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

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

Order Code RL32913
The Individuals with Disabilities Education Act
(IDEA): Interactions with Selected Provisions
of the No Child Left Behind Act (NCLB)
Updated February 13, 2008
Richard N. Apling
Specialist in Social Legislation
Domestic Social Policy Division
Nancy Lee Jones
Legislative Attorney
American Law Division

The Individuals with Disabilities Education Act (IDEA):
Interactions with Selected Provisions
of the No Child Left Behind Act (NCLB)
Summary
The Individuals with Disabilities Education Act (IDEA) and the No Child Left
Behind Act (NCLB) are two of the most significant federal statutes relating to
education. Although both have the goal of improving education — IDEA for
children with disabilities and NCLB for all children — the two statutes take different
approaches. IDEA focuses on the individual child, with an emphasis on developing
an individualized education program (IEP) and specific services for children with
disabilities, while NCLB takes a more global view, with an emphasis on closing gaps
in achievement test scores and raising the aggregate scores of all demographic groups
of pupils to specific levels.
On December 4, 2004, President Bush signed P.L. 108-446, which reauthorized
and amended IDEA. Among other things, P.L. 108-446 was aimed at better
coordinating special education with the requirements of NCLB. Changes to IDEA
have been in effect since the 2005-2006 school year.
The relationship of IDEA and NCLB has become of increasing significance
because of this recent reauthorization of IDEA and guidance and regulations from the
U.S. Department of Education (ED) on NCLB issues related to the education of
children with disabilities. This report will provide a brief overview of IDEA and
NCLB, a discussion of the intersection of selected provisions of IDEA and NCLB,
and a discussion of ED regulations and guidance regarding IDEA and NCLB. The
report concludes with a discussion of possible issues related to the interaction of
IDEA and NCLB.
This report will be updated to reflect major congressional action or major
regulatory actions by ED. Additional legislative action could result in connection
with consideration of the Elementary and Secondary Education Act (ESEA), which
is authorized through FY2008. It is generally assumed that the 110th Congress will
actively consider legislation to amend and extend the ESEA. Such legislation could
impact IDEA — for example, regarding how adequate yearly progress (AYP) is
assessed for children with disabilities and how special education teachers are
determined to be highly qualified.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview of Selected IDEA and NCLB Provisions . . . . . . . . . . . . . . . . . . . . . . . 2
Overview of NCLB and IDEA Assessment and
Accountability Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
NCLB Assessment and Accountability Requirements . . . . . . . . . . . . . 3
ED NCLB Regulatory Requirements Regarding
Children with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
IDEA Assessment and Accountability Requirements . . . . . . . . . . . . . . . . . 12
IDEA Assessment Requirements in the IEP . . . . . . . . . . . . . . . . . . . . 12
IDEA State and Local Requirements on Student Achievement . . . . . . 13
NCLB and IDEA Teacher Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
NCLB Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
IDEA Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
IDEA State and Local Personnel Requirements . . . . . . . . . . . . . . . . . 19
Department of Education Non-Regulatory Guidance
Regarding IDEA and NCLB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Public School Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Supplemental Educational Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Selected Issues and Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Exclusion of Children with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Highly Qualified Teachers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
List of Tables
Table 1. Comparison of Definitions of “Highly Qualified” Teachers
Under the Elementary and Secondary Education Act (ESEA) and
Under the Individuals with Disabilities Education Act (IDEA) . . . . . . . . . 20

The Individuals with
Disabilities Education Act (IDEA):
Interactions with Selected Provisions
of the No Child Left Behind Act (NCLB)
Introduction
The Individuals with Disabilities Education Act (IDEA)1 and the No Child Left
Behind Act (NCLB)2 are two of the most significant federal statutes relating to
education. Although both have the goal of improving education — IDEA for
children with disabilities and NCLB for all children — the two statutes take different
approaches. IDEA focuses on the individual child, with an emphasis on developing
an individualized education program (IEP) and specific services for children with
disabilities, while NCLB takes a more global view, with an emphasis on closing gaps
in achievement test scores and raising the aggregate scores of all demographic groups
of pupils to specific levels.
On December 4, 2004, President Bush signed P.L. 108-446, which reauthorized
and amended IDEA. Among other things, P.L. 108-446 was aimed at better
coordinating special education with the requirements of NCLB. Changes to IDEA
made by P.L. 108-446 have been in effect since school year 2005-2006. Additional
legislative action could result in connection with consideration of the Elementary and
Secondary Education Act (ESEA), which is authorized through FY2008. It is
generally assumed that the 110th Congress will actively consider legislation to amend
and extend the ESEA. Such legislation could impact IDEA — for example,
regarding how adequate yearly progress (AYP) is assessed for children with
disabilities and how special education teachers are determined to be highly qualified.
The relationship of IDEA and NCLB has become of increasing significance
because of the recent reauthorization of IDEA and guidance and regulations from the
U.S. Department of Education (ED) on NCLB issues related to the education of
children with disabilities. This report will provide a brief overview of IDEA and
NCLB, a discussion of the intersection of selected provisions of IDEA and NCLB,
and a discussion of ED regulations and guidance regarding IDEA and NCLB. The
report concludes with a discussion of possible issues related to the interaction of
IDEA and NCLB.
1 20 U.S.C. §1400 et seq.
2 P.L. 107-110, codified in part at 20 U.S.C. §6301 et seq., §6601 et seq., §6801 et seq.,
§7101 et seq., §7201 et seq., §7301 et seq., §7401 et seq., §7702, §7703, §7707, §7709,
§7714, §7801 et seq.

CRS-2
Overview of Selected IDEA and NCLB Provisions
IDEA is the major federal law dealing with the education of children with
disabilities. In addition to authorizing funds to help states and local educational
agencies (LEAs) provide special education and related services, IDEA requires the
provision of a free appropriate public education (FAPE) for children with disabilities,
specifying in some detail the provision of services for these children,3 and grants
certain procedural rights to these children and their parents.
One of the major changes to IDEA resulting from the 1997 amendments (P.L.
105-17) involved a series of additions to the act aimed at improving the education of
children with disabilities, as well as continuing to ensure their access to free
appropriate public education. At the child level, this involved various requirements
in the individualized education program linking each child’s education to the general
curriculum and to statewide and districtwide achievement test programs. In addition,
various requirements were added for states and local educational agencies related to
the educational performance of children with disabilities and to improving the quality
and quantity of those who teach children with disabilities. P.L. 108-446 continued
this approach and added provisions to align IDEA with NCLB requirements.
The No Child Left Behind Act of 2001 (P.L. 107-110) reauthorized the
Elementary and Secondary Education Act (ESEA) and, in doing so, added
requirements aimed at improving the education of all public elementary and
secondary school children, including those with disabilities. Although many of these
requirements directly affect Title I-A of ESEA, aimed mainly at improving education
for disadvantaged children, important requirements impact any state or LEA that
receives Title I-A funds4 and apply to all children served by such states or LEAs.
In addition, NCLB continues Title I schoolwide projects for schools serving
relatively high percentages of children from low-income families. These projects
allow for consolidation of federal education funds (including Title I-A and IDEA
funds) to serve all children in a qualifying school. Thus some NCLB requirements
that might apply only to activities or individuals funded under Title I-A (for example,
Title I teachers and paraprofessionals) can apply to all activities and individuals in
schoolwide project schools (for example, all applicable teachers and
paraprofessionals — including applicable special education teachers and
paraprofessionals).5
3 Among the key requirements of services for children with disabilities are that each child
must have an individualized education program (IEP) devised by a team, which includes
both school personnel and the parents, and that children must be educated with their non-
disabled peers “to the maximum extent appropriate.”
4 Currently, all states and a vast majority of LEAs receive Title I-A funding.
5 For further information on NCLB in general, see CRS Report RL31284, K-12 Education:
Highlights of the No Child Left Behind Act of 2001 (P.L. 107-110), coordinated by Wayne
Riddle.

CRS-3
Overview of NCLB and IDEA Assessment
and Accountability Requirements
Overview. NCLB requires that all states have in place a single state
accountability system aimed at reducing achievement gaps between higher-achieving
students and lower-achieving students, including those children with disabilities who
are lower-achieving. NCLB permits use of alternate standards-based assessments for
children with disabilities for whom the statewide assessment is inappropriate. Final
regulations, issued in December 2004, clarified that relatively small groups of the
most significantly cognitively disabled students (1% of all children tested) can meet
the requirements of the statewide system based on alternate achievement standards.
That is, their scores of “proficient” or “advanced,” based on alternate assessments
and alternate achievement standards, may be counted as such in adequate yearly
progress determination as discussed below. In April 2005, the Secretary of Education
announced a new policy that would permit other children with disabilities who
experience “persistent academic difficulties” (an additional 2% of those tested) to
meet achievement requirements based on “modified achievement standards.” All
other children with disabilities must be assessed based the same achievement
standards that non-disabled children are assessed on (although some of these children
with disabilities may be assessed with alternate assessments). Final regulations to
implement this policy were published in the Federal Register on April 9, 2007.
NCLB Assessment and Accountability Requirements.6 NCLB requires
that all states receiving Title I-A funds (currently all states) must have implemented
standards-based assessments in reading and mathematics for all students in grades
3-8 school year 2005-2006 and must implement standards-based assessments in
science by school year 2007-2008. For children with disabilities for whom these tests
(even with accommodations) are inappropriate, states must provide one or more
alternate assessments.
NCLB requires that states have in place a statewide accountability system based
on standards of adequate yearly progress (AYP) aimed at reducing achievement gaps
between high-achieving and low-achieving students. These standards must be
applied to specified groups, including children with disabilities,7 as well as to all
students in each public school, LEA, and state as a whole. The ultimate goal of these
state systems is that all students reach proficient or advanced levels of achievement
by school year 2013-2014.
6 For further information on NCLB testing and accountability 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; and CRS
Report RL32495, Adequate Yearly Progress (AYP): Implementation of the No Child Left
Behind Act, all by Wayne C. Riddle.
7 Other specified groups are economically disadvantaged pupils, limited English proficient
(LEP) pupils, and pupils in major racial and ethnic groups.

CRS-4
AYP standards must be applied to all public schools8 and LEAs in states
receiving ESEA Title I-A funds; however, certain actions — particularly the
corrective actions described in the remainder of this paragraph — have to be applied
only to schools and LEAs receiving Title I-A funds.9 Applicable schools that fail to
meet AYP standards over two consecutive years must be identified as requiring
improvement. Technical assistance is provided to those schools, and public school
choice must be offered to pupils of such schools for the next school year. Choice of
schools must only include those not identified for improvement.10 Following three
consecutive years of failure to meet AYP, pupils from low-income families must be
offered the opportunity to obtain supplementary services from approved providers,
which could include public or private schools, as well as non-profit and for-profit
8 A school must assess at least 95% of relevant pupils — both all pupils and those in each
identified subgroup — in order to meet AYP standards.
9 A large majority of LEAs receive funding under Title I-A. Only those LEAs with very few
poor children (fewer than 10) or very low poverty rates (under 2%) do not qualify.
However, even in LEAs receiving Title I-A funding, approximately 60% of all public
schools qualify for Title I-A funding.
10 ED comments with respect to final NCLB regulations specify the following regarding
public school choice for children with disabilities:
Under the IDEA, a change in the location of delivery of services, in and of itself,
does not trigger the “change of placement” procedures of the IDEA. The LEA
can allow the school of choice either to implement the IEP that the prior school
developed for the new school year, or convene an IEP team meeting and develop
a new IEP that meets the student’s needs. If the LEA adopts the student’s
existing IEP, none of the “change of placement” procedures apply. However, the
school district must comply with the “change of placement” requirements of the
IDEA if the new IEP will change either the services in the IEP or the extent to
which the student will participate with nondisabled students in academic and
nonacademic activities. Similar rules apply to students who are covered only by
Section 504 and Title II of the ADA [the Americans with Disabilities Act].
LEAs are not required to offer students with disabilities the same choices of
schools as are offered to nondisabled students, but may match the abilities and
needs of a student with a disability, as indicated on the student’s IEP, to those
schools that have the ability to provide FAPE to the student. However, school
districts must offer students with disabilities and those eligible under Section 504
and Title II of the ADA the opportunity to be educated in an eligible school,
namely, a school that has not been identified for school improvement, corrective
action, or restructuring and that has not been identified by the State as
persistently dangerous. Like other students, students with disabilities and those
covered by Section 504 and Title II of the ADA must have the opportunity to
express a preference among at least two eligible schools and that preference must
be considered by the school district in making their assignment. 67 Federal
Register 71756, December 2, 2002.
See, also, the non-regulatory guidance issued by ED regarding public school choice,
discussed below.

CRS-5
providers.11 Following five consecutive years of failure, the school must be subject
to “restructuring.” For example, staff could be replaced, or the school could be
converted to a charter school. Similar procedures apply to LEAs that fail to meet
AYP standards. In addition to these corrective actions, states may reward schools
that significantly close achievement gaps among various groups or exceed AYP for
two or more consecutive years.12
With respect to children with disabilities (and other specified groups), each
group must meet or exceed the state’s annual measurable objectives unless a
particular group is of insufficient size (sometimes referred to as the “n” size) to
produce statistically valid results or if privacy rights would be violated.13 In addition,
a school or LEA may still meet AYP standards even if some groups (such as children
with disabilities) do not, if the percentage of the group that is below the proficient
level declines by 10% or more compared to the previous year’s percentage and the
group makes sufficient progress on at least one other indicator.
ED NCLB Regulatory Requirements Regarding Children with
Disabilities. Since the enactment of NCLB, ED has issued two sets of regulations
regarding the assessment of certain children with disabilities served under IDEA.
One group is those with the most significant cognitive disabilities, for whom
alternate assessments based on alternate achievement standards may be used to assess
whether they meet AYP. The other group includes students who may be making
progress toward grade-level achievement but are not likely to do so as quickly as
other students. The AYP of these students may be assessed by alternate assessments
based on modified academic achievement standards.
Regulations Regarding Children with the Most Significant Cognitive
Disabilities. On December 9, 2003, ED issued a final rule amending the regulations
governing Title I, Part A of the Elementary and Secondary Education Act (ESEA) to
clarify school accountability for the academic achievement of students with the most
11 ED notes that
[f]or a student with disabilities, the supplemental educational services agreement
must include a statement of specific achievement goals for the student, a
description of how the student’s progress will be measured, and a timetable for
improving achievement, that are consistent with the student’s IEP.
In addition, ED notes that
supplemental educational services [must] be “consistent” with IEPs and Section
504 services, but these services are provided in addition to the instruction and
services provided during the school day under the IEP or Section 504 plan and
are not considered part of IEPs or Section 504 plans. 67 Federal Register 71757,
December 2, 2002.
12 See below for a discussion of non-regulatory guidance regarding how public school choice
and supplementary services apply to children with disabilities.
13 In states that set minimal group size at a relatively high level, there may be many schools
in which the students-with-disabilities group is too small to actually be included in AYP
determinations.

CRS-6
significant cognitive disabilities.14 The rule emphasizes that all students — including
all children with disabilities — are to be assessed in relationship to the state’s
established academic content standards. At the same time, students may be assessed
by different means. Thus the rule clarifies that the achievement of most children with
disabilities will be measured against a state’s grade-level achievement standards for
accountability purposes, while only those with the most significant cognitive
disabilities can be measured against alternate achievement standards aligned with the
state’s academic content standards and reflecting the professional judgment of the
highest learning standards possible for the students.
The rule allows states to use test scores based on alternate achievement
standards for students with the most significant cognitive disabilities to calculate
adequate yearly progress (AYP), as long as the percentage of these students at the
school district or state level who are counted as “proficient” or “advanced” does not
exceed 1% of all students assessed (or about 9% of all children with disabilities
according to ED).15 However, if a school district can document that the number of
students with the most significant cognitive impairments exceeds 1%, the district can
request an exception from the state.16 The final rule provides some flexibility to
states in defining children eligible for alternate assessments. The rule requires states
to “establish and ensure implementation of clear and appropriate guidelines for
individualized education program (IEP) teams to apply in determining when a child’s
significant cognitive disability justifies assessment based on alternate academic
achievement standards.”17
Children Assessed Against Modified Achievement Standards. On
April 7, 2005, the Secretary of Education announced additional flexibility in ED’s
AYP policy.18 In addition to permitting up to 1% of tested students achieving
proficiency on alternate achievement standards to be counted in AYP calculation,
an additional 2% of tested students19 achieving proficiency on modified academic
achievement standards (MAAS) can be counted in these calculations. ED released
further specifics on May 10, 2005,20 which focused mainly on short-term options.
14 68 Federal Register 68698, December 9, 2003.
15 The 1% cap does not apply to individual schools within a school district. If some schools
exceed the cap, other schools would have to have lower caps so that the percentage of all
students reaching proficiency based on alternate standards did not exceed 1% of all students
tested within the LEA.
16 Prior to the final regulations discussed below, the Secretary of Education could grant state
exceptions to the 1% rule. Such exceptions are no longer permitted
17 68 Federal Register 68702, December 9, 2003.
18 Summaries of the Secretary’s announcement may be found at [http://www.ed.gov/
news/pressreleases/2005/04/04072005.html] for the press release, and [http://www.ed.gov/
policy/elsec/guid/raising/alt-assess-long.html] for the “full version” of the policy.
19 As with the 1% cap, the 2% cap does not apply to individual schools.
20 See [http://www.ed.gov/news/pressreleases/2005/05/05102005.html]. This announcement
provided short-term or transition options that states could have used for the 2005-2006
(continued...)

CRS-7
ED issued proposed regulations on these provisions on December 15, 2005,21 and
issued final regulations on April 9, 2007.22 The final regulations regarding flexibility
under the “2% rule” amend the regulations related to ESEA as amended by NCLB
and regulations related to IDEA as amended by P.L. 108-446.23
Additions to Title I Regulations. In general, this policy is aimed at “a small
group of students whose disability has precluded them from achieving grade-level
proficiency and whose progress is such that they will not reach grade-level
achievement standards in the same time frame as other students.”24 The preamble to
the final regulations clarifies that these students are not limited to students with
disabilities achieving close to grade level, that they may be in any of the disability
categories listed in the IDEA, and may represent a wide spectrum of abilities.25 For
this group of children with disabilities, states may elect to develop or modify
assessments based on modified academic achievement standards for appropriate
grade-level content. In all cases, the IEP teams (discussed below) continue to make
the decisions about which children with disabilities will take which assessment.
The rationale for identifying this second group of children with disabilities is
that
[a] grade-level assessment is too difficult and, therefore, does not provide data
about a student’s abilities or information that would be helpful to guide
instruction. An alternate assessment based on alternate academic achievement
standards [which is appropriate for students with the most significant cognitive
disabilities] is too easy and is not intended to assess a student’s achievement
across the full range of grade-level content.26
The final regulations allow states to develop modified academic achievement
standards for such students that would be based on the state’s grade-level standards,
“although the assessment may be less difficult than the State’s regular assessment.”27
The preamble to the final regulations provides some general examples of how states
might design alternate assessments based on modified achievement standards. The
state could remove more difficult items from the assessments and replace them with
simpler items. Another strategy would be to reduce the number of alternative answers
on multiple-choice items. Other strategies include developing alternate assessments
20 (...continued)
school year.
21 70 Federal Register, December 15, 2005.
22 72 Federal Register, April 9, 2007.
23 For a discussion of final IDEA regulations, see CRS Report RL33649 The Individuals
with Disabilities Education Act (IDEA): Final Regulations for P.L. 108-446, by Richard N.
Apling and Nancy Lee Jones.
24 72 Federal Register, 17748, April 9, 2007.
25 72 Federal Register, 17749, April 9, 2007.
26 72 Federal Register, 17748, April 9, 2007.
27 72 Federal Register 17750, April 9, 2007.

CRS-8
that incorporate technology to provide for more flexibility in the presentation of
material and permit more flexibility in how students respond to test items (e.g., by
dictating answers rather than responding on a paper and pencil test).28
The final regulations make clear that any alternate assessment based on
modified achievement standards must meet several criteria. Although an alternate
assessment may be easier than the assessment for the majority of students, it must
still be based on the same grade-level academic content standards. In addition, these
assessments must meet technical standards, “including validity, reliability,
accessibility, objectivity, and consistency with nationally recognized professional and
technical standards.”29
As with the 1% rule discussed above, states will be allowed to count proficient
and advanced scores based on MAAS in determining AYP; however, proficiency or
higher scores on these tests would be capped at 2% of all students tested or about
20% of students with disabilities.30 Proficient or advanced scores in excess of the 2%
limit would not count toward AYP. Instead, those scores would only be counted in
the denominator of the AYP fraction as non-proficient scores.31 In addition, the final
regulations introduce a 3% cap, which is the combined cap for AYP determination
for students assessed on alternate assessments.32
The final regulations provide for certain exceptions to the 1% and 2% caps in
combination with the overall 3% cap. The exceptions for states are that:
! States may only exceed the 2% cap if they are below the 1% cap.
! States may never exceed the 3% combined cap.
The exceptions for LEAs are the following:
! States may continue to grant local exceptions to the 1% cap.33
! LEAs may exceed the 2% cap only if they are below 1% cap.
28 Unlike alternate achievement standards, MAAS cannot be based on out-of-level testing
(for example, assessing a student in 5th grade based on an assessment suitable for 3rd grade
students). As the preamble to the final regulations notes, out-of-level tests “cannot be used
as an alternate assessment based on modified academic achievement standards because, by
definition, an out-of-level assessment does not cover the same content as an assessment
based on grade-level academic content standards.” 72 Federal Register 17750, April 9,
2007.
29 72 Federal Register 17750, April 9, 2007.
30 This estimate is provided at 72 Federal Register 17749, April 9, 2007.
31 See 72 Federal Register 17780, April 9, 2007 (34 CFR 200.13(c)(7)).
32 See 72 Federal Register 17779, April 9, 2007 (34 CFR 200.13(c)(3)).
33 An LEA seeking a state exemption must demonstrate that and explain why the percentage
of children with the most significant cognitive disabilities exceeds 1%. In addition, states
must regularly monitor the justifications for such exemptions. Note: there is no state
exception for the 1% cap. See 72 Federal Register 17779, April 9, 2007 (34 CFR
200.13(c)(4)).

CRS-9
! LEAs may exceed the 3% combined cap if granted an exception to
the 1% cap but only by the amount of the exception.
No caps apply to schools, but if some schools in an LEA exceed either cap, other
schools will have to be lower to achieve the LEA’s overall caps.34
The final regulations require that states use a documented and valid process for
setting MAAS so that the standards
! are aligned with the state’s academic content standards for the grade
in question;
! are challenging for these students, but may be easier than the grade-
level standards for most students; and
! must describe at least three levels of achievement: basic, proficient,
and advanced.35
The final regulations provide state requirements with respect both to students
assessed based on alternate standards and to students assessed based on modified
standards. States must
! establish and monitor guidelines for IEP teams regarding the
determination of students with the most significant cognitive
disabilities and students to be assessed based on modified academic
achievement standards;
! provide IEP teams with clear explanations of how grade-level
academic achievement standards differ from alternate and modified
standards; and
! ensure that parents are informed if their children will be assessed
based on alternate or modified standards.36
The final regulations provide additional state requirements with respect to
students assessed based on modified academic achievement standards. These include
that states must ensure
! that these students have access to grade-level instruction;
! that these students are not prevented from pursuing a regular high
school diploma; and
! that the IEP team annually reviews the appropriateness for the
student of assessment based on modified standards.37
34 For a summary of these cap provisions, see the table at 72 Federal Register 17780, April
9, 2007.
35 34 CFR §200.1(e), 72 Federal Register 17778, April 9, 2007.
36 34 CFR §200.1(f)(1), 72 Federal Register 17778, April 9, 2007.
37 34 CFR §200.1(f)(2), 72 Federal Register 17778-17779, April 9, 2007.

CRS-10
The final regulations make certain technical changes to the ESEA/NCLB
assessment requirements with respect to children with disabilities. The changes
include the following:
! States are prohibited from setting higher minimum subgroup
numbers (for determining when it is permissible not to consider a
particular subgroup for separate AYP calculations) for some
subgroups, such as children with disabilities and limited English
proficient students.38
! States are no longer required to use a student’s first attempt at a state
assessment. Instead, a state could use a student’s best score from
multiple testing to determine AYP.39
! States are permitted to include scores of students who exit from
special education in the AYP calculation for children with
disabilities for up to two years to avoid penalizing states for this
positive outcome.40
The final regulations provide the Secretary of Education with the ability to grant
states flexibility for implementing modified academic achievement standards through
the 2008-2009 school year if states can demonstrate that they are “moving
expeditiously to adopt and administer” these standards. To qualify for this flexibility,
a state must meet criteria that the Secretary established.41
Additional Resources. To assist states to implement these new requirements,
ED will be providing funds through competitive grants to help in the development
of new assessments.42 ED proposes to provide $7.6 million under the Title I
Enhanced Assessment Grants program and $13.5 million under the IDEA General
Supervision Enhancement Grants program. In addition, ED notes that “States also
may use funds from Title I, Title VI State Assessment Grants, and the IDEA to
develop these new assessments.”43
Additions to IDEA Regulations. The Federal Register of April 9, 2007, also
amends the IDEA regulations.44 A new paragraph reiterates several requirements
added to the Title I regulations and adds several requirements, including
! that states must ensure the participation of all children with
disabilities in state and district-wide assessments, including those
required under ESEA as amended by NCLB;
38 34 CFR §200.7(a)(2)(ii), 72 Federal Register 17779, April 9, 2007.
39 34 CFR §200.20(c)(3), 72 Federal Register 17780, April 9, 2007.
40 34 CRF §200.20(f)(2)(i)(B), 72 Federal Register 17780, April 9, 2007.
41 34 CRF §200.20(g), 72 Federal Register 17780-17781, April 9, 2007.
42 See 72 Federal Register 15126-15129 March 30, 2007.
43 The U.S. Department of Education. Measuring the Achievement of Students with
Disabilities, April 2007, p. 2.
44 A new paragraph is added to the IDEA regulations (34 CFR §300.160) at 72 Federal
Register 17781, April 9, 2007.

CRS-11
! that states must provide guidelines on testing accommodations so
that accommodations do not invalidate assessment results;45
! that states and LEAs (with respect to district-wide assessments) must
report the number of children with disabilities assessed under the
various alternatives listed in the box below; and
! that states and LEAs (with respect to district-wide assessments) must
use principles of “universal design,” to the extent possible, in the
development and administration of assessments.46
Summary of NCLB Assessment Requirements

In general, the final rule together with the final rule of December 2005 divides
the assessment of children with disabilities into five groups:
! students assessed with regular assessments based on the grade-
level achievement standards;
! students assessed with regular assessments (with
accommodations, such as testing in a quiet location) based on
the grade-level achievement standards;
! students assessed with alternate assessments based on the
grade-level achievement standards;
! students assessed with assessments based on modified
achievement standards (“proficient” or “advanced” scores on
such tests limited to 2% of all children tested); and
! students assessed with alternate assessments based on alternate
achievement standards (“proficient” or “advanced” scores on
such tests limited to 1% of all children tested).
45 According to draft non-regulatory guidance,
If a student uses an accommodation that results in an invalid score, the student
is considered to be a nonparticipant under both Title I and the IDEA. If a student
takes an assessment with an accommodation that invalidates the score, the
assessment is no longer measuring the concepts it was intended to measure.
Therefore, the score does not accurately reflect the student’s academic
achievement. U.S. Department of Education. Modified Academic Achievement
Standards Non-regulatory Guidance, Draft, April 2007, p. 32.
46 The general principle of universal design is that products and services (in this case,
assessments of academic achievement) be devised so that they may be used by as many
people (regardless of circumstance) as possible.

CRS-12
IDEA Assessment and Accountability Requirements
IDEA Assessment Requirements in the IEP. A key component of the
provision of special education is the IEP, which is based on “a written statement for
each child with a disability” developed, reviewed, and revised by the IEP team. In
addition to specifying the special education and related services the child will
receive, the IEP must peg the child’s educational goals to the LEA’s general
educational goals for nondisabled students, presumably including AYP standards. 47
The IEP must assess the child’s current level of educational and functional
performance, including how the child’s disability impacts his or her “involvement
and progress in the general educational curriculum.” The IEP must specify the
child’s needs (and how those needs will be met) so that the child can be involved in
and progress in the general school curriculum. Progression must be gauged in terms
of annual measurable goals, presumably including progress in reaching proficiency
on state standards. In addition to annual goals, short-term objectives and benchmarks
are required only for those children with disabilities “who take alternate assessments
aligned to alternate achievement standards.”48 Finally, parents must be regularly
informed on the child’s progress (for example, by report cards) at least as frequently
as other parents are informed of their children’s progress.
As discussed below, IDEA requires states and LEAs to ensure the involvement
of children with disabilities in statewide and districtwide assessments. It is the IEP
team that determines the extent to which the child requires accommodations49 to
participate in these assessments or, alternatively, determines and justifies why the
child is to take an alternate assessment.50
Despite the various goals and measures required for the IEP, ED has clarified
that the IEP does not guarantee educational progress.
It continues to be necessary to make clear that the IEP is not a performance
contract and does not constitute a guarantee by the public agency and the teacher
that a child will progress at a specified rate. Despite this, public agencies and
teachers have continuing obligations to make good faith efforts to assist the child
47 Final IDEA regulations clarifies that performance goals must be “the same as the State’s
objectives for progress by children in its definition of adequate yearly progress, including
the State’s objectives for progress by children with disabilities, under section 1111(b)(2)(C)
of the ESEA, 20 U.S.C. 6311” 34 C.F.R. §300.157(a)(2).
48 Presumably this refers to the significantly cognitively disabled, as discussed above with
respect to NCLB regulations.
49 To accommodate a child’s disability, he or she might be allowed to take the assessment
in an alternate, quiet location, or might be read test questions and provide verbal responses,
rather than marking an answer sheet.
50 While each IEP team determines whether an individual child with a disability is to be
assessed on modified or alternate achievement standards, such determinations do not
influence how many children may demonstrate AYP based on modified or alternate
standards. As discussed above, ED policy sets percentage caps on these AYP
determinations. IDEA permits states to use funds reserved for “state-level activities” under
§611(e)(2) for “the development and provision of alternate assessments” (§611(e)(2)(C)(x)).

CRS-13
in achieving the goals and objectives or benchmarks listed in the IEP, including
those related to transition services.51
IDEA State and Local Requirements on Student Achievement. IDEA
requires states and LEAs to involve children with disabilities in statewide and
districtwide assessment programs, with accommodations as appropriate. In addition,
states (and LEAs with respect to districtwide assessments) are required to have
guidelines for assessment accommodations and for alternate assessments for those
unable to participate in such assessments. Alternate assessments must be “aligned
with the State’s challenging academic content standards and challenging student
academic achievement standards” as required by NCLB.
States are required to report the numbers of children with disabilities
participating in regular and in alternate assessments together with these children’s
performance on such assessments (if so doing would be “statistically sound” and
would not violate confidentiality requirements). These reports to the public are to be
made “with the same frequency and in the same detail as [a state] reports on the
assessment of nondisabled children.” IDEA requires LEAs to provide states with all
information necessary for the state to comply with these requirements.
IDEA requires states to establish performance goals and indicators for children
with disabilities. These goals and indicators are aimed at promoting the overall
purposes of the act. In addition, they must be the same as the state’s definition of
AYP under ESEA as amended by NCLB, as discussed above and address dropout
and graduation rates of children with disabilities, as well as other factors that the state
might identify. States must report annually to the Secretary of Education and to the
general public on progress towards meeting these goals. Such reporting requirements
may be tied in with ESEA reporting requirements.52
NCLB and IDEA Teacher Requirements
Overview. The ESEA, as amended by NCLB, requires that each state
educational agency (SEA) receiving ESEA Title I, Part A funding (compensatory
education of disadvantaged students)53 must have a plan to ensure that all public-
school teachers teaching in core academic subjects54 within the state will meet the
definition of a “highly qualified” teacher, by no later than the end of the 2005-2006
school year.55 (Note: as discussed below, this deadline has been extended for one
school year under certain circumstances.)
51 64 Federal Register 12598, March 12, 1999.
52 ESEA §1111(b)(2)(C)(v)(II)(cc).
53 Recall that all states currently receive ESEA Title I-A grants.
54 Core subjects are defined as “English, reading or language arts, mathematics, science,
foreign languages, civics and government, economics, arts, history, and geography.” ESEA
§9101(11).
55 The relevant sections of ESEA are §1119 regarding qualifications for teachers and
paraprofessionals, and §9101(23), the definition of “highly qualified.”

CRS-14
IDEA, as amended by P.L. 108-446, cross-references the ESEA “highly
qualified” definition but makes several additions to the definition as it applies to
special education teachers. The new IDEA definition requires that all special
education teachers — not just those who teach core subjects — must meet certain
requirements. In addition, P.L. 108-446 modifies the ESEA requirements (but does
not amend ESEA) with respect to two groups of special education teachers: those
who teach only the most significantly disabled children and those who teach more
than one core subject.
NCLB Requirements.56 The NCLB “highly qualified” definition applies to
public school teachers who teach core subjects and differentiates between new and
veteran teachers and between elementary and middle/secondary school teachers. To
be highly qualified, a public elementary or secondary school teacher must meet the
following requirements:
! Every public elementary or secondary school teacher, regardless
of whether he or she is new or experienced, (1) must have full state
certification (a charter school teacher must meet the requirements in
the state charter school law), (2) must not have had any certification
requirements waived on an emergency, temporary, or provisional
basis, and (3) must have at least a baccalaureate degree.
! Each new public elementary school teacher must pass a rigorous
state test demonstrating subject knowledge and teaching skills in
reading, writing, math, and other basic elementary school curricular
areas (such tests may include state certification exams in these
areas).
! Each new public middle or secondary school teacher must
demonstrate a high level of competency in all subjects taught by (1)
passing rigorous state academic tests in those subjects (may include
state certification exams in those subjects), or (2) completing an
academic major (or equivalent course work), graduate degree, or
advanced certification in each subject taught.
! Each experienced public elementary, middle, or secondary
school teacher must meet (1) the requirements just described for a
new teacher (depending upon his or her level of instruction), or (2)
demonstrate competency in all subjects taught using a “high
objective uniform state standard of evaluation” (HOUSSE).57
As part of this plan, each Title I-funded state must establish annual measurable
objectives for each local educational agency (LEA) and school that, at a minimum,
include annual increases in the percentage of highly qualified teachers at each LEA
56 This section was adopted from CRS Report RL30834, K-12 Teacher Quality: Issues and
Legislative Action, by James B. Stedman.
57 Among requirements, the state-set HOUSSE must provide objective information about
teachers’ content knowledge in all subjects taught; be aligned with challenging state
academic and student achievement standards; be applied uniformly statewide to all teachers
in the same subjects and grade levels; and consider, but not be based primarily on, time
teaching those subjects. It may use multiple measures of teacher competency.

CRS-15
and school to ensure that the 2005-2006 deadline is met, and an annual increase in
the percentage of teachers receiving high quality professional development.
Each LEA receiving Title I, Part A funding must have a plan to ensure that all
of its teachers are highly qualified by the 2005-2006 deadline. In addition, beginning
with the first day of the 2002-2003 school year, any LEA receiving Title I funding
must ensure that all teachers hired after that date who are teaching in Title I-
supported programs are highly qualified.
Questions have been raised about the scope of the application of these
requirements, the meaning of some of the requirements, and the ability of different
kinds of districts to meet them. The U.S. Department of Education (ED) has sought
to address some of these concerns through regulation, non-regulatory guidance, and
other means. Early in the implementation of these provisions some asked whether
they apply to all teachers, including special education teachers, or those not teaching
core academic subjects. Final regulations for the Title I program — published
December 2, 2002, in the Federal Register — apply these requirements only to core
academic subject teachers. ED noted that these requirements would apply to a
special education teacher providing instruction in a core academic subject.
In March 2004, ED announced that additional flexibility could be applied in the
implementation of these requirements with regard to teachers in small rural school
districts, science teachers, and to teachers teaching multiple subjects.58
! For small rural districts, ED now provides that teachers teaching
core academic subjects who meet the highly qualified requirements
in at least one of the subject areas they teach may have an additional
three years to meet these requirements in the other subjects they
might teach. States decide whether to offer this flexibility to eligible
rural districts.
! For science teachers, states determine whether science teachers need
to be highly qualified in each science field they teach (e.g., biology
and chemistry) or highly qualified in science in general, based on
how the state currently certifies teachers in these subject areas.
! For teachers of more than one core subject, ED allows states to
design their HOUSSE procedures to allow a teacher to go through
the process a single time to demonstrate competency in multiple
subjects.
On October 21, 2005, the Secretary announced further flexibility by assuring
that “States that do not quite reach the 100 percent goal by the end of the 2005-2006
school year will not lose federal funds if they are implementing the law and making
58 A two-page fact sheet on these new policies is available at [http://www.ed.gov/nclb/
methods/teachers/hqtflexibility.html]. A more detailed letter to each of the chief state
school officers, dated March 31, 2004, is available at [http://www.ed.gov/policy/elsec/
guid/secletter/040331.html].

CRS-16
a good-faith effort to reach the HQT goal in NCLB as soon as possible.”59 To
determine whether a state is making a good-faith effort, ED will examine the
implementation of the HQT requirements with respect to
! The state’s definition of highly qualified teacher,
! The state’s reporting procedures regarding teacher quality to parents
and the public,
! The quality of the data on highly qualified teachers that the state
reports to ED, and
! The equitable distribution of highly qualified teachers among
schools serving poor and minority children.
For states that are not in compliance with HQT requirements and are judged not to
be making a good-faith effort, “the Department reserves the right to take appropriate
action such as the withholding of funds.”60
IDEA Requirements. P.L. 108-446 links its definition of “highly qualified”
[§602(10)] to the definition in §9101(23) of the ESEA but modifies that definition
as it applies to special education teachers in public schools.61 Most notably, it
addresses concerns that have been raised about certain groups of special education
teachers, such as those who teach more than one core academic subject.62
As noted above, the ESEA definition of “highly qualified” applies only to
teachers of core academic subjects and differentiates between new and veteran
teachers and between those teaching at the elementary level and above the elementary
level. Thus, under ESEA, the “highly qualified” definition would have applied only
to those special education teachers who teach core subjects (albeit this is probably
most special education teachers).
59 Policy letter to Chief State School Officers from Secretary of Education Margaret
Spelling, October 21, 2005, p. 1. Available at [http://www.ed.gov/policy/elsec/guid/
secletter/051021.html].
60 Ibid., p. 2.
61 The regulations at 34 C.F.R. §300.18(h) clarify that requirements for highly qualified
teachers do not apply to private school teachers hired or contracted by LEAs to provide
equitable services to parentally-placed private school children with disabilities under
§300.138. This exception is also contained in §300.138(a)(1). Advocates for children with
disabilities, such as the Council for Exceptional Children (CEC), oppose this exception:
CEC is dismayed to report that the final regulations do not require private school
teachers to be highly qualified. CEC believes all teachers should be highly
qualified, and we will renew our efforts to ensure all students with disabilities,
including those in private schools, receive instruction from teachers who meet
highly qualified requirements. CEC, “CEC Pleased that IDEA Regulations Are
Released, Urges Department of Education to Act on Missing Pieces,” press
release, August 7, 2006. Downloaded from [http://www.cec.org].
62 P.L. 108-446 cross-references the ESEA definition of “core subjects” [§602(4)].

CRS-17
P.L. 108-446 provides additional requirements and options to the definition with
respect to special education teachers.63 (See Table 1 below for a summary of these
requirements.) First of all, to be highly qualified under IDEA, all special education
teachers (whether they teach core subjects or not) must hold at least a bachelor’s
degree and must obtain full state special education certification or equivalent
licensure [§602(10)(B)].64 Special education teachers who have emergency,
temporary, or provisional certification do not meet the IDEA definition. In addition,
P.L. 108-446 modifies the ESEA requirements with respect to two groups of special
education teachers: those who teach only core subjects exclusively to the most
significantly disabled children and those who teach more than one core subject. (If
the teachers in these two groups meet the IDEA criteria, they are considered to have
met the ESEA requirements.)
Both new65 and veteran special education teachers who teach core subjects
exclusively to children with disabilities who are assessed against alternate
achievement standards under ESEA (i.e., the most significantly cognitively
disabled)66 can, of course, meet the definition of highly qualified by meeting their
applicable ESEA standards.67 Alternatively, new, as well as veteran, teachers of
these students at the elementary level may meet the highly qualified definition by
demonstrating “competence in all the academic subjects in which the teacher teaches
based on a high objective uniform State standard of evaluation” (i.e., HOUSSE).68
Teachers of these students at levels above elementary school can meet the definition
by demonstrating “subject matter knowledge appropriate to the level of instruction
63 P.L. 108-446 does not amend the ESEA definition of “highly qualified.”
64 The final IDEA regulations clarify that a special education teacher participating in an
alternative certification program meeting certain requirements will be considered to have
met the certification requirement (§300.18(b)(2)).
65 The final IDEA regulations clarify a situation in which a regular teacher subsequently
becomes certified as a special education teacher. Even though such a teacher is not new to
the profession, he or she is considered a new special education teacher for the purposes of
the highly qualified teacher definition as it applies to special education teachers (34 C.F.R.
§300.18(g)(2)).
66 As discussed above, the ESEA requires that nearly all students must be held to the same
high state achievement standards. One exception with respect to children with disabilities
is that those who are the most significantly cognitively disabled can be held to alternate
achievement standards.
67 That is, special education teachers at the elementary level can pass a rigorous state subject
matter and teaching skills test, and special education teachers at the middle school and high
school level can pass such a test or earn a degree or take a minimum number of courses in
the relevant core subject or subjects.
68 Under ESEA, the HOUSSE option is available only for veteran teachers [ESEA
§9101(23)(C)(ii)]. The final IDEA regulations permit states to develop separate HOUSSE
procedures for special education teachers, including a single procedure assessing multiple
core subject areas, “provided that any adaptations of the State’s HOUSSE would not
establish a lower standard for the content knowledge requirements for special education
teachers and meets all the requirements for a HOUSSE for regular education teachers ...”
(34 C.F.R. §300.18(e)).

CRS-18
... as determined by the State, needed to effectively teach to those standards [i.e.,
alternate achievement standards]” (§602(10)(C)(ii)).69
New and veteran special education teachers who teach two or more core
subjects exclusively to children with disabilities may qualify as highly qualified by
meeting the requirements in each core subject taught under applicable ESEA
provisions. Alternatively veteran special education teachers teaching two or more
core subjects may also qualify as highly qualified based on the ESEA HOUSSE
option [§602(10)(D)(ii)], which may include a single evaluation covering multiple
subjects.70 Finally, newly hired special education teachers teaching two or more core
subjects who are already highly qualified in mathematics, language arts, or science
are given two years from the date of employment to meet the highly qualified
definition with respect to the other core subjects taught. This could occur through
the HOUSSE option [§602(10)(D)(iii)]. This two-year window is the only exception
to the 2005-2006 deadline [ESEA, §1119(a)(2)],71 explicitly applied to special
education teachers, for meeting the “highly qualified”definition under either IDEA
or ESEA.
Other classifications of special education teachers who do not teach core
subjects would meet the IDEA definition if they meet the IDEA criteria for all special
education teachers (full certification and at least a bachelor’s degree).72 With respect
to special education teachers who provide only consultative services to other
teachers, the Conference Report observes that,
a special education teacher who provides only consultative services to a highly
qualified teacher ... should be considered a highly qualified special education
teacher if such teacher meets the requirements of §602(10)(A).... Such
consultative services do not include instruction in core academic subjects, but
may include adjustments to the learning environment, modifications of
instructional methods, adaptation of curricula, the use of positive behavioral
69 For this second group of special education teachers, the regulations do reference the
ESEA HOUSSE alternative as follows:
or, in the case of instruction above the elementary level, meet the requirements
of subparagraph (B) or (C) of section 9101(23) of the ESEA as applied to an
elementary school teacher and have subject matter knowledge appropriate to the
level of instruction being provided, as determined by the State, needed to
effectively teach to those standards (34 C.F.R. §300.18(c)(2); emphasis added).
70 The Conference Report notes that the use of options, such as a single evaluation of
multiple subjects “must not ... establish a lesser standard for the content knowledge
requirements of special education teachers compared to the standards for general education
teachers.” H.Rept. 108-779, 108th Cong., 2nd sess., 171 (2004).
71 See §612(a)(14)(C).
72 The final IDEA regulations include specific language (following clarifying language in
Note 21 of the conference report (H.Rept. 108-779, 108th Cong., 2nd sess., at 169 (2004)))
that special education teachers who do not provide instruction in core academic subjects
need only meet the requirements of a baccalaureate degree and a full special education
certification to meet the highly qualified definition (34 C.F.R. §300.18(b)(3)). See also 71
Federal Register 46556, August 14, 2006.

CRS-19
supports and interventions, or the use of appropriate accommodations to meet the
needs of individual children.73
The apparent intent is that consultative teachers who do not provide direct instruction
in a core subject need only meet the requirements of having obtained at least a
baccalaureate degree and be fully state certified as a special education teacher.
Other special education teachers who teach only one core subject would appear
to have to meet the relevant criteria under the ESEA definition (in addition to the
overarching IDEA certification and degree criteria) and would then also be
considered highly qualified under IDEA.74 Finally, §602(10)(E) provides that the
definition does not create a right of action based on an employee’s failure to meet the
“highly qualified” requirements of the act.75
IDEA State and Local Personnel Requirements. IDEA requires that
states ensure that personnel serving children with disabilities are “appropriately and
adequately prepared and trained.” Regarding special education teachers, states must
insure that all are “highly qualified” by the deadline specified in the ESEA.76
Regarding providers of related services (for example, speech pathologists and
physical therapists), states must ensure that their qualifications “are consistent with
any State-approved or State-recognized certification, licensing, registration, or other
comparable requirements that apply to the professional discipline,” and that they
“have not had certification or licensure requirements waived on an emergency,
temporary, or provisional basis.” Regarding paraprofessionals, IDEA requires that
states “are appropriately trained and supervised, in accordance with State law,
regulation, or written policy.”77
73 H.Rept. 108-779, 108th Cong., 2nd sess., 171 (2004).
74 See H.Rept. 108-779, 108th Cong., 2nd sess., 171 (2004) regarding new and “not new”
special education teachers teaching one core subject.
75 The regulations reiterate this provision. In addition, the regulation clarifies that parents
still have the right to file a complaint related to staff qualifications under state complaint
procedures under 34 C.F.R. §300.151 through §300.153 (34 C.F.R. §300.18(f)).
76 See ESEA §1119(a)(2).
77 NCLB also aims to upgrade the qualifications of certain paraprofessionals. In “targeted
assistance” Title I schools, only those paraprofessionals who provide instructional services
(as opposed to those who provide computer support or personal-care services) — and are
paid by Title I-A funds — are covered. However, all instructional paraprofessionals in
schoolwide project schools are covered. In general, all covered paraprofessionals must have
earned a high school diploma or a recognized equivalent. Those hired after January 8,
2002, must have completed at least two years of higher education and obtained an
associate’s degree or met “rigorous” state or local standards. Those hired before January
8, 2002, must meet equivalent requirements by January 8, 2006.

CRS-20
Table 1. Comparison of Definitions of
“Highly Qualified” Teachers Under
the Elementary and Secondary Education Act (ESEA) and
Under the Individuals with Disabilities Education Act (IDEA)
Category of teachers
ESEA definition
IDEA definition
Covered teachers
All teachers of “core subjects”
All special education teachers
including special education
teachers teaching “core subjects”
All covered teachers
Hold at least a baccalaureate
Hold at least a baccalaureate degree
degree
Obtain full state certification or
Obtain full state special education
pass the state licensing exam or
certification or pass the state
fulfill requirements in state’s
licensing exam or fulfill requirements
charter school law for teachers in
in state’s charter school law for
charter schools
teachers in charter schools
Cannot have an emergency or
Cannot have an emergency or
temporary certification
temporary certification
New elementary teachers
In addition to general requirements
In addition to general requirements
for all covered teachers above:
for all covered teachers above:
pass rigorous state tests on subject
for special education teachers
knowledge and teaching skills in
teaching core subjects, same with
reading, math, and other basic
two exceptions:
elementary curriculum
1. elementary school special
education teachers teaching one or
more core academic subjects only to
children with disabilities held to
alternate academic standards (most
significantly cognitively disabled):

may demonstrate academic subject
competence through “a high
objective uniform State standard of
evaluation” (the HOUSSE process)
2. new special education teachers of
two or more academic subjects
who are highly qualified in either
mathematics, language arts, or
science:
have two-year window in which to
become highly qualified in the other
core academic subjects and may do
this through the HOUSSE process
(including a single evaluation for all
core academic subjects)
baccalaureate degree

CRS-21
Category of teachers
ESEA definition
IDEA definition
New middle/high school teachers
In addition to general requirements
In addition to general requirements
for all covered teachers above:
for all covered teachers above:
demonstrate high level of
for special education teachers
competency in academic subject(s)
teaching core subjects, same with
taught by passing rigorous state
two exceptions:
tests or obtaining a degree or the
1. new middle or high school
equivalent in subject(s) taught
teachers teaching one or more core
academic subjects only to children
with disabilities held to alternate
academic standards (most
significantly cognitively disabled):

may demonstrate “subject matter
knowledge appropriate to the level of
instruction being provided, as
determined by the State, needed to
effectively teach to those standards”
2. new special education teachers of
two or more academic subjects
who are highly qualified in either
mathematics, language arts, or
science:

have two-year window in which to
become highly qualified in the other
core academic subjects and may do
this through the HOUSSE process
(including a single evaluation for all
core academic subjects)
Veteran teachers at all levels
In addition to the general
In addition to the general
requirements for all covered
requirements for all covered teachers
teachers above:
above:
meet new-teacher standards or
for special education teachers
demonstrate competence in
teaching core subjects, same with
academic subjects taught based on
certain modifications:
“high objective uniform state
standards of evaluation”
(HOUSSE)
1. veteran middle or high school
teachers teaching one or more core
academic subjects only to children
with disabilities held to alternate
academic standards (most
significantly cognitively disabled):

may demonstrate “subject matter
knowledge appropriate to the level of
instruction being provided, as
determined by the State, needed to
effectively teach to those standards”

CRS-22
Category of teachers
ESEA definition
IDEA definition
2. veteran teachers at any level who
teach two or more core academic
subjects only to children with
disabilities:

may demonstrate academic subject
competence through the HOUSSE
process (including a single
evaluation for all core academic
subjects)
Teachers providing consultative
If these teachers do not teach “core
Meet only the general requirements
services
subjects,” they are not subject to
for all covered teachers above
ESEA requirement to be deemed
“highly qualified”
Source: Congressional Research Service.
Department of Education Non-Regulatory Guidance
Regarding IDEA and NCLB
Public School Choice. Non-regulatory guidance was issued by ED relating
to public school choice on February 6, 2004. This guidance provides that school
districts must offer students with disabilities the same opportunity as children without
disabilities to be educated in a school that has not been identified as in need of school
improvement and has not been identified as persistently dangerous. “However, an
LEA is not required to offer students with disabilities the same choices of schools as
it offers to nondisabled students. In determining the choices available to such
students, the LEA should match the abilities and needs of a student with disabilities
with those schools that have the ability to provide the student FAPE. Such students
still must be offered the opportunity to choose from among two or more schools.”78
The draft guidance also notes that the movement of a child with a disability to a
school of choice does not “in and of itself” trigger IDEA’s change in placement
procedures. The new school can adopt the existing IEP and the change of placement
procedures do not apply. However, “[t]he IDEA statute and implementing
regulations contain specific requirements regarding ‘change of placement’
provisions, and LEAs must comply with these requirements when they are
triggered.”79
Supplemental Educational Services. ED has also issued non-regulatory
guidance regarding supplemental educational services. Supplemental educational
services are defined as additional academic instruction designed to increase the
academic achievement of students in low-performing schools. ED’s draft guidance
provides that “an SEA and each LEA that arranges for supplemental educational
78 U.S. Department of Education, Office of Innovation and Improvement, Public School
Choice: Non-Regulatory Guidance, February 6, 2004, downloaded from [http://www.ed.gov/
policy/elsec/guid/schoolchoiceguid.doc] (visited on January 30, 2007).
79 Ibid.

CRS-23
services must ensure that eligible students with disabilities and students covered
under Section 504 may participate.”80 Also, if no provider is able to offer services
with the necessary accommodations, the LEA must provide such services with
necessary accommodations, either by doing so itself or through a contract. Once
parents select a provider for their child, the LEA must enter into an agreement with
the provider that has certain provisions including a timetable for improving the
student’s achievement. In the case of a student with a disability, this timetable is to
be consistent with the student’s IEP.81
Selected Issues and Judicial Decisions
The provisions of NCLB emphasizing that all children (including children with
disabilities) should be held to the same high standards to the maximum extent
possible have given rise to numerous questions by commentators about its
relationship with IDEA, with many of these questions arising from the different
philosophical approaches taken to education in IDEA and NCLB.82 The 2004 IDEA
reauthorization, the ED regulations, and the recent enforcement flexibility announced
by ED appear to address some of these concerns. However, there have been several
lawsuits regarding NCLB.83 In addition, the ED’s new enforcement policy has itself
generated some issues.
80 Each provider of supplemental educational services does not necessarily need to be able
to serve children with disabilities or children covered under Section 504. However, LEAs
must ensure that services with the necessary accommodations are available, and if no other
provider makes them available, the LEA must do so itself or through contract.
[http://www.ed.gov/policy/elsec/guid/suppsvcsguid.doc].
81 Ibid.
82 The Council for Exceptional Children has published a detailed chart that takes sections
of NCLB and then looks at the implications for special education. Council for Exceptional
Children, No Child Left Behind Act of 2001: Implications for Special Education Policy and
Practice, January 2003, [http://www.cec.sped.org/pp/side-by-side09_04_02.pdf]. See also
Michael Metz-Topodas, “Testing — The Tension Between the no Child Left Behind Act
and the Individuals with Disabilities Education Act,” 79 TEMP. L. REV. 1387 (2006).
83 The National Education Association (NEA) and school districts in Michigan, Texas, and
Vermont filed suit in U.S. District Court for the Eastern District of Michigan, asking for a
judicial order declaring that states and school districts are not required to spend non-NCLB
funds to comply with NCLB mandates, and that a failure to comply with NCLB mandates
for this reason does not provide a basis for withholding federal funds. The district court
dismissed the suit, finding that the statutory language does not support these arguments.
School District of the City of Pontiac v. Spellings, 2005 U.S. Dist. LEXIS 29253 (E.D.
Mich. November 23, 2005). The sixth circuit on January 7, 2008, reversed and remanded
the district court decision finding that statutes enacted under the Spending Clause of the
U.S. Constitution must provide clear notice to states regarding liabilities so states can decide
whether or not to accept the federal funds and that NCLB failed to provide clear notice.
2008 U.S. App. LEXIS 198 (6th Cir. January 7, 2008).

CRS-24
Exclusion of Children with Disabilities
One area of concern is that the inclusion of children with disabilities in the
assessment and accountability requirements of NCLB will lead to the exclusion of
these children from the mainstream curriculum — a trend that federal special
education legislation has aimed to thwart. As one commentator has noted, NCLB
requires annual tests and states that if a child with a disability is given an out-of-level
test and the state reports these children as “below proficient,” it would be counted
against the school’s performance. “Such ties to testing could exacerbate a problem
that parents often talk about — principals who try to push special education students
out of their schools because they bring down their test scores.”84 The December 9,
2003, regulations and the April 9, 2007, regulations address this concern. First, the
performance of certain children with disabilities would be judged on alternate
achievement standards or modified achievement standards, with those performing at
the proficient and advanced levels of these alternate standards counted toward
achieving AYP. In addition, out-of-level assessments will meet the alternate
achievement standards for the most significantly cognitively disabled children “if
they are aligned with the State’s academic content standards, promote access to the
general curriculum and reflect professional judgement of the highest achievement
standards possible.”85 Finally, the 1% and 2% caps do not apply at the school level.
The new Education Department enforcement policy which gives the states more
freedom in how they test children with disabilities may also address this issue. Thus,
there might be less incentive to segregate children with disabilities in separate
schools or separate classrooms to ensure that school-level AYP is met.
Highly Qualified Teachers
Another area of concern is the application of NCLB personnel standards to
special education teachers. P.L. 108-446 specifically addresses this issue in its
definition of “highly qualified” which was discussed previously. Although this helps
to align IDEA with NCLB, the definition has been criticized by some as leading to
anomalous results, such as long time, highly regarded special education teachers not
being considered highly qualified.86 In addition, the more stringent requirements may
exacerbate the existing shortage of special education teachers.87 On the other hand,
it could be argued that all children, especially children with disabilities, should have
highly qualified teachers.
84 Allison L. Bruce, “No Child Act Stirs Special ED Fears,” The Post and Courier
(Charleston, S.C.), February 17, 2003, p. 1B.
85 34 C.F.R. Part 200; 68 Federal Register 68700, December 9, 2003.
86 See, e.g., Christine Samuels, “Subject Qualification Vexing for Teachers in Special
Education,” educationweek.org, February 16, 2005, at [http://www.edweek.org/agentk-12/
articles/2005/02/16/23idea.h24.html].
87 See, e.g., Associated Press, “Special Education Teachers Needed, Officials Say,”
Indianapolis Star, March 28, 2005, at [http://www2.indystar.com]; Mike Sherry, “Law
Could Drive Some Out of Special Education,” Kansas City Star, March 22, 2005, at
[http://www.kansascity.com/].

CRS-25
Judicial Decisions
Arguments have been made in several cases that NCLB should be read as
adding to IDEA’s requirements. In Leighty v. Laurel School District,88 the plaintiffs
argued that NCLB changed the way in which IDEA cases should be analyzed,
contending that the determination of FAPE was dependant on a child’s performance
on standardized tests. The court observed that “[w]hile it is clear that both the IDEA
and the NCLB require recipient States to include disabled children in the
assessments, with the modifications necessitated by their disabilities, neither statute
indicates that FAPE determinations under the IDEA are controlled by the
performance of disabled children on assessments required under the NCLB.”
Similarly, in Kirby v. Cabell County Board of Education,89 the court rejected an
argument that the NCLB imposed additional obligations regarding IDEA
requirements.
In Board of Education of Ottawa Township High School Dist. 140 v. U.S.
Department of Education,90 the plaintiffs, school boards, and special education
students brought suit against the Department of Education, alleging a violation of
IDEA since the students with disabilities had been tested at grade level standards
rather than based on their IEP. The district court held that the plaintiffs had no
standing to bring the suits since the harm alleged by the plaintiffs could not be
attributed to the Department of Education. The district court noted that “not one
provision of the NCLBA ultimately requires Plaintiff school districts to change the
IEPs of its disabled students,” and observed that alternate assessments were available.
In addition, the court stated that “there has been no showing that holding disabled
children to the same achievement standards as non-disabled children is in itself
harmful or violative of IDEA’s guarantee of a free appropriate education, especially
when IDEA requires all disabled children included in statewide assessment programs,
including NCLBA assessments, to take alternative assessments, if required by their
respective IEPs....” The Seventh Circuit Court of Appeals affirmed and held that the
plaintiffs had standing to bring the suit but found that the action was properly
dismissed “because the plaintiffs’ claim is too weak to justify continued litigation.”91
The rationale given for this decision was that the IDEA provisions at issue were
enacted prior to the enactment of NCLB and that the most recent law, that is, NCLB,
controls. The court of appeals noted that IDEA had been reauthorized in 2004 after
enactment of NCLB but that the provisions in question had not been changed by the
reauthorization.

88 457 F. Supp.2d 546 (W.D. Pa. 2006).
89 2006 U.S. Dist. LEXIS 67254 (S.D. W.Va. (September 19, 2006). See, also, School
Board of Lee County, Florida v. MM, 2007 U.S. Dist. LEXIS 21582 (March 27, 2007),
where the court found in part that NCLB did not elevate the substantive component of the
free appropriate public education requirement of IDEA.
90 2007 U.S.Dist. LEXIS 24057 (March 31, 2007), aff’‘d 2008 U.S. App. LEXIS 2937 (7th
Cir. Feb. 11, 2008).
91 Board of Education of Ottawa Township High School Dist. 140 v. Spellings, 2008 U.S.
App. LEXIS 2937 (7th Cir. Feb. 11, 2008).