring. “The Secretary is directed to monitor states using rigorous targets and
to request such information from states and stakeholders as is necessary to implement
the purposes of IDEA, including the use of on-site monitoring visits and student file
reviews, and to enforce the requirements of the IDEA.” The Secretary is also strongly
encouraged “to review all relevant and publicly available data, including the data
gathered under Section 618, related to the targets and priority areas established for
reviewing the efforts of States and local educational agencies to implement the
requirements and purposes of IDEA. The Secretary is also authorized to use
qualitative measures to inform his decision-making process in determining the efforts
of the State or LEA in implementing IDEA.”83
State Performance Plans. P.L. 108-446 requires that states have in place
a performance plan evaluating the state’s efforts to implement the requirements and
purposes of Part B and stating how such implementation will be improved. This plan
must be in place not later than one year after the date of enactment which was on
December 3, 2004 (§616(b)(1)(A)). Each state must submit its performance plan to
the Secretary of Education for approval (§616(b)(1)(B)). Each state is to review its
performance plan at least once every six years and submit amendments to the
Secretary of Education (§616(b)(1)(C)).
The 2004 reauthorization requires that as part of the state performance plan,
states shall establish measurable and rigorous targets for indicators established under
the priority areas described above (§616(b)(2)(A)). Each state is required to collect
“valid and reliable” information as needed to report annually to the Secretary.
However, nothing in the title is to be construed to authorize a nationwide database
of personally identifiable information (§616(b)(2)(B)).
The new law requires the states to use the targets established in their
performance plan and the priority areas to analyze the performance of each LEA
(§616(b)(2)(C)(i)). The state is to report annually to the public on the LEAs’
performance. In addition, the state’s performance plan is to be made available
through public means, including availability on the state educational agency’s
82The reference to “voluntary binding arbitration” appears to be a reference to a provision
that had been in the House version of H.R. 1350 but was dropped in conference.
83H.Conf.Rept. 779, 108th Cong., 2d Sess., 232 (2004).
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website, distribution to the media, and distribution through public agencies. The state
is to report annually to the Secretary on its performance (§616(b)(2)(C)(ii)).
However, the state shall not report to the Secretary, or the public, performance
information that would result in the disclosure of personally identifiable information
about individual children. In addition, if the available data are insufficient to yield
statistically reliable information, they shall not be reported (§616(b)(2)(C)(iii)).
The conference report discussed the state performance plans. “The Conferees
believe that accurate decision making with regard to enforcement of the IDEA is
required in order to: (1) ensure that federal dollars are being spent productively on
education, and, (2) to ensure that monitoring and enforcement is administered fairly.
It is our expectation that state performance plans, indicators, and targets will be
developed with broad stakeholder input and public dissemination.”84
Approval Process. P.L. 108-446 provides that the Secretary of Education is
to review each performance plan. The plan is considered to be approved unless the
Secretary, within 120 days of receipt of the plan, makes a written determination that
the plan does not meet the requirements of §616, including the specific provisions
described as part of the state’s performance plan (§616(c)(1)). The Secretary may not
finally disapprove a plan until after the state is given notice and an opportunity for
a hearing (§616(c)(2)). This notification must cite the specific provisions in the plan
that do not meet the requirements and request additional information regarding the
provisions in question (§616(c)(3)). If the state responds to this notification within
30 days after receipt and resubmits the plan with the requested information, the
Secretary must approve or disapprove of the plan. This action by the Secretary may
be either 30 days after the plan is resubmitted or after the original 120-day period,
whichever is later (§616(c)(4)). If the state does not respond to the Secretary’s
notification within 30 days of receipt, the plan is considered disapproved
(§616(c)(5)).
Secretary’s Review and Determination. The 2004 reauthorization
requires the Secretary of Education to annually review the state performance report.
(§616(d)(1)) Based on this report, information from monitoring visits, or any other
public information, the Secretary shall determine whether the state:
! meets the requirements and purposes of Part B;
! needs assistance in implementing the requirements of Part B;
! needs intervention in implementing the requirements of Part B; or
! needs substantial intervention in implementing the requirements of Part B.
If the Secretary makes a determination regarding intervention or substantial
intervention, the Secretary must provide notice and the opportunity for a hearing
(§616(d)(2)).
Enforcement. Under P.L. 108-446, if the Secretary makes a determination
other than that the state meets the requirements and purposes of Part B, the Secretary
is required to take certain actions (§616(e)). The conference report recommended
84 H.Conf.Rept. 779, 108th Cong., 2d Sess., 232 (2004).
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“that the Secretary diligently investigate any root causes prior to selecting
enforcement options, so that enforcement options are appropriately selected and have
the greatest likelihood in yielding improvement in that state. However, investigations
must not unduly delay the enforcement action.”85
Assistance in Implementing Requirements. If the Secretary determines
that the state needs assistance in implementing the requirements of Part B for two
consecutive years, the Secretary must take one or more of the following actions:
! advise the state of available sources of technical assistance which may include
several entities, such as the Office of Special Education Programs, and require
the state to work with appropriate entities;
! direct the use of state-level funds under §611(e) where the state needs
assistance;
! identify the state as a high-risk grantee and impose special conditions on the
state’s Part B grant (§616(e)(1)).
Needing Intervention. If the Secretary determines, for three or more
consecutive years, that a state needs intervention in implementing the requirements
of Part B, the Secretary may take any of the actions listed regarding assistance in
implementing regulations. In addition, the Secretary shall take one or more of the
following actions:
! requiring the state to prepare a corrective action plan or improvement plan if
the Secretary determines that the state should be able to correct the problems
within one year;
! requiring the state to enter into a compliance agreement under Section 457 of
the General Education Provisions Act if the Secretary believes that the state
cannot correct the problem within one year;
! withholding not less than 20% and not more than 50% of the state’s funds
under §611(e)86 for each year the Secretary determines a state needs
intervention until the Secretary determines the state has sufficiently addressed
the areas needing intervention;
! seeking to recover funds under section 452 of the General Education
Provisions Act;
! withholding any further payments to the state, in whole or in part; or
! referring the matter for appropriate enforcement action, which may include a
referral to the Department of Justice (§616(e)(2)).
Needing Substantial Intervention. Any time the Secretary determines that
a state needs substantial intervention in implementing the requirements of Part B or
that there is a substantial failure to comply with any condition of eligibility for a SEA
or LEA the Secretary shall take one or more that following actions:
! recovering funds under Section 452 of the General Education Provisions Act;
85H.Conf.Rept. 779, 108th Cong., 2d Sess., 232 (2004).
86See the above discussion of funds reserved from states’ grants for administration and other
state-level activities.
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! withholding any further payments to the state under part B, either in whole or
in part; or
! referring the case to the Office of the Inspector General at the Department of
Education;
! referring the matter for appropriate enforcement action, which may include a
referral to the Department of Justice (§616(e)(3)).
Opportunity for a Hearing. Before any funds are withheld under section
616, the Secretary must provide reasonable notice and a opportunity for a hearing to
the SEA involved. The Secretary may suspend payments, and/or suspend the
authority of the recipient to obligate funds under Part B after the recipient has been
given reasonable notice and an opportunity to show cause why future payments or
obligation authority should not be suspended (§616(e)(4)).
Report to Congress. The Secretary of Education must report to the House
Committee on Education and the Workforce and the Senate Committee on Health,
Education, Labor, and Pensions within thirty days of taking enforcement action. The
report must include the specific action taken and the reasons for the action
(§616(e)(5)).
Nature of the Withholding. If the Secretary withholds further payments due
to the need for intervention or substantial intervention, the Secretary may determine
that the withholding will be limited to programs or projects, or portions of these
programs or projects, or that the SEA shall not make further payments under part B
to specified state agencies or LEAs. Until the Secretary is satisfied that the situation
has been substantially rectified, payments to the state must be withheld in whole or
in part and payments by the SEA shall be limited to state agencies and LEAs that did
not cause or were not involved in the situation leading to the Secretary’s
determination (§616(e)(6)).
Public Attention. If a state receives notice from the Secretary that the state
needs intervention or substantial intervention in implementing the requirements of
the part, the state must take measures to bring this information to the attention of the
public (§616(e)(7)).
Judicial Review. If a state is dissatisfied with the Secretary’s action
concerning the state’s eligibility under §612, the state may, not later than sixty days
after the notice of such action, file a petition for review with the U.S. court of appeals
in the state’s circuit. The clerk of the court must transmit a copy of the petition to the
Secretary and the Secretary must file the record of the proceedings which formed the
basis of the Secretary’s action (§616(e)(8)(A)).
When a petition is filed, the court has jurisdiction to affirm or set aside the
Secretary’s actions in whole or in part. The court’s judgment is subject to review by
the Supreme Court (§616(e)(8)(B)). The Secretary’s findings of fact, if supported by
substantial evidence, shall be conclusive but the court may remand for further
evidence. The Secretary may make new or modified findings of fact and may modify
the previous action (§616(e)(8)(B)-(C)).
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State Enforcement. P.L. 108-446 requires that if a state agency determines
that a LEA is not meeting the requirements of Part B, the SEA shall prohibit the LEA
from reducing the LEA’s maintenance of effort under §613(a)(2)(C)87 (§616(f)).
Rule of Construction. The 2004 reauthorization states that the provisions of
§616 do not restrict the Secretary from utilizing authority under the General
Education Provisions Act to monitor and enforce IDEA (§616(g)).
Divided State Agency Responsibility. In some states, when children with
disabilities are incarcerated in adult prisons, the responsibility for complying with
IDEA is assigned to a public agency other than the SEA. In this situation, P.L. 108-
446 provides that where the Secretary finds that the failure to comply substantially
with the provisions of this part is related to a failure by the public agency, the
Secretary shall take appropriate corrective action. However, any reduction or
withholding of payments to the state must be proportionate and any withholding must
be limited to the specific agency responsible for the failure to comply (§616(h)).
Data Capacity and Technical Assistance Review. P.L. 108-466 requires
the Secretary to review the data collection and analysis capacity of the state to ensure
that the necessary data and information are collected, analyzed, and accurately
reported to the Secretary. The Secretary is also required to provide technical
assistance, where needed, to improve the capacity of states to meet the data collection
requirements (§616(i)).
Administration (Section 617)
Secretary’s Responsibilities. P.L. 108-446, like the 1997 reauthorization,
provides that the Secretary shall cooperate with a state and furnish technical
assistance to a state relating to the education of children with disabilities and carrying
out Part B of IDEA (§617(a)).
Prohibition Against Federal Mandates, Direction, or Control. The
2004 reauthorization specifically states that nothing in IDEA is to be construed to
authorize an officer or employee of the federal government to “mandate, direct, or
control” a state, LEA or “school’s specific instructional content, academic
achievement standards and assessments, curriculum, or program of instruction”
(§617(b)).88
Confidentiality. The provision on confidentiality is essentially the same in
both the 1997 and 2004 reauthorizations. The Secretary must take appropriate action
to ensure the protection of the confidentiality of any personally identifiable data,
information and records collected or maintained by the Secretary, SEA or LEA
(§617(c)).
87For further information, see the above discussion on exceptions to local MOE under local
educational agency eligibility.
88Similar prohibitions are contained in the Department of Education Organization Act (20
U.S.C. §3403(b)) and the General Education Provisions Act (GEPA, 20 U.S.C. §1232a).
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Personnel. In both the old and new law the Secretary is authorized to hire
qualified personnel (§617(d)).
Model Forms. P.L. 108-446 adds a provision relating to model forms. The
Secretary is required to publish and disseminate widely to states, LEAs and parent
and community training and information centers a model IEP form, a model
individualized family service plan (IFSP) form, a model form of the notice of
procedural safeguards described in §615(d), and a model form of the prior written
notice requirement. These model forms are to be published and disseminated not later
than the date that the Secretary publishes final regulations (§617(e)).
Program Information (Section 618)
The 2004 reauthorization, like the 1997 reauthorization, requires states receiving
assistance and the Secretary of the Interior to provide certain data to the Secretary of
Education. P.L. 108-446 adds that the data will also be made available to the public.
In addition, the information required to be provided is expanded from previous law.
Generally, the new law adds requirements for information on children who have
limited English proficiency, and on gender, and increases the requirements for
information relating to disciplinary procedures. A new provision is added requiring
that these data shall be publicly reported in a manner that does not result in the
disclosure of data identifiable to individual children. A new provision also is added
allowing the Secretary to provide technical assistance (§618).
Preschool Grants (Section 619)
Section 619 of IDEA authorizes state grants to serve children with disabilities
ages 3 to 5 (and in some cases younger children) if the state qualifies for the Part B
grants-to-states program (discussed above) and makes FAPE available to all children
with disabilities ages 3 to 5. Currently all states qualify for and receive IDEA
preschool grants.
P.L. 108-446 makes very few changes to §619.89 The only apparent substantive
changes were to add two additional permitted state-level activities regarding early
intervention services for children with disabilities who had received services under
the Part C infants and toddlers program and are of an age that they are eligible for
services under §619, and regarding “service coordination or case management for
families who receive services under Part C” (§619(f)(5) and (6)).
Part C — Infants and Toddlers with Disabilities
Part C of IDEA authorizes grants to states to develop and maintain early
intervention programs for infants and toddlers with disabilities. The IDEA infants
89P.L. 108-446 removes a requirement to include transition funding for preschool programs
for the outlying areas in their FY1998 allotment, since the 1997 IDEA amendments (P.L.
105-17, §619(c)(4)) eliminated the authority for them to participate in this grant programs.
The removal of this provision would appear to have no impact.
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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)).
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 children receiving Part C early
intervention services to extend those services until they are 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 (described above).
P.L. 108-446 has a series of requirements for a state policy to extend Part C
services (§635(c)(2)), including:
! 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; and
! Program educational components promoting school readiness and providing
pre-literacy, language, and numeracy skills.
P.L. 108-446 clarifies that services provided under extended Part C programs do not
obligate the state to provide FAPE to children who are eligible for the preschool
program under section 619 (for whom states are obligated to provide FAPE)
(§635(c)(5)). In addition, the Act requires the Secretary of Education, once Part C
appropriations exceed $460 million,90 to reserve 15% of the appropriations for state
incentive grants to states implementing extended Part C services (§643(e)).
P.L. 108-446 makes other changes and additions to Part C, including:
! The addition of registered dietitians91 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
90FY2005 Part C appropriations are about $441 million.
91Nutritionists have been removed from the list.
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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));
! Expansion of the requirement for an interagency agreement between the Part
C lead agency and other relevant public agencies to ensure financing and
provision of Part C services (§640(b));92
! Elimination of the Federal Interagency Coordinating Council (P.L. 105-17
§644);93 and
! Authorization of “such sums as may be necessary” for FY2005-FY2010 for
carrying out Part C.
Part D — National Activities to Improve Education of
Children with Disabilities
Part D authorizes various activities aimed at improving the education of children
with disabilities, including improved professional development, research and
evaluation, technical assistance, demonstrations, and dissemination of information.
P.L. 108-446 significantly changes and reorganizes Part D.94 Among other things,
P.L. 108-446 eliminates the authorization for state program improvement grants
under the prior law.95 P.L. 108-446 now authorizes state personnel development
grants aimed at assisting SEAs to reform and improve their personnel preparation and
professional development systems (Subpart 1). These grants are currently authorized
to be competitive. Once appropriation for the program reaches $100 million, a
formula grant will be initiated (§651(c) and (d)).96
Subpart 2 of Part D authorizes additional grant programs. In addition to SEAs,
other entities, such as LEAs, charter schools, and institutions of higher education,
may apply for grants. These grants deal with:
! Personnel development (§662),
! Technical assistance, demonstration projects, dissemination, and
implementation of “scientifically based” research (§663),
92P.L. 108-446 retains the requirement that the statewide system established under Part C
include “formal interagency agreements that define the financial responsibility of each
agency for paying for early intervention services” (§635(a)(10)(F)).
93See §304 of Title III (Miscellaneous Provisions) of P.L. 108-446.
94Since this report concentrates on changes made to Part B of IDEA, it provides only an
overview of Part D changes.
95P.L. 105-17 Subpart 1 of Part D.
96FY2005 funding for Subpart 1 is about $51 million.
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! Studies and evaluations (§664),97 and
! Activities to “support safe learning environments” (§665).
Subpart 3 continues to authorize parent training and information centers (§671),
community parent resource centers (§672), and technical assistance for the parent
centers (§673). These programs help prepare parents to exercise their rights under
IDEA.98
Section 674 deals with technology, media services, and instructional materials.
It authorizes projects for technology development, demonstration, and use (§674(a)).
P.L. 108-446 makes some changes in the Secretary’s authority to support educational
media services. Under the prior law, these services were to be “designed to be of
educational value to children with disabilities” (P.L. 105-17 §687(c)(1)). P.L. 108-
446 adds that these services are “designed to be of educational value in the
classroom setting to children with disabilities” (§674(c)(1)(A), emphasis added).
The prior law (after FY2001) permitted captioning of educational, news, and
informational television, videos, or materials (P.L. 105-17 §687(c)(2)). P.L. 108-446
permits captioning of television, videos, and other materials that are “appropriate for
use in the classroom setting” and permits such captioning for news only through
September 30, 2006” (§674(c)(1)(B)).
Section 674(e) requires the Secretary of Education to create and support a
national instructional materials access center through the American Printing House
for the Blind. This center is to catalog “printed instructional material prepared in the
National Instructional Materials Accessibility Standard” (which the Secretary is to
establish), provide access to printed material for blind or other persons with print
disabilities, and establish procedures to prevent against copyright infringement.
Subpart 4 contains general provisions for Part D. Among these is the
requirement that the Secretary create a comprehensive plan for carrying out activities
under Subparts 2 and 3 (§681).
Title II — National Center for Special Education
Research
Title II of P.L. 108-446 amends the Education Sciences Reform Act of 2002 (20
U.S.C. §9501 et seq.)99 to establish the National Center for Special Education
Research. Headed by a commissioner of special education research (§176), the center
is to sponsor research on the needs of infants and toddlers with disabilities and on
97Under P.L. 105-17, these studies and evaluations were funded from funds set-aside from
Part B appropriations. Under P.L. 108-446, appropriations for these activities will have to
be made under a separate authority provided in §667.
98These activities were authorized under §682, §683, and §684 of P.L. 105-17.
99Among other things, the Education Sciences Reform Act created the National Institute of
Education Sciences.
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improving IDEA services as well as to evaluate the implementation and effectiveness
of IDEA (§175).
Title III — Miscellaneous Provisions
Title III of P.L. 108-446 contains miscellaneous provisions, such as the effective
dates, provisions for an orderly transition from the previous law to the new law,
technical amendments to other laws, and an amendment to copyright law with respect
to the National Instructional Materials Access Center (discussed above).
Section 302 provides for the effective dates of the Act. Most provisions of the
Act (i.e., Parts A (except for parts of the definition of “Highly Qualified”), B, C and
Subpart 1 of Part D) go into effect on July 1, 2005. The remaining subparts of Part
D take effect on the date of enactment (December 3, 2004)