Order Code RS22885
May 23, 2008
Proposed Amendments to the Regulations
Under the Individuals with Disabilities
Education Act (IDEA)
Nancy Lee Jones
American Law Division
Specialist in Social Legislation
Domestic Social Policy Division
The Individuals with Disabilities Education Act (IDEA)1 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. On May
13, 2008, the Department of Education (ED) issued a notice of proposed rule making
(NPRM) regarding proposed amendments to the regulations promulgated under the
Individuals with Disabilities Education Act (IDEA).2 The areas covered by the proposed
regulations include (1) parental revocation of consent after consenting to the initial
provision of services; (2) a state’s or local educational agency’s (LEA’s) obligation to
make positive efforts to employ qualified individuals with disabilities; (3) representation
of parents by non-attorneys in due process hearings; (4) state monitoring, technical
assistance, and enforcement of the Part B program; and (5) the allocation of funds, under
Sections 611 and 619 of the act, to LEAs that are not serving any children with
disabilities. Comments must be received on the proposed regulations on or before July
28, 2008. This report will briefly discuss the issues raised by these proposed changes.3
20 U.S.C. §1400 et seq.
73 FED. REG. 27690 et seq. (May 13, 2008).
For a discussion of IDEA generally see CRS Report RS22590,The Individuals with Disabilities
Education Act (IDEA): Overview and Selected Issues, by Richard N. Apling, and Nancy Lee
Jones. For a discussion of the current 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.
Parental Revocation of Consent
IDEA currently contains statutory provisions requiring that parental consent be
obtained prior to providing special education or related services to a child with a
disability.4 However, the statute does not specifically address the issue of what
responsibilities the LEA has when a child has been receiving special education services
and a parent wishes to revoke consent for such services. Previously, ED had interpreted
the statute and regulations to prohibit the unilateral withdrawal of a child from special
education in most circumstances.5
The proposed changes to the regulations would reverse this interpretation to allow
parents to unilaterally withdraw their child from the receipt of special education services,
and would not allow a LEA to use mediation or due process procedures to override a
parent’s decision to refuse to consent to further services.6 Under the proposed regulations,
the LEA would not be considered in violation of the FAPE requirement if the child was
not provided with special education or related services because of the parent’s revocation
of consent. In addition, the proposed regulations would specifically provide that if the
parents revoke consent, the LEA is not required to amend the child’s records to remove
references to the child’s receipt of special education services. ED described the rationale
for these proposed changes as a continuation of the parents’ right to consent.
Just as, under section 614(a)(1)(D)(ii)(II), parents have the authority to consent to the
initial provision of special education and related services, we believe that parents also
should have the authority to revoke that consent, thereby ending the provision of
special education and related services to their child. This change is also consistent
with the IDEA’s emphasis on the role of parents in protecting their child’s rights and
the Department’s goal of enhancing parent involvement and choice in their child’s
The proposed regulations differ from the current regulations regarding consent to
initial services. Although the current regulations, like the proposed regulations, require
parental consent to services and prohibit the use of mediation and due process procedures
to force that consent, the current regulations on consent to initial services require a public
agency to make reasonable efforts to obtain informed consent from the parent.8 There is
no such requirement in the proposed regulations regarding revocation of consent.
20 U.S.C. §1414(a)(1)(D).
73 FED. REG. 27691 (May 13, 2008).
Proposed 34 C.F.R. §300.300, 73 FED. REG. 27699 (May 13, 2008).
34 C.F.R. §300.300(b)(2).
Employment of Qualified Individuals with Disabilities
The statutory language of IDEA abrogates state sovereign immunity and requires that
the Secretary of Education ensure that each recipient of assistance under IDEA make
positive efforts to employ, and advance in employment, qualified individuals with
disabilities.9 The proposed regulations would amend the regulatory section on sovereign
immunity to add a new section requiring that recipients of assistance under IDEA must
“make positive efforts to employ, and advance in employment, qualified individuals with
disabilities in programs assisted under Part B of IDEA.”10
Representation by Non-Attorneys in Due Process Hearings
One of the most controversial changes in the proposed regulations is the provision
relating to lay advocates. Currently, IDEA provides that any party to a hearing under Part
B of IDEA has “the right to be accompanied and advised by counsel and by individuals
with special knowledge or training with respect to the problems of children with
disabilities.”11 However, neither the act nor current regulations addresses the issue of
whether individuals with special knowledge, but who are not attorneys, may represent
parties at due process hearings. In a 1981 letter from Theodore Sky, Acting General
Counsel of the Department of Education, to the Honorable Frank B. Brouillet, the
Department had previously interpreted Section 615(h) of the act and implementing
regulations as allowing both attorneys and non-attorneys to perform the same functions
at due process hearings.12
In 2000, a decision by the Delaware Supreme Court in In the Matter of Arons,13 held
that a lay advocate who represented families of children with disabilities in due process
hearings had engaged in the unauthorized practice of law. A 2006 survey found that ten
states, like Delaware, prohibit lay advocates from representing parents, twelve states
permit lay advocates, twenty one states have no official policy, and eight states leave the
matter to the hearing officer.14 This survey also noted a shortage of “readily affordable
attorneys”to represent parents, and that the “availability of specialized lay advocates has
not been nearly sufficient to close the gap.”15 The issue regarding representation by lay
advocates had prompted attempts to add statutory language authorizing lay advocates
20 U.S.C. §§1403, 1405.
Proposed 34 C.F.R. §300.177, 73 FED. REG. 27699 (May 13, 2008). Part B of IDEA is the core
of the act, and provides for FAPE and procedural protections for preschool and school age
20 U.S.C. §1415(h).
73 FED. REG. 27692 (May 13, 2008).
756 A.2d 867 (Sup.Ct. Del. 2000); cert. denied, 532 U.S. 1065 (2001).
Perry A. Zirkel,”Lay Advocates and Parent Experts under the IDEA,” 217 ED. LAW REP. 19
(May 3, 2007). The jurisdictions surveyed include the District of Columbia.
during the last IDEA reauthorization (culminating in P.L. 108-446), but language in the
House bill (H.R. 1350, 108th Cong.) was deleted in conference.16
The proposed regulations would change the previous interpretation by ED which
allowed the use of lay advocates at due process hearings. The proposal would allow the
right to be accompanied and advised by counsel and by individuals with special
knowledge or training with respect to the problems of children with disabilities, but would
add an exception stating that “whether parents have the right to be represented by nonattorneys at due process hearings is determined under State law.”17 The Department stated
that this proposed change is consistent with ED’s general view regarding state flexibility
where IDEA is silent. In addition, ED noted that this change would not prevent parents
from representing themselves regarding their own IDEA claims as allowed under
Winkelman v. Parma City School District.18 School officials and parents’ groups have
both predicted activity in the states if the proposed rule becomes final.19 The issue may
come up at the federal level again when Congress begins the reauthorization process for
State Monitoring, Technical Assistance, and Enforcement
Section 616 of IDEA21 provides for federal and state monitoring and enforcement of
state implementation of Part B of IDEA. The proposed regulations would “clarify that a
State must annually review and make determinations concerning the performance of each
LEA in the State....”22 The specific enforcement mechanisms that a state must use are also
Section 616(b)(2)(C)(ii)(I) of IDEA requires a state to report annually to the public
on the performance of each LEA and to make the state’s performance plan available
through public means, including posting on the website of the state educational agency.24
However, IDEA does not specify when the state must provide this report. The proposed
H.Rept. 108-779, at 218, note 227. The use of lay advocates was made more problematic by
the Supreme Court’s decision in Arlington Central School District v. Murphy, 548 U.S. 291
(2006),which held that IDEA does not authorize prevailing parents to recover fees they have paid
Proposed 34 C.F.R. §300.512, 73 FED. REG. 27699 (May 13, 2008).
550 U.S. __, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007). For a discussion of this case and other
IDEA Supreme Court decisions see CRS Report RL33444, The Individuals with Disabilities
Education Act (IDEA): Supreme Court Decisions, by Nancy Lee Jones.
Mark W. Sherman, “State Battles Foreseen Over Non-Attorney Representation,” 41
EDUCATION DAILY 5 (May 20, 2008).
Legal Watch, “Non-Attorney Rule Prompts Strong Reactions on Both Sides,” 41 EDUCATION
DAILY 5 (May 20, 2008).
20 U.S.C. §1416.
73 FED. REG. 27693 (May 13, 2008).
Proposed 34 C.F.R. §300.600, 73 FED. REG. 27699 (May 13, 2008).
20 U.S.C. §1416(b)(2)(C)(ii)(I).
regulations would require this public report “no later than 60 days following the State’s
submission of its annual performance report to the Secretary....”25 In addition, although
IDEA requires the posting of the state’s performance plan, it does not specify whether
other materials, such as the annual report on each LEA must also be made available. The
proposed regulations would require the state’s performance plan, the state’s annual
performance report (APR), and the state’s annual reports on the performance of each LEA
to be made available through public means.26
Section 616(e)(7) of IDEA requires states that have received a determination from
the Secretary that the state needs intervention to make such information available to the
public. However, the statute does not specify when this information is to be made
available. The proposed regulations would “clarify the circumstances under which public
notice is required”27 by requiring public notice “whenever a State receives notice that the
Secretary is proposing to take or is taking an enforcement action....”28
The Allocation of Funds to LEAs That Are Not
Serving Any Children with Disabilities29
IDEA currently contains statutory provisions requiring states to distribute IDEA Part
B funds not reserved for state activities to local education agencies (LEAs), including
public charter schools that operate as LEAs.30 States first allocate a base amount to each
LEA based on its FY1999 grant amount. Then, 85% of the remainder is allocated based
on public and private school enrollment within the LEA compared to all such enrollment
in the state and 15% of the remainder is based on the number of children living in poverty
compared to the number in all LEAs.
The Department of Education’s (ED) Office of Inspector General (OIG) found that
neither that statute nor the IDEA regulations addresses whether a state is required to
allocate funds to a charter school in its first year of operation if the school has no students
with disabilities enrolled.31 The proposed regulations would clarify that states are
required to allocate some funds to LEAs, including public charter schools that operate as
Proposed 34 C.F.R. §300.602(b)(1)(A), 73 FED. REG. 27699 (May 13, 2008).
Proposed 34 C.F.R. §300.602(b)(1)(B), 73 FED. REG. 27699 (May 13, 2008).
73 FED. REG. 27694 (May 13, 2008).
Proposed 34 C.F.R. §300.606, 73 FED. REG. 27700 (May 13, 2008).
This discussion concerns IDEA Section 611, which pertains mainly to the education of school
aged children. The proposed regulations contain similar provisions relating to Section 619,
which pertains to the education of preschool children.
20 U.S.C. §1416 (f)(1). In addition, states must comply with the general requirements on
allocating funds to charter schools in subpart H of 34 CFR part 76.
Office of Inspector General, U.S. Department of Education, “Charter School’s Access to Title
I and IDEA Part B Funds in the State of Arizona.” Final Audit Report, ED_OIG/A09-D0033,
August 2004, p.17. Hereafter: cited as Office of Inspector General, Charter Schools.
LEAs, even if an LEA is not serving any children with disabilities.32 The proposed
regulations imply that such LEAs would receive a base grant of zero and some funds
based on enrollment and poverty. The rationale for this proposed rule is that allocating
funds to all LEAs “would ensure that LEAs have Part B funds available if they are needed
to conduct child find activities [i.e, identifying and evaluating children in need of special
education] or to serve children with disabilities who subsequently enroll or are identified
during the year.”33
The OIG also found that neither the statute nor the IDEA regulations addresses
whether a charter school LEA that received a base payment of zero in its first year of
operation because it was serving no children with disabilities and subsequently provided
special education to children with disabilities is entitled to a base payment in subsequent
years if it does enroll students with disabilities.34 The proposed regulations would require
that a base payment adjustment be made for these LEAs, including a public charter school
that operates as an LEA, for the fiscal year after the first annual child count in which the
LEA reports that it is serving any children with disabilities.35 The state would be required
to divide the base allocation for the LEAs that would have been responsible for serving
children with disabilities now being served by the new LEA, among the new LEA and
affected LEAs based on the relative numbers of children with disabilities currently
provided special education by each of the LEAs.36 Finally, the proposed regulations
would modify the procedures for the reallocation of LEA funds.37
This requirement would be effective with funds that become available on the first July 1
following the effective date of the regulations. Proposed 34 C.F.R. §300.705(a), 73 FED. REG.
27700 (May 13, 2008).
73 FED. REG. 27695 (May 13, 2008).
Office of Inspector General, Charter Schools, p. 17.
This requirement would be effective with funds that become available on the first July 1
following the effective date of the regulations. Proposed 34 C.F.R. §300.705(b(2)(iv), 73 FED.
REG. 27700 (May 13, 2008).
Proposed 34 C.F.R. §300.705(b)(2)(iv), 73 FED. REG. 27700 (May 13, 2008). This method
for making the base payment adjustment is the same as that required in current regulations (34
C.F.R. §300.705(b)(2)(i)) for any new LEA.
Proposed 34 C.F.R. §300.705(c), 73 FED. REG. 27700 (May 13, 2008).