The Individuals with Disabilities Education Act (IDEA): Implications of Selected Provisions of the No Child Left Behind Act (NCLBA)

The Individuals with Disabilities Education Act (IDEA): Implications of Selected Provisions of the No Child Left Behind Act (NCLBA)

Order Code RL31838
CRS Report for Congress
Received through the CRS Web
The Individuals with Disabilities
Education Act (IDEA): Implications of
Selected Provisions of the
No Child Left Behind Act (NCLBA)
Updated January 6, 2004
Richard N. Apling
Specialist in Social Legislation
Domestic and Social Policy Division
Nancy Lee Jones
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

The Individuals with Disabilities Education Act (IDEA):
Implications of Selected Provisions of the
No Child Left Behind Act (NCLBA)
Summary
The Individuals with Disabilities Education Act (IDEA) and the No Child Left
Behind Act (NCLBA) are two of the most significant federal statutes relating to
education. Although they both have the goal of improving education, IDEA for
children with disabilities and NCLBA for all children, the two statutes take different
approaches. IDEA looks at the individual child with an emphasis on developing an
individualized education program (IEP) and specific services for children with
disabilities, while NCLBA takes a more global view with an emphasis on closing
gaps in achievement test scores. The 108th Congress is currently considering the
reauthorization of IDEA. The House has passed H.R. 1350; the Senate Committee
on Health, Education, Labor, and Pensions has reported S. 1248. S. 1248 was placed
on the Senate legislative calendar under general orders on November 3, 2003.
The relationship of IDEA and NCLBA has become of increasing significance
with the current legislative activity. This report will provide a brief overview of
IDEA and NCLBA, a comparison of selected provisions of IDEA and NCLBA, a
discussion of Department of Education regulations and guidance regarding IDEA and
NCLBA, and a discussion of provisions in the House and Senate bills regarding the
intersection of IDEA and NCLBA.
This report will be updated to reflect major congressional action.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview of Selected IDEA and NCLBA Provisions . . . . . . . . . . . . . . . . . . . . . . 1
Overview of IDEA and NCLBA Assessment and Accountability
Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
IDEA Assessment Requirements in the IEP . . . . . . . . . . . . . . . . . . . . . 2
IDEA State and Local Requirements on Student Achievement . . . . . . . 3
NCLBA Assessment and Accountability Requirements . . . . . . . . . . . . 4
IDEA and NCLBA Teacher Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 6
IDEA Teacher and Paraprofessional Qualifications Requirements . . . . 6
NCLBA Teacher and Paraprofessional Qualifications Requirements . . 7
Department of Education Regulations, Rulings and Comments Regarding
IDEA and NCLBA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Secretary’s Principles for Reauthorizing IDEA . . . . . . . . . . . . . . . . . . . . . . . 8
Final Rules on Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Draft Non-Regulatory Guidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Public School Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Standards and Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Supplemental Educational Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Selected Provisions of H.R. 1350 and S. 1248 Related to NCLBA . . . . . . . . . . 11
Personnel Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Assessment and Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Selected Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Individuals with Disabilities Education
Act (IDEA): Implications of
Selected Provisions of the
No Child Left Behind Act (NCLBA)
Introduction
The Individuals with Disabilities Education Act (IDEA)1 and the No Child Left
Behind Act (NCLBA)2 are two of the most significant federal statutes relating to
education. Although they both have the goal of improving education, IDEA for
children with disabilities and NCLBA for all children, the two statutes take different
approaches. IDEA looks at the individual child with an emphasis on developing an
individualized education program (IEP) and specific services for children with
disabilities, while NCLBA takes a more global view with an emphasis on closing
gaps in achievement test scores. The 108th Congress is currently considering the
reauthorization of IDEA. The House has passed H.R. 1350; the Senate Committee
on Health, Education, Labor, and Pensions has reported S. 1248. S. 1248 was placed
on the Senate legislative calendar under general orders on November 3, 2003.
The relationship of IDEA and NCLBA has become of increasing significance
with the current legislative activity. This report will provide a brief overview of
IDEA and NCLBA, a comparison of selected provisions of IDEA and NCLBA, a
discussion of Department of Education regulations and guidance regarding IDEA and
NCLBA, and a discussion of provisions in the House and Senate bills regarding the
intersection of IDEA and NCLBA.
Overview of Selected IDEA and NCLBA Provisions
IDEA is the major federal law dealing with the education of children with
disabilities. In addition to authorizing funds to help states and local educational
agencies (LEAs) provide special education and related services, IDEA requires the
provision of a free appropriate public education (FAPE) for children with disabilities
1 20 U.S.C. §1400 et seq.
2 P.L. 107-110, codified in part at 20 U.S.C. §6301 et seq., §6601 et seq., §6801 et seq.,
§7101 et seq., §7201 et seq., §7301 et seq., §7401 et seq., §7702, §7703, §7707, §7709,
§7714, §7801 et seq.

CRS-2
and specifies in some detail the provision of services for these children,3 and
guarantees certain procedural rights for these children and their parents.
One of the major changes to IDEA resulting from the 1997 Amendments (P.L.
105-17) involved a series of additions to the Act aimed at improving the education
of children with disabilities, as well as continuing to ensure their access to free
appropriate public education. At the child level, this involved various requirements
in the individualized education program linking each child’s education to the general
curriculum and to statewide and districtwide achievement test programs. In addition,
various requirements were added for states and local educational agencies related to
the educational performance of children with disabilities and to improving the quality
and quantity of those who teach children with disabilities.
The No Child Left Behind Act of 2001 (P.L. 107-110) reauthorized the
Elementary and Secondary Education Act (ESEA) and, in doing so, added
requirements aimed at improving the education of all public elementary and
secondary school children, including those with disabilities. Although many of these
requirements directly affect Title I-A of ESEA, aimed mainly at improving education
for disadvantaged children, important requirements impact any state or LEA that
receives Title I-A funds4 and apply to all children served by such states or LEAs.
In addition, NCLBA continues Title I schoolwide projects for schools serving
relatively high percentages of children from low-income families. These projects
allow consolidating of federal education funds (including Title I-A and IDEA funds)
to serve all children in a qualifying school. Thus some NCLBA requirements that
might apply only to activities or individuals funded under Title I-A (for example,
Title I teachers and paraprofessionals) apparently apply to all activities and
individuals in schoolwide project schools (for example, all applicable teachers and
paraprofessionals — including applicable special education teachers and
paraprofessionals).5
Overview of IDEA and NCLBA Assessment and
Accountability Requirements
IDEA Assessment Requirements in the IEP. A key component of the
provision of special education is the IEP, which is based on “a written statement for
each child with a disability” developed, reviewed, and revised by the IEP team. In
addition to specifying the special education and related services the child will
receive, the IEP must peg the child’s educational goals to the LEA’s general
3 Among the key requirements of services for children with disabilities are that each child
must have an individualized education program (IEP) devised by a team, which includes
both school personnel and the parents, and that each must be educated with their non-
disabled peers “to the maximum extent appropriate.”
4 Currently all states and a vast majority of LEAs receive Title I-A funding.
5 For further information on NCLBA, see CRS Report RL31284, K-12 Education:
Highlights of the No Child Left Behind Act of 2001 (P.L. 107-110), coordinated by Wayne
Riddle.

CRS-3
educational goals for nondisabled students. The IEP must assess the child’s current
level of educational performance, including how the child’s disability impacts his or
her “involvement and progress in the general curriculum.” The IEP must specify the
child’s needs (and how those needs will be met) so that the child can be involved in
and progress in the general school curriculum. Progression must be gauged in terms
of annual measurable goals. In addition, parents must be regularly informed on the
child’s progress (for example, by report cards) at least as frequently as other parents
are informed of their children’s progress.
As discussed below, IDEA requires states and LEAs to ensure the involvement
of children with disabilities in statewide and districtwide assessments. It is the IEP
team that determines the extent to which the child requires accommodations to
participate in these assessments or, alternatively, determines and justifies why the
child will not participate (even with accommodations) in these assessments. In the
latter case, the IEP team specifies how the child will be assessed.
Despite the various goals and measures required for the IEP, ED clarifies that
the IEP does not guarantee educational progress.
It continues to be necessary to make clear that the IEP is not a performance
contract and does not constitute a guarantee by the public agency and the teacher
that a child will progress at a specified rate. Despite this, public agencies and
teachers have continuing obligations to make good faith efforts to assist the child
in achieving the goals and objectives or benchmarks listed in the IEP, including
those related to transition services.6
IDEA State and Local Requirements on Student Achievement. As
noted above, IDEA requires states and LEAs to involve children with disabilities in
statewide and districtwide assessment programs, with accommodations as
appropriate.7 In addition, states are required to develop guidelines for alternative
assessments for those unable to participate in such assessments and to have begun
administering these alterative assessments by July 1, 2000. States are required to
report the numbers of children with disabilities participating in regular and in
alternative assessments together with these children’s performance on such tests (if
so doing would be “statistically sound” and would not violate confidentiality
requirements). These reports to the public are to be made “with the same frequency
and in the same detail as [a state] reports on the assessment of nondisabled children.”
IDEA requires LEAs to provide states with all information necessary for the state to
comply with these requirements.
IDEA requires states to establish performance goals and indicators for children
with disabilities. The aim of these goals is to promote the overall purposes of the
Act. In addition, the goals are to be consistent with overall state educational goals,
“to the maximum extent appropriate.” At a minimum a state’s indicators should
6 64 Fed. Reg. 12598, Mar. 12, 1999.
7 To accommodate a child’s disability, he or she might be allowed to take the assessment
without time restriction or might be read test questions and provide verbal responses, rather
than marking an answer sheet.

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address academic performance, drop-out rates, and graduation rates. States must
report periodically to the Secretary of Education and to the general public on progress
towards meeting these goals and must revise state plans to the extent that
performance needs to be improved.
NCLBA Assessment and Accountability Requirements.8 NCLBA
requires that all states receiving Title I-A funds (currently all states) must have in
place by school year 2005-2006 standards-based assessments in reading and
mathematics for all students in grades 3-8 and standards-based assessments in
science by 2007-2008. For children with disabilities for whom these tests (even with
accommodations) are inappropriate, states must provide one or more alternative
assessments.
NCLBA requires that states have in place a single state accountability system
based on standards of adequate yearly progress (AYP) aimed at reducing
achievement gaps between high-achieving and low-achieving students. These
standards must be applied to specified groups, including children with disabilities,9
as well as to all students in each public school, LEA, and state as a whole. The
ultimate goal of these state systems is that all students reach proficient or advanced
levels of achievement by school year 2013-2014.
AYP standards must be applied to all public schools10 and LEAs in states
receiving ESEA Title I-A funds; however, certain actions will apply only to schools
and LEAs receiving Title I-A funds.11 Applicable schools that fail to meet AYP
standards over 2 consecutive years must be identified as requiring improvement.
Technical assistance is provided to those schools, and public school choice must be
offered to pupils of such schools for the next school year. Choice of schools must
only include those not identified for improvement.12 Following 3 consecutive years
8 For further information on NCLBA testing requirements, see CRS Report RL31407,
Educational Testing: Implementation of ESEA Title I-A Requirements Under the No Child
Left Behind Act, by Wayne C. Riddle; CRS Report RL31487, Education for the
Disadvantaged: Overview of ESEA Title I-A Amendments Under the No Child Left Behind
Act, by Wayne C. Riddle; final rule regarding Title I and children with disabilities (68 Fed.
Reg. 68698, Dec. 9, 2003); and ED non-regulatory draft guidance on NCLBA standards and
assessments (Mar. 10, 2003), available at [http://www.ed.gov/policy/speced/guid/nclb/
standassguidance03.pdf].
9 Other specified groups are economically disadvantaged pupils, limited English proficient
(LEP) pupils, and pupils in major racial and ethnic groups.
10 A school must assess at least 95% of relevant pupils — both all pupils and those in each
identified subgroups — in order to meet AYP standards.
11 A large majority of LEAs receive funding under Title I-A. Only those LEAs with very
few poor children (fewer than 10) or very low poverty rates (under 2%) do not qualify.
However, even if an LEA receives Title I-A funding, typically not all schools within the
LEA qualify for Title I-A funding.
12 ED comments with respect to final NCLBA regulations specify the following regarding
public school choice for children with disabilities:
(continued...)

CRS-5
of failure to meet AYP, pupils from low-income families must be offered the
opportunity to obtain supplementary services from approved providers, which could
include public or private schools, as well as non-profit and for-profit providers.13
Following 5 consecutive years of failure, the school must be subject to
“restructuring.” For example, staff could be replaced, or the school could be
converted to a charter school. Similar procedures apply to LEAs that fail to meet
AYP standards. In addition to these corrective actions, states may reward schools
that significantly close achievement gaps among various groups or exceed AYP for
2 or more consecutive years.
12 (...continued)
Under the IDEA, a change in the location of delivery of services, in and of itself,
does not trigger the ‘’change of placement’‘ procedures of the IDEA. The LEA
can allow the school of choice either to implement the IEP that the prior school
developed for the new school year, or convene an IEP team meeting and develop
a new IEP that meets the student’s needs. If the LEA adopts the student’s
existing IEP, none of the ‘’change of placement’‘ procedures apply. However,
the school district must comply with the ‘’change of placement’‘ requirements
of the IDEA if the new IEP will change either the services in the IEP or the
extent to which the student will participate with nondisabled students in
academic and nonacademic activities. Similar rules apply to students who are
covered only by Section 504 and Title II of the ADA [the Americans with
Disabilities Act].
LEAs are not required to offer students with disabilities the same choices of
schools as are offered to nondisabled students, but may match the abilities and
needs of a student with a disability, as indicated on the student’s IEP, to those
schools that have the ability to provide FAPE to the student. However, school
districts must offer students with disabilities and those eligible under Section 504
and Title II of the ADA the opportunity to be educated in an eligible school,
namely, a school that has not been identified for school improvement, corrective
action, or restructuring and that has not been identified by the State as
persistently dangerous. Like other students, students with disabilities and those
covered by Section 504 and Title II of the ADA must have the opportunity to
express a preference among at least two eligible schools and that preference must
be considered by the school district in making their assignment. 67 Fed. Reg.
71756 (Dec. 2, 2002). See also the draft non-regulatory guidance issued by ED
regarding public school choice discussed in infra at page 10.
13 ED notes that
For a student with disabilities, the supplemental educational services agreement
must include a statement of specific achievement goals for the student, a
description of how the student’s progress will be measured, and a timetable for
improving achievement, that are consistent with the student’s IEP.
In addition, ED notes that
supplemental educational services [must] be ‘’consistent’‘ with IEPs and Section
504 services, but these services are provided in addition to the instruction and
services provided during the school day under the IEP or Section 504 plan and
are not considered part of IEPs or section 504 plans.” 67 Fed. Reg. 71757 (Dec.
2, 2002).

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With respect to children with disabilities (and other specified groups), each
group must meet or exceed the state’s annual measurable objectives unless a
particular group is of insufficient size to produce statistically valid results or if
privacy rights would be violated. In addition, a school or LEA may still meet AYP
standards even if some groups (such as, children with disabilities) do not, if the
percentage of the group that is below the proficient level declines by 10% or more
over the previous year’s percentage and the group makes sufficient progress on at
least one indicator.
IDEA and NCLBA Teacher Requirements
IDEA Teacher and Paraprofessional Qualifications Requirements.
IDEA recognizes the importance of well qualified personnel for providing quality
education and related services to children with disabilities and contains many
provisions related to professional development of special education and general
education teachers and other individuals who serve these children. In some cases,
IDEA explicitly authorizes funds to be spent on personnel development. In other
cases, personnel development is one among several authorized purposes for certain
funding amounts. In still other instances, IDEA prescribes certain state and local
personnel development requirements as conditions of accepting IDEA funding.
While these requirements are not always linked to specific funding sources, it is
possible or even likely that some IDEA funding is used to meet them.
One way IDEA supports personnel preparation is to authorize competitive grants
for this purpose. For example Section 673 authorizes grants “to help address State-
identified needs for qualified personnel ...” and “to ensure those personnel have the
skills and knowledge ... to be successful.”14 A portion of these grants is targeted for
preparation of personnel who serve children with low-incidence disabilities (e.g.,
visually impaired children). Another portion targets high-incidence disabilities (e.g.,
those with specific learning disabilities). Grants are also made to train individuals
for leadership positions in special education and for projects of national significance
(e.g., development of models for teacher preparation).
In addition to authorizing competitive grants for improving personnel
development, the IDEA Part B grants-to-states program contains a series of inter-
related state and local requirements aimed at improving the supply and quality of
those providing education and related services for children with disabilities. In order
to qualify for IDEA grants, a state must have in effect “a comprehensive system of
personnel development to ensure an adequate supply of qualified special education,
regular education, and related services personnel.”15 By cross-reference, the Act
requires that a state’s comprehensive personnel system must meet the same
requirements that a state would meet in applying for a program improvement grant
under Section 653(b)(2)(B) (regarding analyzing state and local professional
14 Section 673(a)(1) and (2), 20 U.S.C. §1473.
15 Section 612(a)(14), 20 U.S.C. §1412(a)(14).

CRS-7
development needs)16 and under Section 635(c)(3)(D) (regarding improvement
strategies).17 In addition, states receiving IDEA state grants are required to establish
and maintain personnel standards “to ensure that personnel necessary to carry out this
part are appropriately and adequately prepared and trained.”18 The Act also places
personnel development requirements on LEAs as a condition of receiving funds.
LEAs must “ensure that all personnel necessary to carry out this part are
appropriately and adequately prepared, consistent with the requirements” (Section
613((a)(3)) discussed above related to the SPIGs (i.e., Section 635 (c)(3)(D)).
NCLBA Teacher and Paraprofessional Qualifications
Requirements.19 NCLBA contains a series of requirements aimed at improving
the qualifications of teachers and paraprofessionals. The ultimate aim is that all
teachers of “core” subjects be highly qualified by school year 2005-2006 in states and
LEAs receiving Title I-A funding. Core academic subjects include: English, reading
or language arts, mathematics, science, foreign language, civics, government, arts,
history, and geography. Teachers who teach other subjects are not required to be
highly qualified.20
16 20 U.S.C. §1453(b)(2)(B).
17 20 U.S.C. §1435(c)(3)(D).
18 Section 612(a)(15), 20 U.S.C. §1412(a)(15). In implementing these standards, “a State
may adopt a policy that includes a requirement that local educational agencies in the State
make an ongoing good-faith effort to recruit and hire appropriately and adequately trained
personnel to provide special education and related services to children with disabilities,
including, in a geographic area of the State where there is a shortage of such personnel, the
most qualified individuals available who are making satisfactory progress toward
completing applicable course work necessary to meet the standards.” Section 612(a)(15)(C),
20 U.S.C. §1412(a)(15)(C).
19 For further information on NCLBA teacher requirements, see CRS Report RL30834, K-12
Teacher Quality: Issues and Legislative Action, by James B. Stedman.
20 ED notes that
The ESEA specifies that all teachers of core academic subjects are to meet the
requirements set forth in the statute. Students with limited English proficiency
or with disabilities are expected to meet the same standards as all other students,
and their teachers should be expected to have met the same standards for content
knowledge. On the other hand, special educators who do not directly instruct
students on any core academic subject or who provide only consultation to highly
qualified teachers of core academic subjects in adapting curricula, using
behavioral supports and interventions, and selecting appropriate accommodations
do not need to meet the same ‘’highly qualified’‘ subject matter competency
requirements that apply under the NCLBA Act to teachers of core academic
subjects. SEAs and LEAs must ensure that all special education personnel,
including related services providers, meet the personnel standards requirements
of Section 612(a)(15) of the IDEA and 34 CFR § 300.136. Special education
teachers who are providing instruction in core academic subjects also must meet
the ‘’highly qualified’‘ requirements of the ESEA. 67 Fed. Reg. 71763-4 (Dec.
2, 2002).

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NCLBA specifies a variety of requirements to be met for a teacher to be
classified as highly qualified. To meet the definition, all teachers must have at least
a BA degree and full state certification. In addition, teachers must demonstrate
subject area knowledge, for example, by passing rigorous state tests in the subject
area taught by the teacher. Despite other qualifications, a teacher with an emergency,
temporary, or provisional certification or license is not deemed to be highly qualified.
NCLBA also aims to upgrade the qualifications of certain paraprofessionals.
These requirements are limited to paraprofessionals who provide instructional
services. Other paraprofessionals (for example, those providing computer support
or personal care services) are excluded. In addition, in “targeted assistance” Title I
schools, only those paraprofessionals paid by Title I-A funds are covered. However,
all instructional paraprofessionals in schoolwide project schools are covered. In
general, all covered paraprofessionals must have earned a high school diploma or a
recognized equivalent. Those hired after January 8, 2002, must have completed at
least 2 years of higher education and obtained an associate’s degree or met “rigorous”
state or local standards. Those hired before January 8, 2002, must meet equivalent
requirements by January 8, 2006.
Department of Education Regulations, Rulings and
Comments Regarding IDEA and NCLBA
Secretary’s Principles for Reauthorizing IDEA
On February 25, 2003, the Secretary of Education released a statement of
principles for reauthorizing IDEA. In describing these principles the Secretary
stated: “Every child in America deserves the highest-quality education, including our
children with disabilities .... Our goal is to align IDEA with the principles of No
Child Left Behind by ensuring accountability, more flexibility, more options for
parents and an emphasis on doing what works to improve student achievement.”21
With regard to accountability, the statement of principles noted that states, under
NCLBA, are responsible for implementing a single accountability system for all
students, including students with disabilities. The Secretary’s principles went on to
state that “IDEA must incorporate the NCLBA principles of assessment for children
receiving special education and align with NCLBA accordingly to enhance state
efforts to improve student achievement. Consistent with those principles, IDEA
should ensure that students with disabilities have access to and make progress in the
general curriculum, and are appropriately included in state accountability systems.
IDEA must move from a culture of compliance with process to a culture of
accountability for results. Consequently, IDEA eligibility and compliance paperwork
21 Paige Releases Principles for Reauthorizing Individuals with Disabilities Education Act
(IDEA), at [http://www.ed.gov/PressReleases/02-2003/02252003.html].

CRS-9
requirements at the federal level must be streamlined and focused on improving
results for students with disabilities.”22
The other principles referred to by the Secretary involve simplifying paperwork,
“doing what works,” and increasing “choices and meaningful involvement for
parents.” This last principle, increasing choices, is described as expanding
“opportunities to help parents, schools, and teachers choose appropriate services and
programs for children with disabilities, including the charter and private schools of
their choice.”23
Final Rules on Accountability
On December 9, 2003, ED issued a final rule amending the regulations
governing Title I of the Elementary and Secondary Education Act (ESEA) to clarify
school accountability for the academic achievement of students with the most
significant cognitive disabilities.24 The rule emphasizes that all students — including
all children with disabilities — are to be assessed in relationship to the state’s
established academic content standards. At the same time, students may be assessed
by different means. In general, the rule divides the assessment of children with
disabilities into four groups:
! students assessed with regular assessments based on the grade-level
achievement standards,
! students assessed with regular assessments (with accommodations,
such as testing in a quiet location) based on the grade-level
achievement standards,
! students assessed with alternative assessments based on the grade-
level achievement standards, and
! students assessed with alternative assessments based on achievement
assessment standards.
Thus the rule clarifies that the achievement of most children with disabilities will be
measured against a state’s grade-level achievement standards for accountability
purposes, while only those with the most significant cognitive disabilities would be
measured against alternative achievement standards aligned with the state’s academic
content standards and reflecting the professional judgment of the highest learning
standards possible for the students.
The rule would allow states to use alternative achievement standards for
students with the most significant cognitive disabilities to calculate adequate yearly
22 Ibid. For a discussion of paperwork issues in special education see CRS Report RS21226,
The Individuals with Disabilities Education Act: Paperwork in Special Education, Richard
Apling.
23 For a discussion of IDEA and school choice see CRS Report RL31489, Individuals with
Disabilities Education Act (IDEA): Possible Voucher Issues, by Richard N. Apling, Nancy
L. Jones and David P. Smole.
24 68 Fed. Reg. 68698 (Dec. 9, 2003).

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progress (AYP) as long as the percentage of these students at the school district or
state level who are counted as “proficient” or “advanced” does not exceed 1% of all
students assessed.25 However, if a school district or state can document that the
number of students with the most significant cognitive impairments exceeds 1%, the
district could be permitted to request an exception from the state or the state could
request an exception from ED. The final rule provides some flexibility to states in
defining children eligible for alternative assessments. The rule requires states to
“establish and ensure implementation of clear and appropriate guidelines for
individualized education program (IEP) teams to apply in determining when a child’s
significant cognitive disability justifies assessment based on alternative academic
achievement standards”26
Draft Non-Regulatory Guidance
Public School Choice. Draft non-regulatory guidance was issued by ED
relating to public school choice on December 4, 2002. This guidance provides that
school districts must offer students with disabilities the same opportunity as children
without disabilities to be educated in a school that has not been identified as in need
of school improvement and has not been identified as persistently dangerous.
“However, students with disabilities do not have to be offered their choice of the
same schools as are offered to nondisabled students. A school district must ensure
that students with disabilities receive a free appropriate public education (FAPE)
when they enroll in their school of choice. In offering choice to students with
disabilities, school districts may match the abilities and needs of a student with
disabilities to the possible schools that have the ability to provide the student
FAPE.”27 The draft guidance also noted that the movement of a child with a
disability to a school of choice does not “in and of itself” trigger IDEA’s change in
placement procedures. The new school can adopt the existing IEP and the change of
placement procedures do not apply. “However, the school district must comply with
the ‘change of placement’ requirements of the IDEA if the new IEP will change the
services on the IEP or the extent to which the student will participate with
nondisabled students in academic and non-academic activities.”28
Standards and Assessments. On March 10, 2003, ED issued draft non-
regulatory guidance on standards and assessments.29 This included a discussion of
issues related to special populations, including children with disabilities. In this
document, ED defined accommodations, alternate assessments and noted that if a
child is a child with a disability as defined by IDEA, the student’s IEP team
determines the accommodations needs to measure academic achievement. The IEP,
however, cannot exempt a child from participating in the State’s assessment.
25 ED estimates that this is about 9 percent of children with disabilities.
26 68 Fed. Reg. 68702 (Dec. 9, 2003).
27 [http://www.ed.gov/offices/OESE/SASA/schoolchoiceguid.doc].
28 See also ED’s comments to the final NCLBA regulations, no. 12.
29 [http://www.ed.gov/policy/speced/guid/nclb/standassguidance03.pdf].

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Supplemental Educational Services. ED has also issued draft non-
regulatory guidance regarding supplemental educational services. Supplemental
educational services are defined as additional academic instruction designed to
increase the academic achievement of students in low-performing schools. ED’s
draft guidance provides that “an SEA and each LEA that arranges for supplemental
educational services must ensure that eligible students with disabilities and students
covered under Section 504 may participate.”30 Once parents select a provider for
their child, the LEA must enter into an agreement with the provider that has certain
provisions including a timetable for improving the student’s achievement. In the case
of a student with a disability, this timetable is to be consistent with the student’s
IEP.31
Selected Provisions of H.R. 1350 and S. 1248
Related to NCLBA
Both H.R. 1350 and S. 1248 contain provisions aimed at aligning the
requirements of IDEA with NCLBA. Arguably the most notable provisions in the
two bills related to NCLBA deal with personnel and assessment and accountability
requirements.
Personnel Requirements
H.R. 1350 includes language to align IDEA with NCLBA personnel
requirements. For example, a new definition of “highly qualified” would be added
by H.R. 1350 with the same meaning as the term in Section 9101 of ESEA.32 In
addition, H.R. 1350 would amend requirements for state personnel standards and
performance goals and indicators to align them with NCLBA requirements. For
example, states would have to “ensure that special education teachers who teach core
academic subjects [e.g., mathematics and reading and language arts] are highly
qualified in those subjects.”33
S. 1248 also includes language to align IDEA with NCLBA personnel
requirements. The bill adds a definition of a “core academic subject” by reference
to the definition of that term in Section 9101 of ESEA.34 In addition, S. 1248 adds
an extensive definition of “highly qualified”35 and “consultative services,”36 which
30 [http://www.ed.gov/offices/OESE/SASA/suppsvcsguid.doc].
31 Ibid.
32 Section 602(9).
33 Section 612(a)(14)(B)(i).
34 Section 602(4). The ESEA definition lists “English, reading or language arts,
mathematics, science, foreign languages, civics and government, economics, arts, history,
and geography” as core academic subjects.
35 Section 602(10).
36 Section 602(10)(E)(ii). These services would include, for example, adjustments to the
(continued...)

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would align IDEA with NCLBA requirements with respect to the qualification of
educational personnel, while taking into account differences between special
education and general education teachers. For example, under this definition, if a
special education teacher provides only “consultative services” to a secondary school
teacher teaching core academic subjects to children with disabilities, the special
education teacher, to meet the definition of highly qualified, must meet the standards
of the definition for all special education teachers (that is, be fully certified in the
state as a special education teacher and demonstrate the knowledge and skills
necessary to teach children with disabilities) but need not meet standards with respect
to the academic subjects being taught (as the regular teacher must do to be highly
qualified under NCLBA).
Like H.R. 1350, S. 1248 would amend requirements for state personnel
standards and performance goals and indicators to align them with NCLBA
requirements. For example, states would be required to “ensure that each special
education teacher in the State who teaches in an elementary, middle, or secondary
school is highly qualified not later than the 2006-2007 school year.”37
Assessment and Accountability
H.R. 1350 would require that state performance goals for children with
disabilities would have to be “the same as the State’s definition of adequate yearly
progress ... under section 1111(b)(2)(C) of the Elementary and Secondary Education
Act of 1965.”38 The bill would continue the requirement (with some modification,
including reference to ESEA assessments) in Section 612 (regarding state eligibility)
that all children with disabilities are to be included state and district-wide
assessments. States would continue to be required to develop and implement
guidelines for providing accommodations to permit children with disabilities to
participate in assessments, to develop and provide guidelines for participating in
alternative assessments, and to conduct those alternative assessments.
S. 1248 would also align IDEA performance goals and indicators with
requirements for AYP, standards, and assessments under NCLBA. In general,
children with disabilities would be required to participate in state and districtwide
testing programs as under NCLBA. As determined by the IEP team, depending on
each child’s needs, he or she could take assessments with or without
accommodations (e.g., different testing environments, such as a quieter location than
the regular classroom). For some, presumably more severely disabled children,
alternative assessments can be used. These alternative assessments are to be aligned
with the state’s “challenging academic content and academic achievement
standards”39 or with a state’s content standards but with alternative achievement
standards.
36 (...continued)
learning environment, modifications to instructional methods, and adaptations of the
curriculum.
37 Section 612(a)(14)(C)(i).
38 Section 612(a)(15)(A)(ii).
39 Section 612(a)(16)(C)(ii)(I).

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Both H.R. 1350 and S. 1248 would continue requirements in Section 614 with
respect to statements in the IEP related to need for accommodations and with respect
to justification for participating in alternative assessments.
Selected Issues
The provisions of NCLBA emphasizing that all children (including children
with disabilities) should be held to the same high standards to the maximum extent
possible have given rise to numerous questions by commentators about its
relationship with IDEA, with many of these questions arising from the different
philosophical approaches taken to education in IDEA and NCLBA.40 The House and
Senate IDEA bills and the most recent ED regulations appear to address many of
these concerns.
One area of concern is that the inclusion of children with disabilities in the
assessment and accountability requirements of NCLBA will lead to the exclusion of
these children from the mainstream curriculum — a trend that federal special
education legislation has aimed to thwart. As one commentator has noted, NCLBA
requires annual tests and states that if a child with a disability is given an out-of-level
test and the state reports these children as “below proficient,” it would be counted
against the school’s performance. “Such ties to testing could exacerbate a problem
that parents often talk about — principals who try to push special education students
out of their schools because they bring down their test scores.”41 The December 9,
2003 regulations address this concern. For one thing, the performance of the most
severely cognitively disabled children would be judged on alternative achievement
standards, with those performing at the proficient and advanced levels of these
alternative standards counted toward achieving AYP. In addition, out-of-level
assessments will meet the alternative achievement standards “if they are aligned with
the State’s academic content standards, promote access to the general curriculum and
reflect professional judgement of the highest achievement standards possible.”42
Finally, the 1% cap for including performance on alternative assessment standards
for calculating AYP does not apply at the school level. Thus there would be less
incentive to segregate children with disabilities in separate schools or separate
classrooms to ensure that school-level AYP is met.
Another area of concern is the application of NCLBA personnel standards to
special education teachers and other special education service providers. The
40 Two organizations have published detailed charts that take sections of NCLBA and then
look at the implications for special education. See National Association of State Directors
of Special Education, Implementing the No Child Left Behind Act: What it Means for IDEA,
June 2002, [http://www.nasdse.org/downloadnclb.htm]; Council for Exceptional Children,
No Child Left Behind Act of 2001: Implications for Special Education Policy and Practice,
Jan. 2003, [http://www.cec.sped.org/pp/side-by-side09_04_02.pdf].
41 Allison L. Bruce, “No Child Act Stirs Special ED Fears,” The Post and Courier
(Charleston, S.C.), Feb. 17, 2003, p. 1B.
42 68 Fed. Reg. 68700 (Dec. 9, 2003).

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Council for Exceptional Children (CEC) has interpreted the NCLBA standards as
applying to special education teachers, related services providers and early
intervention teachers. However, CEC asked several questions concerning the
application of these standards to special education teachers and paraprofessionals.43
For example, what would holding full state certification mean for special education
teachers? In addition, another commentator raised the issue: would a single special
education teacher be expected to hold degrees in every subject he or she teaches to
a class of students with disabilities?44 As discussed above, S. 1248 appears to
address some of these concerns by modifying the definition of “highly qualified” to
take into account differences between special education and general education
personnel.
The potential for litigation has also been a concern for some commentators.
IDEA includes a private right of action for parents but the NCLBA does not. One
commentator interpreted NCLBA and posed the following issue: “under the NCLB,
states are to employ early intervention methods, especially in teaching reading, before
seeking special ed. Yet the IDEA continues to include the parents’ right to ‘child
find’ obligations. If a district follows the NCLBA and provides early intervention for
a student who, unfortunately, continues to lag behind, will the parents still be able to
seek a hearing, alleging the failure of child find under the IDEA? How will NCLB
protect districts that follow its mandates?”45 Both H.R. 1350 and S. 1248 appear to
address this issue. Both bills permit LEAs to use some IDEA Part B funds for
“prereferral” services for children who require additional support but have not been
identified as requiring special education. Both bills note that these services may be
coordinated with similar services authorized under ESEA. In addition, both bills
provide that “nothing in this subsection shall be construed to either limit or create a
right to a free appropriate public education under this part [i.e., Part B of IDEA].”
Despite these attempts to address various issues with respect to the interact of
IDEA and NCLBA, other issues and concerns are likely to arise over time. For
example, although the CEC has responded favorably to the December 9, 2003,
regulations, it warns in a December 19, 2003 press release “that implementing the
regulations will take a huge investment in training and technical assistance” and
recommends that ED “develop a strategic plan to assist states and districts to develop
alternative achievement standards and their corresponding assessments quickly.”46
43 CEC, No Child Left Behind Has Major Implications for Special Education, vol. 9, no. 4,
Advocacy in Action, Nov./Dec. 2002, p. 4.
44 Allison L. Bruce, “No Child Act Stirs Special ED Fears,” The Post and Courier
(Charleston, S.C.) Feb. 17, 2003, p. 1B.
45 Miriam Kurtzig Freedman, “Different Approaches of NCLB, IDEA May Lead to
Troubling Inconsistencies,” The Special Educator, vol. 18, no. 8, Nov. 5, 2002.
46 [http://www.cec.sped.org/pp/press_release_122203.htm].