The Individuals with Disabilities Education
Act (IDEA): Statutory Provisions and Recent
Legal Issues
Nancy Lee Jones
Legislative Attorney
January 11, 2010
Congressional Research Service
7-5700
www.crs.gov
R40690
CRS Report for Congress
P
repared for Members and Committees of Congress
IDEA: Statutory Provisions and Legal Issues
Summary
The Individuals with Disabilities Education Act (IDEA) is the major federal statute for the
education of children with disabilities. IDEA both authorizes federal funding for special
education and related services and, for states that accept these funds, sets out principles under
which special education and related services are to be provided. The requirements are detailed,
especially when the regulatory interpretations are considered, and have been the subject of
numerous judicial decisions. The key concept in IDEA is the requirement for the provision of a
free appropriate public education (FAPE) for children with disabilities. In order to implement
FAPE, IDEA requires that each child with a disability have an individualized education program.
Children with disabilities may also receive related services and must receive their education in the
least restrictive environment.
IDEA was originally enacted to respond to situations where children with disabilities were being
excluded from school without any statutory recourse. Section 615 of IDEA provides detailed
procedural safeguards for children with disabilities and their parents. Procedural safeguards are
provisions protecting the rights of parents and children with disabilities regarding a free
appropriate public education (FAPE) and include notice of rights, mediation, resolution sessions,
and due process procedures. Section 615 has been a continual source of controversy, especially
the provisions relating to the discipline of children with disabilities. IDEA also provides for
attorneys’ fees in some situations, but the Supreme Court has found that parents are not entitled to
expert witness fees.
Congressional Research Service
IDEA: Statutory Provisions and Legal Issues
Contents
Introduction ................................................................................................................................ 1
Definitions .................................................................................................................................. 2
Overview .............................................................................................................................. 2
Child with a Disability .......................................................................................................... 3
Highly Qualified Teacher ...................................................................................................... 3
Free Appropriate Public Education (FAPE) ................................................................................. 4
Statutory Language ............................................................................................................... 4
Judicial Interpretations .......................................................................................................... 4
The Individualized Education Program (IEP) .............................................................................. 5
Related Services.......................................................................................................................... 6
Educational Placement ................................................................................................................ 7
Least Restrictive Environment .............................................................................................. 7
Private Schools ..................................................................................................................... 8
Procedural Safeguards and Discipline.......................................................................................... 9
Statutory Overview ............................................................................................................... 9
Due Process Complaint ....................................................................................................... 10
Resolution Sessions and Mediation ..................................................................................... 10
Due Process Hearings ......................................................................................................... 10
Disciplinary Procedures ...................................................................................................... 11
Burden of Proof .................................................................................................................. 12
Parental Rights.................................................................................................................... 12
Seclusion and Restraint ............................................................................................................. 13
Attorneys’ Fees ......................................................................................................................... 14
Expert Witness Fees .................................................................................................................. 14
Contacts
Author Contact Information ...................................................................................................... 16
Congressional Research Service
IDEA: Statutory Provisions and Legal Issues
Introduction
The Individuals with Disabilities Education Act (IDEA)1 is the major federal statute for the
education of children with disabilities.2 IDEA both authorizes federal funding for special
education3 and related services4 and, for states that accept these funds,5 sets out principles under
which special education and related services are to be provided. The requirements are detailed,
especially when the regulatory interpretations are considered. The major principles include
requirements that
• states and school districts make available a free appropriate public education
(FAPE)6 to all children with disabilities, generally between the ages of 3 and 21.
States and school districts identify, locate, and evaluate all children with
disabilities, regardless of the severity of their disability, to determine which
children are eligible for special education and related services.
• each child receiving services has an individual education program (IEP) spelling
out the specific special education and related services to be provided to meet his
or her needs. The parent must be a partner in planning and overseeing the child’s
special education and related services as a member of the IEP team.
• “To the maximum extent appropriate,” children with disabilities must be
educated with children who are not disabled; and states and school districts
provide procedural safeguards to children with disabilities and their parents,
including a right to a due process hearing, the right to appeal to federal district
court and, in some cases, the right to receive attorneys’ fees.
1 20 U.S.C. §1400 et seq.
2 Other federal statutes that affect the education of children with disabilities are Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. §794, and the Americans with Disabilities Act (ADA), 42 U.S.C. §12101 et seq. For a discussion of
these statutes and the education of children with disabilities see CRS Report R40123, Education of Individuals with
Disabilities: The Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the
Americans with Disabilities Act (ADA), by Nancy Lee Jones and Carol J. Toland. Several other statutes may also be
significant to IDEA. See e.g., The No Child Left Behind Act, P.L. 107-110, discussed in CRS Report RL33749, The No
Child Left Behind Act: An Overview of Reauthorization Issues for the 111th Congress, by Wayne C. Riddle ; CRS
Report RL32913, The Individuals with Disabilities Education Act (IDEA): Interactions with Selected Provisions of the
No Child Left Behind Act (NCLB), by Richard N. Apling and Nancy Lee Jones. In addition, IDEA and Medicaid issues
have surfaced. See e.g., CRS Report RS22397, Medicaid and Schools, by Elicia J. Herz. A discussion of the
intersection of these law with IDEA is beyond the scope of this report.
3 IDEA provides grants to the states and includes set-asides and state and substate formulas. Funding has been a
controversial issue and legislation has been introduced regularly to provide “full funding” for IDEA. See S. 88, 111th
Cong. For a discussion of these issues see CRS Report RL32085, Individuals with Disabilities Education Act (IDEA):
Current Funding Trends, by Ann Lordeman, and CRS Report RL32716, Individuals with Disabilities Education Act
(IDEA): Analysis of Changes Made by P.L. 108-446, by Richard N. Apling and Nancy Lee Jones.
4 Related services (for example, physical therapy) assist children with disabilities to help them benefit from special
education (20 U.S.C. §1401(26), P.L. 108-446 §602(26)).
5 Currently, all states receive IDEA funding.
6 It should be emphasized that what is required under IDEA is the provision of a free appropriate public education. The
Supreme Court, in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 177
(1982), held that this requirement is satisfied when the state provides personalized instruction with sufficient support
services to permit a child to benefit educationally from that instruction, and that this instruction should be reasonably
calculated to enable the child to advance from grade to grade. IDEA does not require that a state maximize the potential
of children with disabilities.
Congressional Research Service
1
IDEA: Statutory Provisions and Legal Issues
IDEA was originally enacted in 1975 in response to judicial decisions holding that when states
provide an education for children without disabilities, they must also provide an education for
children with disabilities.7 IDEA has been the subject of numerous reauthorizations; the most
recent reauthorization was P.L. 108-446 in 2004. P.L. 108-446 included specific authorizations for
appropriations through 2011.8 The American Recovery and Reinvestment Act of 2009, P.L. 111-5,
includes supplemental appropriations for IDEA.9 Congress is currently beginning the process of
identifying potential issues for the next reauthorization.10 This report examines the major
provisions of IDEA and the legal issues that have arisen.
Definitions
Overview
IDEA contains a number of definitions which are of critical importance in interpreting the
requirements of the act. These include, among others, definitions of assistive technology devices
and services,11 child with a disability,12 core academic subjects,13 educational service agency,14
excess costs,15 free appropriate public education,16 highly qualified,17 individualized education
program,18 local educational agency,19 related services,20 special education,21 specific learning
disability,22 supplementary aids and services,23 and transition services.24 Two definitions, the
definition of a child with a disability and the definition of a highly qualified teacher, will be
examined further.
7 PARC v. State of Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1972); Mills v. Board of Education of the District of
Columbia, 348 F.Supp. 866 (D.D.C. 1972). For a discussion of these cases see CRS Report 95-669, The Individuals
with Disabilities Education Act: Congressional Intent, by Nancy Lee Jones.
8 20 U.S.C. §1411(i). For years after 2011, P.L. 108-446 authorized “such sums as may be necessary for fiscal year
2012 and each succeeding fiscal year.”
9 See CRS Report R40151, Funding for Education in the American Recovery and Reinvestment Act of 2009 (P.L. 111-
5), by Rebecca R. Skinner et al.
10 For a discussion of issues raise in recent case law which may be considered see CRS Report R40521, The Individuals
with Disabilities Education Act (IDEA): Supreme Court and Selected Lower Court Decisions, by Nancy Lee Jones and
Carol J. Toland.
11 20 U.S.C. §1401(1)-(2).
12 20 U.S.C. §1401(3).
13 20 U.S.C. §1401(4).
14 20 U.S.C. §1401(5).
15 20 U.S.C. §1401(8).
16 20 U.S.C. §1401(9).
17 20 U.S.C. §1401(10).
18 20 U.S.C. §1401(14).
19 20 U.S.C. §1401(19).
20 20 U.S.C. §1401(26).
21 20 U.S.C. §1401(29).
22 20 U.S.C. §1401(30).
23 20 U.S.C. §1401(33).
24 20 U.S.C. §1401(34).
Congressional Research Service
2
IDEA: Statutory Provisions and Legal Issues
Child with a Disability
The definition of a child with a disability is a key component of IDEA. Unlike the definitions of
disability in the Americans with Disabilities Act (ADA)25 and Section 504 of the Rehabilitation
Act,26 the IDEA definition is categorical, not functional, and contains a requirement that the child
need special education and related services. The IDEA definition states the following:
CHILD WITH A DISABILITY.—(A) IN GENERAL.—The term ‘child with a disability’
means a child—(i) with mental retardation, hearing impairments (including deafness), speech
or language impairments, visual impairments (including blindness), serious emotional
disturbance (referred to in this title as ‘emotional disturbance’), orthopedic impairments,
autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii) who, by reason thereof, needs special education and related services.27
The regulations elaborate on the “other health impairments” category and include examples of
chronic or acute health impairments, such as asthma, attention deficit disorder or attention deficit
hyperactivity disorder, and Tourette syndrome.28
Judicial decisions involving IDEA’s definition of a child with a disability have most often
involved the requirement that the child must be in need of special education. For example, in L.I.
v. Maine School Administrative District No. 55,29 the First Circuit Court of Appeals found that a
child with Asperger’s Syndrome and an adjustment disorder with depressed mood was a child
with a disability under IDEA even though she had high grades, generally non-disruptive behavior,
and “undisputed intellectual ability.” The court rejected the argument that IDEA is limited to
children whose disabilities “significantly impact educational performance,” noting that neither the
statute nor its regulations contain this limiting language.30
Highly Qualified Teacher
The 2004 reauthorization of IDEA, P.L. 108-446, included a new definition of highly qualified
teacher.31 The definition is linked to the definition of “highly qualified” in Section 9101(23) of
the Elementary and Secondary Education Act (ESEA)32 but modifies that definition as it applies
to special education teachers. IDEA requires that every special education teacher, regardless of
25 42 U.S.C. §12102. For a discussion of the interaction of IDEA, the ADA, and Section 504 in the education context
see CRS Report R40123, Education of Individuals with Disabilities: The Individuals with Disabilities Education Act
(IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA), by Nancy Lee Jones and
Carol J. Toland.
26 29 U.S.C. §705(20).
27 20 U.S.C. §1401(3).
28 34 C.F.R. §300.8(c)(9).
29 480 F.3d 1 (1st Cir. 2007). See also, Board of Education of Montgomery County v. S.G., 230 Fed Appx. 330 (4th Cir.
2007). But see R.B. v. Napa Valley Unified School District, 496 F.3d 932 (9th Cir. 2007).
30 480 F.3d 1. at 38.
31 20 U.S.C. §1401(10). For a more detailed discussion of this provision see CRS Report RL33649, The Individuals
with Disabilities Education Act (IDEA): Final Regulations for P.L. 108-446, by Nancy Lee Jones and Ann Lordeman.
32 For information on ESEA requirements, see CRS Report RL33333, A Highly Qualified Teacher in Every Classroom:
Implementation of the No Child Left Behind Act and Reauthorization Issues for the 111th Congress, by Jeffrey J.
Kuenzi.
Congressional Research Service
3
IDEA: Statutory Provisions and Legal Issues
whether he or she is teaching a “core academic subject,” be highly qualified.33 The statutory
definition of highly qualified specifically provides that there is no private right of action for
students if a teacher is not highly qualified.34 However, the regulations note that a complaint may
be filed under state complaint procedures.35
Free Appropriate Public Education (FAPE)
Statutory Language
The core requirement of IDEA is that a state must provide children with disabilities a free
appropriate public education in order to receive federal funding under the act.36 FAPE is defined
in the statute as meaning “special education and related services that—(A) have been provided at
public expense, under public supervision and direction, and without charge; (B) meet the
standards of the State educational agency; (C) include an appropriate preschool, elementary
school, or secondary school education in the State involved; and (D) are provided in conformity
with the individualized education program required under section 614(d).”37
Judicial Interpretations
Board of Education of the Hendrick Hudson Central School District v. Rowley,38 decided in 1982,
was the first IDEA case to reach the Supreme Court and remains a seminal decision on the
requirements of FAPE. The Supreme Court noted that there was no substantive language in IDEA
regarding the level of education to be accorded to children with disabilities and observed that
“(i)mplicit in the congressional purpose of providing access to a ‘free appropriate public
education’ is the requirement that the education to which access is provided be sufficient to confer
some educational benefit upon the handicapped child.”39 The Court concluded that “the ‘basic
floor of opportunity’ provided by the Act consists of access to specialized instruction and related
services which are individually designed to provide educational benefit to the handicapped
child.”40 The Court held that the requirement of FAPE is met when a child is provided with
personalized instruction with sufficient support services to benefit educationally from that
instruction. This instruction must be provided at public expense, meet the state’s educational
standards, must approximate the grade levels used in the state’s regular education, and must
comport with the child’s IEP. The Court found that when a child with a disability is
mainstreamed, “the system itself monitors the educational progress of the child.... The grading
and advancement system thus constitutes an important factor in determining educational
benefit.”41 Therefore, the IEP “should be formulated in accordance with the requirements of the
33 20 U.S.C. §1412(a)(14)(C).
34 20 U.S.C. §1401(10)(E).
35 34 C.F.R. §300.18(f).
36 20 U.S.C. §1412(a)(1).
37 20 U.S.C. §1401(9).
38 458 U.S. 176 (1982).
39 458 U.S. 178 at 200.
40 Id. at 201.
41 Id at 203.
Congressional Research Service
4
IDEA: Statutory Provisions and Legal Issues
Act and, if the child is being educated in the regular classrooms of the public education system,
should be reasonably calculated to enable the child to achieve passing marks and advance from
grade to grade.”42 However, the states are not required to “maximize” each child’s potential.43 If
the child is progressing from grade to grade and making measurable and adequate gains, the
FAPE requirement is met.
The Supreme Court also stated that in ensuring that the requirements of the statute have been met,
courts must be careful to avoid imposing their view of preferable educational methods upon the
states. The primary responsibility for formulating the education provided was left by IDEA to
state and local educational agencies. As the Court noted, determining when children with
disabilities are “receiving sufficient educational benefits to satisfy the requirements of the Act
presents a more difficult problem”44 than complying with requirements for access to education.
Because of the wide spectrum of disabilities, the Court did not attempt to establish any one test
for determining the adequacy of educational benefits and confined its analysis to the facts of the
case.
Rowley remains a key decision under IDEA and is often cited by courts attempting to determine
the parameters of a free appropriate public education.45 However, the lower courts have varied in
how expansively they have interpreted Rowley, with some courts interpreting Rowley to support
schools’ IEPs if the procedural requirements have been met, even if the educational progress is
minimal.46 Other courts have read Rowley more expansively. For example, in Polk v. Cent.
Susquehanna Intermediate Unit 16,47 the Third Circuit Court of Appeals examined the “some
educational benefit” language in Rowley and held that it required an IEP to provide more than de
minimis educational benefit.48
The Individualized Education Program (IEP)
After a child has been identified as a child with a disability under IDEA, an individualized
education team is formed to write an individualized education program for the child.49 IDEA
contains detailed requirements for the IEP. The IEP must include a statement of the child’s present
levels of academic achievement and functional performance, a statement of measurable annual
42 Id. at 203-204.
43 Id. at 198.
44 Id. at 202.
45 The 2004 reauthorization of IDEA has been found not to affect the Rowley standard. See Mr. and Mrs. C. v. Maine
School Administrative District No. 6, 538 F. Supp. 2d 298 (D. Me.2008).
46 See e.g., Fort Zumwalt School District v. Clynes, 119 F.3d. 607 (8th Cir. 1997), cert. denied, 523 U.S. 1137 (1998),
where the Eighth Circuit emphasized Rowley’s “access to education” requirement and held that the IEP was adequate
since the child was making progress, earning passing marks and advancing to the next grade, despite reading
proficiency scores in the second to ninth percentile.
47 853 F.2d 171 (3d Cir. 1988), cert. denied, 488 U.S. 1030 (1989).
48 Id. at 180-185. Similarly, the Fifth Circuit, in Cypress-Fairbanks Indep. School District v. Michael F., 118 F.3d 245
(5th Cir. 1997), cert. denied, 522 U.S. 1047 (1998), quoted from Rowley and concluded that “the educational benefit
that an IEP is designed to achieve must be meaningful.’” Id. at 248. In order to determine whether an IEP meets this
standard, the Cypress-Fairbanks court identified four factors: (1) the program is individualized, (2) the program is
administered in the least restrictive environment, (3) the services are provided in a coordinated and collaborative
manner, and (4) positive academic and nonacademic benefits are demonstrated. Id. at 253.
49 20 U.S.C. §1414(d).
Congressional Research Service
5
IDEA: Statutory Provisions and Legal Issues
goals, a description of how these goals are to be met, a statement of the special education and
related services to be provided, and an explanation of the extent to which the child is to be
educated with children without disabilities.50
Since the IEP is the way FAPE is implemented, it is a key component of IDEA and has been the
subject of numerous judicial decisions. Generally, these cases have adopted a two-part inquiry:
first, the court determines whether IDEA’s procedures have been complied with; second, the court
ascertains whether the IEP is reasonably calculated to provide the child with educational
benefits.51
Related Services
IDEA’s requirement of a free appropriate public education is the cornerstone of the act, and one
of the components of FAPE is the requirement for related services. FAPE is defined in part as
requiring “special education and related services.”52 Related services are defined as meaning
...transportation, and such developmental, corrective, and other supportive services
(including speech-language pathology and audiology services, interpreting services,
psychological services, physical and occupational therapy, recreation, including therapeutic
recreation, social work services, school nurse services designed to enable a child with a
disability to receive a free appropriate public education as described in the individualized
education program of the child, counseling services, including rehabilitation counseling,
orientation and mobility services, and medical services, except that such medical services
shall be for diagnostic and evaluation purposed only) as may be required to assist a child
with a disability to benefit from special education, and includes the early identification and
assessment of disabling conditions in children.53
Two Supreme Court decisions under IDEA have involved the concept of related services, and
both have involved the issue of what is a medical service. In Irving Independent School District v.
Tatro,54 the Court examined the case of an eight-year-old girl with spina bifida who required clean
intermittent catheterization (CIC), and held that the school must provide the service. The Court
ruled that services affecting both the medical and educational needs of a child must be provided
under IDEA if (1) the child has a disability so as to require special education, (2) the service is
necessary to help a child with a disability benefit from special education, and (3) a nurse or other
qualified person who is not a physician can provide the service. Services that could be provided
outside the school day would not need to be provided. Tatro drew a bright line between services
that had to be provided by a doctor and those that could be provided by a person who was not a
physician. However, after Tatro, some courts of appeals did not apply this bright line but used
other factors, such as the nature and extent of services. This set the stage for another Supreme
Court decision in 1999, Cedar Rapids Community School District v. Garret F.55
50 Id.
51 See Board of Hendrick Hudson School District v. Rowley, 458 U.S. 176, 206-207 (1982).
52 20 U.S.C. §1401(9).
53 20 U.S.C. §1401(26).
54 468 U.S. 883 (1984).
55 526 U.S. 66 (1999).
Congressional Research Service
6
IDEA: Statutory Provisions and Legal Issues
Garret F. involved a child who was paralyzed from the neck down as a result of a motorcycle
accident when he was four years old. Since the child was ventilator dependent, he required
substantial services including providing suction on his tracheotomy tube and manually pumping
air through an air bag when suction is being provided. The school denied the parents’ request for
services and proposed a test for related services in which the outcome would depend on a series
of factors, such as whether the care was continuous and the cost of the services. The Court
rejected this proposed test and used the same reasoning it had used in Tatro, finding that the
medical services exclusion from the definition was limited to the services of a physician or a
hospital. This holding, the Court stated, was in keeping with the overarching purpose of IDEA “to
open the door of public education to all qualified children.”56
The 2004 reauthorization dealt with this issue by establishing risk pools for high-need children
with disabilities.57 States are permitted to reserve 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 educational agencies (LEAs) serving high-need children with disabilities.
Educational Placement
Least Restrictive Environment
IDEA requires that children with disabilities, to the maximum extent appropriate, be educated
with children who are not disabled and that separate schooling or special classes occur only when
the nature or severity of the disability is such that “education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily.”58
Several recent courts of appeals decisions have followed a two-pronged approach, first
enunciated in Daniel R.R. v. State Board of Education,59 to determine whether an IEP places a
student in the least restrictive environment. First, a court must consider whether education in the
regular classroom with the use of supplementary services can be achieved satisfactorily. Second,
if such placement cannot be achieved satisfactorily, the court must consider whether the school
has mainstreamed the child to the maximum extent appropriate. The first prong includes several
factors: whether the school district has made reasonable efforts to accommodate the child in the
regular classroom, the educational benefits available to the child in the regular classroom as
compared to those in a special education classroom, and the possible negative effects of the
inclusion of the child on other students in the regular classroom.60
56 Id. at 78.
57 20 U.S.C. §1411(e)(3).
58 20 U.S.C. §1412(a)(5).
59 874 F.2d 1036 (5th Cir. 1989).
60 P. v. Newington Board of Education, 546 F.3d 111 (2d Cir. 2008); T.W. v. Unified School District No. 259, Wichita,
Kansas, 136 Fed. Appx. 122 (10th Cir. 2005). Although Daniel R.R. was not cited, a similar standard was used in L.E.
v. Ramsey Board of Education, 435 F.3d 384 (3d Cir. 2006).
Congressional Research Service
7
IDEA: Statutory Provisions and Legal Issues
Private Schools
Issues concerning what services are required for children with disabilities placed in private
schools, and who is to pay for these services, have been a continuing source of controversy under
IDEA.61 Under current law, a child with a disability may be placed in a private school by the local
educational agency (LEA) or state educational agency (SEA) as a means of fulfilling the FAPE
requirement for the child. In this situation, the full cost is paid for by the LEA or the SEA. A child
with a disability may also be unilaterally placed in a private school by his or her parents. In this
situation, the cost of the private school placement is not paid by the LEA unless a hearing officer
or a court makes certain findings. IDEA, as amended, states in part,
(ii) REIMBURSEMENT FOR PRIVATE SCHOOL PLACEMENT.—If the parents of a
child with a disability, who previously received special education and related services under
the authority of a public agency, enroll the child in a private elementary school or secondary
school without the consent of or referral by the public agency, a court or a hearing officer
may require the agency to reimburse the parents for the cost of the enrollment if the court or
hearing officer finds that the agency had not made a free appropriate public education
available to the child in a timely manner prior to that enrollment.62
However, IDEA does require some services for children in private schools, even if they are
unilaterally placed there by their parents, and there is no finding that FAPE was not made
available to the child. In this situation, IDEA requires that a proportionate amount of the federal
funds shall be made available.63
The current statutory provisions regarding private schools are the result of several major
amendments, and most of the Supreme Court decisions on private schools are prior to the
statutory changes.64 However, two recent Supreme Court cases, Board of Education of the City
School District of the City of New York v. Tom F.65 and Forest Grove School District v. T.A.,66 have
addressed the question of whether IDEA allows for tuition reimbursement for parents who placed
their child in a private school without ever having received special education from the public
school under the current statutory provisions.
In Board of Education of the City School District of the City of New York v. Tom F., the Court,
dividing 4-4, upheld an appeals court ruling that parents of a child with a disability are entitled to
private school reimbursement even though the student had never received special education
services from the school district. The Court’s per curiam decision did not set a precedent for
61 For a discussion of these issues under current law, see CRS Report RS22044, Individuals with Disabilities Education
Act (IDEA): Services in Private Schools under P.L. 108-446, by Nancy Lee Jones, and CRS Report RL33368, The
Individuals with Disabilities Education Act (IDEA): Parentally Placed Children in Private Schools, by Richard N.
Apling and Nancy Lee Jones.
62 20 U.S.C. § 1412(a)(10)(C)(ii).
63 20 U.S.C. §1412(a)(10). For a detailed discussion of these requirements see U.S. Department of Education,
“Provisions Related to Children with Disabilities Enrolled by Their Parents in Private Schools,” (Feb. 2008)
http://www.rrfcnetwork.org/images/stories/FRC/IDEA/idea.pdf.
64 For a discussion of all the Supreme Court decisions on IDEA and private schools see CRS Report RL33444, The
Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions, by Nancy Lee Jones and Carol J.
Toland.
65 552 U.S.1 (2007).
66 557 U.S. __ (2009), aff’d 523 F.3d 1078 (9th Cir. 2008).
Congressional Research Service
8
IDEA: Statutory Provisions and Legal Issues
lower courts; therefore, the issue about whether reimbursement for private school tuition may be
made when the child has not received public special education services was not settled until the
Court’s most recent decision in Forest Grove.
In Forest Grove School District v. T.A.,67 the Supreme Court held that IDEA authorizes
reimbursement for private special education services when a public school fails to provide FAPE
and the private school placement is appropriate, regardless of whether the child previously
received special education services through the public school. The Court emphasized that “[i]t
would be particularly strange for the Act to provide a remedy ... when a school district offers a
child inadequate ... [special education] services but to leave parents without relief in the more
egregious situation in which the school district unreasonably denies a child access to such
services altogether.”
Procedural Safeguards and Discipline
Statutory Overview
IDEA was originally enacted to respond to situations where children with disabilities were being
excluded from school without any statutory recourse. Section 615 of IDEA provides detailed
procedural safeguards for children with disabilities and their parents.68 Generally, IDEA requires
that if there is a dispute between the school and the parents of a child with a disability, the child
“stays put” in his or her current educational placement until the dispute is resolved using the due
process procedures set forth in the statute.69 Procedural safeguards are provisions protecting the
rights of parents and children with disabilities regarding a free appropriate public education
(FAPE) and include notice of rights, mediation, resolution sessions, and due process procedures.
Section 615 has been a continual source of controversy, especially the provisions relating to the
discipline of children with disabilities. Amendments to the section have been made during recent
reauthorizations70 in an attempt to balance the rights of children with disabilities with the need to
provide for the safety of all children and to attempt to make the process less adversarial. In
addition, judicial decisions have addressed controversial issues such as which party has the
burden of proof in a due process hearing71 and whether expert witness fees are recoverable for
prevailing parents.72
67 557 U.S. __ (2009), aff’d 523 F.3d 1078 (9th Cir. 2008).
68 20 U.S.C. §1415. It should be noted that complaints may also be filed with the state education agency (SEA). 34
C.F.R. §300.151 et seq. These complaints may address the problems of a group of children. See U.S. Department of
Education, “Q and A: Questions and Answers on Procedural Safeguards and Due Process Procedures for Parents and
Children with Disabilities,” (January 2007) http://idea.ed.gov/object/fileDownload/model/QaCorner/field/PdfFile/
primary_key/6.
69 20 U.S.C. §1415(j).
70 See e.g., P.L. 108-446.
71 Shaffer v. Weast, 546 U.S. 49 (2005).
72 Arlington Central School District v. Murphy, 548 U.S. 291 (2006).
Congressional Research Service
9
IDEA: Statutory Provisions and Legal Issues
Due Process Complaint
Parents of a child with a disability or a school may file a due process complaint. This 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 resolved the problem or the local educational agency
withheld information from the parent that was required to be provided under Part B.73
Resolution Sessions and Mediation
In an attempt to resolve issues before the more confrontational due process proceedings, the 2004
reauthorization of IDEA added a requirement for a resolution session prior to a due process
hearing. The resolution session is a preliminary meeting between the parents, the relevant
members of the IEP team, and a representative of the local educational agency who has decision-
making authority. 74 The House report for P.L. 108-446 noted that the resolution session “is
intended to improve the communication between parents and school officials, and to help foster
greater efforts to resolve disputes in a timely manner so that the child’s interests are best
served.”75 The LEA may not include its attorney unless the parent is accompanied by an attorney,
and if an agreement is reached during the resolution session, the parties must execute a legally
binding agreement signed by both parties and which is enforceable in court.76
Provisions allowing for the voluntary mediation of disputes under IDEA were added in the 1997
reauthorization77 and are retained in the current law. Mediation cannot be used to delay a parent’s
right to a due process hearing, and mediation discussions are confidential and cannot be used as
evidence in any subsequent due process hearing. 78
Due Process Hearings
If the resolution session and/or the mediation session do not resolve the complaint, an impartial
due process hearing may be conducted.79 Any party to the due process hearing has the right to be
accompanied and advised by counsel and by individuals with special knowledge or training
regarding children with disabilities, the right to present evidence and confront and cross examine
witnesses, the right to a written or electronic verbatim record, and the right to a written or
73 20 U.S.C. §1415(b)(6).
74 20 U.S.C. §1415(f)(1)(B).
75 H.Rept. 108-77, 108th Cong., 1st Sess., at 114 (2003).
76 20 U.S.C. §1415(f)(1)(B).
77 P.L. 105-17, §615(e).
78 20 U.S.C. §1415(e).
79 20 U.S.C. §1415(f).
Congressional Research Service
10
IDEA: Statutory Provisions and Legal Issues
electronic verbatim findings of fact and decisions.80 If a party is not satisfied with the result of
this hearing, an appeal may be made.81
Disciplinary Procedures
Generally, under IDEA, a child with a disability is not immune from disciplinary procedures;
however, these procedures are not identical to those for children without disabilities.82 First,
IDEA requires that all children, including children with disabilities who have been suspended or
expelled from school, must receive a free appropriate public education.83 In addition, with certain
exceptions, during the pendency of due process proceedings, the child with a disability is to stay-
put in his or her current educational placement.84 However, school personnel may suspend a child
with a disability for up to 10 school days.85
There are a number of safeguards for children with disabilities if school personnel seek to change
the placement of a child with a disability without the consent of the parents. Within 10 school
days of a decision to change the placement of a child with a disability, school personnel must
conduct a manifestation determination. Essentially, if the LEA, a 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. If the conduct is determined not to be a manifestation of the child’s disability, the
relevant disciplinary procedures applicable to children without disabilities may be applied to the
child in the same manner, and for the same duration, as they would be applied to children without
disabilities, except that educational services may not cease. If the behavior is found to be a
manifestation of the child’s disability, a functional behavioral assessment shall be implemented or
reviewed.86
School personnel also may place the child in an interim alternative education setting for up to 45
school days for situations involving weapons or drugs, or where a child has inflicted serious
bodily injury87 upon another person while at school. School personnel may also request a hearing
officer to change the placement of a child with a disability to an appropriate interim alternative
educational setting for 45 school days. There are specific appeals provisions for this situation in
the statute.88
80 20 U.S.C. §1415(h).
81 20 U.S.C. §1415(g).
82 20 U.S.C. §1415(k).
83 20 U.S.C. §1412(a)(1).
84 20 U.S.C. §1415(j). The stay-put provision was at issue in Honig v. Doe, 484 U.S. 305 (1988), where the Supreme
Court held that there was no implied exception to the stay-put rule.
85 20 U.S.C. §1415(k)(1)(B).
86 20 U.S.C. §1415(k).
87 Serious bodily injury is defined in the same manner as 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 facility.”
88 For a more detailed discussion of the discipline provision in IDEA, see CRS Report RL32753, Individuals with
Disabilities Education Act (IDEA): Discipline Provisions in P.L. 108-446, by Nancy Lee Jones.
Congressional Research Service
11
IDEA: Statutory Provisions and Legal Issues
Burden of Proof
Although IDEA contains detailed due process requirements to ensure the provision of FAPE,
including the opportunity for an impartial due process hearing, the statute contains no specific
provision relating to which party has the burden of proof in a due process hearing. The courts of
appeal, prior to the Supreme Court’s decision in Schaffer v. Weast,89 were split in their
interpretations of who bore the burden of proof.
In Schaffer v. Weast,90 the Supreme Court held that the burden of proof regarding an allegedly
inadequate IEP in an IDEA due process hearing rests with the party seeking the relief. The
Supreme Court, in an opinion by Justice O’Connor, first observed that “absent some reason to
believe that Congress intended otherwise, ... we will conclude that the burden of persuasion lies
where it usually falls, upon the party seeking relief.”91 Justice O’Connor then examined, and
rejected, various reasons advanced to support the argument that the burden of proof should be on
the school system. The Supreme Court noted that the most plausible argument advanced by the
parents was that, in the interest of fairness, the burden of proof should not be placed on a party
when the facts are “peculiarly within the knowledge of his adversary.”92 School districts were
seen as having a “natural advantage” regarding the information, but Justice O’Connor did not find
this to be determinative because “Congress addressed this when it obliged schools to safeguard
the procedural rights of parents and to share information with them.”93 The Court noted that
IDEA provides parents with the right to review records, to have an independent educational
evaluation, to have details about options considered by the school district as well as disclosure of
evaluations and recommendations, and to receive attorneys’ fees in the discretion of a court if
they prevail. Justice O’Connor concluded that “[t]hese protections ensure that the school bears no
unique informational advantage.”94
Parental Rights
IDEA states that one of its purposes is to “ensure that the rights of children with disabilities and
parents of such children are protected.”95 In Winkelman v. Parma City School District,96 the
Supreme Court examined the issue of whether IDEA permits parents who are not attorneys to
bring suit in court, either on their own behalf or as representatives of their child. The Court held
that such pro se suits were permitted for parents suing with regard to their own rights. In an
opinion written by Justice Kennedy, the Court concluded that IDEA grants parents independent,
enforceable rights that encompass a child’s entitlement to a free appropriate public education, and
that these rights are not limited to procedural or reimbursement issues.
89 546 U.S. 49 (2005). Chief Justice Roberts took no part in the decision. For a more detailed discussion of Weast, see
CRS Report RS22353, The Individuals with Disabilities Education Act (IDEA): Schaffer v. Weast Determines Party
Seeking Relief Bears the Burden of Proof, by Nancy Lee Jones.
90 Id.
91 Id. at 57-58.
92 Id. at 60, citing United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 256, n.5 (1957).
93 Id.
94 Id. at 61.
95 20 U.S.C. §1400(d)(1)(B).
96 550 U.S. 516 (2007).
Congressional Research Service
12
IDEA: Statutory Provisions and Legal Issues
In arriving at this holding, Justice Kennedy observed that “a proper interpretation of the Act
requires a consideration of the entire statutory scheme.” The Court examined IDEA’s statutory
language, noting that one of the purposes of IDEA is “to ensure that the rights of children with
disabilities and parents of such children are protected.”97 This language was found to refer to
rights for both parents and children with disabilities. Similarly, the Court found that the
establishment of procedural rights was required “to ensure that the rights of children with
disabilities and parents of such children are protected.”98 These provisions were found to support
the finding that the parents of a child with a disability have “a particular and personal interest” in
the goals of IDEA and that “IDEA includes provisions conveying rights to parents as well as to
children.”
Seclusion and Restraint99
IDEA provides that when the behavior of a child with a disability impedes the child’s learning or
the learning of others, the IEP team must consider “the use of positive behavioral interventions
and supports, and other strategies, to address that behavior.”100 Nothing in IDEA specifically
addresses the use of seclusion and restraints, and the Department of Education has stated that
“[w]hile IDEA emphasizes the use of positive behavioral interventions and supports to address
behavior that impedes learning, IDEA does not flatly prohibit the use of mechanical restraints or
other aversive behavioral techniques for children with disabilities.”101 The Department also noted
that state law may address whether restraints may be used and, if restraints are allowed, the
“critical inquiry is whether the use of such restraints or techniques can be implemented consistent
with the child’s IEP and the requirement that IEP Teams consider the use of positive behavioral
interventions and supports when the child’s behavior impedes the child’s learning or that of
others.”102
The Supreme Court has not specifically addressed the use of seclusion or restraints under IDEA;
however, in Honig v. Doe,103 the Court examined IDEA’s requirements for children who exhibited
violent or inappropriate behavior, and held that a suspension longer than 10 days violated IDEA’s
“stay-put” provision.104 In Honig, the Court observed that this decision “does not leave educators
hamstrung” and that educators may utilize “normal procedures” which “may include the use of
study carrels, timeouts, detention, or the restriction of privileges” as well as a 10-day
suspension.105 Several lower courts have dealt more specifically with this issue.106
97 20 U.S.C. §1400(d)(1)(B).
98 20 U.S.C. §1415(a).
99 For a more detailed discussion of this issue see CRS Report R40522, The Use of Seclusion and Restraint in Public
Schools: The Legal Issues, by Nancy Lee Jones and Jody Feder.
100 20 U.S.C. §1414(d)(3)(B).
101 Letter to Anonymous, 50 IDELR 228 (OSEP March 17, 2008).
102 Id.
103 484 U.S. 305 (1988).
104 20 U.S.C. §1415(j). For a more detailed discussion of Honig and the “stay put” provision see CRS Report RL32753,
Individuals with Disabilities Education Act (IDEA): Discipline Provisions in P.L. 108-446, by Nancy Lee Jones.
105 484 U.S. 305, 325 (1988).
106 See e.g., Melissa S. v. School District of Pittsburgh, 183 Fed. Appx. 184 (3d Cir. 2006). For a discussion of lower
court decisions see CRS Report R40522, The Use of Seclusion and Restraint in Public Schools: The Legal Issues, by
Nancy Lee Jones and Jody Feder.
Congressional Research Service
13
IDEA: Statutory Provisions and Legal Issues
Legislation establishing minimum safety standards in schools to prevent and reduce the
inappropriate use of restraint and seclusion was introduced in the House, H.R. 4247, 111th
Congress, and the Senate, S. 2860, 111th Congress. The companion bills, both entitled the
Preventing Harmful Restraint and Seclusion Act, are similar but not identical. 107
Attorneys’ Fees
Although the original version of IDEA, P.L. 94-142, contained no specific provision for
attorneys’ fees, prevailing parties used Section 505 of the Rehabilitation Act of 1973,108 or
Section 1988 of the Civil Rights Attorneys’ Fees Award Act,109 to seek fees. However, the
Supreme Court in Smith v. Robinson110 held that the only remedies for prevailing parties under
IDEA were those contained in that statute. The statute was described as “a comprehensive scheme
set up by Congress to aid the States in complying with their constitutional obligations to provide
public education for handicapped children.”111 The Court further noted that allowing the use of
other statutes to provide for attorneys’ fees would “be inconsistent with Congress’ carefully
tailored scheme.”112
The Court’s decision in Smith v. Robinson was controversial. In response, Congress in 1986
enacted the Handicapped Children’s Protection Act, which provided for attorneys’ fees under
IDEA.113 These provisions were amended in 1997. The P.L. 105-17 amendments allowed the
reduction of attorneys’ fees if the attorney representing the parents did not provide the LEA with
timely and specific information about the child and the basis of the dispute, and specifically
excluded the payment of attorneys’ fees for most individualized education plan (IEP) meetings.
The 2004 IDEA reauthorization, P.L. 108-446, kept many of the previous provisions on attorneys’
fees but also made several additions. These include allowing attorneys’ fees for the state
educational agency (SEA) or the local educational agency (LEA) against the parent or the
parent’s attorney in certain situations.114
Expert Witness Fees
Although there is no specific provision allowing a court to award prevailing parents expert
witness fees, the language regarding attorneys’ fees had been interpreted by some lower courts to
allow such an award. IDEA’s statutory language states in relevant part, “in any action or
proceeding brought under this section, the court, in its discretion, may award reasonable
107 For a more detailed discussion of this legislation see CRS Report R40522, The Use of Seclusion and Restraint in
Public Schools: The Legal Issues, by Nancy Lee Jones and Jody Feder.
108 29 U.S.C. §794a.
109 42 U.S.C. §1988.
110 468 U.S. 992 (1984).
111 Id. at 1009.
112 Id. at 1012.
113 P.L. 99-372.
114 20 U.S.C. §1415(i)(3). For a discussion of P.L. 108-446 and attorneys’ fees, see CRS Report RS22055, The
Individuals with Disabilities Education Act (IDEA): Attorneys’ Fees Provisions in P.L. 108-446, by Nancy Lee Jones.
Congressional Research Service
14
IDEA: Statutory Provisions and Legal Issues
attorneys’ fees as part of the costs—(I) to a prevailing party who is the parent of a child with a
disability.... ”115
The parents in Arlington Central School District v. Murphy116 argued that the language on costs
encompassed the payment of expert witness fees. To support this argument, they pointed to the
legislative history of the Handicapped Children’s Protection Act,117 which stated that “[t]he
conferees intend that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses
and fees of expert witnesses.”118 The Supreme Court, in a decision written by Justice Alito, held
that IDEA does not authorize prevailing parents to recover fees they have paid to experts. The
majority opinion first observed that the holding was “guided by the fact that Congress enacted the
IDEA pursuant to the Spending Clause.” This was seen as significant because if Congress
attaches conditions to a state’s acceptance of funds, the conditions must be unambiguous and
provide clear notice. The majority concluded that IDEA’s statutory language did not provide this
clear notice and that the legislative history was unconvincing and “simply not enough” under
these circumstances.119
Legislation, H.R. 2740, has been introduced in the 111th Congress to amend IDEA to permit the
award of expert witnesses fees. H.R. 2740 specifically provides that “the term ‘attorneys’ fees’
shall include the fees of expert witness, including reasonable costs of any test or evaluation
necessary for the preparation of the parent or guardian’s case in the action or proceeding.”
Commonly Used Acronyms
ED
Department of Education
FAPE
Free Appropriate Public Education
IDEA
Individuals with Disabilities Education Act
IEP
Individualized Education Program
LEA
Local Education Agency
LRE
Least Restrictive Environment
SEA
State Education Agency
115 20 U.S.C. §1415(i)(3)(B).
116 548 U.S. 291 (2006).
117 P.L. 99-372.
118 H.Rept. 99-687, at 5.
119 For a more detailed discussion see CRS Report RS22465, The Individuals with Disabilities Education Act (IDEA):
The Supreme Court Denies Expert Fees in Arlington Central School District v. Murphy, by Nancy Lee Jones.
Congressional Research Service
15
IDEA: Statutory Provisions and Legal Issues
Author Contact Information
Nancy Lee Jones
Legislative Attorney
njones@crs.loc.gov, 7-6976
Congressional Research Service
16