The Individuals with Disabilities Education Act (IDEA): Comparison and Analysis of Selected Provisions in H.R. 1350 as Passed by the House and by the Senate, 108th Congress

The Individuals with Disabilities Education Act (IDEA): Comparison and Analysis of Selected Provisions in H.R. 1350 as Passed by the House and by the Senate, 108th Congress

Order Code RL32415
CRS Report for Congress
Received through the CRS Web
The Individuals with Disabilities Education Act
(IDEA): Comparison and Analysis of Selected
Provisions in H.R. 1350 as Passed by the
House and by the Senate, 108th Congress
Updated June 15, 2004
(name redacted)
Legislative Attorney
American Law Division
(name redacted)
Specialist in Social Legislation
Domestic and Social Policy Division
Congressional Research Service ˜ The Library of Congress

The Individuals with Disabilities Education Act (IDEA):
Comparison and Analysis of Selected Provisions in
H.R. 1350 as Passed by the House and by the Senate,
108th Congress
Summary
The Individuals with Disabilities Education Act (IDEA) authorizes federal
funding for the education of children with disabilities and requires, as a condition for
the receipt of such funds, the provision of a free appropriate public education
(FAPE). The statute also contains detailed due process provisions to ensure the
provision of FAPE. Originally enacted in 1975, the act responded to increased
awareness of the need to educate children with disabilities, and to judicial decisions
requiring that states provide an education for children with disabilities if they
provided an education for children without disabilities.
IDEA has been amended several times, most recently and most comprehensively
by the 1997 IDEA reauthorization, P.L. 105-17. Congress is presently examining
IDEA again and H.R. 1350, 108th Congress, passed the House on April 30, 2003, by
a vote of 251 to 171. On May 13, 2004, the Senate incorporated S. 1248 in H.R.
1350 and passed H.R. 1350 in lieu of S. 1248 by a vote of 95 to 3. This report
discusses selected changes that H.R. 1350 (House) and H.R. 1350 (Senate) would
make in IDEA. The report will be updated if needed.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Allocation Formula Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
State and Substate Grants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maximum State Grants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
High Cost Children with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Other State Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State and Local Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Personnel Standards and Student Assessment . . . . . . . . . . . . . . . . . . . . . . . 10
Private Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Local Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Evaluations and Individualized Education Programs (IEPs) . . . . . . . . . . . . . . . . 14
Procedural Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Statute of Limitations and Procedural Safeguards Notice . . . . . . . . . . . . . . 16
Voluntary Binding Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Due Process Hearings, Resolution Sessions and Preliminary Meetings . . . 18
Attorneys’ Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Discipline Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Changes in Placement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Manifestation Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Placement During Appeals and “Stay Put . . . . . . . . . . . . . . . . . . . . . . 25
Protections for Children not Yet Eligible for Special Education
and Related Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Oversight and Administrative Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Monitoring, Withholding, and Judicial Review . . . . . . . . . . . . . . . . . . . . . . 27
ED Administration and Program Information . . . . . . . . . . . . . . . . . . . . . . . 29
Preschool, Infants and Toddlers, and National Programs . . . . . . . . . . . . . . . . . . 30
GAO Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Amendments to the Rehabilitation Act of 1973 . . . . . . . . . . . . . . . . . . . . . . . . . 33

The Individuals with Disabilities Education
Act (IDEA): Comparison and Analysis of
Selected Provisions in H.R. 1350 as Passed
by the House and by the Senate, 108th
Congress
Introduction
The Individuals with Disabilities Education Act (IDEA) is both a grants statute
and a civil rights statute. It provides federal funding for the education of children
with disabilities and requires, as a condition for the receipt of such funds, the
provision of a free appropriate public education (FAPE). The statute also contains
detailed due process provisions to ensure the provision of FAPE. Originally enacted
in 1975, the act responded to increased awareness of the need to educate children
with disabilities and to judicial decisions requiring that states provide an education
for children with disabilities if they provided an education for children without
disabilities.
IDEA has been amended several times, most recently and most comprehensively
by the 1997 IDEA reauthorization, P.L. 105-17, the Individuals with Disabilities
Education Act Amendments of 1997. Congress is currently considering the
reauthorization of the IDEA, 20 U.S.C. §1400 et seq.1 H.R. 1350, 108th Congress,
passed the House on April 30, 2003. The Senate bill, S. 1248, 108th Congress, was
reported out of the Health, Education, Labor and Pensions Committee on June 25,
2003 and placed on the Senate legislative calendar under general orders on November
3, 2003. On May 13, 2004, the Senate incorporated S. 1248 in H.R. 1350 and passed
H.R. 1350 in lieu of S. 1248. Table 1 below lists the amendments considered during
Senate floor debate of S. 1248, the major sponsors of the amendments, and the results
of the consideration of each amendment. This report discusses selected changes that
H.R. 1350 (House) and H.R. 1350 (Senate) would make in IDEA. The report will
be updated if needed.
1 For an overview of IDEA see CRS Report RL31259, The Individuals with Disabilities
Education Act: Statutory Provisions and Selected Issues. Numerous other CRS reports are
available on various aspects of IDEA.

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Table 1. Senate Floor Amendments
Major Sponsors
Nature of the Amendment
Result
“Mandatory” funding of Part
Failed to reach three-fifths
Sen. Harkin and Sen. Hagel
B grants-to-states program
required majority, 56 to 41
Authorization levels for Part
Sen. Gregg
B grants-to-states program
Accepted by a vote of 96 to 1
Add U.S. Department of
Education (ED) as key
partner in the National
Sen. Clinton
Children’s Study
Accepted, voice vote
Provisions to improve
services for homeless
children and others moving
Sen. Murray and Sen. Dewine
from LEA to LEA
Accepted, voice vote
Sen. Gregg
Attorneys’ fees
Accepted, voice vote
Authorization of state waivers
of certain IDEA requirements
Agreed to by unanimous
Sen. Santorum
to reduce paperwork
consent
Agreed to by unanimous
Sen. Gregg and Sen. Kennedy
“Technical” amendments
consent
Definitions
Both H.R. 1350 (House) and H.R. 1350 (Senate) leave the definitions section
of IDEA largely unchanged. However, several changes, including the following,
would be made by the bills.
The House bill, but not the Senate bill, would amend the definition of a free
appropriate public education (FAPE).2 Current law defines FAPE as meaning
“special education and related services that — (A) have been provided at public
expense, under public supervision and direction, and without charge; (B) meet the
standards of the State educational agency; (C) include an appropriate preschool,
elementary, or secondary school education in the State involved; and (D) are
provided in conformity with the individualized education program required under
Sec. 614(d).”3 An amendment adopted during debate on the House floor would add
the following provision at the end of subsection C: “That is reasonably calculated to
provide educational benefit to enable the child with a disability to access the general
curriculum.” The intent of the amendment, as expressed during House floor debate,4
2 H.R. 1350 (House), §602(8).
3 Section 602(8), 20 U.S.C. §1401(8).
4 149 Cong. Rec. H3513 (April 30, 2003).

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is to codify the interpretation of FAPE contained in the Supreme Court decision
Board of Education of the Hendrick Hudson Central School District v. Rowley.5
Both the House and Senate bills would add language to the definition of a “child
with a disability” with respect to a child ages three to nine years of age.6 Current law
permits a state or a local educational agency (LEA) to include a child in this age
group in the definition if he or she is experiencing “development delays” and
therefore needs special education and related services. Both bills would add the
phrase “or any subset of that age range [i.e., ages 3 to 9], including ages 3 through 5.”
This language apparently is not intended to alter who receives services to address
development delay but to clarify that states have flexibility to serve subgroups within
the general age range of 3 to 9.7
H.R. 1350 (Senate) adds a definition of a “core academic subject” by reference
to the definition of that term in section 9101 of the Elementary and Secondary
Education Act (ESEA).8 The House bill does not contain a similar provision.
H.R. 1350 (Senate), but not H.R. 1350 (House), would amend the definition of
assistive technology device. The Senate bill would exclude surgically implanted
medical devices in the definition.9 Similarly, the Senate bill, but not the House bill
would exclude surgically implanted medical devices from the definition of related
services.10
A definition of “highly qualified,” with respect to instructional staff, would be
added by both House and Senate bills in order to help align IDEA with the
requirements of the No Child Left Behind Act (NCLBA).11 The House bill defines
the term “highly qualified” with the same meaning as the term in section 9101 of the
Elementary and Secondary Education Act (ESEA). H.R. 1350 (Senate) adds an
extensive definition of “highly qualified” and “consultative services” to 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, if a special education teacher provides only
“consultative services”12 to a secondary school teacher teaching core academic
subjects to children with disabilities, the special education teacher, to meet the
5 458 U.S. 176 (1982).
6 H.R. 1350 (House), §602(3);.H.R. 1350 (Senate) §602(3)
7 See S. Rep. No. 185, 108th Congress, at 7 (November 3, 2003); H. Rep. No 77, 108th
Congress, at 86 (April 29, 2003).
8 H.R. 1350 (Senate) §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.
9 H.R. 1350 (Senate), §602(1).
10 H.R. 1350 (Senate), §602(25).
11 H.R. 1350 (House), §602(9) H.R. 1350 (Senate), §602(10).
12 These services would include, for example, adjustments to the learning environment,
modifications to instructional methods, and adaptations of the curriculum.

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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).13
Definitions of children with disabilities for the purpose of IDEA were discussed
during the House debate on H.R. 1350. An amendment offered by Representative
Shadegg and passed on the House floor provides in part that it is the sense of
Congress that “students who have not been diagnosed by a physician or other person
certified by a State health board as having a disability (as defined under the
Individuals with Disabilities Education Act) should not be classified as children with
disabilities for purposes of receiving services under that Act.” Also, H.R. 1350
(House) would require a GAO study reviewing variation among the states in
definitions and evaluation processes relating to the provision of services under IDEA
to children having conditions falling under the terms “emotional disturbance,” “other
health impairments,” and “specific learning disability.”14
Allocation Formula Provisions
State and Substate Grants
Both H.R. 1350 (House) and H.R. 1350 (Senate) would make minimal changes
in IDEA state and substate grant formulas, none of which would appear to change
how IDEA funds are currently allocated.15 The bills would simplify the language of
the Part B grants-to-states formula, most notably by eliminating language on the
“interim formula,” which had been in effect before the “permanent formula” became
effective in FY2000. After that date, the interim formula would never become
effective again. Both bills retain the permanent (i.e., current) formula language with
the technical change that (funds permitting) states first are allocated the amount
received for FY1999 and then remaining funds are allocated by the population-
poverty formula.16 FY1999 is the effective “base year” amount under current law;
so this should not change IDEA allocations. Both bills specify authorization levels
for the Part B grants-to-states program. H.R. 1350 (House) would authorize amounts
that increase annually from FY2004 ($11.1 billion authorized — a $2.2 billion
increase over the FY2003 appropriations) and FY2005 ($13.6 billion authorized —
a $2.5 billion increase over the FY2004 authorization) to FY2010 ($25.2 billion
authorized). After FY2010, authorizations would return to “such sums” for FY2011
and subsequent fiscal years. H.R. 1350 (Senate) authorizes specific amounts for 7
fiscal years, from approximately $12.4 billion for FY2005 to $26.1 billion for
13 For further information on NCLB teacher requirements, see CRS Report RL30834, K-12
Teacher Quality: Issues and Legislative Action.
14 This study was added by the Manager’s amendment on the House floor.
15 H.R. 1350 (House), §611; H.R. 1350 (Senate), §611.
16 For further information on IDEA grant formulas under current law, see CRS Report
RL31480, Individuals with Disabilities Education Act (IDEA): State Grant Formulas.

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FY2011,17 with “such sums” authorized for FY2012 and subsequent years. Thus the
permanent authorization of Part B grants to states is maintained in both bills.18
Maximum State Grants
The bills differ substantially with respect to the provision for providing
maximum state grants (or “full funding”) under the grants-to-states program. H.R.
1350 (House) would retain the current calculation of maximum grants except that it
would limit the number of children with disabilities ages 3 to 17 that are to be
counted for the purposes of determining maximum state grants to 13.5% of all
children in that age group within a state.19 The presumed impact of this change
would be to discourage some states from “over-identifying” children with disabilities
to increase their maximum grants.
H.R. 1350 (Senate) would substantially change the calculation of the “full
funding” amount.20 The bill would specify a calculation of the maximum amount
available “for awarding grants under this section for any fiscal year.” This total
would be calculated based on the total number of children with disabilities served for
school year 2002-2003 times 40% of national average per pupil expenditure (APPE).
The total amount for each successive year would be determined by increasing this
amount by an annual factor derived 85% from overall growth in child population and
15% from overall growth in children living in poor families.21 This amount would
presumably be distributed to states, outlying areas,22 and the Bureau of Indian Affairs
according to current-law provisions. Thus H.R. 1350 (Senate) would eliminate the
provision in current law determining a state’s maximum state grant at 40% of APPE
17 $26.1 billion appears to be the most recent CBO estimate of ‘full funding’ under current
law for FY2011.
18 Both bills also would maintain the permanent authorization of the preschool program
authorized under section 619 of Part B (Section 619(j), 20 U.S.C. §1419).
19 H.R. 1350 (House) §611(a)(3). Maximum state grants (the basis of “full funding” for
IDEA) are calculated based on 40% of the national average per pupil expenditure (APPE)
times the number of children with disabilities the state serves. For further information on
IDEA grant formulas under current law, see CRS Report RL31480, Individuals with
Disabilities Education Act (IDEA): State Grant Formulas.
20 H.R. 1350 (Senate) §611(a)(2).
21 These percentages parallel the weights given to and the age ranges for population and
poverty in the grants-to-states formula. Age ranges for population and poverty vary
according to the age ranges for children with disabilities in the various states.
22 H.R. 1350 (Senate) would make a change in funding for the “freely associated states” of
the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic
of Palau. Under current law, these entities receive IDEA Part B funds through a competition
funded as part of the set-aside for outlying areas and the freely associated states. Under
H.R. 1350 (Senate), each of these entities would receive a grant equal to the amount
received for FY2003 under Part B (H.R. 1350 (Senate) §611(b)(1)(B)). For FY2003, the
total amount for these entities is about $6.6 million. The Senate bill also adds a section
(§610) stating that the freely associated states “shall continue to be eligible for competitive
grants. . . “ H.R. 1350 (House) would eliminate payments to the freely associated states.

CRS-6
times an annually updated number of children with disabilities the state serves. This
provision would have no impact on a state’s allocation until the state became eligible
for its maximum grant. The presumed eventual impact of this change would be to
remove incentives for any state to “over-identify” children with disabilities to
increase their maximum grants. It is important to note that such a limitation on child
count for the purposes of determining maximum state grants has no impact on who
must be served under Part B of IDEA.
State Reserves
Both bills would make certain changes in provisions governing state reserves
for administration and other state-level activities. Under current law, the maximum
amounts states may reserve from their Part B grants for administration and for state-
level activities are determined by increasing the prior-year reserve by the lesser of the
rate of inflation or the percentage increase, if any, in state grants. Since
appropriations for the Part B grants-to-states program have been growing at rates well
above inflation, the state reserves have been increased from year to year by inflation.
Of this amount, states may reserve for state administration 20% or a minimum of
about $500,000 (adjusted for inflation),23 whichever is greater. Currently these
provisions mean that states can retain for state purposes, on average, about 10% of
their state grants and about 2% of state grants, on average, for administration. But
these percentages vary somewhat from state to state, and, under current law, will
almost certainly change (probably decreasing) in the future.24
Although H.R. 1350 (House) apparently retains current-law language related to
state set-asides, it would add language (based on an accepted floor amendment
offered by Representatives McKeon and Woolsey) that appears to override provisions
on how much states can reserve for state-wide activities. Based on this language, for
any fiscal year for which a state’s Part B grant is equal to or greater than its FY2003
grant, H.R. 1350 (House) would set the maximum a state could retain for state-level
activities at the amount it retained in FY2003.25 In addition, H.R. 1350 (House)
would increase the state minimum for administration to $750,000; however, this
minimum amount would not be inflation-adjusted as it is in current law.
H.R. 1350 (Senate) would permit states to reserve for state administration the
maximum reserved for FY2003 or $800,000, whichever amount is greater.26
Apparently these amounts would be increased by inflation each year. With the
exception of the increased minimum for administration, states’ administrative
reserves should be the same as those under current law. H.R. 1350 (Senate) would
change the maximum amount states could reserve for other state activities and would
23 This minimum amount is currently about $570,000.
24 Current maximum state set-asides vary from 8.3% to 11.5% of state grants (based on data
from the U.S. Department of Education (ED) Budget Service).
25 H.R. 1350 (House) §611(f)(4). Apparently if a state’s grant was less than its FY2003
amount, current language would apply; that is, its maximum reserve would be its prior-year
reserve increased by inflation.
26 H.R. 1350 (Senate) §611(e)(1).

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enlarge the scope of those activities.27 For FY2004 and FY2005, states could reserve
up to 10% of their total grants after subtracting the amount reserved for state
administration.28 Beginning in FY2006, the maximum amount for other state
activities would be adjusted by the rate of inflation. This approach would continue
through FY2009. Under the Senate proposal, amounts for other state activities could
be appreciably larger than under current law for fiscal years 2004 and 2005. For the
next 4 fiscal years, the growth rate would be the same as the current-law growth rate
if overall state grants grow at rates above inflation.29 However, these growth rates
would be applied to a higher base than under current law.
Table 2 shows how the bills might impact state set-asides for a hypothetical
state that received a FY2003 IDEA grant of $50 million, growing at 15% annually
in subsequent years. The total set-aside under current law would grow at the rate of
inflation (2% per year in the example). The current-law administrative set-aside
would be 20% of the state set-aside. The set-aside for other state-level activities
would be the total set-aside minus the administrative set-aside. Based on the House
provision discussed above, state set-asides under the House bill would remain at the
FY2003 level. The administrative set-aside under the Senate bill would grow by the
rate of inflation and be the same as the current-law amounts. The difference the
Senate bill would make can be seen in comparing amounts for other state-level
activities, which would grow significantly for FY2004 and FY2005.
Table 2. Hypothetical Example of Maximum State Set-Asides
Under Current Law and House and Senate Bills
FY2003
FY2004
FY2005
FY2006
FY2007
FY2008
FY2009
(dollars are in $000)
Hypothetical state
grant
$50,000
$57,500
$66,125
$76,044
$87,450 $100,568 $115,653
Maximum state
reserve for other
state activities
(current law)
$4,000
$4,080
$4,162
$4,245
$4,330
$4,416
$4,505
Maximum state
reserve other state
activities (House
bill)
$4,000
$4,000
$4,000
$4,000
$4,000
$4,000
$4,000
Maximum state
reserve other state
activities (Senate
bill)
$4,000
$5,648
$6,508
$6,639
$6,771
$6,907
$7,045
27 H.R. 1350 (Senate) §611(e)(2).
28 States, for which the maximum reserve for state administration is $800,000, would be
permitted to reserve up to 12% of their total grant (after subtracting the amount for
administration) for FY2004 and FY2005 for other state-level activities.
29 If future growth rates in Part B grants to states are below inflation, growth in state set-
asides under H.R. 1350 (Senate) would be greater than under current law, which pegs set-
aside growth rate to the lesser of inflation or a state’s overall grant growth rate.

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FY2003
FY2004
FY2005
FY2006
FY2007
FY2008
FY2009
(dollars are in $000)
Maximum state
reserve for admin.
(current law)
$1,000
$1,020
$1,040
$1,061
$1,082
$1,104
$1,126
Maximum state
reserve for admin.
(House bill)
$1,000
$1,000
$1,000
$1,000
$1,000
$1,000
$1,000
Maximum state
reserve for admin.
(Senate bill)
$1,000
$1,020
$1,040
$1,061
$1,082
$1,104
$1,126
Hypothetical
inflation rate
2.0%
2.0%
2.0%
2.0%
2.0%
2.0%
2.0%
High Cost Children with Disabilities
Both bills make some provision for funding high-cost services for certain
children with disabilities. This issue gained increased prominence when the Supreme
Court decided the case Cedar Rapids Community School District v. Garret F.30
Garret F. was a child paralyzed from the neck down as a result of a motorcycle
accident but who retained his mental abilities. His family had arranged for his
physical care during the day for a number of years but eventually they requested the
school to accept financial responsibility for his health care services during the school
day. The Supreme Court, interpreting the definition of related services, held that the
extensive services required by Garret F. must be provided by the school as long as
they were not medical services that must be provided by a physician.31
H.R. 1350 (House) would allow states to use up to 40% of the amount reserved
for state-level activities for establishing and implementing “cost or risk sharing
funds, consortia, or cooperatives to assist local educational agencies in providing
high cost special education and related services.” This provision (together with the
permitted use of local funds discussed below) addresses the issue of educating
children with low incidence, high cost disabilities.32
Under H.R. 1350 (Senate), states would be required to use 2% of the state’s total
grant (after reserving an amount for state administration) to assist LEAs to address
the needs of “high-need” children with disabilities.33 The Senate bill defines a high-
need child as one for whom providing a free appropriate public education (FAPE)
30 526 U.S. 66 (1999).
31 For a more detailed discussion see CRS Report RS20104, Cedar Rapids Community
School District v. Garret F.: The Individuals with Disabilities Education Act and Related
Services.
32 H.R. 1350 (House) §611(e)(3).
33 H.R. 1350 (Senate) §611(e)(3).

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costs more than 4 times the national average per pupil expenditure (APPE).34 States
would distribute funds to approved LEAs to pay 75% of the special education and
related services costs that exceed 4 times APPE.
Other State Activities
In addition to provisions dealing with “high cost” disabilities, both bills add
certain required and permitted state activities. H.R. 1350 (House) would add several
permitted uses of funds for state-level activities, including implementing voluntary
binding arbitration and developing and maintaining a prereferral educational support
system (discussed below).35 Examples of permitted activities under H.R. 1350
(Senate) include assisting LEAs to provide positive behavioral interventions, to
improve classroom use of technology, and to develop and implement transition
services to postsecondary activities for students with disabilities.
State and Local Eligibility
In General
Section 612(a) of IDEA provides for state eligibility “if the State demonstrates
to the satisfaction of the Secretary that the State has in effect policies and procedures
to ensure that it meets each of the following conditions:....” These conditions include
the core requirements of IDEA for the provision of FAPE and an individualized
education program (IEP).36 Both bills would amend this language but in different
ways. H.R. 1350 (Senate) would change the language of section 612(a) by striking
“demonstrates to the satisfaction of” and inserting “submits a plan that provides
assurances to.”37 H.R. 1350 (House) would change the language of section 612(a)
by striking “demonstrates to the satisfaction of” and inserting “reasonably
demonstrates to.”38 The Secretary of Education has interpreted current law to require
the States to submit documents to support a procedural checklist. The changes in the
bills were made to eliminate these administrative procedural requirements.39
34 The applicable APPE for school year 2002-2003 is about $7,500.
35 H.R. 1350 (House) would maintain the requirement under current law for states to use
a portion of increases in state grants for additional local grants (often termed “sliver grants”)
(sec. 611(f)(4), 20 U.S.C. 1411(f)(4)). Under current law, these grants are to be used for
local improvement and capacity building. Under H.R. 1350 (House), the grants are for
LEAs identified as needing improvement under ESEA. (See CRS Report RL31487:
Education for the Disadvantaged: Overview of ESEA Title I-A Amendments Under the No
Child Left Behind Act for a discussion of related ESEA requirements.) H.R. 1350 (Senate)
would eliminate the “sliver grant” provision.
36 Section 612(a), 20 U.S.C. §1412(a).
37 H.R. 1350 (Senate), §612(a).
38 H.R. 1350 (House), §612(a).
39 See S. Rep. No. 185, 108th Congress, at 14 (November 3, 2003); H. Rep. No 77, 108th
(continued...)

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Personnel Standards and Student Assessment
Both bills would modify some state eligibility requirements (in Section 612) to
bring them in line with principles and requirements of the No Child Left Behind Act
(NCLBA).40 H.R. 1350 (House) 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.”41 H.R. 1350 (House) would
remove requirements regarding a state comprehensive system of personnel
development and regarding hiring and retraining personnel to meet highest state
personnel standards.42
H.R. 1350 (Senate) would also 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.”43 (See above the
proposed definition of “highly qualified.”) H.R. 1350 (Senate) would change the
provision that states have a policy requiring LEAs to make “an ongoing good faith
effort” in recruiting and hiring “appropriately and adequately trained personnel”44 to
requiring LEAs to “take measurable steps to recruit, hire, train, and retain highly
qualified personnel.”45 Like H.R. 1350 (House), H.R. 1350 (Senate) would remove
requirements regarding a state comprehensive system of personnel development and
regarding hiring and retraining personnel to meet highest state personnel standards.46
H.R. 1350 (Senate) would require that providers of related services (such as, physical
therapy and counseling services) meet standards that “are consistent with” state
requirements “that apply to the professional discipline in which” related services are
being provided.47
39 (...continued)
Congress, at 94 (April 29, 2003).
40 For further information on NCLB, see CRS Report RL31284, K-12 Education:
Highlights of the No Child Left Behind Act of 2001 (P.L. 107-110).
41 H.R. 1350 (House) §612(a)(14)(B). For further information on NCLB teacher
requirements, see CRS Report RL30834, K-12 Teacher Quality: Issues and Legislative
Action.
42 20 U.S.C. §1412(a)(14) and (15).
43 H.R. 1350 (Senate) §612(a)(14)(C)(i).
44 20 U.S.C. §1412(a)(15)(C).
45 H.R. 1350 (Senate) §612(a)(14)(D).
46 20 U.S.C. §1412(a)(14) and (15).
47 H.R. 1350 (Senate) §612(a)(14)(B)(i). H.R. 1350 (Senate) would permit a parent to
complain to the state educational agency (SEA) if he or she believed staff were not highly
qualified as defined by the act but would not create “a right of action on behalf of an
(continued...)

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Under both bills, required 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,”48 as amended by NCLBA.49 Under both bills, children with disabilities would
be required to participate in state and districtwide testing programs as under NCLBA.
Both bills, depending on each child’s needs, would permit assessments to be taken
with accommodations (e.g., alternative testing environments, such as a quieter
location than the regular classroom). For some, presumably more severely disabled
children, alternative assessments can be used. H.R. 1350 (Senate) would require such
assessments to be aligned with the state’s “challenging academic content and
academic achievement standards.”50
Private Schools
The state eligibility sections of IDEA contain provisions relating to children
with disabilities in private schools, including when these children are unilaterally
placed in private schools by their parents and when they are placed in private schools
by public agencies. Under current law, when children with disabilities are
unilaterally placed in a private school by their parents, the states must spend a
proportionate amount of IDEA funds on these children. Special education and
related services may be provided on the premises of private schools, including
parochial schools, and the requirements regarding child find are applicable to such
children.51
The House and Senate bills would make changes in the current law regarding
children enrolled in private schools by their parents. Currently, IDEA states that “to
the extent consistent with the number and location of children with disabilities in the
State who are enrolled by their parents in private elementary and secondary schools,
provision is made for the participation of those children....”52 H.R. 1350 (Senate)
would add the phrase “in the school district served by a local educational agency”
after the phrase “secondary schools.” H.R. 1350 (House) would add the phrase “in
the area served by such agency.” In addition, H.R. 1350 (Senate) would add a phrase
47 (...continued)
individual student” if a parent claimed that a staff person were not highly qualified. That
is, the parent would have the right to complain to the SEA but would not have the right to
seek remedies through the courts.
48 H.R. 1350 (House) §612(a)(15)(A)(ii) and H.R. 1350 (Senate) §612(a)(15(A)(ii). For
further information on NCLB testing requirements, see CRS Report RL31407, Educational
Testing: Implementation of ESEA Title I-A Requirements Under the No Child Left Behind
Act; CRS Report RL31487, Education for the Disadvantaged: Overview of ESEA Title I-A
Amendments Under the No Child Left Behind Act.
49 H.R. 1350 (Senate) would require separate reporting on drop out rates and graduation
rates for children with disabilities. NCLBA and H.R. 1350 (House) require that graduation
rates be reported by subgroups of students, such as children with disabilities.
50 H.R. 1350 (Senate) §612(a)(16)(C)(ii).
51 Section 612(a)(10)(A), 20 U.S.C. §1412(a)(10)(A).
52 Section 612(a)(10)(A)(i), 20 U.S.C. §1412(a)(10)(A)(i).

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to the current law indicating that the funds expended for parentally placed private
school children include direct services to these children and would require these
services to be provided “to the extent practicable.” Both bills would add detailed
provisions concerning child find (i.e, locating and determining the IDEA eligibility
for children with disabilities) including a consultation process with the LEA and
representatives of children with disabilities parentally placed in private schools, and
a compliance procedure that would give a private school official the right “to
complain” to the SEA that the LEA did not engage in meaningful and timely
consultation or did not give due consideration to the views of the private school
official. A private school official would also have a right “to complain” to the
Secretary of Education.
Currently, IDEA provides that when children with disabilities are placed in or
referred to private schools by public agencies, the costs are to be paid by the public
agency.53 And, under current law, a court or a hearing officer may require an
educational agency to reimburse the parents for the cost of the enrollment if the court
or hearing officer finds that the agency had not made FAPE available to the child in
a timely manner prior to the enrollment.54 Current law allows for limitations on
reimbursement in certain situations, such as when notice that parents are required to
provide is not provided or when there is a judicial determination of unreasonableness
with respect to actions taken by the parents.55 Current law also provides for
exceptions to this notice requirement, where the cost of reimbursement may not be
reduced or denied for failure to provide notice if (1) the parent is illiterate, (2)
compliance would result in physical or serious emotional harm to the child, (3) the
school prevented the parent from providing such notice, or (4) the parents had not
received the notice that the educational agency was required to provide.56
The current law regarding children with disabilities who are placed in private
schools by public agencies would remain unchanged in both bills. However, changes
would be made to the current law regarding payment for the education of children
who are enrolled in private schools without the consent of the public agency. These
changes would involve the exceptions to the limitation on reimbursement. H.R. 1350
(Senate) would require that reimbursement shall not be reduced due to the parents’
failure to provide notice if the school personnel prevented the parent from providing
such notice or the parents had not received notice of the notice requirement. In
addition, H.R. 1350 (Senate) would provide that the cost of reimbursement may, in
the discretion of a court or hearing officer, not be reduced or denied if the parent is
illiterate and cannot write in English, or compliance with the notice requirement
would likely have resulted in physical or serious emotional harm to the child. H.R.
1350 (House) would require that reimbursement shall not be reduced due to the
parents’ failure to provide notice if the school personnel prevented the parent from
providing such notice, the parents had not received notice of the notice requirement
or compliance with the requirements would likely result in physical harm to the child.
53 Section 612(a)(10)(B), 20 U.S.C. §1412(a)(10)(B).
54 Section 612(a)(10)(C), 20 U.S.C. §1412(a)(10)(C).
55 Id.
56 Id.

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The House bill would provide that the cost of reimbursement may, in the discretion
of a court or hearing officer, not be reduced or denied if the parent is illiterate and
cannot write in English, or compliance with the notice requirement would likely have
resulted in serious emotional harm to the child.
Local Eligibility
Both bills would make several changes to section 613 regarding local
educational agency (LEA) eligibility. H.R. 1350 (House) would add a new section
allowing funds provided to an LEA to be used “to establish and implement cost or
risk sharing funds, consortiums, or cooperatives for the agency itself, or for local
educational agencies working in consortium of which the local education agency is
a part to pay for high cost special education and related services.”57
H.R. 1350 (House) would continue local financial requirements, such as
requiring that Part B funds be used to supplement, not supplant (SNS) other special
education funding, and that (with certain exceptions) LEAs cannot decrease spending
for special education from one year to the next (the maintenance of effort (MOE)
requirement). H.R. 1350 (House) would continue the exception that LEAs can count
up to 20% of the increase in their IDEA grants from one year to the next as helping
to meet SNS and MOE requirements, with the addition that these increased IDEA
funds could then be used to provide additional funding for ESEA programs.58 H.R.
1350 (House) would modify state oversight of this provision. Under current law, the
SEA “may prohibit” an LEA from exercising this provision if it “determines that a
local educational agency is not meeting the requirements of this part.” H.R. 1350
(House) would require the SEA (if authorized by state law) to prohibit a LEA from
exercising this provision if it “determines that a local educational agency is unable
to establish and maintain programs of free appropriate public education. . . .”59
H.R. 1350 (Senate) would significantly change this exception by permitting
LEAs to “treat as local funds” for the purpose of meeting SNS and MOE
requirements up to 8% of their total Part B grants. Once a state received its
maximum grant (discussed above), LEAs in that state could treat up to 40% of their
grants as local funds.60
Under current law, the “treat as local” exception to SNS and MOE is available
only to LEAs, not to states. H.R. 1350 (Senate) would provide similar exceptions for
states that fund at least 80% of the non-federal cost of educating children with
disabilities and for states that are “the sole provider of free appropriate public
education or direct service” for children with disabilities. Such states may treat
57 H.R. 1350 (House) §613(a)(4)(C). H.R. 1350 (Senate) would require states to establish
“risk pools” for this purpose. See above.
58 H.R. 1350 (House) §613(a)(2)(C)(ii).
59 H.R. 1350 (House) §613(a)(2)(C)(iii).
60 H.R. 1350 (Senate) §613(a)(2)(C). As in current law, this option is not available to an
LEA that the state determines “is unable to establish and maintain programs of free
appropriate public education that meet the requirements of this subsection.”

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IDEA funds “as general funds available” for supporting “educational purposes.”61
In the case of states, it would be the Secretary of Education who would prohibit states
from exercising these exceptions based on the inability to provide adequate free
appropriate public education.
Both bills would add several permitted uses of funds provided to an LEA. For
example, H.R. 1350 (House) would allow these funds to be used for “reasonable
additional expenses...of any necessary accommodations to allow children with
disabilities who are being educated in a school identified for school improvement
...to be provided supplemental educational services....” This section would help to
align IDEA to the requirements of the No Child Left Behind Act (NCLBA).62 Both
bills would permit purchasing technology to maintain case management systems.
Both bills would permit LEAs to use up to 15% of their Part B grant for
prereferral or early intervention services.63 These services could be provided to
students (from kindergarten to 12th grade but emphasizing those in kindergarten to
3rd grade) who have not been identified as requiring special education or related
services “but who need additional academic and behavioral support to succeed in a
general education environment.”64 Activities that an LEA could undertake include
provision of educational and behavioral services and support (“including
scientifically based literacy instruction”) and professional development for teachers
to provide such services. Both bills note that “nothing in this subsection shall be
construed to either limit or create a right to a free appropriate public education under
this part.”65
Evaluations and Individualized
Education Programs (IEPs)
Current law requires informed parental consent prior to the evaluation to
determine whether a child qualifies under IDEA. It also provides some leeway to an
LEA if a parent does not consent, but it is deemed necessary to evaluate the child.
Both bills would expand the LEA’s flexibility, if the parent does not provide consent
or the parent does not respond to a request from the LEA to provide consent. In
those cases, both bills would permit the LEA to proceed with an initial evaluation.
In addition, if the parent does not provide consent for IDEA services or fails to
respond to the LEA’s request, both bills free the LEA from obligations under the act,
although the bills’ language differ. In these circumstances, under H.R. 1350 (House),
61 H.R. 1350 (Senate) §613(j).
62 H.R. 1350 (House) §613(a)(4)(E). H.R. 1350 (Senate) does not contain this permitted
use. For further information on supplemental services under NCLBA, see CRS Report
RL31329, Supplemental Educational Services for Children from Low-Income Families
Under ESEA Title I-A.
63 H.R. 1350 (House) §613(f) and H.R. 1350 (Senate) §613(f).
64 H.R. 1350 (House) §613(f)(1) and H.R. 1350 (Senate) §613(f)(1).
65 H.R. 1350 (House) §613(f)(3) and H.R. 1350 (Senate) §613(f)(3).

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the LEA “shall not provide special education and related services.”66 In addition, the
LEA is not obligated to hold an IEP meeting or prepare an IEP. H.R. 1350 (House)
stipulates that, the LEA “shall not be considered to be in violation of any requirement
under this part (including the requirement to make available a free appropriate public
education).”67 Under H.R. 1350 (Senate), if the parent does not provide consent or
does not respond, the LEA “shall not be considered to be in violation of the
requirement to make available a free appropriate public education to the child for the
failure to provide the special education and related services for which the local
educational agency requested such informed consent.”68
Both bills would add a new provision regarding determining when a child has
a specific learning disability and prohibiting the required use of a discrepancy
between achievement and intellectual ability for this purpose.69 Both bills note that
the LEA, when determining whether a child has a specific learning disability, “shall
not be required to take into consideration whether a child has a severe discrepancy
between achievement and intellectual ability in oral expression, basic reading skill,
reading comprehension, mathematic calculation, or mathematical reasoning.”70
Both bills would make changes to the requirements of an IEP that are, at least
in part, intended to reduce paperwork requirements for teachers and schools.71 In
many cases, the proposed changes are the same or similar in both bills. For example,
both bills would:
! discontinue a current-law requirement for the IEP to contain
benchmarks and short term objectives;72
66 H.R. 1350 (House) §614(a)(1)(D)(ii)(II).
67 H.R. 1350 (House) §614(a)(1)(D)(ii)(II)(aa).
68 H.R. 1350 (Senate) §614(a)(1)(D)(iii).
69 This provision presumably responds to criticism of the so-called “discrepancy model”
for identifying children with learning disabilities. See, for example, Reid Lyon, et al.
“Rethinking Learning Disabilities” in Rethinking Special Education in a New Century.
Chester E. Finn, Jr., Andrew J. Rotherham, and Charles R. Hokanson, Jr. (eds.).
Washington, D.C. Published by the Thomas B. Fordham Foundation and the Progressive
Policy Institute, May 2001.
70 H.R. 1350 (House) §614(b)(6); H.R. 1350 (Senate) §614(b)(6).
71 For a discussion of IDEA and paperwork see CRS Report RS21226, The Individuals with
Disabilities Education Act: Paperwork in Special Education. It should also be noted that
one of the GAO studies which would be required by H.R. 1350 (House) provides for a
review of federal and selected state and local requirements related to IDEA that “result in
excessive paperwork.” There are also provisions in the amendments to section 616,
discussed infra, which would authorize the Secretary of Education to grant waivers of
paperwork requirements.
72 20 U.S.C. 1414(d)(1)(A)(ii). H.R. 1350 (Senate) appears to eliminate this provision
entirely; H.R. 1350 (House) eliminates the requirement beginning in school year 2005-2006
(§614(d)(1)(A)(i)(I)(cc).

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! allow the parents of a child with a disability and the LEA to jointly
excuse any member of the IEP team from attending all or part of an
IEP team meeting;73
! allow the parents and LEA to agree not to reconvene the IEP team
but instead develop a written document to amend or modify the
child’s current IEP;74 and
! allow for the use of alternative means of meeting participation, such
as video conferences and conference calls when agreed to by the
parents of a child with a disability and the LEA.75
Although both bills would permit multi-year IEPs, H.R. 1350 (House) would permit
“multi-year IEP, not to exceed three years, that is designed to cover the natural
transition points for the child;”76 whereas, H.R. 1350 (Senate) would permit
three-year IEPs only for students with disabilities who have reached 18 years of age
“designed to serve the child for the final three-year transition period.”77
Procedural Safeguards
Introduction
IDEA contains detailed procedural safeguards designed to ensure the provision
of FAPE. Both the House and Senate bills would amend the procedural safeguards
available under IDEA with the House bill making the more significant changes. The
changes made by the Senate bill have been described as helping to “alleviate the
stress in disagreements between schools and parents.”78 The changes made by H.R.
1350 (House) have been described as helping to “reduce litigation and restore trust
between parents and school systems.”79
Statute of Limitations and Procedural Safeguards Notice
Both the House and Senate bills would add a statute of limitations to the right
to present complaints. The House bill allows an opportunity to present complaints
only for “a violation that occurred not more than one year before the complaint is
filed”80 while the Senate bill requires that the due process hearing be requested
“within two years of the date the parent or public agency knew or should have known
73 H.R. 1350 (House) §614(d)(3)(D) and H.R. 1350 (Senate) §614(d)(1)(C).
74 H.R. 1350 (House) §614(d)(3)(E) and H.R. 1350 (Senate) §614(d)(3)(D).
75 H.R. 1350 (House) and H.R. 1350 (Senate) §614(f).
76 H.R. 1350 (House) §614(d)(5).
77 H.R. 1350 (Senate) §614(d)(5).
78 149 Cong. Rec. S7836 (daily ed. June 12, 2003)(remarks of Sen. Gregg).
79 149 Cong. Rec. E527 (March 20, 2003)(remarks of Rep. Castle).
80 H.R. 1350 (House), §615(b)(6).

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about the alleged action that forms the basis of the complaint.”81 The Senate bill also
provides for the use of a state time limitation “if the State has an explicit time
limitation for requesting such a hearing under this part.”82 In addition, the Senate bill
would provide for exceptions to the statute of limitations. The statute of limitations
does not apply if the parent was prevented from requesting the hearing due to (1) the
failure of the local educational agency to provide prior written or procedural
safeguards notices, (2) false representations that the local educational agency was
attempting to resolve the problem forming the basis of the complaint, or (3) the local
educational agency’s withholding of information from the parents. H.R. 1350
(Senate) also requires that a party filing a civil action “shall have 90 days from the
date of the decision of the hearing officer to bring such an action, or, if the State has
an explicit time limitation for bringing such action, in such time as the State law
allows.”83
IDEA currently requires that a copy of available procedural safeguards be given
to the parents of a child with a disability at a minimum upon initial referral for
evaluation, upon each notification of an individualized education program (IEP)
meeting, upon reevaluation, and upon registration of a complaint.84 The Senate
report noted that “while the procedural safeguards notice is critical for notifying
parents and children with disabilities of their rights under the law, parents, as well as
district personnel, have often criticized the frequent distribution of this notice within
a year.”85
These concerns have resulted in both the House and Senate bills amending the
current requirements. The House bill would delete the current requirement for giving
a copy of procedural safeguards to the parents of a child with a disability on each
notification of an IEP meeting and upon reevaluation and registration of a complaint.
Under H.R. 1350 (House), a copy of the procedural safeguards notice would be given
“at a minimum — (A) upon initial referral or parental request for evaluation; (B)
annually, at the beginning of the school year; and (C) upon written request by a
parent.”86 The Senate bill would require that a copy of the procedural safeguards
available be given to the parents only one time a year except that a copy would also
be given (1) upon initial referral or parental request for evaluation, (2) upon
registration of a complaint under subsection (b)(6), and (3) upon request by a parent.
81 H.R. 1350 (Senate), §615(f)(3)(D).
82 Id.
83 H.R. 1350 (Senate), §615(i)(2)(B).
84 Section 615(d), 20 U.S.C. §1415(d).
85 S. Rep. No. 185, 108th Congress, at 36 (November 3, 2003).
86 H.R. 1350 (House), §615(d)(1). The House and Senate bills contain some differences
regarding the specific items to be included in the procedural safeguards notice. For
example, the Senate bill, but not the House bill, requires the notice to include the time
period in which to file civil actions while the House bill, but not the Senate bill, requires the
notice to include a description of early dispute resolution and voluntary binding arbitration.

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The content of the procedural safeguards notice would also change under H.R.
1350 (House). Current law requires a “full explanation” of the procedural safeguards
while H.R. 1350 (House) states that “the procedural safeguards notice shall include
a description of the procedural safeguards....”87 The Senate bill would not change the
current law requirement for a “full explanation.”
Voluntary Binding Arbitration
H.R. 1350 (House) would add new provisions relating to voluntary binding
arbitration. The Senate bill, like current law, does not include provisions for
voluntary binding arbitration. The House bill would require that a state educational
agency ensure that procedures are available to resolve disputes through voluntary
binding arbitration, which is to be available when a hearing is requested. The
voluntary binding arbitration is to be voluntarily and knowingly agreed to in writing
by the parties and conducted by a qualified, impartial arbitrator. The LEA or SEA
shall ensure that parents understand that the process is in lieu of a due process
hearing and is final unless there is fraud by a party or the arbitrator or misconduct on
the part of the arbitrator. The parties jointly agree to use an arbitrator from a list
maintained by the state and the arbitration is to be conducted according to state law
on arbitration or, if there is no applicable state law, consistent with the revised
uniform arbitration act. The voluntary binding arbitration is to be scheduled in a
timely manner and held in a location that is convenient to the parties to the dispute.
Due Process Hearings, Resolution Sessions and Preliminary
Meetings
Under current law, when a complaint is received from a parent of a child with
a disability under IDEA with respect to the identification, evaluation, educational
placement, provision of a free appropriate public education or placement in an
alternative educational setting, the parents have an opportunity for an impartial due
process hearing88 with a right to appeal.89 Any party to this hearing has the following
rights:
! to be accompanied and advised by counsel and by individuals with
special knowledge or training regarding children with disabilities,
! to present evidence and confront, cross-examine, and compel the
attendance of witnesses,
! to receive a written or electronic version of the verbatim record of
the hearing, and
! to receive the written or electronic findings of facts and decisions.90
87 H.R. 1350 (House), §615(d)(2).
88 20 U.S.C. §1415(f), P.L. 105-17 §615(f).
89 20 U.S.C. §1415(g), P.L. 105-17 §615(g).
90 20 U.S.C. §1415(h), P.L. 105-17 §615(h).

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The decision made in the hearing is final, except that any party may appeal and
has the right to bring a civil action in state or federal court.
Both House and Senate bills would make significant changes to IDEA due
process procedures. First, a due process hearing may be requested by either the
parents of a child with a disability or the LEA, and the House bill provides that the
due process hearing is to be conducted by the SEA. Under current law the hearing is
conducted by either the LEA or SEA depending upon state law. Second, both bills
would add meetings prior to the opportunity for a due process hearing. H.R. 1350
(House) would add a new “resolution session” which the House report noted “is
intended to improve the communication between parents and school officials, and to
help foster greater efforts to resolve disputes in a timely manner so that the child’s
interests are best served.”91 The Senate bill would add a “preliminary meeting” as
“a forum to resolve matters in a more informal way before moving to a more
adversarial process.”92
The Senate and House provisions on the resolution session and the preliminary
meeting are similar but not identical. Both bills would require that this meeting
! must occur within fifteen days of receiving notice of the parents’
complaint,
! allow the parents to discuss their complaint, and the specific issues
that form the basis of the complaint, and
! provide the LEA with an opportunity to resolve the complaint.
However, unlike the House bill, the Senate bill would specifically require that the
meeting include the IEP team, and a representative of the public agency who has
decision making authority, and that the meeting cannot include an attorney for the
LEA unless the parent is also accompanied by an attorney. Both the House and
Senate bills provide that the parents and the LEA may agree in writing to waive the
preliminary meeting and the Senate bill also allows the parents and the LEA to agree
to use the mediation process. Both bills provide that if the LEA has not resolved the
complaint to the satisfaction of the parents within a certain number of days the due
process hearing may occur, with its applicable time lines. The Senate bill allows
fifteen days after the receipt of the complaint, while the House bill allows for thirty
days before the due process hearing. The Senate bill, but not the House bill, requires
that if an agreement is reached at the preliminary meeting, the agreement shall be set
forth in a written settlement agreement, signed by the parents and a representative of
the public agency who has decision making authority, that is enforceable in court.
The Senate bill would not allow attorneys’ fees for the preliminary meeting. H.R.
1350 (House) specifically states that the resolution session meeting is not a meeting
convened as a result of an administrative hearing or judicial action or for purposes
of section 615(h)(3). Section 615(h)(3) provides for procedural safeguards for
hearings. Thus, procedural safeguards such as the right to be accompanied by
counsel or other individuals, the right to present evidence, the right to cross-examine
91 H. Rep. No 77, 108th Congress, at 114 (April 29, 2003).
92 S. Rep. No. 185, 108th Congress, at 38 (November 3, 2003)

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witnesses, or the right to a written record would not be available with regard to the
resolution session.
The House and Senate bills both include limitations on issues that are allowed
to be raised in the due process hearing.93 The House bill provides that “no party”
shall be allowed to raise issues at the due process hearing that were not raised in the
complaint, discussed in the resolution session, or properly disclosed pursuant to the
subsection on disclosure of evaluations and recommendations. The Senate bill
provides that “the party requesting the hearing shall not be allowed to raise the
issues.” The Senate bill would bar issues that were not raised in the notice under
§615(b)(7) which concerns the due process complaint notice. Both bills contain, in
a separate subsection, a provision that allows a hearing office to bar a party that failed
to comply with the required disclosures of evaluations and recommendations from
introducing the relevant evaluation or recommendation.94 Both bills would allow for
raising of issues or the disclosure of evaluations or recommendations if the other
party agrees. The Senate bill, but not the House bill, contains a rule of construction
providing that the sections shall not be construed to preclude a parent from filing a
separate due process complaint on an issue separate from a due process complaint
already filed.
The Senate bill also would require that the decision made by a hearing officer
be made on substantive grounds “based on a determination of whether the child
received a free appropriate public education.” However, if a matter alleges a
procedural violation of IDEA, H.R. 1350 (Senate) would allow a hearing officer to
find that a child did not receive FAPE under the following conditions. The
procedural inadequacies must have:
! compromised the child’s right to an appropriate public education,
! seriously hampered the parents’ opportunity to participate in the
process, or
! caused a deprivation of educational benefits.
In addition, the hearing officer would not be precluded from ordering a local
educational agency to comply with the procedural requirements of the section.95
Attorneys’ Fees
The House and Senate bills differ in their provisions on attorneys’ fees with the
House bill allowing the Governor of a state to set the rates for the fees while the
Senate bill would allow attorneys’ fees for a SEA or LEA, if they are prevailing and
if the complaint is frivolous, unreasonable or without foundation. Under current
law, at the court’s discretion, attorneys’ fees may be awarded as part of the costs to
93 H.R. 1350 (House), §615(f)(3)(B); H.R. 1350 (Senate), §615(f)(3)(B).
94 H.R. 1350 (House), §615(f)(2); H.R. 1350 (Senate), §615(f)(2).
95 S.1248, §615(f)(3)(F).

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the parents of a child with a disability who is the prevailing party.96 Attorneys’ fees
are based on the rates prevailing in the community, and no bonus or multiplier may
be used. There are specific prohibitions on attorneys’ fees and reductions in the
amounts of fees. Fees may not be awarded for services performed subsequent to a
written offer of settlement to a parent in certain circumstances including if the court
finds that the relief finally obtained by the parents is not more favorable to the
parents than the offer of settlement. Also, attorneys’ fees are not to be awarded
relating to any meeting of the IEP team unless the meeting is convened as a result of
an administrative proceeding or judicial action or, at the state’s discretion, for a
mediation. Current law specifically provides that an award of attorneys’ fees and
related costs may be made to a parent who is the prevailing party if the parent was
substantially justified in rejecting a settlement offer. Attorneys’ fees may be reduced
in certain circumstances including where the court finds that the parent unreasonably
protracted the final resolution of the controversy; the amount of attorneys’ fees
unreasonably exceeds the hourly rate prevailing in the community for similar services
by attorneys of reasonably comparable skill, reputation and experience; where the
time spent and legal services furnished were excessive considering the nature of the
action or proceedings; and when the court finds that the parent did not provide the
school district with the appropriate information in the due process complaint.97
H.R. 1350 (House) would amend these provisions by changing the general
statement under current law that attorneys’ fees may be awarded at the court’s
discretion to read: “Fees awarded under this paragraph shall be based on rates
determined by the Governor of the State (or other appropriate State official) in which
the action or proceeding arose for the kind and quality of services furnished. No
bonus or multiplier may be used in calculating the fees awarded under this
subsection.” In addition, the amendment provides that the Governor or other
appropriate official shall make these rates available to the public on an annual basis.
The other provisions of current law regarding the prohibition of attorneys’ fees in
certain situations, the exception to this prohibition, and the reduction of attorneys’
fees in certain circumstances were not amended although the House bill at
§615(f)(1)(B)(ii) defines the resolution session as a non administrative and non
judicial meeting.
The Senate bill keeps most of the provisions of current law, including the
current provision relating to the determination of the amount of attorneys’ fees by a
court. The Senate bill specifically would not allow attorneys’ fees for the preliminary
meeting and would also allow for the reduction of attorneys’ fees when the parents’
attorney unreasonably protracts the proceedings. The Senate bill would add a new
subsection specifically allowing parents to represent their children in court.98 An
96 The provision on attorneys’ fees was added by Congress in the Handicapped Children’s
Protection Act, P.L. 99-372.
97 20 U.S.C. §1415(i), P.L. 105-17 §615(i).
98 The IDEA cases that have specifically addressed this issue have generally found that
parents cannot proceed pro se on behalf of their child. See e.g., Collinsgru v. Palmyra
Board of Education,161 F.3d 225, 227 (3d Cir. 1998), where the third circuit held that
“parents seeking to enforce their child’s substantive right to an appropriate education under
(continued...)

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amendment on attorneys’ fees was agreed to on the Senate floor which would allow
the court to award fees to a SEA or LEA against the attorney of a parent or a parent
in certain circumstances. The attorney of a parent may be required to pay the SEA’s
or LEA’s fees if he or she
! files a complaint that is frivolous, unreasonable, or without
foundation,
! continues to litigate when the litigation clearly became frivolous,
unreasonable or without foundation or
! if the complaint or subsequent cause of action was presented for any
improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation.
The parent of a child with a disability who files a complaint may be required to
pay the SEA’s or LEA’s attorneys’ fees if the complaint or subsequent cause of
action was presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation. The Senate also
included a provision that nothing in the subparagraph shall be construed to affect the
attorneys’ fees provisions applicable to the District of Columbia.
In the Senate debate on the attorneys’ fees amendment, Senator Grassley stated
that the amendment would “in no way limit or discourage parents from pursuing
legitimate complaints against a school district if they feel their child’s school has not
provided a free appropriate public education. It would simply give school districts a
little relief from abuses of the due process rights found in IDEA and ensure that our
taxpayer dollars go toward educating children, not lining the pockets of unscrupulous
trial lawyers.”99 Senator Gregg also emphasized the need for the attorneys’ fee
amendment. He noted that the concept that a defendant should be able to obtain
attorneys’ fees when a plaintiff’s actions were “frivolous, unreasonable, or without
foundation” has been applied to title VII of the Civil Rights Act of 1964. The
Supreme Court in Christiansburg Garment Co. v. Equal Employment Opportunity
Commission100 held that prevailing defendants should recover attorneys’ fees when
a plaintiff’s actions were frivolous, unreasonable, or without foundation in order to
“protect defendants from burdensome litigation having no legal or factual basis.”101
Senator Gregg observed that the standard is “very high...and prevailing defendants
are rarely able to meet it and obtain a reimbursement of their attorneys fees” and that
98 (...continued)
the IDEA may not represent their child in federal court.” However, a recent first circuit case,
Maroni v. Pemi-Baker Regional School District, 346 F.3d 247, 257 (1st Cir. 2003), granted
parents the right to proceed pro se stating “a rule prohibiting pro se representation would
subvert Congress’s intent by denying many children with special needs their day in court.”
99 150 Cong. Rec. S5349 (May 12, 2004).
100 434 U.S. 412 (1978).
101 Id. at 420.

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case law “directs courts to consider the financial resources of the plaintiff in
awarding attorney’s fees to a prevailing defendant.”102
The attorneys’ fee amendment also allowed defendants to recover fees if
lawsuits were brought for an improper purpose. Senator Gregg noted that this
concept was drawn from Rule 11 of the Federal Rules of Civil Procedure103 and that
“in interpreting this language from Rule 11, courts must apply an objective standard
of reasonableness to the facts of the case.”104
Discipline Issues
Both the House and Senate bills would make changes in the manner in which
children with disabilities who violate a disciplinary rule are treated. The House bill
would make more significant changes to current law.
Current Law. Generally, under current law, a child with a disability is not
immune from disciplinary procedures; however, these procedures are not identical
to those for children without disabilities.105 If a child with a disability commits an
action that would be subject to discipline, school personnel have several options.
These include:
! a suspension for up to ten days,
! placement in an interim alternative education setting for up to forty-
five days for situations involving weapons or drugs,
! asking a hearing officer to order a child placed in an interim
alternative educational setting for up to forty-five days if it is
demonstrated that the child is substantially likely to injure himself
or others in his current placement, and
! conducting a manifestation determination review to determine
whether there is a link between the child’s disability and the
misbehavior. 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.106
Changes in Placement. Both House and Senate bills would keep the
ability of school personnel to suspend a child with a disability for up to ten school
days but they differ regarding other changes in placement. The House bill would
102 150 Cong. Rec. S5349 (May 12, 2004).
103 Id. Rule 11 states in relevant part that an attorney by signing pleadings, motions and
other documents certifies to the court that “to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances, — (1)
it is not being presented for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation...”
104 150 Cong. Rec. S5349 (May 12, 2004).
105 For a more detailed discussion of discipline and IDEA see CRS Report 98-42, The
Individuals with Disabilities Education Act: Discipline Provisions in P.L. 105-17.
106 20 U.S.C. §1415(k), P.L. 105-17 §615(k).

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delete many of the provisions in current law while the Senate bill would make some
revisions. The House Report states that “(t)he discipline improvements in the bill
provide for a uniform school discipline code and substantially reduce the confusion
and complexity of the current system.”107 Under H.R. 1350 (House), school
personnel would be able to order a change in placement of a child with a disability
who violates a code of student conduct to an appropriate interim alternative
educational setting selected so as to enable the child to continue to participate in the
general education curriculum and to progress toward IEP goals for not more than 45
school days (to the extent such alternative and such duration would be applied to
children without disabilities). In addition, this action “may include consideration of
unique circumstances on a case-by-case basis.” H.R. 1350 (House) specifically states
that this change in placement could last beyond 45 school days if required by state
law or regulation for the violation in question, to ensure the safety and appropriate
educational atmosphere in the schools. Both House and Senate bills would provide
that when a child with a disability is removed from his or her current placement
pursuant these authorities, the child continue to receive educational services so as to
enable the child to continue to participate in the general educational curriculum and
to progress toward meeting the IEP goals. Both the House and Senate bill also
contain provisions relating to the receipt of behavioral intervention services.
The Senate report describes the Senate changes regarding discipline as making
the procedures “simpler, easier to administer, and more fair to all students.”108 The
Senate bill would change the current law relating to interim alternative educational
settings. The bill provides that school personnel may remove a student to an interim
alternative educational setting for not more than forty-five days, regardless of
whether the behavior is determined to be a manifestation of a disability, where a child
with a disability
! carries or possesses a weapon at school, on school premises, or a
school function, under the jurisdiction of a state or local educational
agency,
! knowingly possesses or uses illegal drugs, or sells or solicits the sale
of a controlled substance while at school or a school function under
the jurisdiction of a state or local educational agency, or
! has committed serious bodily injury109 upon another person while at
school or at a school function under the jurisdiction of a state or
local educational agency.
H.R. 1350 (Senate) would require that the LEA notify the parents of the decision
to take disciplinary action and all the procedural safeguards available under section
615, not later than the date on which the decision to take disciplinary action is made.
107 H. Rep. No 77, 108th Congress, at 118 (April 29, 2003).
108 S. Rep. No. 185, 108th Congress, at 43 (November 3, 2003).
109 Serious bodily injury would be a new category added by H.R. 1350 (Senate). The
Senate bill defines the term in the same manner as in 18 U.S.C. §1365(h)(3) which states:
“the term ‘serious bodily injury’ means bodily injury which involves — (A) a substantial
risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D)
protracted loss or impairment of the function of a bodily member, organ, or mental facility.”

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Under H.R. 1350 (Senate), a hearing may be requested by the parent of a child
with a disability who disagrees with any decision regarding disciplinary action,
placement or the manifestation determination under this subsection, or by a LEA that
believes the maintenance of the current placement of the child is substantially likely
to result in injury to the child or others. As provided in current law, H.R. 1350
(Senate) also would allow a hearing officer to order a change in placement for a child
with a disability to an appropriate interim alternative educational setting for not more
than forty-five 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
to others.
Manifestation Determination. One of the significant differences between
the House and Senate bills concerns the use of a manifestation determination. H.R.
1350 (House) would delete the requirement in current law that a determination be
made concerning whether a child’s action was a manifestation of his or her disability
and also would delete the provision in current law that if the child’s behavior was not
a manifestation of the child’s disability, the relevant disciplinary procedures
applicable to children without disabilities may be applied to the child in the same
manner in which they would be applied to children without disabilities, except that
educational services may not cease.110
H.R. 1350 (Senate) keeps the concept of a manifestation determination but
contains revised language. Manifestation determinations do not have to be conducted
prior to taking a disciplinary action for ten consecutive school days or less or for a
removal in cases involving weapons, drugs, or serious bodily injury. In other
situations, the Senate bill would require that within ten school days of any decision
to change the placement of a child with a disability because of a violation of a code
of student conduct, the IEP team shall review all relevant information in the student’s
file, any information provided by the parents, and teacher observations to determine:
(1) if the conduct in question was the result of the child’s disability; or (2) if the
conduct in question resulted from the failure to implement the IEP or develop and
implement behavioral interventions. If either of these two conditions is applicable,
the Senate bill provides that the conduct is determined to be a manifestation of the
child’s disability.
Placement During Appeals and “Stay Put.” One of the key provisions
of IDEA concerns where a child with a disability shall be placed during the pendency
of a due process proceeding. The House and Senate bills do not change the general
stay put provision in current law which requires that a child remain in his or her then-
current educational placement during the pendency of due process procedures;111
however, there are some changes regarding stay put for placements during appeals.
Both the House and Senate bills would make changes to the current law
regarding placement of a child with a disability during appeals by a parent.
110 H.R. 1350 (House) does not directly change the provision in current law requiring that
educational services be provided to children with disabilities even if they have been
suspended or expelled. Current law at 20 U.S.C. §1412(a)(1)(A).
111 20 U.S.C. §1415(j); H.R. 1350 (Senate), §615(j).

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Generally, as in current law, both bills would require that the child remain in the
interim alternative educational setting pending the decision of the hearing officer or
until the expiration of the time period provided, unless the parent and the state or
local educational agency agree otherwise. H.R. 1350 (Senate) differs from current
law and provides for the child with a disability to remain in the interim alternative
education setting pending the decision of the hearing officer or the expiration of the
time period in the following situations:
! when a parent requests a hearing regarding disciplinary procedures
described in §615(k)(1)(B) which concerns the application of the
disciplinary procedures when the actions of the child with a
disability are not determined to be a manifestation of the child’s
disability;
! when there is a challenge to the interim alternative educational
setting (same as current law); or
! when there is a challenge to the manifestation determination.112
The Senate bill requires the State or local educational agency to arrange for an
expedited hearing to occur within twenty school days of the date of the request for
the hearing.113 The Senate bill also would delete the provision in current law
regarding current placement and expedited hearings.114
In the House bill, the stay put requirement is applicable to a change in placement
as described in §615(j)(1)(B) which would allow school personnel to order a change
in placement for a child with a disability who violates a code of student conduct.115
Under current law, this exception to the general “stay put” requirement is more
limited and applies to situations involving weapons, drugs or where a hearing officer
has determined that maintaining the current placement is substantially likely to result
in injury to the child or others.116
The House and Senate bills would delete the provisions in current law regarding
current placement during appeals and expedited hearings.117 Under current law, if a
child with a disability is placed in an interim alternative educational setting and
school personnel propose to change the child’s placement after the expiration of the
interim alternative placement, the child is to remain in the child’s placement prior to
the interim alternative education setting pending the result of the proceeding.118 The
Senate bill, but not the House bill, would add a requirement that the state or local
112 H.R. 1350 (Senate), §615(k)(4).
113 Id.
114 20 U.S.C. §1415(k)(7)(B)-(C).
115 H.R. 1350 (House), §615(j)(4). The House bill at §615(j)(1)(B) would also provide that
this placement may last longer than 45 days if required by state law or regulation.
116 20 U.S.C. §1415(k)(7), P.L. 105-17 §615(k)(7).
117 20 U.S.C. §1415(k)(7)(B)-(C), P.L. 105-17 §615(k)(7)(B)-(C).
118 20 U.S.C. §1415(k)(7)(B), P.L. 105-17 §615(k)(7)(B).

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educational agency arrange for an expedited hearing which shall occur within twenty
school days of the date the hearing is requested.
Protections for Children not Yet Eligible for Special Education and
Related Services. Current law provides that a child who has not been determined
to be eligible for special education and related services and who has engaged in
behavior that violated any rule or code of conduct of the local educational agency,
may seek the protections of IDEA if the local educational agency had knowledge that
the child was a child with a disability before the behavior that precipitated the
disciplinary action occurred. The current law sets forth certain situations where a
local educational agency shall be deemed to have knowledge that a child is a child
with a disability.119 The House and Senate bills contain similar provisions; however,
the House bill requires the teacher or school personnel to express concern in writing
about the behavior or performance of the child to the director of special education or
other personnel while the Senate bill requires that the teacher or school personnel
express concern about a pattern of behavior demonstrated by the child to the director
of special education or other administrative personnel. The Senate bill, but not the
House bill, would add a new situation where the LEA is deemed to have knowledge:
where the child has engaged in a pattern of behavior that should have alerted LEA
personnel that the child may be in need of special education and related services. In
addition, the Senate bill, but not the House bill, would add an exception where the
LEA is deemed not to have knowledge that the child has a disability if the parent of
the child has not agreed to allow an evaluation of the child.
Oversight and Administrative Provisions
Monitoring, Withholding, and Judicial Review
Both the House and Senate bills would make substantial changes to section
616.120 This section, currently entitled “Withholding and Judicial Review,” requires
the Secretary of Education to withhold some or all of a state’s Part B funding, or refer
the matter for appropriate enforcement action, if “there has been a failure by the State
to comply substantially with any provision of this part” or if an LEA or SEA fails to
comply with its conditions of eligibility under Part B.121 The withholding may be
limited to programs or projects, or portions thereof, affected by the failure. In
addition, the section provides for judicial review, if a state “is dissatisfied with the
Secretary’s final action with respect to the eligibility of the State under section
612.”122
H.R. 1350 (House) would retain these provisions but would add new monitoring
and enforcement provisions. H.R. 1350 (House) would require the Secretary to
119 20 U.S.C. §1415(k)(8), P.L. 105-17 §615(k)(8).
120 20 U.S.C. §1416, P.L. 105-17 §616.
121 20 U.S.C. §1416(a), P.L. 105-17 §616(a).
122 20 U.S.C. §1416(b), P.L. 105-17 §616(b).

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“monitor the implementation of this Act” using “focused monitoring,” which would
concentrate on improving “educational results for all children with disabilities, while
ensuring compliance with program requirements.”123 The House bill would require
the Secretary to monitor specified state indicators of educational outcomes for
children with disabilities, such as academic achievement, graduation rates, and
dropout rates. The Secretary could also review other permitted indicators, such as
the implementation of education of children with disabilities in the least restrictive
environment and the transition of children with disabilities from special education
to post-school experiences (e.g., postsecondary education and employment).
If the Secretary determines that a state “is not making satisfactory progress in
improving educational results for children with disabilities,” under the House bill one
or more actions must be taken, including provision of technical assistance and
withholding between 20% and 50% of the amount a state may retain for state-level
activities. If the Secretary determines that “a State is not in substantial compliance
with any provision of this part,” additional actions would be required, such as
requiring the preparation of “a corrective action plan or improvement plan,”
imposing “special conditions on the State’s grant,” and further withholding of funds
for state-level activities.124 If “special conditions” have been imposed and a state has
not corrected violations after 3 consecutive years, “the Secretary shall take such
additional enforcement actions” based on specified actions in the bill. The House bill
also contains the same withholding requirements as are in current law.125
The Senate bill’s provisions were described in the Senate report as representing
“a significant departure from past practice of Federal monitoring and enforcement of
IDEA.”126 H.R. 1350 (Senate) would require the Secretary to “monitor
implementation of this Act” through oversight of the states’ exercise of general
supervision using “focused monitoring,” which would concentrate on improving
“educational results and functional outcomes for all children with disabilities, while
ensuring compliance with program requirements, with a particular emphasis on those
requirements that are most closely related to improving educational results for
children with disabilities.”127 The bill would require the Secretary and the states to
monitor priority areas: the provision of FAPE in the least restrictive environment, the
provision of transition services, state exercise of general supervisory authority and
over representation of racial and ethnic groups in special education. The Secretary
also may examine other relevant information and data.
The Senate bill would require the Secretary to implement and administer a
system of required indicators that measures the progress of states in improving their
performance. Using these indicators, the Secretary would review the performance
of children with disabilities in the state on assessments, dropout rates and graduation
123 H.R. 1350 (House), §616(a).
124 H.R. 1350 (House), §616(d).
125 H.R. 1350 (House), §616(e).
126 S. Rep. No. 185, 108th Congress, at 46 (November 3, 2003).
127 H.R. 1350 (Senate), §616(a)(2).

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rates, and compare these results to the performance and rates for all children. H.R.
1350 (Senate) also would require the state to have a compliance plan developed in
collaboration with the Secretary. Under the Senate bill, the Secretary would be
required to examine relevant state information and data annually to determine if the
state is making satisfactory progress toward improving educational results for
children with disabilities and is in compliance with the provisions of IDEA. If the
Secretary determines that a state is not making satisfactory progress, one or more
actions must be taken, including directing the use of state level funds for technical
assistance and withholding between 20% and 50% of the amount a state may retain
for state-level activities. If the Secretary determines that a state has failed to meet the
benchmarks in the state compliance plan and make satisfactory progress in improving
educational results at the end of the fifth year after the Secretary has approved the
compliance plan, the Secretary may take further actions, including suspending
payment to a recipient. However, H.R. 1350 (Senate) also provides that if the
Secretary determines that “a State is not in substantial compliance with any provision
of this part,” additional actions would be required, such as requiring the preparation
of “a corrective action plan or improvement plan,” imposing “special conditions on
the State’s grant,” and further withholding of funds for state-level activities.128 In
addition to this graduated approach to sanctions, H.R. 1350 (Senate) also contains a
provision for “egregious noncompliance.” At any time that the Secretary determines
that a state is in egregious noncompliance or is willfully disregarding the provisions
of IDEA, the Secretary may take the actions specified above and may also institute
a cease and desist action and refer the case to the Office of the Inspector General. If
action is taken regarding an egregious violation or after five years from the approval
of the compliance plan, the Secretary would be required to report to Congress on the
specific action taken and the reasons for the action.
H.R. 1350 (Senate) would give the Secretary discretion when withholding
payments to limit the withholding to programs or projects, or portions thereof, that
are affected by the failure. If a state is dissatisfied with the Secretary’s final action,
the state may seek judicial review in the appropriate U.S. court of appeals and such
decision may be appealed to the Supreme Court.
Finally, the Senate bill would require that the State educational agency monitor
and enforce implementation of IDEA. H.R. 1350 (Senate) would require the SEA,
upon determination that an LEA is not meeting the requirements of Part B, to
prohibit the LEA from treating funds received under Part B as local funds.
ED Administration and Program Information
Section 617 authorizes certain activities for the Secretary of Education to carry
out, such as issuing necessary regulations to carry out provisions of Part B of IDEA,
maintaining confidentiality of personal information, and hiring qualified personnel
to carry out various duties.129 Both bills would add requirements that the Secretary
“publish and widely disseminate” model forms, such as a model IEP form with the
128 H.R. 1350 (Senate), §616(c)(2).
129 20 U.S.C. §1417, P.L. 105-17 §617.

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Senate adding a requirement for a model individualized family service plan (IFSP)
form.130 Both bills would add a provision authorizing the Secretary of Education to
grant waivers of paperwork requirements for a period of time not to exceed four years
with respect to not more than ten states (House) and 15 states (Senate) based on
proposals submitted by states for addressing reduction of paperwork and non-
instructional time spent fulfilling statutory and regulatory requirements. The Senate
bill prohibits the Secretary from waiving “any statutory requirements of, or regulatory
requirements relating to, applicable civil rights requirements. Under both bills, the
Secretary also would be required to include in the annual report information relating
to the effectiveness of the waivers.131
Section 618 requires states and the Secretary of the Interior (because the Bureau
of Indian Affairs receives IDEA funds) to provide data to the Secretary of
Education.132 The House and Senate bills would amend this provision and contain
similar language but differ in some respects. For example, the House bill would
require data on graduation rates and voluntary binding arbitration and the Senate bill
would add, in various subsections, requirements for data on children with limited
English proficiency and gender. In addition, the Senate bill would require data on
due process complaints and hearings, reporting requirements related to disciplinary
actions and procedural safeguards.
Preschool, Infants and Toddlers, and National
Programs
Both bills make only relatively modest changes to section 619, which authorizes
services for preschool children with disabilities, and to Part C, which authorizes
services for infants and toddlers with disabilities. For example, both bills would
include certain children with disabilities ages 3 to 5 in the definition of an infant or
toddler with a disability.133 The Senate bill has somewhat more detail about this
provision: According to the Senate bill, such programs would be developed and
implemented by the state educational agency (SEA) and the Part C lead state agency
(if different from the SEA). The programs would have to include “an educational
component that promotes school readiness and incorporates pre-literacy, language,
and numeracy skills.” Participation of children with disabilities ages 3 to 5 in such
programs would be based on informed written parental consent. In addition, parents
of participating children would receive annual information on their rights to pursue
services for their children under these Part C provisions or under Part B and
differences in services and parental rights under the two programs. Part B funds (in
addition to Part C funds) could be used to support this program. H.R. 1350 (Senate)
stipulates that “nothing in this subsection shall be construed to require a provider of
130 H.R. 1350 (House), §617(g), H.R. 1350 (Senate), §617(d).
131 H.R. 1350 (House), §617(e), H.R. 1350 (Senate) §609(b).
132 20 U.S.C. §1418, P.L. 105-17 §618.
133 H.R. 1350 (House) §635(5)(C) and H.R. 1350 (Senate) §635(5)(B)(ii).

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services under this part [i.e., Part C] to provide a child served under this part with a
free appropriate public education.”134
Both bills would modify the exception in Part C that infants and toddlers with
disabilities be served in “natural environments,” (i.e., with nondisabled infants and
toddlers), although the bills’ exceptions differ. Under current law, the exception to
this requirement occurs “only when early intervention cannot be achieved
satisfactorily . . . in a natural environment.” H.R. 1350 (House) would add to this
exception: “or in a setting that is most appropriate, as determined by the parent and
the individualized family service plan team.”135 H.R. 1350 (Senate) would add the
exception: “unless a specific outcome cannot be met satisfactorily for the infant or
toddler in a natural environment.”136
Under H.R. 1350 (Senate) (but not under H.R. 1350 (House)), one change of
possible significance to Part C involves additional language regarding states’
definition of developmental delay. Part C aims to serve infants and toddlers
experiencing delay in physical, cognitive, and other areas of development. Current
law requires states to determine a definition of developmental delay as a criterion for
eligibility for Part C grants, but leaves it to states to determine their own definition.
H.R. 1350 (Senate) would require, at a minimum, that the definition include all
infants and toddlers experiencing a developmental delay of 35% or more in one area
of development or a delay of 25% or more in two or more areas of development.137
Part D of IDEA currently authorizes various national activities aimed at
improving the education of children with disabilities. Subpart 1 authorizes
competitive state improvement grants aimed at improving states’ systems for
providing special education and related services. Although these grants may be used
for various purposes, the emphasis is on improving the supply of teachers and other
personnel serving children with disabilities. Subpart 2 of Part D aims at improving
special education through a variety of approaches, such as research, technical
assistance, and parental support.
Both bills would substantially revise Part D. In brief, some of the changes are
a matter of re-arranging language. For example, Part D of current law provides
findings in several sections, while both bills place all findings at the beginning of the
part — including some findings in current law and adding some new findings. Both
bills continue some provisions of Part D, although sometimes with substantial
changes. For example, both bills would retain the state competitive grants program
authorized under Subpart 1 of Part D. However, the House bill would focus these
grants on professional development activities even more than current law does by
requiring that at least 90% of the grants be used for these activities. (Current law
requires 75% of funds be used to ensure sufficient numbers of skilled and
134 H.R. 1350 (Senate) §635(b).
135 H.R. 1350 (House) §635(a)(16)(B).
136 H.R. 1350 (Senate) §635(a)(16).
137 H.R. 1350 (Senate) §634(a)(1)(B).

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knowledgeable special education personnel. H.R. 1350 (Senate) would require at
least 75% of grant funds to be used for professional development activities.)
While H.R. 1350 (House) would continue to authorize these grants as
competitive, under H.R. 1350 (Senate) these grants would remain competitive only
until appropriations reached $100 million.138 When that amount is reached, the
Secretary would first allocate sufficient funds to ensure that multi-year grants already
underway would be funded to completion. Remaining funds would be distributed to
states by a formula based on each state’s share of the overall amount states received
under the Part B grants-to-states program for the preceding year,139 except that no
state would receive less than ¼% “of the amount made available under this part.”
Both bills would continue other provisions of Part D with little change. For
example, both bills would continue to authorize grants for Community Parent
Resource Centers to help “ensure that underserved parents of children with
disabilities . . . have the training and information they need to enable them to
participate effectively in helping their children with disabilities . . . .”140
Finally, both bills would add new provisions to Part D. For example, both bills
would establish a National Center for Special Education Research to conduct
research on improving special education and related services for children with
disabilities.141 H.R. 1350 (Senate) would authorize new activities under subpart 4 of
Part D related to interim alternative settings, behavioral support, and “whole school”
intervention. This subpart would authorize the Secretary of Education to make grants
to LEAs or consortia of LEAs and other entities, such as institutions of higher
education and community-based organizations, to establish or enhance practices
related to student behavior. These practices might include, for example, early
identification of children “at risk for emotional and behavioral difficulties” and
training of school personnel “on effective strategies for positive behavior
intervention.” Grants also could focus on improving interim alternative settings
providing FAPE for children with disabilities removed from their current placements
for reasons of behavior problems.
GAO Reports
In addition to the amendments to IDEA discussed above, H.R. 1350 (House)
would require the General Accounting Office (GAO) to undertake a series of reports
on IDEA and special education. These include:
138 The current appropriation for state improvement grants is about $51 million.
139 For example, a state that received 1% of applicable funds during the previous fiscal
year, would receive 1% of the funds available for allocation under this program.
140 H.R. 1350 (House) §673(a), H.R. 1350 (Senate) §672(a).
141 H.R. 1350 (House) would establish the center within the Institute of Education Sciences
through language in IDEA; H.R. 1350 (Senate) would amend the Education Sciences
Reform Act of 2002 to establish the center.

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! A review of federal and selected state and local requirements related
to IDEA that “result in excessive paperwork;”
! A review of differences among the states in the definition and
identification of certain groups of children with disabilities — for
example, those identified as “emotionally disturbed” or “specific
learning disabled;”
! A study of distance learning and other technological approaches for
delivering professional development programs for special education
personnel;
! A study of how limited English proficient students are served under
IDEA; and
! A study of state costs for complying with the requirements of IDEA.
H.R. 1350 (Senate) requires the GAO to review and report on federal, state, and local
special education requirements that result in “excessive paperwork” and to study
services provided under “early intervention services.” The Senate bill also requires
a GAO study of child medication usage.142
Amendments to the Rehabilitation Act of 1973
The Senate bill, but not the House bill, includes a number of amendments to the
Rehabilitation Act of 1973. These amendments would emphasize services to assist
students make a transition from school to vocational rehabilitation (VR) services.
Title I of the Rehabilitation Act authorizes funds for state vocational rehabilitation
agencies to support a wide range of VR services to assist persons with disabilities
engage in gainful employment. Services include assessment of an individual’s VR
needs, counseling and guidance, and vocational and other training services. Persons
are eligible for VR services if they have a physical or mental impairment that
substantially impedes employment. Under the law, all individuals with disabilities
are presumed to have the potential to engage in employment and to benefit from VR
services.
H.R. 1350 (Senate) would add a new authorization of appropriations under Title
I for services to students with disabilities. Funds authorized are to be used to help
students transition from school to vocational rehabilitation and achieve post-school
goals. Funds are to be used by state VR agencies to provide vocational guidance,
career exploration, job search skills and technical assistance to students, as well as
outreach to students eligible for VR services. In addition, funds are to be used for
training and technical assistance to state and local educational agencies and state
personnel responsible for planning services to students. Under the bill, students are
defined as those age 14-21 who are eligible for VR services, and eligible and
receiving IDEA services, or are eligible under Section 504 of the Rehabilitation Act.
142 The House bill contains a provision prohibiting school personnel from requiring a child
to obtain a prescription for substances covered by section 202(c) of the Controlled
Substances Act (21 U.S.C. §812(c)) as a condition of attending school or receiving services.
H.R. 1350, House, §612(a)(25).

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The bill also requires that the act’s standards and indicators that are used to
assess the VR program’s effectiveness, include measures of performance regarding
transition assistance to help students achieve post-school goals. State VR agencies
must specify in their state plans the strategies they will use to improve transition
services to students.143
143 This section was written by Carol O’Shaughnessy.

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