Order Code RL32998
CRS Report for Congress
Received through the CRS Web
The Individuals with Disabilities Education Act
(IDEA): Proposed Regulations for P.L. 108-446
July 18, 2005
Nancy Lee Jones
American Law Division
Richard N. Apling
Specialist in Social Policy
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
The Individuals with Disabilities Education Act (IDEA):
Proposed Regulations for P.L. 108-446
The 108th Congress passed P.L. 108-446, which reauthorized and revised the
Individuals with Disabilities Education Act (IDEA). IDEA is the major federal
statute authorizing funds for special education and related services for children with
disabilities and providing detailed due process provisions to ensure that these
children receive a free appropriate public education (FAPE). Although much of the
basic structure of IDEA has been retained, P.L. 108-446 does make a number of
significant changes. Among these are the definition of “highly qualified” teachers,
calculation of maximum state grants, funding for high-need children with disabilities,
revised state performance goals and requirements for children’s participation in state
and local assessments, changes in the private school provisions, exceptions to certain
financial requirements, changes in procedural safeguards, and changes in compliance
monitoring to focus on student performance.
On June 21, 2005, the Department of Education (ED) issued proposed
regulations for P.L. 108-446. Comments on the proposal are due by September 6,
2005, and ED expects to issue final regulations by December 2005. Although many
of the regulatory provisions simply track the statutory language, reflect comments in
the conference report, or include provisions in current IDEA regulations, there are
places where the regulations provide more guidance. This report analyzes the
proposed regulations with an emphasis on those areas where additional guidance is
provided. The report also notes provisions in P.L. 108-446 for which ED has not
This report will not be updated.
Introduction and Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview of the Proposed Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Highly Qualified Teachers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statutory Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Proposed Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Private School Placement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statutory Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Proposed Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Procedural Safeguards and Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Statutory Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Procedural Safeguards in the Proposed Regulations . . . . . . . . . . . . . . . . . . . 9
Discipline Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Monitoring and Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Other Selected Proposed Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Definition of “Parent” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Definition of “Related Services” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Exceptions to Local Maintenance of Effort . . . . . . . . . . . . . . . . . . . . . . . . . 13
Evaluation of Children Who Are Limited English Proficient . . . . . . . . . . . 14
Evaluation of Children with Specific Learning Disabilities . . . . . . . . . . . . 14
Individualized Education Program (IEP) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Selected P.L. 108-446 Provisions with No Proposed Regulations . . . . . . . . . . . 15
Multi-Year IEP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Paperwork Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Individuals with Disabilities Education
Act (IDEA): Proposed Regulations
for P.L. 108-446
Introduction and Background
The Individuals with Disabilities Education Act (IDEA)1 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
The 108th Congress passed major IDEA legislation (P.L. 108-446), which
reauthorized and revised IDEA. Although much of the basic structure of IDEA has
been retained, P.L. 108-446 does make a number of significant changes. Among
these are the definition of “highly qualified” teachers, calculation of maximum state
grants, funding for high-need children with disabilities, revised state performance
goals and requirements for children’s participation in state and local assessments,
changes in the private school provisions, exceptions to certain financial requirements,
changes in procedural safeguards, and changes in compliance monitoring to focus on
The U.S. Department of Education (ED) has recently issued proposed
regulations for P.L. 108-446 and comments on the proposal are due by September 6,
2005.4 ED expects to issue final regulations by December 2005.5 Although many of
the regulatory provisions simply track the statutory language, reflect comments in the
20 U.S.C. §1400 et seq.
For a more detailed discussion of the congressional intent behind the enactment of the
1975 law (P.L. 94-142), see CRS Report 95-669, The Individuals with Disabilities
Education Act: Congressional Intent, by Nancy Lee Jones.
For a more detailed discussion of the statutory provisions see CRS Report RL32716, The
Individuals with Disabilities Education Act: Analysis of Changes Made by P.L. 108-446,
by Richard N. Apling and Nancy Lee Jones.
70 Federal Register 35782, June 21, 2005. Note that ED has also issued proposed IDEA
regulations related to a National Instructional Materials Accessibility Standard. (70 Federal
Register, 37302-37306, June 29, 2005).
“Hager: Expect Final Rules Around December,” Education Daily, June 28, 2005, p. 4.
conference report, or include provisions in current IDEA regulations,6 there are
places where the regulations provide more guidance. This report will analyze the
proposed regulations with an emphasis on those areas where additional guidance is
provided. The report will also note several places where ED has declined to provide
Overview of the Proposed Regulations
In its discussion of the proposed regulations ED stated that
we have elected to construct one comprehensive, freestanding document that
incorporates virtually all requirements from the new law along with the
applicable regulations, rather than publishing a regulation that does not include
statutory provisions. The rationale for doing this is to create a single reference
document for parents, State personnel, school personnel, and others to use, rather
than being forced to shift between one document for regulations and a separate
document for the statute.7
The organization of the proposed regulations differs from the existing regulations
with the proposed regulations generally following the structure of P.L. 108-446.
Subpart A of proposed 34 C.F.R. Part 300 discusses the purpose and
applicability of the proposed regulations and includes definitions;
Subpart B contains provisions relating to state eligibility and
includes requirements for FAPE, the least restrictive environment,
private schools, state complaint procedures and ED procedures;
Subpart C contains provisions for local educational agency
Subpart D contains provisions on evaluations, eligibility
determinations, IEPs, and educational placements;
Subpart E contains the applicable procedural safeguards, including
H.Rept. 779, 108th Cong., 2nd sess., 171 (2004). The definition of “limited English
proficient,” which P.L. 108-446 added to IDEA, is an example of a proposed regulation that
would include nearly a verbatim wording from the statutory language. An example of a
wording change with no substantive impact is the definition of “core academic subjects” in
the proposed regulations. The definition in P.L. 108-446 cross-references the definition in
the Elementary and Secondary Education Act (ESEA); the proposed regulations contain the
ESEA definition verbatim. In addition, the proposed regulations would appear to
consistently change the verb “shall,” which the act uses to indicate required actions of states,
school districts, the Secretary of Education, etc., to “must.” In some instances, P.L. 108-446
language is not tracked. Rather the proposed regulations would incorporate verbatim or
nearly verbatim language from current regulations. For example, current regulations require
that, in providing FAPE, public agencies must ensure that hearing aids work properly
(§300.303) and that required assistive technology be made available (§300.308). These
requirements would be combined in proposed §300.105.
70 Federal Register 35783, June 21, 2005.
Subpart F contains provisions on monitoring and enforcement,
confidentiality and program information;
Subpart G contains provisions on the grants, allotment, use of funds
and authorization of appropriations; and
Subpart H contains provisions on preschool grants for children with
The proposed regulations for infants and toddlers would be found at 34 C.F.R. Part
301 and the proposed regulations for service obligations and personnel development
would be found at 34 C.F.R. Part 304.
P.L. 108-446 includes a provision relating to regulations that was added to
IDEA by P.L. 98-199 in 1983 in response to attempts at regulatory reform by the
Reagan Administration.8 This subsection prohibits certain changes in the IDEA
which would procedurally or substantively lessen the protections provided to
children with disabilities under this Act, as embodied in regulations in effect on
July 20, 1983 (particularly as such protections related to parental consent to
initial evaluation or initial placement in special education, least restrictive
environment, related services, timelines, attendance of evaluations personnel at
individualized education program meetings, or qualifications of personnel)
except to the extent that such regulation reflects the clear and unequivocal intent
of Congress in legislation.9
This listing of areas in the statute is helpful in determining what changes Congress
might have interpreted as lessening the protections available to children with
disabilities but it is not determinative as the list is illustrative, not limiting. It is
worth noting as the regulations are examined, that some of the provisions carried
over from the existing regulations are included due to the requirements of this
Highly Qualified Teachers
The Elementary and Secondary Education Act (ESEA), as amended by No Child
Left Behind Act (NCLBA),10 requires that each state educational agency (SEA)
receiving ESEA Title I, Part A funding (compensatory education of disadvantaged
students)11 must have a plan to ensure that all public-school teachers teaching in core
20 U.S.C. §1406(b); P.L. 108-446, §607(b).
All states currently receive ESEA Title I-A grants.
academic subjects12 within the state will meet the definition of a “highly qualified”
teacher, by no later than the end of the 2005-2006 school year.13
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 with
respect to two groups of special education teachers: those who teach only the most
severely disabled children and those who teach more than one core subject.
Both new and veteran special education teachers who teach core subjects
exclusively to children with disabilities who are assessed against alternative
achievement standards under ESEA (i.e., the most severely cognitively disabled)14
can, of course, meet the definition of highly qualified by meeting their applicable
ESEA standards.15 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” (HOUSSE).16 Teachers of these
students at levels above elementary school can meet the definition by demonstrating
“subject matter knowledge appropriate to the level of instruction ... as determined by
the State, needed to effectively teach to those standards [i.e., alternative achievement
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
Core subjects are defined as “English, reading or language arts, mathematics, science,
foreign languages, civics and government, economics, arts, history, and geography.” ESEA
The relevant sections of ESEA are §1119 regarding qualifications for teachers and
paraprofessionals, and §9101(23), the definition of “highly qualified.”
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 severely cognitively disabled can be held to alternative achievement
That is, special education teachers at the elementary level can meet the standards by
passing 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.
Under ESEA, the HOUSSE option is available only for veteran teachers (ESEA
subjects.17 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)),18 explicitly applied to special
education teachers, for meeting the “highly qualified”definition under either IDEA
The proposed regulations repeat much of the statutory definition verbatim.19
They would add language related to alternative routes to certification (which the
statute includes as a permissible means for special education teachers to satisfy the
requirement of full state certification) by including requirements that alternative
certification programs must meet.20 For example, a teacher certified under this
provision must demonstrate “satisfactory progress toward full certification as
prescribed by the State.”21 The proposed regulations include specific language
(following clarifying language in Note 21 of the conference report22) 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. In addition, the proposed
regulations add explicit language that the highly qualified definition does not apply
to teachers in private schools.
As suggested above, the P.L. 108-446 definition of highly qualified with respect
to special education teachers for the most severely cognitively disabled children
appears to differentiate between such teachers at the elementary level and those
teaching students “above the elementary level.” For the former teachers (whether
they are new or veteran teachers), the statute cross-references the HOUSSE
alternative in the ESEA definition. For the latter teachers, the statutory language
does not explicitly reference the ESEA HOUSSE alternative but states the following:
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. 779, 108th Cong., 2nd sess. 171 (2004).
See P.L. 108-446, §612(a)(14)(C).
Proposed 34 C.F.R. §300.18.
According to ED discussion accompanying the proposed regulations, the standards for
alternative certification are the same as those in the regulations for Title I ESEA (CFR
§200.56(a)(2)(ii)) 70 Federal Register 35784, June 21, 2005.
Proposed 34 C.F.R. §300.18(b)(2)(i)(D).
H.Rept. 779, 108th Cong., 2nd sess., 169 (2004).
or, in the case of instruction above the elementary level, has subject matter
knowledge appropriate to the level of instruction being provided, as determined
by the State, needed to effectively teach to those standards.23
For this second group of special education teachers, the proposed 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.24
Proposed §300.156(a) contains the general requirement that states must have
personnel qualifications to ensure that teachers, paraprofessionals, providers of
related services, and other personnel carrying out the purposes of part 300 “are
appropriately and adequately prepared and trained, including that those personnel
have the content knowledge and skills to serve children with disabilities.” Note 21
of the conference report (H.Rept. 108-779) accompanying H.R. 1350 clarifies that
the statute is not intended to prevent highly qualified general education teachers who
lack certification in special education from providing children with disabilities with
instruction in core subjects.25 ED’s discussion accompanying the proposed
regulations paraphrases this conference report language and points to §300.156(a) in
relation to the clarification in Note 21.26
Private School Placement
P.L. 108-446 provides that a child with a disability may be placed in a private
school by the LEA or SEA as a means of fulfilling the FAPE requirement for the
child in which case the cost is paid for by the LEA. A child with a disability may
also be unilaterally placed in a private school by his or her parents. In the latter
situation, the cost of the private school placement is not paid by the local education
agency (LEA) unless a hearing officer or a court makes certain findings. However,
IDEA does require some services for children in private schools, even if they are
unilaterally placed there by their parents. Exactly what these services are or should
be has been a contentious subject for many years. The 1997 reauthorization of IDEA
expanded the private school provisions and the 2004 reauthorization includes several
changes to the provisions relating to children who are placed in private school by
their parents. The provisions relating to children placed in private schools by public
agencies were not changed.
P.L. 108-446 §602(10)(C)(ii).
Proposed 34 C.F.R. §300.18(c)(2), emphasis added.
H.Rept. 779, 108th Cong., 2nd sess. 171 (2004).
70 Federal Register 35791, June 21, 2005.
Generally, children with disabilities enrolled by their parents in private schools
are to be provided special education and related services to the extent consistent with
the number and location of such children in the school district served by a LEA
pursuant to several requirements.27 This provision was changed from previous law
by the addition of the requirement that the children be located in the school district
served by the LEA. The Senate report described this change as protecting “LEAs
from having to work with private schools located in multiple jurisdictions when
students attend private schools across district lines.”28 P.L. 108-446 adds
requirements that the LEA consult with private school officials and representatives
of the parents of parentally placed private school children with disabilities. In
addition, the new law adds compliance procedures which allow a private school
official to submit a complaint to the SEA about the consultation and, if the private
school official is dissatisfied with the SEA’s response, he or she may submit a
complaint to the Secretary of Education.
There are numerous changes in the proposed regulations regarding private
schools which generally reflect the statutory changes. One of the statutory changes,
as noted above, is that children with disabilities enrolled by their parents in private
schools are to be provided special education and related services to the extent
consistent with the number and location of such children in the school district served
by a LEA.29 Although the intent was to protect LEAs from working with private
schools in multiple jurisdictions, questions have been raised concerning whether this
is applicable to students whose IEP determines their placement in a private school.
This placement could have significant financial repercussions for the school district
which contains the private school. The regulations do not address this issue. The
Council for Exceptional Children (CEC) has requested that the regulations “provide
clarification on who is responsible for the costs of providing services to parentally
placed ‘non-resident’ students with disabilities, paying for the evaluation of
parentally placed ‘nonresident’ students, and the provision of Part B federal funding
for parentally placed ‘non-resident’ students.”30 CEC specifically asked: “Is the
local education agency where the private school is located responsible for these
activities, or is the local education agency where the student resides responsible for
paying for them?”31
20 U.S.C. §1412(a)(10)(A)(i).
S.Rept. 185, 108th Cong., 1st sess., 15-16 (2003).
20 U.S.C. §1412(a)(10)(A)(i).
Procedural Safeguards and Discipline
Section 615 of IDEA provides procedural safeguards for children with
disabilities and their parents. This section has been a continual source of
controversy, especially the provisions relating to the discipline of children with
disabilities. The changes made by P.L. 108-446 include adding provisions relating
to homeless children, adding a two-year statute of limitations for the filing of a
complaint and a two-year statute of limitations regarding requests for a hearing,
adding additional requirements for hearing officers, changing the mediation
provision, and specifically allowing the local educational agency, not just the parents,
to file for a due process hearing. The discussion of the provisions of P.L. 108-446
in this report regarding procedural safeguards and discipline is not comprehensive.
There were significant changes made by the new law in areas such as attorneys’ fees
which are not discussed here as the regulations do not make significant additions to
the statutory language.
One of the major changes was the addition of a “resolution session.” This is a
preliminary meeting between the parents and the LEA and IEP team held within 15
days of receiving the parent’s complaint. The reason for this addition was to attempt
to resolve disputes prior to the more adversarial due process hearing. The House
report noted that the resolution session “is intended to improve the communication
between parents and school officials, and to help foster greater efforts to resolve
disputes in a timely manner so that the child’s interests are best served.”32 If an
agreement is reached during the resolution session, the parties must execute a legally
binding agreement signed by both parties and which is enforceable in court.
Disciplinary issues relating to children with disabilities were a contentious issue
during the 2004 reauthorization. Although P.L. 108-446 made significant changes
to §615(k), it did keep many of the provisions of the previous law. For example, the
new law allows school personnel to consider, on a case-by-case basis, any unique
circumstances when determining whether to order a change in placement for a child
with a disability who violates a code of student conduct.
One of the major changes was in the language regarding manifestation
determinations. The 2004 reauthorization provides that, within 10 days of a decision
to change the placement of a child with a disability because of a violation of a code
of student conduct, the LEA, the parent, and appropriate members of the IEP team
shall review all relevant information in the student’s file, including the IEP, teacher
observations, and any relevant information provided by the parents to determine if
the conduct in question was caused by or had a direct and substantial relationship to
the child’s disability or if the conduct in question was the direct result of the LEA’s
failure to implement the IEP. If the LEA, the parent and relevant members of the IEP
team determine that the conduct in question was caused by or had a direct and
substantial relationship to the child’s disability or if the conduct in question was the
direct result of the LEA’s failure to implement the IEP, the conduct is determined to
H.Rept. 77, 108th Congress, at 114, Apr. 29, 2003.
be a manifestation of the child’s disability. Except for situations involving weapons,
drugs, or serious bodily injury, when the conduct is a manifestation of the disability,
the child shall return to the placement from which he or she was removed unless the
parent and the LEA agree to a change of placement as part of the modification of the
behavioral intervention plan.33
Procedural Safeguards in the Proposed Regulations
The majority of the proposed regulatory language regarding procedural
safeguards mirrors the statutory language in P.L. 108-446. However, the proposed
regulations do make several additions. For example, in proposed §300.504 regarding
the procedural safeguards notice, ED clarifies that a procedural safeguards notice
must be provided upon receipt of the first filing of a state complaint or request for a
due process hearing in a school year, not just the first request at any point in the
child’s education. In addition, in proposed §300.504(c), ED attempts to reduce the
confusion about the distinctions between a due process complaint and a complaint
under the state complaint procedures by requiring that the procedural safeguards
notice explain the differences between the two procedures, including the jurisdiction
of the procedures, the issues that may be raised, filing and decisional time lines and
Several changes were made by ED regarding the manner in which mediators are
chosen. The current regulations provide that the states shall maintain a list of
individuals who are qualified mediators and knowledgeable about special education
and that if the mediator is not selected on a rotational basis from the list, both parties
must be involved in selecting the mediator.34 The proposed regulations would keep
the listed requirements but require that the SEA select mediators on a random,
rotational or other impartial basis and would delete the language regarding
involvement by the other party.35 The rationale for this change was to “provide SEAs
additional flexibility in selecting mediators, while ensuring that mediators are
impartial.”36 The proposed regulations would also eliminate the current section
providing that parents be advised of the availability of mediation whenever a hearing
is initiated.37 ED noted that mediation must be available to resolve any dispute, not
just when a hearing is requested and that there are new additional opportunities to
resolve disputes, such as the new resolution session.38
The current regulatory provisions regarding the discipline of children with
disabilities would be significantly changed in the proposed regulations, generally
20 U.S.C. §1415(k)(1)(F).
34 C.F.R. §300.506(b)(2) (2004).
Proposed 34 C.F.R. §300.506(b).
70 Federal Register 35808, June 21, 2005.
Proposed 34 C.F.R. §300.507(a)(2) (2004).
70 Federal Register 35808, June 21, 2005.
reflecting the changes in the statute and comments in the conference report.
However, the regulations do make some additions.
P.L. 108-446 allows school personnel to consider unique circumstances on a
case-by-case basis when deciding whether a change in placement would be
appropriate for a particular child.39 The proposed regulations would require that this
consideration be “consistent with the requirements of this section.”40 The section
states in part that the ability of school personnel to remove a child with a disability
is to be applied “to the extent those alternatives are applied to children without
Although the statutory language giving school personnel the authority to
suspend a child with a disability for not more than 10 school days is similar in both
the 1997 IDEA and P.L. 108-446, the proposed regulations would make several
changes from the existing regulations. The proposed regulations would add a
subsection stating that where a child has been removed for more than 10 school days
in the same school year, but not for more than 10 consecutive school days and the
change is not a change of placement, school personnel, in consultation with the
child’s teacher or teachers, are to determine the extent to which services are needed
and the location in which they are to be provided.42 ED commented that this
requirement was needed “to ensure that children with disabilities in this situation
receive appropriate services, while preserving the flexibility of school personnel to
move quickly to remove a child when needed and determine how best to address the
child’s needs during these relatively brief periods of removal.”43 Another new
subsection would provide that the child’s IEP team determine the appropriate
services when a child is removed for more than 10 consecutive school days or the
removal is a change in placement.44
P.L. 108-446 provides that school personnel may remove a student to an interim
alternative educational setting for not more than 45 school days in situations
involving weapons, drugs or where the student has inflicted serious bodily injury on
another person.45 The proposed regulations generally track the statutory authority but
would add a new section specifically allowing a school district to seek a subsequent
hearing to continue the child in an interim alternative educational placement if the
20 U.S.C. §1415(k)(1).
Proposed 34 C.F.R. §300.530(a).
Proposed 34 C.F.R. §300.530(b)(1). See comments made by the CEC regarding the need
for regulatory guidance on the case-by-case authority to ensure that such determinations
“provide all students with fair and consistent opportunities when those determinations are
Proposed 34 C.F.R. §300.530(d)(4).
70 Federal Register 35810, June 21, 2005.
Proposed 34 C.F.R. §300.530(d)(5).
20 U.S.C. §615(k)(1)(G).
school district believes that the child would be dangerous if returned to his or her
P.L. 108-446 provides for expedited time lines for hearings under the
disciplinary procedures.47 The proposed regulations reflect the statutory language
and also propose shortened time lines for the resolution session process when
expedited hearings are involved.48
P.L. 108-446 also changes the “stay put” provision in the appeals section.
Under the 2004 reauthorization, when an appeal has been requested by either a parent
or the LEA under §615(k)(3), the child is to remain in the interim alternative
educational setting pending the decision of the hearing officer or until the time period
for the disciplinary infraction ends. Under previous law, the child was to remain in
the interim alternative educational setting for 45 days unless the school and the
parents agreed or a hearing officer rendered a decision (P.L. 105-17, §615(k)(7)).
The new law requires that the SEA or LEA must arrange for an expedited hearing
that must occur within twenty school days from when the hearing is requested. The
hearing determination must be made within ten school days after the hearing.49
The proposed regulations track the statutory language except that a reference is
also made to proposed §300.530(g) which concerns placement in an interim
alternative educational setting for students involved in situations concerning drugs,
weapons or serious bodily injury. The Department’s discussion of the proposed
regulations describes the language tracking the statutory provisions and then states:
“We would add, however, in proposed §300.530(g), that this provision also would
apply to removals of up to 45 school days.”50 This statement is somewhat confusing
as proposed §300.530(g) simply discusses the interim alternative education settings,
not placement during appeals. However, proposed §300.533 discussing placements
during appeals provides that the child must remain in the interim alternative
educational setting pending the decision of the hearing officer or until the expiration
of the time period provided for in §300.530(c) or (g). Proposed §300.530(c) provides
that children whose behavior is not a manifestation of their disability may be subject
to disciplinary procedures applied in the same manner and for the same duration as
children without disabilities. Proposed §300.530(g), in contrast, provides for a
placement for a child with a disability, whose behavior has been determined to be a
manifestation of his or her disability, in an interim alternative educational setting for
not more than forty five school days. ED seems to be making a distinction in the
length of time a student may be placed in an interim alternative educational setting
when an appeal has been filed based on whether the behavior is a manifestation of
the child’s disability.
Proposed 34 C.F.R. §300.532(b)(3).
20 U.S.C. §1415(k)(4)(B).
Proposed 34 C.F.R. §300.532(c)(3).
20 U.S.C. §615(k)(4).
70 Federal Register 35811, June 21, 2005.
Monitoring and Enforcement
In P.L. 108-446, Congress determined that the previous law on monitoring
focused too much on compliance with procedures and shifted the emphasis to focus
on student performance.51 Under the new law, the Secretary of Education monitors
implementation of Part B by oversight of the general supervision by the states and by
the state performance plans. The Secretary enforces Part B as described in §616(e)
and requires states to monitor implementation by LEAs and to enforce Part B. If the
Secretary makes certain determinations regarding state performance, the Secretary
must provide reasonable notice and an opportunity for a hearing on the
determination.52 The proposed regulations describe this hearing as an opportunity to
meet with the Assistant Secretary for the Office of Special Education and
Rehabilitative Services.53 ED stated that “the Department has determined that this
type of hearing would provide the appropriate amount of process due a State prior to
one of these determinations. Should specific enforcement action subsequently be
contemplated, as provided for in section 616(e) of the act, other hearing procedures
Other Selected Proposed Regulations
Definition of “Parent”55
P.L. 108-446 elaborated on the definition of “parent” to include other
individuals beside the natural parents, such as guardians (under certain
circumstances), who may act as parents of a child with a disability. The proposed
regulations would add language to clarify situations in which there are multiple
candidates for a child’s parent. In general, the natural or adoptive parent would be
presumed to act for the child “unless that person does not have legal authority to
make educational decisions for the child, or there is a judicial order or decree
specifying some other person to act as the parent under Part B of the Act.”
Definition of “Related Services”56
In general, related services are “designed to enable a child with a disability to
receive a free appropriate public education as described in the individualized
See S.Rept. 185, 108th Cong., 1st sess. 46 (2003); H.Rept. 77, 108th Cong., 1st sess. 120
20 U.S.C. §1416(d)(2)(B).
Proposed 34 C.F.R. §300.603(b)(2)(ii).
70 Federal Register 35812, June 21, 2005.
Proposed 34 C.F.R. §300.30.
Proposed 34 C.F.R. §300.34.
education program of the child.”57 Under IDEA, public agencies are required to
provide such services if the IEP team determines that these services are necessary for
the child to benefit from the public education provided. P.L. 108-446 provided an
explicit exception: The definition “does not include a medical device that is
surgically implanted, or the replacement of such device.”58 The proposed regulations
would expand this exception to include “the optimization of [surgically implanted]
device functioning” and “maintenance of such device.”59 ED comments on this
proposed addition stating that “school districts should not be required to bear these
costs, which are integral to the functioning of the implanted device.”60
Exceptions to Local Maintenance of Effort
Maintenance of effort (MOE) is a financial principle in many federal
educational statutes that penalizes state and local grant recipients if they reduce their
non-federal spending on the program or activity that the particular statute supports
— in this case state and local spending on special education. The 1997 IDEA
amendments (P.L. 105-17) recognized that there are circumstances in which LEAs
may legitimately reduce local spending and not be penalized under the local MOE
requirement. One of these exceptions may occur if senior special education
personnel retire or otherwise leave the LEA and are replaced by more junior (and
lower paid) personnel. P.L. 108-446 continues this and other local exceptions to
MOE. The current IDEA regulations (following report language accompanying P.L.
105-17)61 elaborate on the statutory language. For example, the regulations require
that the departing staff are to be “replaced by qualified, lower-salaried staff.”62 In
addition, the LEA must ensure that the departures conform with school policies,
collective bargaining agreements, and state law.63 The proposed regulations would
keep these exceptions but would eliminate the elaborating language in current
regulation. According to the commentary accompanying the proposed regulations:
These changes would reduce regulatory burden on school districts and provide
increased flexibility in funding decisions. However, the basic requirement that
LEAs must ensure the provision of FAPE to eligible children, regardless of the
costs, would remain the same.64
P.L. 108-446 §602(26).
P.L. 108-446 §602(26)(B).
Proposed 34 C.F.R. §300.34(b).
70 Federal Register 35785, June 21, 2005.
S.Rept. 17, 105th Cong. 1st sess. 16 (1997).
34 C.F.R. §300.232(a)(1).
34 C.F.R. §300.232(a)(2).
70 Federal Register 35795, June 21, 2005.
Evaluation of Children Who Are Limited English Proficient
IDEA has extensive requirements on assessments to be used to evaluate whether
a child is a child with a disability under the act and therefore is eligible for special
education and related services. One such requirement relates to evaluating children
who are limited English proficient (LEP). Current law requires that LEAs “ensure
that assessments and other evaluation materials used to assess a child ... are provided
and administered in the language and form most likely to yield accurate information
... unless it is not feasible to so provide and administer.”65 The proposed regulations
would incorporate this language, except it would use the phrase “clearly not
feasible.”66 This was the language used in prior law (see P.L. 105-17
§614(b)(3)(A)(ii) 111Stat. 82).
Evaluation of Children with Specific Learning Disabilities
Because of concerns that children may be “over-identified” as learning disabled,
in part because of evaluation procedures that depend on severe discrepancies between
achievement scores and IQ tests, P.L. 108-446 provides that LEAs “shall not be
required to take into consideration” such discrepancies “when determining whether
a child has a specific learning disability.”67 In addition, the act states that LEAs “may
use a process that determines if a child responds to scientific, research-based
intervention as a part of the evaluation procedures.”68 The proposed regulations
would use somewhat different language in implementing these procedures. The state
“may prohibit the use of a severe discrepancy.” It “may not require the use of a
severe discrepancy.” It “must permit the use of a process that determines if the child
responds to scientific, research-based intervention...”69
Individualized Education Program (IEP)
The proposed regulations deal with implementing the IEP process in proposed
§§300.320-300.328. In most respects, they would incorporate language from the act,
and in several cases, model proposed language on provisions in current regulations.
For example, proposed §300.321(c) concerning the determination of IEP team
members’ expertise and knowledge would use the same language as §300.344(c) in
current regulations. In a few cases, the proposed regulations would alter language in
the act. For example, members of the IEP team can be excused from attending an
IEP meeting even if the meeting deals with the curriculum or related service in which
they are involved if both the parent and the LEA agree. The proposed regulations
P.L. 108-446 §614(b)(3)(A)(ii), emphasis added.
Proposed 34 C.F.R. §300.304(c)(1)(ii).
P.L. 108-446, §614(b)(6)(A).
P.L. 108-446 §614(b)(6)(B).
Proposed 34 C.F.R. §300.307(a).
would add the requirement that the parent’s consent must be in writing; the act
simply says that the parent and the LEA must consent.70
Selected P.L. 108-446 Provisions
with No Proposed Regulations
The proposed regulations provide no guidance for implementing the multi-year
IEP pilot demonstration that P.L. 108-446 authorizes (§614(d)(5)). The act
authorizes the Secretary of Education to approve demonstration proposals from up
to 15 states. These demonstrations would allow parents and LEAs to adopt IEPs
covering up to three years that coincide with the child’s “natural transition points.”71
The multi-year IEPs must be optional for parents and based on their informed
consent. They must contain measurable annual goals linked to natural transition
points. The IEP team must review the IEP at each transition point and annually to
determine if progress is being made toward annual goals. More frequent reviews are
required if sufficient progress is not being made. Beginning in 2006 and annually
thereafter, the Secretary must report on the effectiveness of the demonstration
P.L. 108-446 authorizes a paperwork reduction pilot program (§609), which
permits the Secretary to waive for up to four years for up to 15 states statutory or
regulatory requirements (except civil rights requirements) that applying states link
to excessive paperwork or other non-instructional burdens. The report accompany
the House bill explained the rationale for such a pilot:
Reducing the paperwork burden of the Act is one of the Committee’s top
priorities for the reauthorization of the Act. Studies from the Department show
that the Nation is facing a significant shortage of special education teachers, and
many special educators leaving the field cite the burden of unnecessary
paperwork as one of the primary reasons for their departure. The bill includes
a pilot program to allow States to demonstrate innovative and creative measures
to reduce the paperwork burden. This program is not meant to decrease any of
the rights children have under the Act, but is intended to allow those States who
choose to participate to think creatively and innovatively about how to best meet
See proposed 34 C.F.R. §300.320(e)(2)(i) and P.L. 108-446 §614(d)(1)(C)(ii)(I).
These transition points are defined to include the transition “from preschool to elementary
grades, from elementary grades to middle or junior high school grades, from middle or
junior high school grades to secondary school grades, and from secondary school grades to
post-secondary activities, but in no case a period longer than three years” P.L. 108-446,
the demands of the Act while reducing the paperwork burden so school personnel
can focus on educating children with disabilities.72
The proposed regulations contain no implementing language regarding this pilot
H.Rept. 77, 108th Cong., 1st sess., 122 (2003).