.
The Individuals with Disabilities Education
Act (IDEA), Part B: Key Statutory and
Regulatory Provisions
Kyrie E. Dragoo
Analyst in Education Policy
March 26, 2015
Congressional Research Service
7-5700
www.crs.gov
R41833
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The Individuals with Disabilities Education Act (IDEA), Part B
Summary
The Individuals with Disabilities Education Act (IDEA) is both a grants statute and a civil rights
statute. As a grants statute, IDEA 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) (i.e., specially designed instruction provided at no cost to
parents that meets the needs of a child with a disability). In FY2015, $12.5 billion was
appropriated for IDEA. In the 2012-2013 school year, 6.4 million children ages 3 through 21
received educational services under IDEA.
As a civil rights statute, IDEA contains procedural safeguards, which are provisions intended to
protect the rights of parents and children with disabilities regarding the provision of FAPE. These
procedures include parental rights to resolve disputes through a mediation process, and present
and resolve complaints through a due process complaint procedure, and through state complaint
procedures. IDEA’s procedural safeguards also address disciplinary issues. In general, a child
with a disability is not immune from discipline, but the procedures are not the same as for non-
disabled children.
To be covered under IDEA, a child with a disability must meet the categorical definition of
disability in the act, and the child must require special education and related services as a result of
the disability in order to benefit from public education. Once a child meets IDEA’s eligibility
criteria, FAPE is implemented through the Individualized Education Program (IEP), which is the
plan for providing special education and related services by the local educational agency (LEA).
The IEP is developed by an IEP team composed of school personnel and parents. IDEA requires
that children with disabilities be educated in the least restrictive environment. That is, to the
maximum extent appropriate they are to be educated with children who are not disabled. In the
fall of 2011, over 60% of all children with disabilities served by IDEA spent 80% or more of their
time in a regular classroom.
To implement IDEA, states and other entities (i.e., the District of Columbia, Puerto Rico, the
Bureau of Indian Education, the outlying areas, and the freely associated states) receive grants
based on a statutory formula. Most of the federal funds received by states are passed on to LEAs
based on a statutory formula. IDEA also contains state and local maintenance of effort (MOE)
requirements and supplement, not supplant (SNS) requirements aimed at increasing overall
educational spending, rather than substituting federal funds for education spending at the state
and local levels.
Originally enacted in 1975, IDEA has been the subject of numerous reauthorizations to extend
services and rights to children with disabilities. The most recent reauthorization of IDEA was P.L.
108-446, enacted in 2004. Funding for Part B, Assistance for Education of all Children with
Disabilities, the largest and most often discussed part of the act, is permanently authorized.
Funding for Part C, Infants and Toddlers with Disabilities, and Part D, National Activities, was
authorized through FY2011. Funding for the programs continues to be authorized through annual
appropriations.
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Contents
Introduction ...................................................................................................................................... 1
Background................................................................................................................................ 1
Services for Children with Disabilities ............................................................................................ 3
Children with Disabilities .......................................................................................................... 3
Free Appropriate Public Education (FAPE) .............................................................................. 5
Identification and Evaluation..................................................................................................... 5
Identifying and Evaluating a Child with a Disability .......................................................... 5
Identifying and Evaluating a Child with a Specific Learning Disability (SLD) ................. 7
The Individualized Education Program (IEP) ........................................................................... 9
Content of IEP ..................................................................................................................... 9
The IEP Team .................................................................................................................... 10
Special Education and Related Services .................................................................................. 11
Coordinated Early Intervening Services (CEIS)...................................................................... 12
Response to Intervention (RTI) ......................................................................................... 13
Highly Qualified Teachers ....................................................................................................... 13
The Educational Environment ................................................................................................. 14
Children with Disabilities in Private Schools.................................................................... 16
Procedural Safeguards ................................................................................................................... 16
Mediation ................................................................................................................................. 17
Due Process Complaint Procedures ......................................................................................... 18
State Complaint Procedures ..................................................................................................... 19
Discipline ................................................................................................................................. 19
Funding, Expenditure Requirements, and Compliance ................................................................. 21
Funding .................................................................................................................................... 21
State Formula Allocations ................................................................................................. 21
LEA Formula Allocations .................................................................................................. 23
State and LEA Expenditure Requirements .............................................................................. 23
Maintenance of Effort (MOE) ........................................................................................... 23
Supplement, Not Supplant ................................................................................................. 25
Compliance .............................................................................................................................. 25
Monitoring ......................................................................................................................... 25
Enforcement ...................................................................................................................... 26
Figures
Figure 1. Disability Distribution for Students Ages 3 through 21 Receiving Special
Education and Related Services under IDEA, Part B: Fall 2012 .................................................. 4
Tables
Table 1. Structure and Funding of IDEA ......................................................................................... 2
Table 2. Percentage of Time Students Ages 6 through 21 Spend in a Regular Classroom
and in Other Environments, under IDEA Part B: Fall 2011 ....................................................... 15
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Appendixes
Appendix A. Structure of IDEA..................................................................................................... 29
Appendix B. Commonly Used Acronyms ..................................................................................... 31
Contacts
Author Contact Information........................................................................................................... 31
Acknowledgments ......................................................................................................................... 31
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The Individuals with Disabilities Education Act (IDEA), Part B
Introduction
Background
The Individuals with Disabilities Education Act (IDEA) is the main federal statute governing
special education for children from birth through age 21.1 IDEA protects the rights of children
with disabilities to a free appropriate public education (FAPE). It also supplements state and local
funding to pay for some of the additional or excess costs of educating children with disabilities.
IDEA is administered by the Office of Special Education Programs (OSEP) in the Office of
Special Education and Rehabilitative Services (OSERS) in the Department of Education (ED). In
the fall of 2012, a total of 6.4 million public school students ages 3 through 21 were served by
IDEA Part B, representing approximately 13% of all public school students in this age range.2
IDEA was originally enacted in 1975 as the Education for All Handicapped Children Act, P.L. 94-
142.3 At that time, Congress found that more than half of all children with disabilities were not
receiving appropriate educational services and that 1 million children with disabilities were
excluded entirely from the public school system. Further, Congress found that many of the
children participating in regular school programs were prevented from having a successful
educational experience because their disabilities were undiagnosed.4 In addition to the awareness
of the difficulties faced by children with disabilities, there were three other factors that
precipitated the enactment of P.L. 94-142: (1) judicial decisions that found constitutional
requirements for the education of children with disabilities, (2) the inability of states and
localities to fund education for children with disabilities, and (3) potential long-term benefits of
educating children with disabilities.5
IDEA consists of four parts. Part A contains the general provisions, including the purposes of the
act and definitions. Part B contains provisions relating to the education of school aged children
(the grants-to-states program) and state grants program for preschool children with disabilities
(Section 619). Part C authorizes state grants for programs serving infants and toddlers with
disabilities, while Part D contains the requirements for various national activities designed to
improve the education of children with disabilities. Table 1 shows the structure and funding of
IDEA. Appendix A provides a more detailed summary of each of the four parts.
Since 1975, IDEA has been the subject of numerous reauthorizations to extend services and rights
to children with disabilities. The most recent reauthorization was P.L. 108-446 in 2004.6 Funding
1 20 U.S.C. §1400 et seq.
2 National Center for Education Statistics, Digest of Education Statistics, Children 3 to 21 years old served under
Individuals with Disabilities Education Act (IDEA), Part B, by type of disability: Selected years, 1976-77 through
2012-13, Table 204.30., http://nces.ed.gov/programs/digest/d14/tables/dt14_204.30.asp.
3 The name was changed to the Individuals with Disabilities Education Act by P.L. 101-476. The public law also
substituted the phrase “children with disabilities” for the phrase “handicapped children” throughout the act.
4 20 U.S.C. §1401(b), P.L. 94-142 §601(b).
5 For more information on each of the factors that contributed to the enactment of P.L. 94-142, see CRS Report 95-669,
The Individuals with Disabilities Education Act: Congressional Intent, by Nancy Lee Jones.
6 For a discussion of the 2004 amendments made by P.L. 108-446, see CRS Report RL32716, Individuals with
Disabilities Education Act (IDEA): Analysis of Changes Made by P.L. 108-446, by Ann Lordeman and Nancy Lee
Jones. For an overview of the IDEA regulations from the Department of Education, see CRS Report RL33649, The
Individuals with Disabilities Education Act (IDEA): Final Regulations for P.L. 108-446, and CRS Report R40055, The
(continued...)
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for Part B, Assistance for Education of all Children with Disabilities, is permanently authorized.
Funding for Part C, Infants and Toddlers with Disabilities, and Part D, National Activities, was
authorized through FY2011.7
Table 1. Structure and Funding of IDEA
(Funding in thousands of dollars)
Percentage
of Total
FY2015
IDEA
IDEA Part
Description
Funding
Funding
Part A—General
Includes findings, purposes, and definitions
—
—
Provisions
Part B—Assistance for
Contains provisions relating to the education of
$11,851,086a 94.6%
Education of all Children
school aged children (the grants-to-states
with Disabilities
program) and state grants program for preschool
children with disabilities (Section 619)
Part C—Infants and
Authorizes state grants for programs serving
$438,556 3.5%
Toddlers with Disabilities
infants and toddlers with disabilities
Part D—National Activities Contains the requirements for various national
$232,716 1.9%
to Improve Education of
activities
Children with Disabilities
IDEA Total
$12,522,358
100%
Source: Table prepared by CRS. Funding amounts are from Department of Education budget tables for FY2015.
a. Of this amount, $353.2 million, or 2.8% of the total IDEA FY2015 appropriation, was appropriated for the
state grants program for preschool children with disabilities (Section 619).
Three of the main purposes of IDEA are
(A) to ensure that all children with disabilities have available to them a free appropriate
public education that emphasizes special education and related services designed to meet
their unique needs and prepare them for further education, employment, and independent
living; (B) to ensure that the rights of children with disabilities and parents of such children
are protected; and (C) to assist states, localities, educational service agencies, and Federal
agencies to provide for the education of all children with disabilities;8
The focus of this report will be on how these purposes are to be achieved under Part B of IDEA,
hereinafter referred to as IDEA. The first purpose is addressed primarily in the section of this
report titled “Services for Children with Disabilities.” The second is addressed in the section on
(...continued)
Individuals with Disabilities Education Act: Final Part B Regulations.
7 IDEA authorizes appropriations for Part C and Part D programs and activities through FY2010. These authorities
were automatically extended for an additional fiscal year by the General Education Provisions Act (GEPA; 20
U.S.C.§1226a). Funding for the programs continues to be authorized through annual appropriations.
8 20 U.S.C. §1400(d)(1), P.L. 108-446 §601(d)(1).
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“Procedural Safeguards ,” and the third is addressed in the section on “Funding, Expenditure
Requirements, and Compliance.”
Services for Children with Disabilities
Children with disabilities receive specially designed instruction and other services to meet their
unique needs. This section addresses (1) criteria children must meet to receive services under
IDEA, (2) how the children are identified and evaluated, and (3) the procedures for developing an
individualized plan to provide special education and related services.
Children with Disabilities
To be covered under IDEA, a child with a disability must
Categories of Disabilities
meet two criteria. First, the child must be in one of several
Autism
categories of disabilities, and second, the child must require
special education and related services as a result of the
Deaf-blindness
disability in order to benefit from public education.10 If a
Deafness
child meets the two criteria, he or she would be eligible to
Emotional disturbance
receive specially designed instruction or special education in
which the content or the delivery of the instruction is
Hearing impairment
adapted to the needs of the child. If a child has a disability,
Intellectual disability9
but does not require special education to benefit from public
Multiple disabilities
education, he or she would not be covered under IDEA. The
child might be covered, however, under two other acts that
Orthopedic impairment
address the rights of individuals with disabilities: Section
Other health impairment
504 of the Rehabilitation Act11 or the Americans with
Specific learning disability
Disabilities Act (ADA).12 These two acts provide broad
Speech or language impairment
nondiscrimination protection not limited to education and
have identical functional definitions of disability (i.e.,
Traumatic brain injury
disabilities related to such functions as seeing, hearing,
Visual impairment
walking, thinking) rather than the categorical definition of
IDEA. “Several of the most common disabilities of students included under Section 504 and the
ADA, but not always covered under IDEA, are attention deficit hyperactivity disorder (ADHD),
diabetes, and asthma.”13
9 P.L. 111-256, commonly referred to as Rosa’s Law, required references to “mental retardation” in IDEA and other
federal laws to change to “intellectual disability.”
10 20 U.S.C §14001(3)(A), P.L. 108-446 §602(3)(A), and 34 C.F.R. §300.8. The statute at §602(3)(B) also permits the
state and LEA to include as a child with a disability a child age three through nine, or any subset of that range, who is
experiencing developmental delays—as defined by the state and as measured by appropriate diagnostic instruments and
procedures—in physical, cognitive, communication, social, emotional, or adaptive development. The child must also
require special education and related services because of the developmental delay.
11 29 U.S.C. §794. For more information on Section 504, see CRS Report RL34041, Section 504 of the Rehabilitation
Act of 1973: Prohibiting Discrimination Against Individuals with Disabilities in Programs or Activities Receiving
Federal Assistance, coordinated by Cynthia Brown.
12 42 U.S.C. §12101 et seq. For a more detailed discussion of the ADA, see CRS Report 98-921, The Americans with
Disabilities Act (ADA): Statutory Language and Recent Issues, by Cynthia Brown.
13 See citation to Rachel A. Holler and Perry A. Zirkel, “Section 504 and Public Schools: A National Survey
(continued...)
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Figure 1 shows the distribution of students with disabilities ages 3 through 21 receiving special
education and related services in the fall of 2012. Over 35% of students with disabilities have
specific learning disabilities (SLD).14 Learning disabilities include such conditions as dyslexia,
perceptual disabilities, and developmental aphasia.15
Figure 1. Disability Distribution for Students Ages 3 through 21 Receiving Special
Education and Related Services under IDEA, Part B: Fall 2012
Source: National Center for Education Statistics, Digest of Education Statistics, Children 3 to 21 years old served
under Individuals with Disabilities Education Act (IDEA), Part B, by type of disability: Selected years, 1976-77
through 2012-13, Table 204.30., http://nces.ed.gov/programs/digest/d14/tables/dt14_204.30.asp.
Notes: Percentages may not add to 100% because of rounding. Total number of students is 6.4 million.
“All other disabilities combined” include multiple disabilities, hearing impairments, orthopedic impairments, visual
impairments, deaf-blindness, and traumatic brain injury.
“Developmental Delay” is a disability category that may be used at the discretion of the states for children ages 3
through 9 years old who are experiencing developmental delays in “one or more of the fol owing areas: physical
development; cognitive development; communication development; social or emotional development; or
adaptive development.” P.L. 108-446 §602(3)(B).
(...continued)
Concerning ‘Section 504-Only’ Students,” 92 NASSP Bulletin 19, 28 (March 2008) in 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. For more information on
differences among IDEA, Section 504, and the ADA, see this report.
14 A specific learning disability is defined as “a disorder in 1 or more of the basic psychological processes involved in
understanding or in using language, spoken or written, which may manifest itself in the imperfect ability to listen,
think, speak, read, write, spell, or do mathematical calculations.” 20 U.S.C. §1401(30)(A), P.L. 108-446 §601(30)(A).
15 20 U.S.C. §1401(30)(B), P.L. 108-446 §601(30)(B). Specific learning disabilities do not include learning problems
that are primarily the result of visual, hearing, or motor disabilities; of mental retardation; of emotional disturbance; or
of environmental, cultural, or economic disadvantage. 20 U.S.C §1401(30)(C), P.L. 108-446 §601(30)(C).
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Free Appropriate Public Education (FAPE)
All children with disabilities receiving special education or related services under IDEA between
the ages of 3 and 21, inclusive, residing in a state are entitled to FAPE.16 The term “free
appropriate public education” means:
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) [Individualized Education
Programs (IEP)].17
FAPE must be made available to all children with disabilities who qualify for special education
and related services, including children who have been suspended or expelled from school.18
Identification and Evaluation
Identifying and Evaluating a Child with a Disability
The first step in providing FAPE to children with disabilities is identifying them. Each state must
have in effect policies and procedures to ensure that all children with disabilities residing in the
state who are in need of special education and related services are identified, located, and
evaluated. These policies and procedures are referred to in statute as “child find.”19 The children
include those with disabilities who are
• homeless or wards of the state,
• attending private schools,
• suspected of having a disability, and
• highly mobile children, including migrant children.
A child who has been identified as having (or possibly having) a disability must be evaluated by
the LEA before receiving special education and related services to determine whether a child is a
child with a disability and to determine the educational needs of the child.20 Either the parent or
16 The regulations at 34 C.F.R. §300.102 (2010) specify three exceptions to this requirement: (1) children ages 3, 4, 5,
18, 19, 20, or 21 in a state that does not provide a public education to children of those ages, (2) children ages 18
through 21 incarcerated in an adult correctional facility who were not identified as children with disabilities in their last
educational placement; and (3) children with disabilities who have graduated from high school with a regular high
school diploma.
17 20 U.S.C. §1401(9), P.L. 108-446 §601(9). For information on the legal aspects of FAPE, see CRS Report RL33444,
The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions, by Nancy Lee Jones and Carol J.
Toland; CRS Report R40521, The Individuals with Disabilities Education Act (IDEA): Selected Judicial Developments
Following the 2004 Reauthorization, by Nancy Lee Jones; and CRS Report R40690, The Individuals with Disabilities
Education Act (IDEA): Statutory Provisions and Recent Legal Issues, coordinated by Cynthia Brown.
18 34 C.F.R. §300.101(a) (2010).
19 20 U.S.C §1412(a)(3), P.L. 108-446 §612(a)(3).
20 20 U.S.C. §1414(a), P.L. 108-446 §414(a). This subsection contains the requirements for evaluations, parental
consent, and reevaluations.
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the LEA may request an initial evaluation.21 In general, the LEA must obtain informed consent
from the parent before conducting an initial evaluation.22 Parental consent for an evaluation
cannot be construed as consent for special education and related services.23 The initial evaluation
must take place within 60 days of receiving parental consent or within an alternative time frame
established by the state.24
In conducting the initial evaluation, the LEA must
• use a variety of assessment tools and strategies to gather relevant functional,
developmental, and academic information, including information provided by the
parent;
• use multiple measures or assessments as the criteria for determining whether a
child is a child with a disability or determining an appropriate educational
program for the child; and
• use technically sound instruments that may assess the relative contribution of
cognitive and behavioral factors, in addition to physical or developmental
factors.25
In addition, assessments and other evaluation materials used to assess a child must be selected
and administered so as not to be discriminatory on a racial or cultural basis. They must also 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.26
Upon completion of the evaluation, the determination of whether the child is a child with a
disability is made and the educational needs of the child are decided by a team of individuals that
includes qualified professionals and the child’s parent or guardian.27 A copy of the evaluation
report and the documentation of determination of eligibility is given to the parent.28 In making a
determination of eligibility, a child shall not be determined to be a child with a disability if the
determinant factor is lack of appropriate instruction in reading, lack of instruction in math, or
limited English proficiency.29
21 The LEA may refuse the parent’s request for an initial evaluation if it does not suspect that the child has a disability.
However, the public agency must provide written notice to the parents, consistent with 34 C.F.R. §300.503(b)(2010)
and §615(c)(1) of the act, which explains, among other things, why the public agency refuses to conduct an initial
evaluation and the information that was used as the basis to make that decision. The parent may challenge such a
refusal by requesting a due process hearing. (71 Fed. Reg. 46636 (August 14, 2006)).
22 The term “consent” is defined at 34 C.F.R. §300.9, and means, in part, that “the parent has been fully informed of all
information relevant to the activity for which consent is sought, in his or her native language, or other mode of
communication”; For more information on parental consent, see also 34 C.F.R. §300.300 (2010).
23 In addition, at the time of the referral or parent request for evaluation, the LEA must provide the parent with the
“Procedural Safeguards Notice,” which is a comprehensive written explanation of IDEA’s legal rights and protections
for children with disabilities and their parents. See 20 U.S.C. §1415(d), P.L. 108-446 §615(d). For further information
on procedural safeguards, see “Procedural Safeguards ” in this report.
24 20 U.S.C §1414(a)(1), P.L. 108-446 §614 (a)(1).
2520 U.S.C. §1414(b)(2), P.L. 108-446 §614 (b)(2).
26 For all the provisions related to additional requirements, see 20 U.S.C. §1414(b)(3), P.L. 108-446 §614 (b)(3).
27 20 U.S.C. §1414(b)(4)(A), P.L. 108-446 §614 (b)(4)(A).
28 20 U.S.C §1414(b)(4)(B), P.L. 108-446 §614 (b)(4)(B).
29 20 U.S.C. §1414(b)(5), P.L. 108-446 §614 (b)(5).
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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 achievement, or functional
performance warrant a reevaluation. 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 in his or her
IEP, indicating that changes are needed in the education or related services the LEA is providing.
A reevaluation may not be done more than once a year unless the parent and LEA agree, and must
be done at least once every three years unless the parent and the LEA agree that a reevaluation is
not necessary.30 In general, parental consent is required for reevaluations as well as for the initial
evaluation.31 In addition, the LEA cannot change the eligibility of a child until a reevaluation is
done, unless the child graduates from high school with a regular diploma or reaches the age at
which state law no longer provides for FAPE.32
Identifying and Evaluating a Child with a Specific Learning Disability (SLD)
As noted above, more than a third of children ages 3 through 21 receiving special education and
related services under IDEA have SLDs. It is therefore worth noting the procedures required for
identifying a child with an SLD. In addition to the procedures addressed above for identifying a
child with a disability, the statute and regulations allow additional procedures.33 In general, a state
must adopt criteria for determining whether a child has an SLD, and an LEA must use the state
criteria.34 The state criteria cannot require the use of a severe discrepancy between intellectual
ability and achievement for determining whether a child has a specific learning disability;35 must
permit the use of a process based on the child’s response to scientific, research-based
intervention;36 and may permit the use of other alternative research-based procedures for
determining whether a child has an SLD.37
In general, the group members who determine whether a child has an SLD must include the
child’s parents, the child’s regular education teacher, and at least one person qualified to conduct
individual diagnostic examinations of children (e.g., a school psychologist, speech-language
30 20 U.S.C. §1414(a)(2), P.L. 108-446 §614 (a)(2).
31 34 C.F.R. §300.300(c) (2010).
32 20 U.S.C. §1414(c)(5), P.L. 108-446 §614 (c)(5).
33 20 U.S.C. §1414(b)(6), P.L. 108-446 §614 (b)(6), and 34 C.F.R. §300.307 through §300.311 (2010).
34 34 C.F.R. §300.307 (2010).
35 20 U.S.C. §1414(b)(6)(A), P.L. 108-446 §614 (b)(6)(A), and 34 C.F.R. §300.307(a)(1) (2010). The Senate report in
considering the 2004 amendments to IDEA 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. 108-185, 108th
Cong., 2d Sess. 26 (2003).
36 20 U.S.C. §1414(b)(6)(B), P.L. 108-446 §614 (b)(6)(B).
37 34 C.F.R. §300.307(a)(3)(2010). In ED’s analysis of comments and changes to the final regulations at 71 Fed. Reg.
46648 (August 14, 2006), ED elaborates on this criterion by stating: “For example, a state could choose to identify
children based on absolute low achievement and consideration of exclusionary factors as one criterion for eligibility.
Other alternatives might combine features of different models for identification.”
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pathologist, or remedial reading teacher).38 The group may determine that a child has an SLD if
three criteria are met:39
• The child does not achieve adequately for the child’s age or meet state-approved
grade-level standards in one or more of eight areas40 when provided with learning
experiences and instruction appropriate for the child’s age or state-approved
grade-level standards.
• The child either does not make sufficient progress to meet age or state-approved
grade-level standards in one or more of the eight areas when using a process
based on the child’s response to scientific, research-based intervention; or the
child exhibits a pattern of strengths and weaknesses in performance,
achievement, or both, relative to age, state-approved grade-level standards, or
intellectual development that is determined by the group to be relevant to the
identification of an SLD.
• If the child is found to have an SLD, it is not primarily the result of a visual,
hearing, or motor disability; intellectual disability; emotional disturbance;
cultural factors; environmental or economic disadvantage; or limited English
proficiency.
To ensure that underachievement in a child suspected of having an SLD is not due to lack of
appropriate instruction in reading or math, the group must consider, as part of the evaluation, (1)
data that demonstrate that prior to, or as a part of, the referral process, the child was provided
appropriate instruction in regular education settings, delivered by qualified personnel; and (2)
data-based documentation of repeated assessments of achievement at reasonable intervals,
reflecting formal assessment of student progress during instruction, which was provided to the
child’s parents.41
If prior to a referral for an evaluation, a child has not made adequate progress after an appropriate
period of time when provided instruction, an LEA must promptly request parental consent to
evaluate the child.42 The regulations also specify that the child must be observed in the child’s
learning environment to document the child’s academic performance and behavior in the areas of
difficulty.43 Finally, the regulations detail the specific documentation for determining eligibility
for a child suspected of having an SLD.44
38 34 C.F.R. §300.308 (2010).
39 34 C.F.R. §300.309(a) (2010).
40 These eight areas are oral expression, listening comprehension, written expression, basic reading skill, reading
fluency skills, reading comprehension, mathematics calculation, and mathematics problem solving.
41 34 C.F.R. §300.309(b) (2010).
42 34 C.F.R. §300.309 (c). In ED’s analysis of comments and changes to the final regulations at 71 Fed. Reg. 46658
(August 14, 2006), ED addresses the issue of “an appropriate period of time” by stating “Instructional models vary in
terms of the length of time required for the intervention to have the intended effect on a child’s progress. It would not
be appropriate for the Department to establish timelines … because doing so would make it difficult for LEAs to
implement models specific to their local school districts. These decisions are best left to state and local professionals
who have knowledge of the instructional methods used in their school.”
43 34 C.F.R. §300.310 (2010).
44 34 C.F.R. §300.311 (2010).
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The Individualized Education Program (IEP)
FAPE is implemented through the IEP, which is the plan for providing special education and
related services by the LEA to the child with a disability. It is developed by an IEP team
composed of school personnel and parents. In general, the IEP team must consider the strengths
of the child; the concerns of the parents; the results of the initial evaluation (or most recent
evaluation); and the academic, developmental, and functional needs of the child.45 The IEP team
meets at least once a year to review the IEP to determine if goals are being met and to make
necessary changes.46 The team must meet to develop the initial IEP for a child within 30 days of
determining that the child needs special education and related services. In addition, as soon as
possible following the development of the IEP, special education and related services must be
made available to the child in accordance with the IEP.47
Content of IEP48
Specifically, IDEA requires that the IEP include the following:
• the child’s present levels of academic achievement and functional performance;
• measurable annual goals, including academic and functional goals, designed to
• meet the child’s needs that result from the child’s disability to enable the
child to be involved in and make progress in the general education
curriculum; and
• meet each of the child’s other educational needs that result from the
child’s disability;
• how the child’s progress toward meeting the above annual goals will be measured
and when periodic reports on the progress the child is making toward meeting the
annual goals will be provided;
• the special education and related services and supplementary aids and services,
based on peer-reviewed research to the extent practicable, to be provided to the
child, or on behalf of the child, and the program modifications or supports for
school personnel that will be provided for the child to
• advance appropriately toward attaining the annual goals;
• be involved in and make progress in the general education curriculum
and participate in extracurricular and other nonacademic activities; and
• be educated and participate with other children with disabilities and
nondisabled children;
• the extent, if any, to which the child will not participate with nondisabled
children in the regular class;
45 20 U.S.C §1414(d)(3)(A), P.L. 108-446 §614 (d)(3)(A).
46 20 U.S.C. §1414(d)(4), P.L. 108-446 §614 (d)(4).
47 34 C.F.R. §300.323(c) (2010).
48 20 U.S.C. §1414(d)(1)(A), P.L. 108-446 §614 (d)(1)(A).
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• any individual appropriate accommodations49 that are necessary to measure the
academic achievement and functional performance of the child on state and
district-wide assessments; if the IEP team determines that the child will take an
alternate assessment on a particular state or district-wide assessment of student
achievement, the IEP should detail why the child cannot participate in the regular
assessment and why the particular alternate assessment selected is appropriate for
the child;50
• the projected date for the beginning of the assessments and their frequency,
location, and duration.
In addition, beginning not later than when the first IEP is in effect when the child is 16, and
updated annually thereafter, the IEP must include appropriate measurable postsecondary goals
related to training, education, employment, and, where appropriate, independent living skills and
the transition services51 needed to assist the child in reaching those goals.
The IEP Team52
Each child identified as a child with a disability must have an IEP developed by an IEP team. In
general, the composition of the team includes
• the parents of a child with a disability;
• one or more regular education teachers, if the child is or may be participating in
the regular education environment;
• one or more special education teachers;
• a representative of the LEA who is qualified to provide or supervise the provision
of special education; is knowledgeable about the general education curriculum;
and is knowledgeable about the availability of resources of the LEA;
• an individual who can interpret the instructional implications of evaluation
results;
49 An accommodation is a change in instructional material or assessment practices that enable students with disabilities
to reduce barriers to learning.
50 Although many students with disabilities are able to participate in the general state assessment, other students may
need an alternate assessment that is tailored to their needs and allows them to more accurately demonstrate what they
know and can do. For information on alternate assessments for students with disabilities, see CRS Report R40701,
Alternate Assessments for Students with Disabilities, by Kyrie E. Dragoo.
51 As defined at 20 U.S.C. §1401(34), P.L. 108-446 §602(34), transition services mean
a coordinated set of activities for a child with a disability that—(A) is designed to be within a
results-oriented process, that is focused on improving the academic and functional achievement of
the child with a disability to facilitate the child’s movement from school to post-school activities,
including post-secondary education, vocational education, integrated employment (including
supported employment), continuing and adult education, adult services, independent living, or
community participation; (B) is based on the individual child’s needs, taking into account the
child’s strengths, preferences, and interests; and (C) includes instruction, related services,
community experiences, the development of employment and other post-school adult living
objectives, and, when appropriate, acquisition of daily living skills and functional vocational
evaluation.
52 20 U.S.C. §1414(d)(1)(B), P.L. 108-446 §614 (d)(1)(B).
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• at the discretion of the parent or the agency, other individuals who have
knowledge or special expertise regarding the child, including related services
personnel, as appropriate; and
• whenever appropriate, the child with a disability.53
Special Education and Related Services
The provision of special education and related services is a key component of FAPE. Special
education means “specially designed instruction, at no cost to parents, to meet the unique needs
of a child with a disability, including—(A) instruction conducted in the classroom, in the home, in
hospitals and institutions, and in other settings; and (B) instruction in physical education.”54
Specially designed instruction, which is delineated in the IEP, means that the content,
methodology, or delivery of instruction is adapted to address the unique needs of the child that
result from the child’s disability. The instruction must ensure the child’s access to the general
curriculum, so that the child can meet the educational standards that apply to all children. While
specially designed instruction is provided at no cost to parents, parents can be required to pay any
incidental fees that are normally charged to nondisabled students or their parents as a part of the
regular education program.55
In general, related services are transportation and those developmental, corrective, and other
supportive services required to help a child with a disability to benefit from special education.
Both the statute and federal regulations define related services and provide a list of related
services.56 The regulations also further define the services that may be provided to a child with a
disability. The list is not exhaustive; other related services could be provided to a child with a
disability. Related services include the following:
• speech-language pathology and audiology services;
• interpreting services for children who are deaf, hard of hearing, or deaf-blind;
• psychological services;
• physical therapy and occupational therapy;
• recreation, including therapeutic recreation;
• social work services in schools;
• school health services and school nurse services;
• counseling services, including rehabilitation counseling;
• orientation and mobility services provided to blind or visually impaired children;
• parent counseling and training;
53 If the purpose of an IEP meeting is to consider the postsecondary goals for the child and transition services, the LEA
must invite the child to attend the meeting; 34 C.F.R. §300.321(b)(1) (2010).
54 20 U.S.C. §1401(29), P.L. 108-446 §602(29), and 34 C.F.R. §300.39 (2010).
55 34 C.F.R. §300.39(b)(1) (2010).
56 20 U.S.C. §1401(26), P.L. 108-446 §602(26), and 34 C.F.R. §300.34 (2010).
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• medical services for diagnostic and evaluation purposes only;57 and
• early identification and assessment of disabilities through the implementation of
a formal plan for identifying a disability.
Coordinated Early Intervening Services (CEIS)
With some restrictions, LEAs may use up to 15% of their allocations58 “to develop and implement
coordinated, early intervening services, which may include interagency financing structures, for
students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten
through grade 3) who have not been identified as needing special education or related services but
who need additional academic and behavioral support to succeed in a general education
environment.”59 CEIS may not, however, delay an appropriate evaluation of a child suspected of
having a disability.60
In its analysis of comments and changes to the final regulations, ED discusses the potential
benefits of CEIS as follows:
The authority to use some Part B funds for early intervening services has the potential to
benefit special education, as well as the education of other children, by reducing academic
and behavioral problems in the regular educational environment and reducing the number of
referrals to special education that could have been avoided by relatively simple regular
education interventions.61
LEAs may use CEIS funds for both professional development for teachers and other school staff
and for educational and behavioral evaluations, services, and supports to students.62 Funds may
also be used to carry out CEIS that are aligned with activities funded by, and carried out under,
the Elementary and Secondary Education Act of 1965 (ESEA) if the funds supplement, and do
not supplant, ESEA funds.63
A state must require an LEA to use up to 15% of its funds for CEIS if the state has determined
through statutorily required data collection that “significant disproportionality”64 based on race
57 For a discussion of the legal issues regarding medical services as a related service, see CRS Report R40690, The
Individuals with Disabilities Education Act (IDEA): Statutory Provisions and Recent Legal Issues, coordinated by
Cynthia Brown.
58An LEA cannot use the full 15% for CEIS when they are also reducing funds under IDEA maintenance of effort
(MOE) provisions. See the discussion in this report on “Maintenance of Effort (MOE)” for further explanation.
59 20 U.S.C. §1413(f), P.L. 107-110 §613(f). Coordinated Early Intervening Services (CEIS), also referred to in statute
as Early Intervening Serving (EIS), should not be confused with Early Intervention Services (EIS) authorized under
Part C of IDEA. Part C, EIS, defined in Section 632(4), is for infants and toddlers with disabilities, while Part B CEIS
is for students who are not currently identified as having disabilities but need additional support to succeed in a general
education environment. (A student could receive CEIS if he or she had previously received special education, but is not
currently identified as needing it. 71 Fed. Reg. 46626 (August 14, 2006) and 34 C.F.R. §300.226 (2010).)
60 34 C.F.R. §300.226 (c) (2010).
61 71 Fed. Reg. 46626-46627 (August 14, 2006).
62 For more information on CEIS, see U.S. Department of Education, “Memorandum: Coordinated Early Intervening
Services (CEIS) Under Part B of the Individuals with Disabilities Education Act (IDEA),” July 28, 2008,
http://www2.ed.gov/policy/speced/guid/idea/ceis-guidance.pdf.
63 20 U.S.C §1413(f)(5), P.L. 107-110 §613(f)(5).
64 The term “significant disproportionality” is defined by each state; 71.Fed. Reg. 46738 (August 14, 2006).
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and ethnicity is occurring with respect to the identification of children with disabilities; their
placement in particular education settings; and the incidence, duration, and type of disciplinary
actions, including suspensions and expulsions.65 The funds are to be used to provide CEIS “to
serve children in the LEA, particularly, but not exclusively, children in those groups that were
significantly overidentified.”66
Response to Intervention (RTI)
One way that coordinated early intervening services are provided is through an approach called
Response to Intervention (RTI). RTI “is a multi-level framework to maximize student
achievement by providing support to students at risk for poor learning outcomes.”67 While there
are many models of RTI, ED notes that
the core characteristics that underpin all RTI models are: (1) students receive high quality
research-based instruction in their general education setting; (2) continuous monitoring of
student performance; (3) all students are screened for academic and behavioral problems;
and (4) multiple levels (tiers) of instruction that are progressively more intense, based on the
student’s response to instruction.
For example, an RTI model with a three-tier continuum of school-wide support might
include the following tiers and levels of support: (1) Tier one (Primary Intervention), for all
students using high quality scientific research-based instruction in their general education
setting. It would not be appropriate to use EIS funds for these activities since these students
do not need additional academic and behavioral support to succeed in a general education
environment. (2) Tier two (Secondary Intervention), for specialized small group instruction
of students determined to be at risk for academic and behavioral problems. It would be
appropriate to use EIS funds to support these activities. (3) Tier three (Tertiary Intervention)
for specialized individualized instructional/behavioral support for students with intensive
needs. EIS funds could not be used if these students were currently receiving special
education or related services.68
Highly Qualified Teachers
Each SEA must ensure that each special education teacher who teaches elementary or secondary
school is “highly qualified.”69 The term “highly qualified” as defined in IDEA is linked to the
definition in ESEA. In brief, ESEA requires that public school teachers of “core academic
subjects”70 obtain full state teaching certification or pass the state teacher licensing examination,
65 20 U.S.C. §1418(d), P.L. 108-446 §618(d).
66 34 C.F.R. §300.646 (b)(2) (2010).
67 U.S. Department of Education, Implementing RTI Using Title I, Title III, and CEIS Funds, Key Issues for Decision-
maker, p. 11, http://www2.ed.gov/programs/titleiparta/rtifiles/rti.pdf.
68 U.S. Department of Education, Questions and Answers on Response to Intervention (RTI) and Early Intervening
Services (EIS), January 2007, Question F-5. RTI is one type of scientific, research-based intervention used to identify
students with SLD. See “Identifying and Evaluating a Child with a Specific Learning Disability (SLD).”
69 20 U.S.C. §1412(a)(14)(C), P.L. 108-446 §612(a)(14)(C).
70 The term “core academic subjects” as defined in ESEA at 20 U.S.C. §7801(11), P.L. 107-110 §9101(11) means
“English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts,
history, and geography.” The IDEA definition of core academic subjects defined at 20 U.S.C. §1401(4), P.L. 108-446
§602(4) has the same meaning as the ESEA definition.
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or fulfill requirements in a state’s charter school law for teachers in charter schools; have not had
any certification requirements waived on an emergency, temporary, or provisional basis; and have
a bachelor’s degree.71 IDEA modifies the ESEA definition as it applies to special education
teachers.72 IDEA requires that all special education teachers, whether they teach core academic
subjects or not, obtain full state special education teaching certification or pass the state teacher
licensing examination, or fulfill requirements in a state’s charter school law for teachers in charter
schools; have not had any certification requirements waived on an emergency, temporary, or
provisional basis; and have a bachelor’s degree. In addition, IDEA has specific provisions related
to teachers who teach only the most severely disabled children and those who teach more than
one core subject.73
The Educational Environment
IDEA requires that children with disabilities be educated in the least restrictive environment
possible.74 In other words, to the maximum extent that is appropriate they are to be educated with
children who are not disabled. Further, special classes, separate schooling, or other removal of
children with disabilities from the regular educational environment can occur only when the
nature or severity of the disability of a child is such that education in regular classes with the use
of supplementary aids and services75 cannot be achieved satisfactorily. Supplementary aids and
services could include such things as additional time to take tests or complete assignments,
slower-paced instruction, personal aides, peer tutors, and use of a computer.
The LEA must also ensure that there is a continuum of alternate placements that includes
instruction in regular classes, special classes, special schools, home instruction, and instruction in
hospitals and institutions. This continuum must also make provision for supplementary services
to be provided in conjunction with regular class placement.76
The specific placement decision for each child with a disability must be made by a group of
persons, including the parents, and other persons knowledgeable about the child, the meaning of
the evaluation data, and placement options. The child’s placement must be (1) determined at least
annually, (2) based on the IEP, and (3) as close to home as possible.77
71 20 U.S.C. §7801(23), P.L. 107-110 §9101(23). For more information on ESEA requirements, see CRS Report
R42127, Teacher Quality Issues in the Elementary and Secondary Education Act, by Jeffrey J. Kuenzi.
72 For more information on highly qualified teachers under IDEA, 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.
73 20 U.S.C. §1401(10), P.L. 108-446 §602(10), and 34 C.F.R. §300.18.
74 20 U.S.C. §1412(a)(5), P.L. 108-446 §612(a)(5). For legal issues pertaining to least restrictive environment, see CRS
Report R40690, The Individuals with Disabilities Education Act (IDEA): Statutory Provisions and Recent Legal Issues,
coordinated by Cynthia Brown.
75 20 U.S.C. §1401(33), P.L. 108-446 §602(33). Supplementary aids and services are defined as “aids, services, and
other supports that are provided in regular education classes or other education-related settings to enable children with
disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with section
612(a)(5) [Least Restrictive Environment].”
76 34 C.F.R. §300.115.
77 34 C.F.R. §300.116.
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As with identification and evaluation, the child’s parents must be notified in writing within a
reasonable time before the placement.78 If the parents disagree with the placement decision, they
may use the procedural safeguards, such as the mediation and due process complaints discussed
in the “Procedural Safeguards ” section of this report.
As shown in Table 2, which contains the most recent data available, 61% of children with
disabilities ages 6 through 21 spend 80% or more of their time in the regular classroom; 20%
spend between 40% and 79%; 14% spend less than 40%; and 5% are educated in other
environments. Other environments are a separate school, a residential facility, a private school
placement by the parent, a correctional facility, and a home or hospital. Only 3% of all children
with disabilities ages 6 through 21 receive their education in a separate school and an additional
1% are parentally placed in a private school. As also shown in Table 2, 66% of children with
SLDs and 87% with speech and language impairments spend 80% or more of their classroom
time in the regular classroom, while only 17% of children with intellectual disabilities spend 80%
or more of their time in the regular classroom.
Table 2. Percentage of Time Students Ages 6 through 21 Spend in a Regular
Classroom and in Other Environments, under IDEA Part B: Fall 2011
Percentage Who
Percentage Who
Spend 80% or
Percentage Who
Spend Less than
Percentage Who
More of Time in a
Spend 40%-79% of
40% of Time in a
are Educated in
Regular
Time in a Regular
Regular
Other
Disability
Classroom
Classroom
Classroom
Environments
Speech or language
87% 6% 5% 3%
impairments
Specific learning
66% 25% 7% 2%
disability
Other health
63% 23% 10% 4%
impairments
Intellectual
17% 27% 49% 8%
disabilities
Emotional
43% 18% 21% 18%
disturbance
Autism 39%
18%
34%
9%
Al disabilities
61%
20%
14%
5%
Source: Data Accountability Center, Part B Educational Environment (2011), MS-EXCEL Table 2-2,
http://tadnet.public.tadnet.org/pages/712.
Notes: Percentages by disability may not add to 100% because of rounding. Total number of students is 5.8
million.
78 34 C.F.R. §300.503.
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Children with Disabilities in Private Schools79
A child with a disability may be placed in a private elementary or secondary school by an LEA as
part of an IEP if the IEP team determines that a private school placement is needed to fulfill the
FAPE requirements for the child. In this situation, the private school placement is made at no cost
to the parents, and the child has all of the rights of a child with a disability who is served in a
public school.80
A child with a disability may also be unilaterally placed in a private elementary or secondary
school by his or her parents.81 In this situation, the “parentally placed” child is not entitled to
FAPE, and the cost of the private school placement is not paid by the LEA unless a court or
hearing officer makes certain findings.82 The LEA must, however, spend a share of its IDEA
funds to provide services to children enrolled with disabilities by their parents in private schools
located in the LEA based on the proportion of parentally placed children to the total number of
children with disabilities in the LEA.83 Except where there is a court order, the LEA makes the
final decision about the services to be provided to parentally placed private school children.84 In
making this decision, the LEA must engage in a consultation process with the private school
officials and representatives of parents.85 The LEA is also responsible for devising a service plan
for every parentally placed child with a disability receiving special education or related services
from the LEA.86
Procedural Safeguards
Procedural safeguards87 are provisions protecting the rights of parents and children with
disabilities regarding FAPE. The various types of procedures include parental rights to
• inspect and review educational records;88
79 For more information on this topic, including legal issues, see CRS Report R41678, The Individuals with Disabilities
Education Act (IDEA): Private Schools.
80 20 U.S.C. §1412(a)(10)(B), P.L. 108-446 §612(a)(10)(B).
81 20 U.S.C. §1412(a)(10)(B), P.L. 108-446 §612(a)(10)(B).
82 20 U.S.C. §1412(a)(10)(C), P.L. 108-446 §612(a)(10)(C). Specifically, an LEA could be required by a court or a
hearing officer to reimburse the parents of a child with a disability who (1) previously received special education and
related services from an LEA, and (2) enrolled the child in a private elementary school or secondary school without the
consent of or referral by the LEA for the cost of the private school enrollment if the court or hearing officer found that
the LEA had not made FAPE available to the child in a timely manner prior to the private school enrollment.
83 20 U.S.C. §1412(a)(10)(iii)(I), P.L. 108-446 §612(a)(10)(iii)(I). For example, if an LEA has 250 children with
disabilities, 15 of whom were parentally placed in a private school, 6% of federal IDEA Part B funds (i.e., 15/250 *
100) would be spent on the group of children with disabilities in private schools in the LEA. For a more comprehensive
hypothetical example, see Appendix B to 34 C.F.R. Part 300. It should be emphasized that no individual parentally
placed private school child with a disability is entitled to services.
84 20 U.S.C. §1412(a)(10)(A)(iii), P.L. 108-446 §612(a)(10)(A)(iii).
85 34 C.F.R. §300.137(b) (2010).
86 34 C.F.R. §300.138)(b) (2010).
87 For information on the legal issues pertaining to procedural safeguards, including burden of proof, parental rights,
attorneys’ and expert witness fees, see CRS Report R40690, The Individuals with Disabilities Education Act (IDEA):
Statutory Provisions and Recent Legal Issues, coordinated by Cynthia Brown.
88 20 U.S.C. §1415(b)(1), P.L. 108-446 §615(b)(1), and 34 C.F.R. §300.501(a) (2010).
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• participate in meetings related to the identification, evaluation, and educational
placement of their child;89
• obtain an independent educational evaluation at public expense if the parent
disagrees with an evaluation obtained by the LEA;90
• receive prior written notice in the native language of the parents when an LEA
proposes to initiate or change, or refuses to initiate or change, the identification,
evaluation, or educational placement of the child or the provision of FAPE to the
child;91
• receive a procedural safeguards notice, which is a comprehensive written
explanation of IDEA’s legal rights and protections for children with disabilities
and their parents;92
• resolve disputes through a mediation process;93
• present and resolve complaints through the due process complaint procedures,
which include a right to file suit in federal district court;94 and
• present and resolve complaints through state complaint procedures.95
Three of the procedural safeguards listed above pertain to dispute resolution between parents and
the LEA. These are mediation, due process complaint procedures, and state complaint procedures,
which are discussed below. IDEA’s disciplinary provisions, discussed in this section as well, also
include procedural safeguards to protect the rights of children with disabilities to FAPE.
Mediation96
Mediation is a process of resolving disputes initiated by either the parent or LEA involving any
matter under IDEA. It is a way of resolving complaints without the formal due process hearing,
discussed below. Either a parent or an LEA can initiate the mediation process, which must be
voluntary for each party. The mediation must be conducted by a qualified and impartial mediator
who is trained in effective mediation techniques. The cost of the mediation process is borne by
the state.
If the school and parent resolve a dispute through the mediation process, they must execute a
legally binding agreement that is signed by the parent and a representative of the LEA. This
89 20 U.S.C. §1414(e), P.L. 108-446 §614(e), and 34 C.F.R. §300.501(b) and (c) (2010).
90 20 U.S.C. §1415(b)(1), P.L. 108-446 §614(b)(1), and 34 C.F.R. §300.502 (2010). If the LEA asserts that its
evaluation is appropriate, it can file a due process complaint to request a hearing. If the final decision is that the
agency’s evaluation is appropriate, the parent still has the right to an independent education evaluation, but not at
public expense.
91 20 U.S.C. §1415 (b)(3) and (4), P.L. 108-446 §615(b)(3) and (4), and 34 C.F.R. §300.503(a) and (c) (2010). For the
statutory and regulatory provision regarding the content of the notice, see 20 U.S.C. §1415 (c)(1), P.L. 108-446
§615(c)(1), and 34 C.F.R. §300.503(b) (2010).
92 20 U.S.C. §1415(d), P.L. 108-446 §615(d), and 34 C.F.R. §300.504 (2010).
93 20 U.S.C. §1415(e), P.L. 108-446 §615(e), and 34 C.F.R. §300.506 (2010).
94 20 U.S.C. §1415(f) through (j), P.L. 108-446 §615(f) through (j), and 34 C.F.R. §300.507 through §300.518 (2010).
95 34 C.F.R. §300.151 through §300.153 (2010). State complaint procedures are not contained in the statute.
96 20 U.S.C. §1415(e), P.L. 108-446 §615(e), and 34 C.F.R. §300.506 (2010).
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agreement is enforceable in state or U.S. district court. Discussions that occur during the
mediation process must be confidential and may not be used in any subsequent due process
hearing or civil proceeding of any federal or state court.
Due Process Complaint Procedures
The due process complaint procedure begins with filing a due process complaint, which is in
effect a request for a due process hearing, on matters relating to the identification, evaluation, or
educational placement of a child with a disability, or the provision of FAPE to the child.
Generally, unless the SEA or LEA and the parent otherwise agree, the child must remain in his or
her current educational placement pending the outcome of the due process complaint procedures
or of a court proceeding. This requirement is referred to as “stay put.”97
Either a parent or an LEA may file a due process complaint.98 The due process complaint must
allege a violation that occurred not more than two years before the date the parent or public
agency knew or should have known about the alleged action that forms the basis of the due
process complaint, or, if the state has an explicit time limitation for filing a due process
complaint, occurred in the time period allowed by state law.99
Within 15 days of receiving the due process complaint, the LEA must convene a resolution
session to attempt to resolve the issues unless the parents and LEA agree to waive the session. If
the issues are not resolved, the due process hearing may occur. If the complaint is not resolved
through mediation, a resolution meeting, or a due process hearing, either party to the complaint
can file a civil suit.100
The due process hearing is conducted by an impartial hearing officer.101 The decision of the
hearing officer is final, except that any party in a state where the hearing is conducted by the LEA
may appeal the findings and decision to the SEA, who in turn must conduct an impartial review.
If the hearing was held in a state where the SEA conducted the hearing, then either party can file a
civil lawsuit. The party filing the lawsuit has 90 days from the date of the decision of the hearing
officer or, if applicable, the decision of the state review official, to file the lawsuit; or, if the state
has an explicit time limitation for bringing civil action, the lawsuit must be filed in the time
period allowed by state law.102
97 20 U.S.C. §1415(j), P.L. 108-446 §615(j), and 34 C.F.R. §300.518 (2010).
98 20 U.S.C. §1415(b)(7) and (8), and 20 U.S.C. §1415(c)(2), P.L. 108-446 §615(b)(7) and (8), and §615(c)(2), and 34
C.F.R. §300.507 through §300.509 (2010).
99 There are two exceptions to this timeline. The timeline does not apply if the parent was prevented from requesting a
hearing due to specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due
process complaint; or the LEA withheld information from the parent that was required to be provided to the parent. 20
U.S.C. §1415(b)(6), P.L. 108-446 §615(b)(6), and 34 C.F.R. §300.507(a)(2) (2010).
100 For more detail, see the statutory and regulatory provisions at 20 U.S.C. §1415, P.L. 108-446 §615, and 34 C.F.R.
Subpart E (2010).
101 For information on conducting a due process hearing, see 20 U.S.C. §1415(f), P.L. 108-446 §615(f), and 34 C.F.R.
§300.511 through §300.515 (2010). For information on the required qualifications of the hearing officer, see 20 U.S.C.
§1415(f)(3), P.L. 108-446 §615(f)(3), and 34 C.F.R. §300.511(c) (2010).
102 20 U.S.C. §1415(g) and (i), P.L. 108-446 §615(g) and (i), and 34 C.F.R. §300.514 and §300.516 (2010).
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State Complaint Procedures103
The IDEA regulations require each state to adopt written procedures for resolving complaints that
allege LEA violations of the statute or regulations. In its analysis of comments and changes to the
final regulations, ED distinguishes between the due process complaint process and the state
complaint process as follows:
The due process complaint procedures and the State complaint procedures are separate and
distinct. The State complaint procedures remain a viable alternative to the due process
procedures for parents to resolve disputes with public agencies in a less formal and more cost
effective manner.104
Unlike requests for mediation or for complaints filed under due process procedures, where only a
parent or an LEA can file a complaint, a state complaint can be filed by any organization or
individual, including those from another state. State complaint procedures must ensure that
complaints will be resolved within 60 calendar days from the date the complaint is filed unless an
extension is permitted.105
Discipline106
IDEA’s disciplinary provisions are intended to “balance school safety issues with the need to
ensure that schools respond appropriately to a child’s behavior that was caused by, or directly and
substantially related to, the child’s disability.”107 IDEA addresses both the school’s authority in
disciplining students with disabilities and the rights of the students to receive FAPE. In general, a
child with a disability is not immune from disciplinary procedures; however, these procedures are
not identical to those for children without disabilities.108
If a child with a disability commits an action that would be subject to discipline, school personnel
have several immediate options. These include
• removing a child from his or her current placement to another setting or
suspension for up to 10 school days;109
• placing the child in an interim alternative education setting for up to 45 school
days for situations involving weapons or drugs, or if the student has inflicted
serious bodily injury on another person while at school;110 and
103 34 C.F.R. §300.151 through §300.153 (2010).
104 71 Fed. Reg. 46700 (August 14, 2006).
105 An extension of the 60-day time limit may be permitted only if exceptional circumstances exist with respect to a
particular complaint or if the complainant and the LEA agree to extend the time to engage in mediation, or to engage in
other alternative means of dispute resolution, if available in the state.
106 For more information on IDEA disciplinary provisions, see CRS Report RL32753, Individuals with Disabilities
Education Act (IDEA): Discipline Provisions in P.L. 108-446, by Nancy Lee Jones. For information on legal issues, see
discussion of Honig v. Doe in CRS Report RL33444, The Individuals with Disabilities Education Act (IDEA): Supreme
Court Decisions, by Nancy Lee Jones and Carol J. Toland.
107 U.S. Department of Education, Questions and Answers on Discipline Procedures, June 2009, http://idea.ed.gov/
explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C7%2C.
108 20 U.S.C. §1415(k).
109 20 U.S.C. §1415(k)(1)(B), P.L. 108-446 §615(k)(1)(B).
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• asking a hearing officer to order a child to be placed in an interim alternative
educational setting for up to 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.111
If an LEA seeks to change the placement of a child with a disability for more than 10 days, the
LEA must first determine
(I) if the conduct in question was caused by, or had a direct and substantial relationship to,
the child’s disability; or (II) if the conduct in question was the direct result of the local
educational agency’s failure to implement the IEP.112
This determination is referred to as a “manifestation determination.” The reason for the
determination is IDEA’s recognition “that a child with a disability may display disruptive
behaviors characteristic of the child’s disability and the child should not be punished for
behaviors that are a result of the child’s disability.”113
If the child’s behavior is not a manifestation of a disability, long-term disciplinary action such as
expulsion may occur, except that educational services may not cease.114 If the behavior is a
manifestation of the 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.115 If there
was a behavioral intervention plan, it must be reviewed and modified as necessary to address the
behavior.116
Except for certain circumstances involving weapons, illegal drugs, or serious bodily injury, when
the conduct is a manifestation of the disability, the child must 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.117 If the parent of a child with a disability
disagrees with any decision regarding placement or the manifestation determination, or an LEA
believes that maintaining the current placement of the child is substantially likely to result in
injury to the child or others, either may request a due process hearing.118
Nothing in IDEA is to be construed as prohibiting an LEA from reporting a crime committed by a
child with a disability to the appropriate authorities. An LEA reporting a crime committed by a
(...continued)
110 20 U.S.C. §1415(k)(1)(G), P.L. 108-446 §615(k)(1)(G).
111 20 U.S.C. §1415(k)(3), P.L. 108-446 §615(k)(3).
112 To determine if the child’s behavior meets either of these criteria, the LEA, the parent, and the relevant members of
the IEP team must review all relevant information in the student’s file, including the child’s IEP, any teacher
observations, and any relevant information provided by the parents; 20 U.S.C. §1415(k)(1)(E), P.L. 108-446
§615(k)(1)(E).
113 71 Fed. Reg. 46720 (August 14, 2006).
114 20 U.S.C. §1415(k)(1)(C), P.L. 108-446 §615(k)(1)(C).
115 20 U.S.C. §1415(k)(1)(F)(i), P.L. 108-446 §615(k)(1)(F)(i). In addition, if the conduct of a child with a disability
was the direct result of the LEA’s failure to implement the IEP, “the LEA must take immediate steps to remedy those
deficiencies”; 34 C.F.R. §300.530(e)(3) (2010).
116 20 U.S.C. §1415(k)(1)(F)(ii), P.L. 108-446 §615(k)(1)(F)(ii).
117 20 U.S.C. §1415(k)(1)(F)(iii), P.L. 108-446 §615(k)(1)(F)(iii).
118 20 U.S.C. §1415(k)(3)(A), P.L. 108-446 §615(k)(3)(A).
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child with a disability will ensure that copies of the special education and disciplinary records of
the child are transmitted for consideration by the appropriate authorities to whom the agency
reports the crime.119
Funding, Expenditure Requirements,
and Compliance
IDEA provides federal funding for the education of children with disabilities and imposes certain
conditions for the receipt of federal funds. This section addresses state and local (1) funding
allocations; (2) expenditure requirements, including maintenance of effort provisions; and (3)
compliance with IDEA provisions through federal and state monitoring and enforcement
requirements.
Funding
Actual and proposed grants to states are often discussed in terms of the percent of the “excess
costs” of educating children with disabilities that the federal government will pay.120 The metric
for determining this excess cost is based on the national average per-pupil expenditure (APPE). In
1975, with the enactment of the Education for All Handicapped Children Act (P.L. 94-142), it was
determined that the federal government would pay up to 40% of APPE to assist with this excess
cost.121 This 40% of APPE is often referred to as “full funding.” In FY2015, the Part B grants to
states appropriation of $11.5 billion provided an estimated 16% of APPE.122
State Formula Allocations
Of the funds appropriated for IDEA, the Secretary of Education first reserves (1) not more than
1% of the appropriation for the outlying areas and freely associated states,123 (2) funds for
services for Indian children with disabilities,124 and (3) not more than one-half of 1% of the
appropriation up to a maximum of $25 million, adjusted for inflation, to provide technical
assistance to improve the capacity of states to meet data collection requirements.125 The
119 20 U.SC. §1415(k)(6), P.L. 108-446 §615(k)(6).
120 The term “excess costs” is defined at 20 U.S.C. §1401 (8), P.L. 108-446 §602(8).
121 “In 1975, when the act was originally enacted, Congress established the goal of providing up to 40% of the national
average per pupil expenditure to assist states and local educational agencies with the excess costs of educating students
with disabilities”; H.Rept. 108-77, p.93.
122 CRS calculation based on unpublished data from the U.S. Department of Education.
123 20 U.S.C. §1411(b)(1), P.L. 108-446 §616(b)(1). The outlying areas are defined in §602(22) as the “United States
Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.” Freely associated
states are defined in §611(b)(3) as “the Republic of the Marshall Islands, the Federated States of Micronesia, and the
Republic of Palau.”
124 The statute at §611(b)(2) reserves 1.226% of the Part B appropriation for the Department of the Interior’s Bureau of
Indian Education (BIE) schools; however, this percentage has been overridden since FY2002 through the
appropriations process, which has provided annual increases for BIE schools based on the rate of inflation. For
example, see the language in the Special Education account in Title III of Division H of P.L. 113-76 (Consolidated
Appropriations Act, 2014).
125 20 U.S.C. §1411(c), P.L. 108-446 §616(c).
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remainder of the funds are allocated by a formula to the 50 states, the District of Columbia, and
Puerto Rico. If the amount available for allocations to states for a fiscal year is equal to or greater
than the amount allocated to the states for the preceding fiscal year, the formula126 first requires
that each state receive a base grant, which is the amount received by the state for FY1999. The
next step is to distribute 85% of the remaining funds among the states based on states’ shares of
total population ages 3 to 21127 and 15% of the remaining funds based on states’ shares of poor
children in that age range. The third step ensures that states do not receive less than certain
minimum amounts or more than certain maximum amounts.128 If the amount available for
allocation to states decreases from the prior year, any amount available for allocation to states
above the 1999 level is allocated based on the relative increases in funding that the states received
between 1999 and the prior year. If there is a decrease below the amount allocated for 1999, each
state’s allocation is ratably reduced from the 1999 level.129
State-Level Activities
A state may reserve funds from their grants for administration130 and for a variety of other
statewide activities. These include two mandatory activities: (1) monitoring, enforcement, and
complaint investigation, and (2) establishing and maintaining a parental mediation process.131
Other allowable state-level activities include improving the use of technology in the classroom,
developing transition programs, and assisting LEAs in meeting personnel shortages.132 In
addition, for the purpose of assisting LEAs in addressing the needs of high-need children (i.e.,
children who require expensive services, including certain medical expenses), states may
establish a risk pool or “high cost” fund. If a state chooses to establish a risk pool, it may use 10%
of the funds it reserved for state-level activities.133 States using a risk pool must develop and
annually review a state plan in which the state determines which children with disabilities are
high need, sets out the procedures by which LEAs participate in the risk pool, and determines
how funds are distributed.134 Funds distributed from the risk pool must only pay for “direct
special education and related services” for high need children with disabilities135 and may not be
126 20 U.S.C. §1411(d), P.L. 108-446 §616(d).
127 These age ranges for this population vary from state to state depending on the age range for which each state makes
FAPE available.
128 20 U.S.C. §1411(d)(3)(B) and 20 U.S.C. §1411(a)(2)(B), P.L. 108-446 §616(d)(3)(B) and P.L. 108-446
§616(a)(2)(B).
129 20 U.S.C. §1411(d)(4), P.L. 108-446 §611(d)(4).
130 20 U.S.C. §1411(e)(1), P.L. 108-446 §611(e)(1). The amount that a state may reserve for administration is up to the
greater of the maximum amount the state could reserve from FY2004 funds, or $800,000, increased by the Secretary
for inflation as reflected by the Consumer Price Index for All Urban Consumers.
131 20 U.S.C. §1411(e)(2)(B), P.L. 108-446 §611(e)(2)(B).
132 20 U.S.C. §1411(e)(2)(C), P.L. 108-446 §611(e)(2)(C).
133 20 U.S.C. §1411(e)(3), P.L. 108-446 §611(e)(3). The percentage of a state’s allocation that a state may reserve for
state-level activities depends on the amount a state uses for state administration and whether or not the state uses a risk
pool. A state that uses a risk pool can set aside 10.5% for state level activities if it uses $850,000 or less for state
administration, or 10% if it uses $850,000 or more for state administration A state that does not use a risk pool can set
aside 9.5% for state level activities if it uses $850,000 or less for state administration, or 9% if it uses $850,000 or more
for state administration. For FY2007 and each subsequent fiscal year, each state may reserve the maximum amount the
state was eligible to reserve in FY2006, cumulatively adjusted by the rate of inflations as reflected by the Consumer
Price Index for All Urban Consumers. See 20 U.S.C. §1411(e)(2)(A), P.L. 108-446 §611(e)(2)(A).
134 20 U.S.C. §1411(e)(3)(C), P.L. 108-446 §611(e)(3)(C).
135 20 U.S.C. §1411(e)(3)(D)(iii), P.L. 108-446 §611(e)(3)(D)(iii).
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used for legal fees or related costs.136 If some funds reserved for the risk pool are not distributed
for services for high-need children, they are to be distributed to LEAs according to the substate
formula.137
LEA Formula Allocations
Funds remaining after funds for state-level activities are set aside are distributed to LEAs based
on a formula similar to the state formula. Like the state formula, LEAs are first allocated base
grants. Also similar to the state formula, 85% of the remaining funds is allocated based on LEAs’
shares of public and private school enrollment and 15% of the remaining funds is allocated based
on shares of children living in poverty, as determined by the SEA. There is no minimum or
maximum grant.138
State and LEA Expenditure Requirements
IDEA state and LEA expenditure requirements are aimed at increasing overall educational
spending, rather than substituting federal funds for education spending at the state and local
levels. Maintenance of effort (MOE) provisions basically require that a state or an LEA not
reduce its support for special education and related services below the level of support it provided
the previous fiscal year. Supplement, not supplant (SNS) requirements generally prohibit a state
or LEA from using IDEA grants to provide services, purchase equipment, etc., that state, local, or
other federal funds currently provide or purchase or, in the absence of the IDEA funds, that those
other funds would have provided or would have purchased.
Maintenance of Effort (MOE)
In general, a state may not reduce the amount of its financial support for special education and
related services for children with disabilities below the amount of that support for the preceding
fiscal year.139 In any fiscal year in which a state does not meet this MOE requirement, the
Secretary of Education is required to reduce the state’s subsequent year grant by the same amount
by which the state fails to meet the requirement.140 The Secretary may grant a waiver for one
fiscal year at a time in the case of “exceptional or uncontrollable circumstances” such as a natural
disaster or a “precipitous and unforeseen decline in the financial resources of the state.”141 In
addition, waivers can be granted if the state can provide “clear and convincing evidence” that
FAPE is available for all children with disabilities.142 If a state does not meet its MOE
requirement for any year, including any year for which the state was granted a waiver, the state
financial support required in future years is not reduced. That is, the state must provide the
136 20 U.S.C. §1411(e)(3)(E), P.L. 108-446 §611(e)(3)(E).
137 20 U.S.C. §1411(e)(3)(I), P.L. 108-446 §611(e)(3)(I).
138 20 U.S.C. §1411(f), P.L. 108-446 §611(f).
139 20 U.S.C. §1412(a)(18)(A), P.L. 108-446 §612(a)(18)(A).
140 20 U.S.C. §1412(a)(18)(B), P.L. 108-446 §612(a)(18)(B).
141 20 U.S.C. §1412(a)(18)(C)(i), P.L. 108-446 §612(a)(18)(C)(i).
142 20 U.S.C. §1412(a)(18)(C)(ii), P.L. 108-446 §612(a)(18)(C)(ii).
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amount that would have been required in the absence of failing to meet MOE in the previous
year.143
LEAs may use IDEA funds only for the excess costs144 of educating children with disabilities, and
may not reduce the level of expenditures for the education of children with disabilities made by
the LEA from local funds below the level of those expenditures for the preceding fiscal year.145 In
general, the SEA must determine that an LEA meets this requirement (for purposes of
establishing the LEA’s eligibility for an award for a fiscal year). If the LEA assures the SEA that
it will provide at least the same total or per capita amount from either local funds only or a
combination of state and local funds for the most recent prior year for which the data are
available, then the LEA would be eligible for funds.146 IDEA specifies in statute four
circumstances in which an LEA may legally reduce its local expenditures. These are in cases of
(1) voluntary departure, by retirement or otherwise, or departure for just cause, of special
education personnel; (2) a decrease in the enrollment of children with disabilities; (3) the
termination of the obligation of the agency ... to provide a program of special education to a
particular child with a disability that is an exceptionally costly program ... ; or (4) the
termination of costly expenditures for long-term purchases, such as the acquisition of
equipment or the construction of school facilities.147
The regulations establish a fifth circumstance under which an LEA may reduce its local
expenditures. If a state establishes a risk pool (i.e., high cost fund) and the state assumes the costs
associated with “high cost” children in the LEA, the LEA may reduce its expenditures.148
In addition, with some exceptions, an LEA may reduce its local expenditures in certain fiscal
years in which its federal allocation exceeds the amount received in the previous fiscal year by
not more than 50% of the excess amount.149 These funds must be used to carry out activities
authorized under ESEA.150 Exceptions include the following: (1) the state is required to prohibit
an LEA from reducing its MOE if the SEA has taken responsibility for providing FAPE in the
LEA because the LEA is unable to establish and maintain programs of FAPE, or the state has
taken action against the LEA under IDEA’s enforcement provisions;151 (2) if in its annual
determination on the performance of LEAs, a state determines that an LEA does not meet
requirements (i.e., the LEA needs assistance, intervention, or substantial intervention), the state
must prohibit the LEA from reducing its MOE;152 and (3) the amount of funds expended by an
143 20 U.S.C. §1412(a)(18)(D), P.L. 108-446 §612(a)(18)(D).
144 For information on how an LEA calculates its excess costs, see Appendix A to Part 300, 34 C.F.R.
145 20 U.S.C. §1413(a)(2)(A), P.L. 108-446 §613(a)(2)(A).
146 34 C.F.R. §300.203(b) (2010). In practice, the MOE requirement is based on a comparison of non-federal
expenditures for special education services for pupils with disabilities in the preceding fiscal year to those for the
second preceding fiscal year since that would be the most recently available data.
147 20 U.S.C. §1413(a)(2)(B), P.L. 108-446 §613(a)(2)(B).
148 34 C.F.R. §300.204(e) (2010). See, also, the discussion in the report on “State-Level Activities.”
149 20 U.S.C. §1413(a)(2)(C)(i), P.L. 108-446 §613(a)(2)(C)(i).
150 20 U.S.C. §1413(a)(2)(C)(ii), P.L. 108-446 §613(a)(2)(C)(ii).
151 20 U.S.C. §1413(a)(2)(C)(iii), P.L. 108-446 §613(a)(2)(C)(iii).
152 20 U.S.C. §1416(f), P.L. 108-446 §616(f). See the section in this report on “Enforcement” for more information on
the federal and state performance determinations. Also, see U.S. Department of Education, Modifications to Questions
in the April 2009 Guidance on the Individuals with Disabilities Education Act, Part B, April 13, 2009, D-7.
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LEA for CEIS153 must count toward the maximum amount of the reduction in expenditures the
LEA may make.154 Consequently, any LEA that is required to use 15% of its allocation on CEIS
because the state has determined that “significant disproportionality”155 based on race and
ethnicity is occurring would be prohibited from reducing its MOE.156
Supplement, Not Supplant
Both states and LEAs must use IDEA funds to supplement state, local, and other federal funds
and not to supplant them.157 As with the state MOE requirement, the Secretary of Education has
authority to grant a waiver of the state-level SNS requirement if the state provides “clear and
convincing evidence” that all children with disabilities in the state have FAPE available.158 If an
LEA (or state) maintains its level of local, or state and local, expenditures for special education
and related services from year to year, then the LEA has met its MOE and SNS requirements.
There are no SNS or MOE waiver provisions for LEAs.159
Compliance
Monitoring
The Secretary monitors the implementation of IDEA through the oversight of states’ required
general supervision of the implementation of IDEA requirements, and through the states’ required
state performance plans (SPP).160 These plans evaluate a state’s efforts to implement the
requirements and purposes of IDEA and describe how the state will improve implementation.161
The Secretary must enforce IDEA162 and must also require states to monitor and enforce the
implementation of IDEA by LEAs.163 The primary focus of federal and state monitoring is on
improving educational results and functional outcomes for all children with disabilities and
ensuring that states meet IDEA program requirements.164 IDEA specifies three priority areas that
are to be monitored by the Secretary regarding states, and by states regarding LEAs, using
quantifiable indicators to measure performance. These three monitoring priorities are:
153 For information on CEIS, see the section of this report on “Coordinated Early Intervening Services (CEIS)”.
154 20 U.S.C. §1413(a)(2)(C)(iv), P.L. 108-446 §613(a)(2)(C)(iv).
155 For information on “significant disproportionality,” see the section of this report on “Coordinated Early Intervening
Services (CEIS).”
156 U.S. Department of Education, Modifications to Questions in the April 2009 Guidance on the Individuals with
Disabilities Education Act, Part B, April 13, 1009, D-7. The amount of funds an LEA uses for CEIS for reducing the
MOE in years when there is an increase in the LEA allocation is interrelated. The decision about one use will affect the
amount of funds available for the other use. For information on the interaction of CEIS and MOE, see Appendix D to
Part 300, 34 C.F.R.
157 20 U.S.C. §1412(a)172)(C), P.L. 108-446 §613(a)(17)(C).
158 Ibid. See 34 C.F.R. §300.164 for standards for applying for this waiver.
159 U.S. Department of Education, Guidance: Funds for Part B of the Individuals with Disabilities Education Act made
Available Under the American Recovery and Reinvestment Act of 2009, April 2009, C-6.
160 20 U.S.C. §1416(a)(1)(A), P.L. 108-446 §616(a)(1)(A).
161 20 U.S.C. §1416(b)(1)(A), P.L. 108-446 §616(b)(1)(A).
162 20 U.S.C. §1416(a)(1)(B), P.L. 108-446 §616(a)(1)(B).
163 20 U.S.C. § 1416(a)(1)(C), P.L. 108-446 §616(a)(1)(C).
164 20 U.S.C. §1416(a)(2), P.L. 108-446 §616(a)(2).
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• 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, 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.165
As part of an SPP,166 each state must establish measurable and rigorous targets for the indicators
established by the Secretary in the three priority areas.167 Each state must use the targets
established in its SPP and the three priority areas to analyze the performance of each LEA in the
state.168 In addition, each state must report annually to the Secretary on the state’s performance
under the SPP.169 Annual state reporting of performance on the SPP indicators is done through the
Annual Performance Report (APR).170 The state must report annually to the public on the
performance of each LEA.171 This annual report must be made as soon as practicable, but no later
than 120 days following the state’s submission of its APR to the Secretary.172 The state must also
make available through public means the state’s SPP, APR, and the state’s annual report on the
performance of each LEA in the state. At a minimum, the state must post these items on the SEA’s
website and distribute them to the media and through public agencies.173
Enforcement
Based on the information provided by the state in the SPP, information from monitoring visits,
and any other public information made available, the Secretary shall determine annually if
the state
• meets the requirements and purposes of IDEA Part B,
• needs assistance in implementing the requirements of IDEA Part B,
• needs intervention in implementing the requirements of IDEA Part B, or
• needs substantial intervention in implementing the requirements of IDEA Part B.
165 20 U.S.C. §1416(a)(3), P.L. 108-446 §616(a)(3). Each state must have in effect policies and procedures designed to
prevent the inappropriate over-identification or disproportionate representation by race and ethnicity of children as
children with disabilities (20 U.S.C. §1412(a)(24), P.L. 108-446 §612(a)(24)).
166 Each state must review its SPP at least once every six years and amendments must be submitted to the Secretary; 20
U.S.C. §1416(b(1)(C), P.L. 108-446 §616(b)(1)(C).
167 34 C.F.R. §300.601(a)(3) (2010).
168 20 U.S.C. §1416(b)(2)(C)(i), P.L. 108-446 §616(b)(2)(C)(i).
169 20 U.S.C. §1416(b)(2)(C)(ii)(II), P.L. 108-446 §616(b)(2)(C)(ii)(II).
170 20 U.S.C. §1453(d), P.L. 108-446 §653(d).
171 20 U.S.C. §1416(b)(2)(C)(ii)(I), P.L. 108-446 §616(b)(2)(C)(ii)(I).
172 34 C.F.R. §300.602(b)(i)(A) (2010).
173 34 C.F.R. §300.602(b)(i)(B) (2010).
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If the Secretary makes a determination that a state needs intervention or substantial intervention,
the Secretary must provide notice and an opportunity for a hearing.174
If the Secretary determines that a state does not meet requirements, IDEA specifies a number of
enforcement actions depending on the Secretary’s specific determination. These actions range
from advising the state of available sources of technical assistance, to requiring the state to
prepare a corrective action plan, to withholding, in whole or in part, further IDEA funds to the
state. Prior to withholding any funds, the Secretary must provide notice and an opportunity for a
hearing.175 Whenever a state receives notice that the Secretary is proposing to take an
enforcement action, the state must, at a minimum, post a notice of the pendency of an action on
the SEA’s website and distribute the notice to the media and through public agencies.176
In its analysis of comments and changes in the regulations, ED notes that
Neither the Act nor these regulations require SEAs to publicly report on enforcement actions
taken against LEAs in the State. The decision to report to the public on enforcement actions
imposed on an LEA is best left to each State to decide because individual LEA
circumstances vary across each State and no one set of requirements is appropriate in every
situation ... However, in the interest of transparency and public accountability, the
Department encourages States, where appropriate, to report to the public on any enforcement
actions taken against LEAs.177
The state must make the same four determinations about LEAs that the Secretary makes about the
states.178 In its analysis of comments and changes in the regulations, ED comments that “States
should have some discretion in making annual determination on the performance of their LEAs
and, therefore, [ED] decline[s] to establish, in regulation, a uniform process for making annual
determinations.” ED further notes that it has advised states that in making determinations, they
must consider (1) LEA performance on SPP compliance indicators,179 (2) whether data submitted
by an LEA are valid and reliable for each indicator, (3) LEA-specific audit findings, and (4) an
uncorrected noncompliance from any source. In addition, ED has advised states to consider
performance on results indicators, such as an LEA’s graduation and dropout rates or the
participation rate of students with disabilities in state assessments.180 However, the consideration
of performance indicators in LEA determinations is not required.
174 20 U.S.C. §1416(d), P.L. 108-446 §616(d).
175 20 U.S.C. §1416(e), P.L. 108-446 §616(e).
176 34 C.F.R. §300.606 (2010). The Secretary also posts the annual determination letters typically issued in June of each
year to each state, Puerto Rico, the District of Columbia, and outlying areas on its website at http://www2.ed.gov/fund/
data/report/idea/partbspap/allyears.html.
177 71 Fed. Reg. 73203 (August 14, 2006).
178 20 U.S.C. §1416(a)(1)(C), P.L. 108-446 §616(a)(1)(C)(ii), and 34 C.F.R. §300.600(a)(2) (2010).
179 Compliance indicators include, among others, the percent of districts with disproportionate representation of racial
and ethnic groups in special education and related services that is the result of inappropriate identification, the percent
of children with parental consent to evaluate who were evaluated and had eligibility determined within 60 days (or a
state established timeframe), and a general supervision system (including monitoring, complaints, hearings, etc.) that
identifies and corrects noncompliance as soon as possible but no later than one year from identification.
180 73 Fed. Reg. 73021 (August 14, 2006).
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The regulations stipulate the specific enforcement mechanisms that a state must use if the LEA
does not meet requirements.181 These mechanisms include a range of actions and are similar to
those that the Secretary must use for state enforcement.182 The regulations also require that when
a state identifies LEA noncompliance with IDEA, it must ensure that the noncompliance is
corrected as soon as possible, and no later than one year after the state’s identification of the
noncompliance.183
181 34 C.F.R. §300.600(a)(3), and 34 C.F.R. §300.800 (2010).
182 Neither the statute nor the regulations require that states permit LEAs to appeal a state decision. According to ED’s
guidance Questions and Answers on Monitoring, Technical Assistance, and Enforcement, C-11, “Whether a State’s
determination about an LEA’s performance may be appealed is a State decision.”
183 34 C.F.R. §300.600(e) (2010).
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The Individuals with Disabilities Education Act (IDEA), Part B
Appendix A. Structure of IDEA
Part A—General Provisions
Part A includes congressional findings pertinent to the act, the purposes of the act, and definitions.
The definitions included in Part A are of critical importance in interpreting the requirements of
the act. These definitions include, among others, definitions of child with a disability, specific
learning disability, free appropriate public education, core academic subjects, highly qualified,
individualized education program, local educational agency, related services, special education,
supplementary aids and services, transition services, and excess costs. These terms have been
defined throughout the body of this report.
Part B—Assistance for Education of All Children with Disabilities
Part B 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) to children with disabilities between the ages of 3 and 21. School districts must 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 Individualized Education Program (IEP), created by an IEP team,
delineating the specific special education and related services to be provided to meet his or her
needs. The statute also contains procedural safeguards, which are provisions to protect the rights
of parents and children with disabilities to ensure the provision of FAPE.
Section 619 of IDEA Part B authorizes grants to states for preschool programs serving children
with disabilities ages three to five. Since Part B grants to states are used to serve children with
disabilities as young as three years of age (as well as school-age children), Section 619 is not so
much a separate program as it is supplementary funding for services to this age group. In general,
the provisions, requirements, and guarantees under the grants to states program that apply to
school-age children with disabilities also apply to children in this age group. As a result, Section
619 is a relatively brief section of the law and deals mostly with the state and substate funding
formulas for the grants and state-level activities.
Part C—Infants and Toddlers with Disabilities
The general purpose of Part C is to aid each state in creating and maintaining “a statewide,
comprehensive, coordinated, multidisciplinary, interagency system that provides early
intervention services for infants and toddlers with disabilities and their families.”184 Services
focus on children from birth through age two who are experiencing or have a high probability of
experiencing “developmental delay” (as defined by the state) with respect to physical, mental, or
other capacities, and on their families.185 Services are detailed for each child and his or her family
in an Individualized Family Service Plan (IFSP). Services are to be provided, to the maximum
extent feasible, in “natural environments,” including the home, with other infants and toddlers
184 20 U.S.C. §1431(b)(1), P.L. 108-446 §631(b)(1).
185 Under certain circumstances, children with disabilities age three and over may continue to receive Part C early
intervention services until they are eligible to enter kindergarten; 20 U.S.C. §14345(c), P.L. 108-446 §635(c).
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who are not disabled. States are required to identify a state lead agency, which might be the state
educational agency (SEA) but could be other state agencies, to coordinate the program.
Part D—National Activities to Improve Education of Children
with Disabilities186
Part D authorizes competitive grants to improve the education of children with disabilities in
three areas: (1) state personnel development (Subpart 1); (2) personnel preparation, technical
assistance, model demonstration projects, and dissemination of information (Subpart 2); and (3)
support to improve results for children (Subpart 3).
• Under Subpart 1, competitive grants are made to SEAs for state personnel
development grants to assist SEAs “in reforming and improving their systems for
personnel preparation and professional development in early intervention,
educational, and transitions services ...”187
• Under Subpart 2, competitive grants are made to entities such as SEAs, local
education agencies (LEAs),188 institutions of higher education (IHEs), and
nonprofit organizations for personnel development to help ensure that there are
adequate numbers of personnel with skills and knowledge needed to help
children with disabilities succeed,189 for technical assistance and dissemination of
material based on knowledge gained through research and practice,190 and for
studies and evaluations.191
• Under Subpart 3, competitive grants are made to nonprofit organizations for
parent training and information centers, which provide parents of children with
disabilities with needed training and information to work with professionals in
meeting the early intervention and special education needs of their children.192
Also, under Subpart 3, competitive grants are made to entities such as SEAs,
LEAs, IHEs, and nonprofit organizations for research, development, and other
activities that promote the use of technology in providing special education and
early intervention services.193
186 In addition to the statutory provisions in Part D, see the following for more information on these activities: U.S.
Department of Education, Fiscal Year 2012, Budget Summary, pp. 34-36; and U.S. Department of Education, Guide to
U.S. Department of Education Programs,2010, pp. 254-262.
187 20 U.S.C. §1451(a), P.L. 108-446 §651(a).
188 The term “local educational agency” means “a public board of education or other public authority legally constituted
within a State for either administrative control or direction of, or to perform a service function for, public elementary
schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for
such combination of school districts or counties as are recognized in a State as an administrative agency for its public
elementary schools or secondary schools.” 20 U.S.C. §14011(19), P.L. 108-446 §601(19). The term “school district” is
often used instead of local educational agency.
189 20 U.S.C. §1462, P.L. 108-446 §662.
190 20 U.S.C. §1463, P.L. 108-446 §663.
191 20 U.S.C. §1464, P.L. 108-446 §664
192 20 U.S.C. §1471, §1472, and §1473, P.L. 108-446 §671, § 672, and §673.
193 20 U.S.C. §1474, P.L. 108-446 §674.
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Appendix B. Commonly Used Acronyms
APPE
Average Per Pupil Expenditure
APR
Annual Performance Report
CEIS
Coordinated Early Intervening Services
ED
U.S. Department of Education
ESEA
Elementary and Secondary Education Act
FAPE
Free Appropriate Public Education
IDEA
The Individuals with Disabilities Education Act
IEP
Individualized Education Program
LEA
Local Educational Agency
MOE
Maintenance of Effort
RTI
Response to Intervention
SEA
State Education Agency
SNS
Supplement, Not Supplant
SPP
State Performance Plan
Author Contact Information
Kyrie E. Dragoo
Analyst in Education Policy
kdragoo@crs.loc.gov, 7-4421
Acknowledgments
This report draws on previous reports written by Nancy Lee Jones, Legislative Attorney, and former CRS
analysts Ann Lordeman and Richard N. Apling. Rebecca Skinner, Specialist in Education Policy, provided
invaluable support in preparing this report.
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