e x a m in in g th e 2 0 0 4 a m e n d m e n ts to th e in d iv ......w h a t a d v o ca te s fo r s...

550 Clearinghouse REVIEW Journal of Poverty Law and Policy ! January–February 2006

Signed by Pres. George W. Bush in December 2004, the Individuals withDisabilities Education Improvement Act amended the permanently authorizedPart B of the Individuals with Disabilities Education Act (IDEA).1 TheIndividuals with Disabilities Education Improvement Act reauthorized the remain-ing Parts A, C, and D of the IDEA.2 Many changes reflect the intent of the Bushadministration and Congress to align the IDEA with the No Child Left Behind Act of2001.3 These changes are expected to help children achieve higher levels of learningby promoting accountability for results, by requiring use of proven practices andinstructional materials, and by giving greater flexibility to states and school districtsin exchange for more accountability. Other changes were intended to reduce a yet tobe defined “paperwork burden” on educators and to lessen conflict between parentsand school personnel.4 In this article I target the statutory changes and proposedregulations that, if implemented, represent opportunities for improving education-al achievement and outcomes for students with disabilities. Also flagged are the pro-visions that eliminate, alter, or otherwise compromise the rights of students withdisabilities to receive a full, free appropriate public education and that present spe-cial challenges for parents and advocates. Due to space constraints, I focus only onthose changes likely to affect the opportunities of students with disabilities from low-income families to attain a high-quality public education.5 Most of the 2004 amend-ments became effective on July 1, 2005.6

1Individuals with Disabilities Education Improvement Act, Pub. L. No. 108-448, 118 Stat. 2647 (2004) (codified at 20U.S.C. §§ 1400 et seq.).

2In addition to Part B (state grants for children 3 to 21 with disabilities), Title I of the Individuals with Disabilities EducationImprovement Act amends Part A (general provisions), Part C (state grants for eligible infants and toddlers), Part D (nation-al grants and programs).

3No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (codified at 20 U.S.C. §§ 6301 et seq. (2004).

420 U.S.C. § 1400 (c)(9)(2004).

5See generally CONGRESSIONAL RESEARCH SERVICES REPORT RL 32716, INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA): ANALYSISOF CHANGES MADE BY P.L. 108-446 (2005).

6The “highly qualified teacher” provisions, discussed in Part I.E, became effective upon enactment of the bill onDecember 3, 2004. See 20 U.S.C. §§ 1400 et seq. (2004), § 1412(a)(14)(C) (requiring special education teachers tobecome highly qualified by the 2005–2006 based on 20 U.S.C. § 6319(a)(2 ) (2002)).

Kathleen B. BoundyCodirector

Center for Law and Education1875 Connecticut Ave. NW, Suite 510Washington, DC [email protected]

Examining the 2004 Amendments to theIndividuals with Disabilities Education Act:What Advocates for Students and Parents

Need To Know By Kathleen B. Boundy

551Clearinghouse REVIEW Journal of Poverty Law and Policy ! January–February 2006

Examining the 2004 Amendments to the Individuals with Disabilities Education Act

I. Substantive Changes

The Individuals with Disabilities EducationImprovement Act reflects the recommen-dations of the President’s Commission onExcellence in Special Education that wascreated to recommend policies forimproving educational performance ofstudents with disabilities and to informthe reauthorization of the Act. TheCommission’s primary recommendationwas that the “IDEA ... be fundamentallyshifted to focus on results”—to changefrom a culture of compliance and processto a culture of outcomes.7 Summary find-ings discounted the accountability provi-sions of the IDEA, characterized students’individualized education programs (IEPs)as tools of litigation, and generally identi-fied procedural requirements as sources ofexcessive paperwork impeding the ability ofteachers to improve student outcomes orcontributing to adversarial relationshipsbetween parents and school personnel.8This same tension resonates through theAct, which, while aligning more closelywith the No Child Left Behind Act’s pro-visions raising expectations for learningand achievement, lessens many of therights and protections historicallybelonging to students with disabilitiesand their parents.

Congress added a new purpose and find-ings that implicitly and expressly connectthe IDEA with the No Child Left BehindAct (Title I of the Elementary andSecondary Education Act of 1965).9 Toprepare students with disabilities for“further education”—in addition to“employment, and independent living”—ismostly noteworthy by its prior absence.10New findings in the Individuals withDisabilities Education Improvement Actrecognize that students with disabilities

are more effectively educated when heldto “high expectations,” provided “accessto the ‘general education curriculum’ inthe regular classroom,” so they might “meetdevelopmental goals and, to the maximumextent possible, the challenging expectationsthat have been established for all chil-dren…,” and when the IDEA is coordinat-ed “with other local, educational serviceagency, State and Federal school improve-ment efforts, including improvement effortsunder the Elementary and SecondaryEducation Act of 1965….”11 The new find-ings acknowledge the importance of“intensive preservice preparation” andprofessional development to ensure thatall personnel have the skills and knowl-edge necessary “to improve the academicachievement and functional performance ofchildren with disabilities, including the useof scientifically-based instructional prac-tices, to the maximum extent possible….”12Furthermore, “scientifically based earlyreading programs, positive behavioralinterventions and supports, and earlyintervening services” are identified asstrategies for reducing the labeling ofchildren as “disabled” while addressinglearning and behavioral needs.13

These additions to the purpose and findingsof the IDEA underscore high expectationsfor students with disabilities who, as allother students, are now not only expectedbut also required to be instructed in theregular education curriculum consistentwith their respective states’ academic con-tent and achievement standards. Whatremains to be seen, however, is what impactthe Individuals with Disabilities EducationImprovement Act will have on improvingthe educational achievement of studentswith disabilities and ensuring that, in fact,no child is left behind.

7U.S. DEPARTMENT OF EDUCATION, OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES, A NEW ERA: REVITALIZING SPECIAL EDUCATIONFOR CHILDREN AND THEIR FAMILIES 12 (2002).

8Id. at 11–35.

920 U.S.C. §1400(c)–(d) (2004).

10Id. § 1400(d)(1)(A) (emphasis added).

11Id. § 1400(c)(5) (emphasis added).

12Id. § 1400(c)(5)(E) (emphasis added); see also id. § 6301(9)–(10)

13Id. § 1400(c)(5)(F); see also id. §§ 6301(9), 6368(6).



A. Funding Changes for States andSchool Districts

A number of changes in the funding pro-visions give the state more flexibility anddiscretion in its use and control ofmonies for special education (Part B forstudents aged 3–21) and for early inter-vention services (Part C for infants andtoddlers). For the first time theIndividuals with Disabilities EducationImprovement Act establishes a non-mandatory seven-year authorization planfor increasing appropriations until fullfunding is achieved.14 Thereafter the Actauthorizes “such sums” as may be neces-sary for succeeding fiscal years, thus pre-serving the permanent authorization ofPart B.15 As became evident in the 2005fiscal year, there is no guarantee that thefunds will be appropriated according toschedule.

Beginning in 2007, the Individuals withDisabilities Education Improvement Acteliminates any population-based fiscalincentive used to identify students withdisabilities—a practice that may havecontributed to certain students, especial-ly racial minorities, being erroneouslyclassified as having disabilities. Insteadthe maximum grant (full funding) will bebased on the number of children withdisabilities served in the state during the2004–2005 school year; the number willbe adjusted by the annual rate of changein the state’s population of children ofcomparable age to those provided a freeappropriate public education (85 percentof the adjustment) and of the state’s chil-dren living in poverty (15 percent of theadjustment) in the same age range.16

Another change limits the state from set-ting aside more than 10 percent of fundsunder the IDEA for nonadministrativeactivities at the state level.17 These fundsmust be used for monitoring, enforce-ment, and complaint investigation—pre-viously discretionary activities—and forimplementing the statutorily mandatedmediation process.18

The Individuals with Disabilities EducationImprovement Act expands the discre-tionary state-level activities for which statesmay spend their federal monies to includeactivities required to comply with the NoChild Left Behind Act. Those activitiesinclude, among others, developing validand reliable alternate assessments toensure full participation in state assess-ments, professional development to intro-duce teachers to scientifically basedresearch, and support and technicalassistance to align specialized instructionwith challenging academic content andachievement standards.19

A state may also set aside 10 percent offunds reserved for discretionary state-level activities to create a fund for localeducational agencies to cover the highcosts of providing “direct special educa-tion and related services.”20 An exampleof such high costs might be extensivemedical or health-related services notprovided by a licensed physician to cer-tain children with significant disabilitieswhose cost is greater than three times theaverage per-pupil expenditure.21 Stateschoosing to establish a “high-cost pool”must develop a state plan with the appli-cation and disbursement procedures.22

14In the 2007 fiscal year, full funding will be 40 percent of the national average per pupil expenditure times the numberof children who have disabilities and were served in the state in the 2004–2005 school year.

1520 U.S.C. § 1411(i)(8) (2004).

16Id. § 1411(a)(2)(A)–(B); 70 Fed. Reg. 35881–82 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.7).

1720 U.S.C. § 1411(e)( 2)(A)(i) (2004).

18Id. § 1411(e)(2)(B).

19Other activities are technical assistance for providing mental health services, behavioral interventions, classroom support, andtechnology to enhance learning; maximizing accessibility of students with disabilities in the regular education curriculum; usinguniversal design principles; transition programs and services for students pursuing postsecondary education. Id. § 1412(e)(2)(A).

20A public board of education recognized in a state as an administrative agency with responsibility for its public schoolsin a city, town, or school district is an example of a local educational agency.

2120 U.S.C. § 1411(e)(3)(D)(iii) (2004).

22Id. § 1411(e)(3)(C)(ii).



1. Special Education (Part B) Funds for Early Intervention (Part C) Services

The Individuals with Disabilities EducationImprovement Act affords states new flexi-bility to use Part B special educationfunds for eligible preschool-age childrenfrom 3 to 5 years old to fund instead earlyintervention services previously limitedto eligible infants and toddlers frombirth to 3 years old under Part C.23 Astate may elect to offer such option.24 Ifso, parents of children 3 to 5 years oldwho have disabilities and who are other-wise eligible for Part B preschool specialeducation services under an IEP mayelect to continue to receive Part C earlyintervention services until their childrenenter kindergarten.25 Such servicesinclude family training, nutrition servic-es, social work, and an educational com-ponent.26

A parent, with informed consent, maychoose to continue to receive early inter-vention services under Part C, on behalfof a child who is now 3 to 5 years old andeligible for special education services basedon an IEP under Part B.27 Once the parentdoes so, the state has no legal obligation toprovide that child with a free appropriatepublic education under Part B of theIDEA.28 Although early intervention serv-ices “shall include an educational compo-nent that promotes school readiness andincorporates preliteracy, language, andnumeracy skills,” these services are notnecessarily representative of the program-ming and services necessary to meet thestatutory requirements of a free appropri-ate public education.29 Nor are states

required to provide services “free and with-out cost to the parent” or that meet statestandards governing preschool educa-tion.30 While ostensibly offering parentsgreater choice, this change represents a lostopportunity for addressing the educationalneeds of the most vulnerable, preschool-age children who can be expected to enterkindergarten already disproportionatelybehind their nondisabled peers. If suchpolicy is adopted by a state, advocates needto make certain that families understandthat participation in the Part C programmeans rejection of their child’s right to afree appropriate public education in thepublic preschool program. To giveinformed consent, parents need to possesssufficient knowledge about early educationresearch, child development, the legalmandates of the state and the local educa-tional agency to provide a free appropriatepublic education, as well as any relevantstate or district assessment–based dataanalyzing the performance of childrenentering kindergarten.31 This statutorychange seems to counter the goals andintent of the No Child Left Behind Act.

2. Special Education (Part B) Funds for Non-Special-Education Students

For the first time, school districts may fun-nel money earmarked for special educationinto the general education classroom fornon-special-education purposes. Localeducational agencies are permitted and, incertain instances, required to use up to 15percent of their IDEA funds to “developand implement coordinated, early inter-vening services” that do not constitutespecial education.32 These services are

23Id. § 1411(e)(7).

24See id. §§ 1412(a)(1)(C), 1431–39.

25Id. § 1411(e)(7).

26Id. Services may also include service coordination, or case management for families receiving services under Part C.

27Id.

28Id. §§ 1412(a)(1)(C), 1435(c)(5).

29Id. § 1435(c)(1).

30Id. § 1401(9).

31Although the phrase is used in the IDEA, as amended, “informed consent” is not defined by either statute or proposedregulation. Presumably informed consent requires a heightened level of ‘consent” than is defined at 70 Fed. Reg. 35782,35837 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.9).

3220 U.S.C. §§ 1413(f)(1), 1413(j) (2004)



designed for children who are not inneed of special education or related serv-ices under the IDEA but who neverthe-less need additional academic andbehavioral support to succeed in a gener-al education environment. This moneymay be used to assist students (primarilyin grades K–3) who are not meeting theirgrade-level standards and who may be “atrisk” of being identified as having alearning disability and being in need ofspecial education.33 Early interveningservices cover professional developmentfor teachers and other school staff todeliver scientifically based academicinstruction and behavioral interven-tions, scientifically based literacyinstruction, software instruction, whereappropriate, and educational and behav-ioral evaluations, services, and supports,including literacy instruction.34 Suchfunds may also support coordinated,early intervening services aligned withactivities funded by the Elementary andSecondary Education Act as amended bythe No Child Left Behind Act, providedthat the funds are used to supplementand not supplant the Act’s funds.35

While intended to ameliorate the unnec-essary labeling of children—in particularracial minority students who are dispro-portionately represented as in need ofspecial education—as having disabilities,this new provision raises a number ofconcerns.36 First, the new provisionexplicitly authorizes school districts totake monies from a finite source of inad-equate special education funds to coverthe costs of educating students withoutidentified disabilities in the regular edu-cation curriculum. Second, special edu-cation funding but neither protection noraccountability under the IDEA is given tothose students who are from kinder-garten through grade 12 (with an empha-sis on kindergarten through grade 3, butnot a mandate) and are identified as

requiring additional academic andbehavioral supports to succeed in a gen-eral education environment.

This new flexibility must not be used todeny eligible students who have disabili-ties and need specialized instruction andrelated services to achieve standards setfor all and to stay in school.37 Neither thestatutory provision nor the proposed reg-ulations contain any time frame for howlong a local educational agency may per-mit a child, for example, one with anundiagnosed specific learning disability,to fail, to fall further behind grade-levelstandards, to be nonresponsive to “earlyintervention services,” before referringthe child for a special education evaluation.Congress underscored in the statute thatnothing related to the establishment of anearly intervening program should be con-strued to limit or create a right to a freeappropriate public education.38 However,the U.S. Department of Education’s pro-posed regulations suggest nothing to ensurethat the local educational agency will giveserious consideration to these concerns.

Advocates for students from low-incomefamilies, in particular, need to ensurethat older students receiving early inter-vention services and parents know oftheir right to request an evaluation underthe IDEA and to receive specializedinstruction in the general education cur-riculum even if they are making suffi-cient progress to move from grade tograde. Arguably the parent of every childwho receives early intervening serviceswith Part B funds should be given noticeof rights, including the right to requestan evaluation for eligibility, under theamended IDEA.

3. Disproportionate Representationof Minorities as Trigger for EarlyIntervention Services

New statutory language requires anyschool district with a significant racial or

33Id. § 1413(f)(1).

34Id. § 1413(f)(2).

35Id. § 1413(f)(5).

36Id. §§ 1412(a)(24), 1418(d).

37See generally id. §§ 1415(k)(5), 1412(a)(1)(A).

38Id. § 1413(f)(3).



ethnic disproportionality of children with aparticular disability or in a particular edu-cation setting to reserve 15 percent of fundsfor early intervening services to providecomprehensive, coordinated instructionalsupport services targeted, in particular, tochildren in those racial or ethnic groups.

Furthermore, each local educationalagency with a program of early interven-ing services must annually report to thestate educational agency the number ofstudents served, and the number servedwho receive special education within twoyears of being served by the early inter-vening services program. Racial and lan-guage minorities and students from low-income families are disproportionatelysubject to suspension, expulsion, higherrates of dropping out of school, andincreasingly, given the implications ofthe No Child Left Behind Act, failure onstatewide and districtwide assessments.Their advocates should examine data dis-aggregated by population group to makecertain that particular students are notbeing removed, including during sus-pension or expulsion, under the guise ofconcern about their overidentification ordisproportionate representation amongthose students receiving specializedinstruction, from their “protected” statusas students who have disabilities underIEPs and are entitled to a free appropri-ate public education.

4. Local Maintenance-of-EffortRequirement Exception

Section 613 of the Individuals withDisabilities Education Improvement Actsignificantly changes the local mainte-nance-of-effort requirement.39 This pro-

vision creates an exception to the mainte-nance-of-effort requirement, which, ingeneral, prevents state and local spend-ing on special education from beingreduced from year to year. Previously alocal educational agency was allowed totreat up to 20 percent of any annualincrease in its IDEA grant as local fundson a noncumulative annual basis.40 Thenew law contains no such limitation.41 Inessence, notwithstanding the supplanti-ng and maintenance-of-effort provi-sions, the local educational agency may,in order to “reduce the level of expendi-ture” for special education, use up to 50percent of the increase in its IDEAgrant.42 Moreover, the new law dictatesthat the local educational agency must uselocal funds equal to the reduction inexpenditures to carry out activitiesauthorized by the No Child Left BehindAct.43 Such activities include early inter-vening services for students who are expe-riencing academic and behavioral needsand are not identified as having a disabili-ty and in need of special education.44

B. Eligibility, Evaluations, and Reevaluations

With the 2004 amendments to the IDEA,Congress extended the “child find”requirement to cover children who havedisabilities and are either homeless orwards of the state.45 Also included are“highly mobile” students, such as migrantchildren, and children who are suspected ofhaving a disability and being in need of spe-cial education, “even though they areadvancing from grade to grade.”46 Statesmust identify, locate, and evaluate suchchildren to determine whether such chil-

39Id. § 1413(a) (2)(C).

40Id. § 1413(a)(2)(C) (1997).

4166 Fed. Reg. 1475 (Jan. 8, 2001).

4220 U.S.C § 1413(a)(2)(C)(i) (2004) (“The Conferees intend that in any fiscal year in which the [local educational agency]or [state educational agency] reduces expenditures pursuant to section 613(j), the reduced level of effort shall be consid-ered the new base for purposes of determining the required level of fiscal effort for the succeeding year.” H.R. Rep. No.108-779, at 197 (2004).

43See 70 Fed. Reg. 35782, 35858 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.205); id. at 35860 (to becodified at 34 C.F.R. § 300.226), revealing the intersection between early intervening services and maintenance of effort.

44Id. at 35858 (to be codified at 34 C.F.R. § 300.205).

4520 U.S.C. § 1412(a)(3)(A) (2004).

46Id. § 1412(a)(3)(A); 70 Fed. Reg. 35782, 35843 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.111(a)(1)(i),(b));id. (to be codified at 34 C.F.R. § 300.111(c)(1)–(2)).



dren, including “wards of the state,” needindividualized specialized instruction andrelated services.47 Local educationalagencies must now cooperate with ongo-ing efforts of the Education Departmentsecretary to link electronically the healthand education records of migratory chil-dren with disabilities.48

1. “Child Find” RequirementsThe “child find” requirements continueto encourage equitable participation inspecial education services of childrenwho are enrolled in private schools bytheir parents and for whom a free appro-priate public education is not an issue.However, as a result of a change in thestatute, children who have disabilitiesand are eligible for these services nowinclude all those who attend privateschools, including religious schools,located within the school district served bythe local educational agency, even if thestudent resides in another school dis-trict.49 The local educational agencymust report to the state educationalagency the number of children who areplaced by their parents in private schoolsand for whom a free appropriate publiceducation is not at issue, the number ofthese children evaluated, the numberfound eligible for special education, andthe number currently receiving specialeducation and related services. As underprior law, these students have no individ-ual right to special education and relatedservices.50 Rather, equitable specialeducation services, with a new emphasison direct special education services thatare “secular, neutral, and nonideologi-cal” shall be provided to students byemployees of the local educational agencyor through contract by the agency, con-

sistent with proportionate funding. Theagency determines how these serviceswill be apportioned after a “timely andmeaningful consultation” with privateschool representatives and the parents ofchildren who have disabilities and areenrolled in private schools during thedevelopment of special education andrelated services for the children.51 If theagency and the private school officialsdisagree, the agency must explain inwriting its choice not to provide services.A private school official also has a right tocomplain in writing to the state educa-tional agency about the local agency’sfailure to engage in meaningful, timelyconsultation or to give due considerationto the views of the private school commu-nity. An appeal may also be filed with theU.S. secretary of education.52

2. EvaluationsA parent of a child, a state educationalagency, another state agency, or a localeducation agency may request an evalua-tion to determine if a particular childqualifies as a “child with a disability”under the IDEA.53 The new law requiresthis evaluation to take place within sixtydays of receiving parental consent unlessthe state establishes its own timeframe.54 When a federal standard isestablished, here sixty days, and is moreprotective than a state law, the federal lawshould be applied.55 However, the pro-posed regulations offer no guidance onthe time frame. Without regulatory guid-ance, the time frame for completing eval-uations will continue to vary by state andin some instances be longer than sixtydays. The time frame for completingreevaluations is also left to state law, forthe IDEA, as amended, is silent.

4720 U.S.C. § 1412(a)(3)(A) (2004).

48Id. § 1413(a)(9); id. § 6398(b)(2).

49Id. § 1412(a)(10)(A)(ii)(II).

50Id. § 1412(a)(10)(A); 70 Fed. Reg. 35782, 35846 (proposed June 21, 2005) (to be codified at 34 C.F.R § 300.137).

5120 U.S.C. § 1412(a)(10)(A)(iii) (2004).

52Id. § 1412(a)(10)(A)(v).

53Id. § 1414(a)(1)(B).

54Id. § 1414(a)(1)(C)(i)(I).

5570 Fed. Reg. 35782, 35862 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.301(c)(1)(i)).



5620 U.S.C. § 1414(a)(1)(C)(ii)(I) (2004).

57Id. § 1414(a)(1)(C)(ii)(II).

58Id. § 1414(a)(1)(E).

59Id. § 1414(b)(2).

60Id. § 1414(b)(3)(A)(ii), 70 Fed. Reg. 35782, 35862 (proposed June 21, 2005) (to be codified at 34 C.F.R § 300.304(c)(iii)); cf.34 C.F.R. § 300.532(a)–(b).

61The Elementary and Secondary Education Act, 20 U.S.C. § 6368(3), as amended by the No Child Left Behind Act,defines the essential components of reading instruction to be phonemic awareness; phonics, vocabulary development,reading fluency, including oral reading skills, and reading comprehension strategies.

62Id. § 1414(b)(5)(A).

The federal law creates two exceptions tothe sixty-day time frame for completing astudent’s initial evaluation. If, after eval-uation begins, the child enrolls in aschool served by a different local educa-tion agency, that agency is not bound tothe previously initiated evaluation time-line, provided that the agency where thechild is enrolled “is making sufficientprogress to ensure a prompt completionof the evaluation.”56 A local educationalagency is also relieved of responsibilityfor meeting the timeline if the child’sparent repeatedly fails or refuses to pro-duce the child for the evaluation.57Advocates should be prepared to arguethat before a parent may be alleged tohave failed or refused to produce thechild for an initial evaluation, the localeducational agency must have initiatedmultiple, documented attempts to engagethe parent and identify obstacles tobringing the child to the evaluation site.Advocates for parents should argue thatthe local educational agency may not bepassive; the agency must make multiple,meaningful efforts to connect with theparent, to address the parent’s fears orconcerns, to ensure that the parent hasample opportunity to become informedabout the evaluation so that the parent’sdecision on consent to the child evalua-tion is, in fact, an informed one.

An added “rule of construction” furtherclarifies that a teacher’s or specialist’sscreening of a student for appropriateinstructional strategies for curriculumimplementation does not qualify as anevaluation for eligibility for special edu-cation and related services.58 Screeningsdo not require consent.

Determinations of eligibility under the2004 amendments continue to be based

on evaluations that rely on a variety ofassessments, multiple measures, andtechnical standards of validity and relia-bility.59 Nonetheless, there were a fewmodest but important additions. Forexample, assessments must be “providedand administered in the language andform most likely to yield accurate infor-mation on what the child knows and cando academically, developmentally, andfunctionally, unless it is not feasible to soprovide or administer.”60 Students withdisabilities should now be assessed notonly in their native language or othermode of communication but also throughthe use of alternate assessments, such asportfolios or performance assessments ifdoing so will yield more accurate infor-mation of the student’s academic per-formance or achievement.

3. Eligibility As before, a student may not be found eli-gible for special education based oneither

! lack of appropriate reading instruction61or

! lack of instruction in math or limitedEnglish proficiency.62

A change in the eligibility requirementsfor students with “specific learning dis-abilities” should help ensure that all chil-dren, especially low-income and minori-ty children, who disproportionately scorelow on standardized aptitude assess-ments are equally likely to be identifiedas having a specific learning disability.The amended statute states that a localeducational agency shall no longer “berequired to take into considerationwhether a child has a severe discrepancybetween achievement and intellectual



ability in oral expression, listening com-prehension, written expression, basicreading skill, reading comprehension,mathematical calculation, or mathemati-cal reasoning.”63 A proposed regulationfurther authorizes states to prohibit localeducational agencies from using the severediscrepancy model.64 It requires states toadopt criteria that such agencies must usefor determining whether a child has a“specific learning disability.”65 Suchagencies must “use a process that deter-mines if the child responds to scientific,research-based intervention as a part of theevaluation procedures…” for determiningif a student has a specific learning disabil-ity.66 The “criteria adopted by the State”must also “permit the use of other alterna-tive research-based procedures for deter-mining whether a child has a specificlearning disability….”67

Eligible students with specific learning dis-abilities do not achieve commensuratelywith their age in one of eight specified aca-demic areas after they are given age-appro-priate learning experiences.68 There is evi-dence that the student fails to makesufficient progress in meeting stateapproved results in one or more of the eightidentified areas “when assessed with aresponse to scientific, research-basedintervention process; or [ ] … exhibits apattern of strengths and weaknesses in per-formance, achievement, or both, or a pat-tern of strengths and weaknesses in per-formance, achievement, relative tointellectual development….”69

Under the proposed regulations, eitherbefore or as part of the referral processfor evaluating a child “suspected of hav-

ing a specific learning disability,” a groupof educators must confirm that the childhas been provided with

! appropriate high-quality, research-based instruction by qualified person-nel in regular education settings70 and

! “repeated assessments of achievementat reasonable intervals” reflecting stu-dent progress during instruction.71

That group includes a special educationteacher, the child’s general educator or ageneral education teacher qualified toteach the child, and other professionals,if appropriate.72

While eligibility criteria and the referralprocess have been changed to ensuregreater fairness and accuracy in identifyingeligible students with specific learning dis-abilities, advocates must be wary of obsta-cles to eligibility likely to impede students,particularly low-income, disproportionate-ly racial- and ethnic-minority students whoare most likely to attend low-performingschools without appropriate high-quality,research-based instruction from qualifiedpersonnel. However, students should not beidentified as having disabilities based ontheir not having received effective teachingand instruction. A finding of specific learn-ing disability should not be delayed becausea school cannot provide research-basedinstruction from qualified teachers.

The proposed regulations offer minimalprotection to students who might other-wise be determined to have a specificlearning disability but for an inability torule out that they have not yet receivedappropriate high-quality, research-based

63Id.§ 1414(b)(6)(A).

6470 Fed. Reg. 35782, 35864 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.307(a)(1)).

65Id. at 35864 (to be codified at 34 C.F.R. § 300.307(a)–(b)).

6620 U.S.C. § 1414(b)(6)(B).

6770 Fed. Reg. 35782, 35864 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.307(a)(4)).

68Id. at 35864 (to be codified at 34 C.F.R. § 300.309(a)).

69Id. (to be codified at 34 C.F.R. § 300.309(a)(2)(i)–(ii)).

70Id. (to be codified at 34 C.F.R. § 300.309(b)(1)).

71Id. (to be codified at 34 C.F.R. § 300.309(b)(2)).

72Id. (to be codified at 34 C.F.R. § 300.308(b)).



instruction in regular education settings,including instruction delivered by qualifiedpersonnel. Moreover, there is no guaranteethat these individual students will receivesuch instructional services under Title I orunder state law. Nor is there a time framefor how long a student who receives“research-based intervention” strategiesmust fail to improve significantly before shecan be referred for evaluation for a specificlearning disability. The regulations do notrecognize biologically based learning dis-abilities of children whose certain disablingconditions suggest that their learning needsbe immediately addressed.

4. Reevaluations and Summary of Performance

Grounds for reevaluation have been modi-fied somewhat to reflect the outcome focusof the 2004 law. Reevaluations may be con-ducted if the local educational agency deter-mines that the “educational or related serv-ices needs, including improved academicachievement and functional performance,of the child warrant a reevaluation” or uponthe request of the child’s parents orteacher.73 Such a reevaluation shall occur atmost once a year unless the agency and par-ents agree otherwise.74 As before, a reeval-uation must be conducted at least onceevery three years but may be waived if theagency and parents agree that it is unnec-essary.75 If an IEP team with other quali-fied professionals decides that no addi-tional data are needed to determine astudent’s eligibility and educationalneeds, there is no duty to conduct such anassessment unless a parent requests it.76In this instance, however, the IEP teammust notify the parent of its decision, thereasons for its decision, and the right ofthe parents to have such an assessmentconducted. At least for students who havedisabilities and are experiencing diffi-culty in closing the achievement gap,

there seems little justification for notreevaluating their disability-related edu-cational and noneducational needs thatmight be relevant to their instruction andIEP.

The Individuals with Disabilities EducationImprovement Act creates two explicitexceptions to the prior legal requirementthat an agency responsible for providing afree appropriate public education to a stu-dent must complete an evaluation or reeval-uation of the student before terminatingthe student’s eligibility for a free appro-priate public education.77 Neither is theagency required to complete an evaluationwhen the student graduates from second-ary school with a regular high schooldiploma, nor is an evaluation requiredwhen the student exceeds the age of eligi-bility for a free appropriate public educa-tion under state law.78 Instead the localeducational agency must provide studentsin both instances with a summary of theiracademic achievement and functionalperformance with recommendations forassisting them in meeting their postsec-ondary goals.79 Especially useful for stu-dents who have disabilities and fail tograduate with a high school diploma, thissummary should be a record of the compe-tencies and levels of proficiency they haveattained.

5. Informed Parental ConsentThe Individuals with Disabilities EducationImprovement Act changes the parentalconsent provisions somewhat and lowersthe standard for obtaining consent forwards of the state. As under prior law, alocal educational agency responsible for afree appropriate public education mustobtain written informed consent from thechild’s parents before it conducts an ini-tial evaluation and before it begins spe-cialized instruction and related services

7320 U.S.C. § 1414(a)(2)(A)(i), (ii) (2004).

74Id. § 1414(a)(2)(B)(i).

75Id. § 1414(a)(2)(B)(ii).

76Id. § 1414(c)(4).

77Id. § 1414(c)(5)(A).

78Id. § 1414(c)(5)(B)(i).

79Id. § 1414(c)(5)(B)(ii).



based on the evaluation.80 The agency nolonger has the option of providing initialservices by using mediation and dueprocess if the parent of such child “refus-es to consent to services” based on thisinitial evaluation. This avenue is express-ly foreclosed by the Individuals withDisabilities Education ImprovementAct.81 Lack of parental consent to be ini-tially provided with or to receive specialeducation and related services—either byrefusing to consent to receive such serv-ices or by failing to respond to a requestto consent—effectively relieves theagency of its obligation to provide thechild with a free appropriate public edu-cation or an IEP.82

However, explicit language in the pro-posed regulations affirms that only whena parent refuses to consent or fails torespond to a request to consent to the“initial provision of special education andrelated services” will the local education-al agency not be considered in violationof its obligation to provide a free appro-priate public education.83 And only insuch circumstances will the agency berequired to convene an IEP meeting ordevelop an IEP.84 The proposed regula-tions clarify that districts do not need toseek parental consent every time a partic-ular service is provided to an eligiblechild.85 Hence, once a child actuallyreceives specialized instruction, a par-ent’s denial of consent to certain servicesor refusal to respond to a request for con-sent does not remove the local education-al agency’s or the state educationalagency’s duty to provide a free appropri-ate public education.86

The proposed regulations, like the cur-rent regulation, permit states to requireparental consent for other services andactivities, provided that a parent’s refusalto consent to any such service cannotresult in a refusal to provide the child witha free appropriate public education.87Furthermore, a public agency may not usea parent’s refusal to consent to one serviceor activity to deny the parent or child anyother service, benefit, or activity of thepublic agency.88 This means that if a par-ent and school disagree about the servic-es in a child’s IEP, the local educationalagency must provide those on which theparties agree.

A curious change in the law establishes alower standard for obtaining informedconsent for students who are “wards ofthe state” and who have not been identi-fied as eligible for special education serv-ices. Why such a ward whose parent can-not be located or whose parent’s rightshave been terminated is not assigned asurrogate parent to represent the ward’seducational needs and interests, includ-ing giving informed consent to an initialevaluation and perhaps subsequently tothe initial provision of special educationand related services, is not clear.89Children who are “wards of the state” aredisproportionately poor, disproportion-ately members of racial- and ethnic-minority groups, and disproportionatelyindividuals with disabilities. Given thenew law’s focus on mitigating the overi-dentification of poor, minority studentsas in need of special education, the justi-fication for weakening the “parentalinformed consent” is disturbing.

80Id. §§ 1414(a)(1)(D)(i)(I), 1414(a)(1)(D)(i)(II).

81Id. § 1414(a)(1)(D)(ii)(II); 70 Fed. Reg. 35782, 35864 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.300(b)(2)).

8220 U.S.C. § 1414(a)(1)(D)(ii)(III) (2004).

8370 Fed. Reg. 35782, 35862 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.300(b)(1)–(3)).

84Id. at 35862 (to be codified at 34 C.F.R. § 300.300(b)(3)).

85Id. (to be codified at 34 C.F.R. § 300.300).

8620 U.S.C. § 1414(c)(3) (2004); 70 Fed. Reg. 35782, 35862 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.300).

8770 Fed. Reg. at 35862 (to be codified at 34 C.F.R. § 300.300(d)(2)).

88Id. (to be codified at 34 C.F.R. § 300.300(d)(3)).

8920 U.S.C § 1414(a)(1)(D)(iii)(II) (2004).



C. Individualized EducationPrograms and Content

The 2004 amendments changed some ofthe previously required elements of a stu-dent’s IEP in part to align the delivery ofacademic programming, instruction, andservices more closely with the No ChildLeft Behind Act and in part to simplify thelaw and to reduce the so-called paper-work burden. On balance the provisionseliminated from the IDEA by the 2004amendments undermine school and dis-trict accountability contrary to the NoChild Left Behind Act and to the statedintent to align the IDEA with the No ChildLeft Behind Act. For example, therequirements for measuring and report-ing on a student’s educational progressare somewhat weakened. A new require-ment that each student’s IEP provide spe-cialized instruction based on “peer-reviewed research” raises questions.Also, the provisions on accommodationsfor assessments and transition servicesare modified.

The IDEA, as amended, requires the IEPto identify a child’s “present levels of aca-demic achievement and functional perform-ance,” including “how the child’s disabil-ity affects the child’s involvement andprogress in the general education cur-riculum….”90 Although used more thantwo dozen times throughout the 2004 law,the term “functional” is not defined.Whereas the IEPs of all students eligibleunder the IDEA were previously requiredto include “benchmarks or short-termobjectives,” they are now required onlyfor students who take alternate assess-ments aligned with alternate achieve-ment standards.91 Instead of “bench-

marks or short-term objectives,” eachstudent’s IEP now must include “aca-demic and functional goals” in its “state-ment of measurable annual goals.”92 Theacademic and functional goals areexpected to address the student’s disabil-ity-related needs so that the student canbe involved in and make progress in thegeneral education curriculum.93 A newprovision requires IEPs to describe howand when the student’s progress towardmeeting the annual goals will be meas-ured and reported.94 However, a keyaccountability requirement that parentsbe informed if their child’s progress “issufficient to enable the child to achievethe goals by the end of the year” is delet-ed from the IDEA.95 Previously when astudent failed to meet a “benchmark orshort-term objective,” the parent wouldhave been informed if the lack ofprogress affected the student’s meetingannual goals and triggered additional oralternative instructional intervention.

Congress targeted “short-term objec-tives” and “benchmarks” for eliminationbecause they were identified with the“paperwork burden” on teachers andadministrators.96 This diminishedrequirement marks a lost opportunity foraligning the IDEA with the No Child LeftBehind Act. However, parents may stillmatch academic and functional goals withhighly specific instructional objectivesand interim timetables describing whatthe child needs to learn, how, and whenthe student’s progress toward meetingthe limited goals will be measured.Moreover, a highly prescriptive regula-tion implementing Title I or the No ChildLeft Behind Act requires schools and dis-tricts to report to parents in detail about

90Id. § 1414(d)(1)(A)(i)(I) (emphasis added).

91Id. § 1414(d)(1)(A)(i)(I)(cc). These students consist of approximately 1 percent of all students assessed or about 9 per-cent of students who have disabilities and who, because of the severity of their cognitive disabilities, cannot makeprogress toward the standards expected to be met by all students on the required grade-level state or district assessmentseven with accommodations. See 34 C.F.R. § 200.6(a)(B) (2005).

9220 U.S.C. § 1414(d)(1)(A)(i)(II) (2004).

93Id. § 1414(d)(1)(A)(i)(II)(aa).

94Id. § 1414(d)(1)(A)(i)(III).

95Id. § 1414(d)(1)(A)(viii)(II)(bb) (1997).

96U.S. DEPARTMENT OF EDUCATION, supra note 7; 20 U.S.C. § 1400(c)(9) (2004).



their individual child’s performance onthe mandated state assessments in whichall children, including those with disabil-ities, participate.97 This assessmentreport may be used to make IEPs moreproactive and responsive to students’needs.

Another significant 2004 amendmentrequires each student’s IEP to providespecialized instruction “based on peer-reviewed research to the extent practica-ble.”98 This new requirement mirrorsmultiple No Child Left Behind Act provi-sions requiring use of effective methodsand instructional strategies grounded in“scientifically based research,” which isdefined to include “acceptance by a peer-reviewed journal or approved by a panelof independent experts through a compa-rably rigorous, objective, and scientificreview.”99 The IDEA reference to “peer-reviewed research to the extent practica-ble” instead of the more comprehensive-ly defined “scientifically based research”may suggest a lack of special educationprograms that can meet the higher stan-dard. Intended to improve the quality ofspecialized instruction and supportiveservices for students with disabilities,this provision reminds advocates toexamine “state of the art” knowledge andresearch especially when representing achild whose IEP team proposes that thechild participate in an alternate stateassessment based on “modified” or alter-nate standards instead of the standardsset for all students.100

According to a new provision in theIndividuals with Disabilities Education

Improvement Act, all students with disabil-ities must participate in all state and dis-trictwide assessment programs, includingthose specifically prescribed by the NoChild Left Behind Act. All IEPs must identi-fy “any individual appropriate accommoda-tions that are necessary to measure the academic achievement and functional per-formance of the child on State and dis-trictwide assessments,” including thoseunder the No Child Left Behind Act.101Students who have disabilities and cannotparticipate in regular assessments withappropriate accommodations must asneeded, and consistent with their IEPs,participate in an alternate assessment.102State guidelines require alternate assess-ments to be aligned with the state’s chal-lenging academic content standards andchallenging achievement standards.103The Individuals with Disabilities EducationImprovement Act clarifies that the state, aspermitted under the Title I regulations forstudents with the most significant cognitivedisabilities, may adopt an alternate assess-ment that measures alternate academicachievement standards.104 Even so, thestudents’ achievement must be measuredagainst those standards established forall.105

If an IEP team determines that a studentwill take an alternate assessment, the IEPmust now explain why the student cannotparticipate in the regular assessmentand, perhaps more significant, why theselected alternate assessment, that is,based on regular or alternate standards,is appropriate.106 Another amendmentrequires the state (and the local educa-tional agency for districtwide assess-

9734 C.F.R. § 200.8 (2005).

9820 U.S.C. § 1414(d)(1)(A)(i)(IV) (2004).

99See id. § 6368(6) (2002).

100Id. § 1414(d)(91)(A)(i).

101Id. §§ 1414(d)(1)(A)(i)(VI)(aa), 1412(a)(16)(A).

102 Id. § 1412(a)(16)(A). Alternate assessments were mandated to be developed by 2000 by the 1997 amendments tothe IDEA.

103Id. § 1412(a)(16)(C)(ii).

10434 C.F.R. § 200.1(d) (2005).

10520 U.S.C. § 1412(a)(16) (2004); 70 Fed. Reg. 35782, 35851 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.160(c)(2)(i)).

10620 U.S.C. § 1414(d)(1)(A)(i)(VI)(bb) (2004).



ments) to disaggregate and report thenumber of children who have disabilitiesand take the regular statewide assess-ments with and without accommoda-tions, the number participating in alter-nate assessments based on regularstandards, and the number participatingbased on alternate standards.107

The Individuals with Disabilities EducationImprovement Act truncated requirementsconcerning transition services. Under theAct, a student’s first IEP in effect after turn-ing 16 must now include “appropriatemeasurable post-secondary goals basedupon age appropriate transition assess-ments related to training, education,employment, and, where appropriate,independent living skills….” 108 The IEP isno longer required to spell out the student’s“transition service needs” as part of a two-phase planning process beginning at age 14.However, the proposed regulations clarifythat students or their parents may requestthat transition planning goals and servicesbegin even earlier than 14, particularlywhen prerequisite course selections may bemost relevant to subsequent courses ofstudy (e.g., vocational education or advancestudy).109

A new “rule of construction” states thatIEP provisions shall not be construed torequire additional information in a stu-dent’s IEP beyond what is explicitlyrequired by the Act.110 Nor is the IEPteam required to include informationunder one component of a student’s IEPthat is already contained under anoth-er.111 In all likelihood these provisionsare to reduce the “paperwork burden” oneducators and administrators.112 This

provision should have no legal effect on arecipient state that chooses to have itsown more extensive IEP requirements orother requirements that afford studentswith additional or more specific substan-tive or procedural protection.

D. IEP Process

The IEP process has been changed in anumber of ways, some quite minor andothers very significant.

The basic composition of the IEP teamremains the same, namely, the parents, atleast one regular education teacher of thechild, one special education teacher, arepresentative of the local educationalagency, an individual who can interpretevaluations, and the child when appro-priate. However, under the Individualswith Disabilities Education ImprovementAct, an IEP team member may not have toattend an IEP meeting in two situa-tions.113 First, if an IEP team member’sarea of the curriculum or related servicesis not being modified or discussed andthe parent and the local educationalagency agree that the member’s atten-dance is not necessary, the member maybe excused.114 Second, a team membermay be excused, even if the member’sarea of the curriculum or related servicesis being modified or discussed, if theparent and agency consent to the excusal,and the member submits, in writing tothe parent and the IEP team, input intothe development of the IEP prior to themeeting.115 Parental agreement and con-sent, respectively, to either of these situ-ations must be in writing.116 Advocatesshould require that such written agree-ment be reached before the meeting.

107Id. § 1412(a)(16)(D).

108Id. § 1414(d)(1)(A)(i)(VIII)(aa).

10970 Fed. Reg. 35782, 35865 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.320(b)(2)).

11020 U.S.C. § 1414(d)(1)(A)(ii)(I) (2004).

111Id. § 1414(d)(1)(A)(ii)(II).

112Id. § 1400(c)(9).

113Id. § 1414(d)(1)(C).

114Id. § 1414(d)(1)(C)(i).

115Id. § 1414(d)(1)(C)(ii).

116Id. § 1414(d)(1)(C)(iii).



Another change allows for alternatemeans of participation, such as videoconferencing or conference calls, in theIEP meeting if the parent and local edu-cational agency agree.117 While this kindof flexibility seems reasonable, otherprovisions allowing excusal of IEP teammembers from attendance and the con-solidation of reevaluation and IEP meet-ings raise concerns.118 Taken together,these provisions may stifle the sharing ofideas and a parent’s opportunity to edu-cate the school staff about the child’s par-ticular educational and other needs.Parents may find themselves pressured toagree to limit attendance and participa-tion and meeting alternatives. Thus theiradvocates, working in conjunction withparent training information centers,community resource centers, and otherstate and local disability organizations,should prepare parents to be unapolo-getic about expecting that all members ofthe team meet, at least once per year,face-to-face, to share information and todiscuss insights, knowledge, and obser-vations about each child whose educationis at stake.

The Individuals with Disabilities EducationImprovement Act incorporates a number ofchanges in the IEP development processthat, if implemented in good faith, shouldhelp mitigate the nuisance factor in thelogistics of completing a final document.After the child’s annual IEP meeting, theparent and the local educational agencymay agree to modify the IEP further with-out reconvening a full meeting but ratherthrough a written amendment to the doc-ument.119 Whether the parent or otherIEP team member proposes an amend-ment, the local educational agency mustgive the parent prior written notice of the

change.120 Although the proposed regu-lations are silent on this, the notice mustspecify the proposed IEP amendment towhich both parties must agree in writing.Such notice must inform parents thatupon request they have a right to receive awritten copy of the revised IEP incorpo-rating the amendments.121 As evidenceof “good faith” and collaboration, thelocal educational agency ought to supplyparents routinely with a revised IEPincorporating any “agreed upon” amend-ments. Advocates should seek this out-come in negotiations with their state edu-cation agencies.

Sometimes students with IEPs transferbetween school districts and betweenstates. The Individuals with DisabilitiesEducation Improvement Act should helpsmooth the transition. When transferredto a different school district, the new dis-trict’s local educational agency, in con-sultation with the child’s parents, mustprovisionally accord the child with a freeappropriate public education, includingservices comparable to the child’s previ-ous IEP.122 If the new district is in thesame state as the child’s previous school,services must continue until the new dis-trict adopts the previous school’s IEP ordevelops and adopts a new IEP.123 If thenew district is in a different state, it shallprovide the child with comparable serv-ices to those delivered under the child’sprior IEP until the local educationalagency evaluates the child for eligibility ifnecessary and develops a new IEP ifappropriate.124 In either situation thenew local educational agency mustpromptly obtain and transfer the child’seducation records, including prior IEPs,evaluations and supporting documents,and other relevant records, and the prior

117Id. § 1414(f).

118Id. § 1414(d)(3)(E).

119Id. §§ 1414(d)(3)(D), (F).

12020 U.S.C. § 1415(b)(3)(A).

121Id. § 1414(d)(3)(F).

122Id. § 1414(d)(2)(C)(i).

123Id. § 1414(d)(2)(C)(i)(I).

124Id. § 1414(d)(2)(C)(i)(II); see id. § 1414(a)(1).



school is obligated to comply promptlywith such requests.125 The proposed reg-ulation offers no greater specificity.

The children’s placement in a privateschool by their parents continues to raisequestions. When a student with a disabil-ity is placed in a private school by a localeducational agency or a state educationalagency for purposes of receiving a freeappropriate public education, the publicagency bears the cost of the placement. Aparent seeking a free appropriate publiceducation for her child may unilaterallyplace the child in a private school andseek reimbursement for such costs, butwhether the parent is reimbursed by thelocal educational agency, or the state edu-cational agency, depends upon the find-ings of the administrative hearing officeror the court. The Individuals withDisabilities Education Improvement Act,as prior law, states that any reimbursementmay be reduced or denied if the parentfails to give required notice to the publicagency.126 However, the Individuals withDisabilities Education Improvement Actfurther narrows the exception to thisnotice requirement by limiting the hear-ing officer or a court’s use of discretion toinstances when compliance would resultin “serious emotional harm to the child”or if the parent is illiterate or unable towrite in English.127

E. Highly Qualified SpecialEducation Teachers

Of special significance in educating stu-dents with disabilities to the same stan-

dards set for all other students is that theIndividuals with Disabilities EducationImprovement Act does not amend thedefinition of “highly qualified” in the NoChild Left Behind Act.128 The definitionapplies to special education teachers of“core academic subjects.”129 Such spe-cial education teachers must meet thesame No Child Left Behind Act require-ments for either new middle school andhigh school teachers or veteran teach-ers.130 This means that these specialeducation teachers must be certified inspecial education.131 Also, such specialeducation teachers must have a degree inand be able to demonstrate a high level ofcompetency in the discipline that they areteaching.132 However, the No Child LeftBehind Act requirements are significant-ly modified for special education teacherswho are instructors in two or more coreacademic subjects exclusively for stu-dents with disabilities.133 And the NoChild Left Behind Act requirements aremodified for those special educatorsteaching one or more core academic sub-jects to students with the most severecognitive disabilities.134 For example,those teaching students with the mostsignificant cognitive disabilities abovethe elementary school level may meet thedefinition of “highly qualified” bydemonstrating “subject matter knowl-edge appropriate to the level of instruc-tion being provided, as determined bythe State, needed to effectively teach tothose [alternate achievement] stan-dards.”135

125Id. § 1414(d)(2)(C)(ii).

126Id. § 1412(a)(10)(C)(iii).

127Id. §1412(a) (10)(C)(iv).

12820 U.S.C. § 7801(23).

129Id. § 7801(11). The term means English, reading or language arts, mathematics, science, foreign languages, civics andgovernment, economics, art, history, and geography.

130Id. §1401(10)(A); 70 Fed. Reg. 35782, 35837–38 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.18(a)).

13120 U.S.C. § 1401(10)(B) (2004).

132Id. § 7801(23)(B)(ii), (C).

133Id. § 1401(10)(D)(i)–(iii).

134Id. § 1401(10)(D), (C); 70 Fed. Reg. 35782, 35837–38 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.18(d),(c)).

13520 U.S.C. § 1401(10)(C); 70 Fed. Reg. 35782, 35838 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.18(c)(2)).



A special education teacher who is notgiving instruction in one of the core aca-demic subjects and meets the generaldegree and certification requirements forall special education teachers is “highlyqualified” for purposes of complying withthe amended IDEA and with the No ChildLeft Behind Act.136 Such a special educa-tor may be a resource room teacher, ateacher providing consultative services toregular education teachers, or a teacherworking with students with disabilities toaddress, for example, students’ social,emotional, behavioral, and functionalskills. Based on the 2004 amendments,all special education teachers are nowrequired at a minimum to be certified orlicensed and have at least a bachelor’sdegree. 137 None may hold an emergencyor temporary certificate and meet thedefinition of “highly qualified.”138

II. Procedural Safeguards

In a number of ways the Individuals withDisabilities Education Improvement Actamended Section 615, which requires anystate educational agency, other stateagency or local educational agency receiv-ing funds under the IDEA to establish andmaintain procedures to ensure that all eli-gible children and their parents are guar-anteed procedural safeguards with respectto the provision of a free appropriate pub-lic education.139

A. Rights of Children and Parents

As before, a parent of a child with a dis-ability is guaranteed the opportunity toexamine the child’s education records, to

participate in meetings with respect tothe child’s identification, evaluation, andplacement and provision of a free appro-priate public education, and to obtain anindependent educational evaluation.140The proposed regulations no longerexpressly require states and local educa-tional agencies to make and to documentreasonable efforts, such as arranging forinterpreters for parents who have hearingimpairments or who do not speakEnglish, to ensure that parents canunderstand and participate in those pro-ceedings.141 In comments accompanyingthe proposed regulations, the EducationDepartment explains that the prior regu-latory language is unnecessary becausethe right to meaningful participation,including the ability to understand whatis being said, is inherent in the right toparticipate.142

Under the Individuals with DisabilitiesEducation Improvement Act, the statemust for the first time assign a surrogateparent within an explicit time frame. Notmore than thirty days after a child isdetermined by the local educationalagency or other public agency to be inneed of a surrogate, the state must makereasonable efforts to make an assign-ment.143 The same provision identifiesthe need for a surrogate to be appointedfor a ward of the state but recognizes thata judge overseeing the child’s care mayalso appoint the surrogate.144 Consistentwith earlier regulations, the surrogatemay not be an employee of the state or thelocal educational agency or any otheragency involved in the education or careof the child.145 The proposed regulations

13620 U.S.C. § 1401(10)(F); 70 Fed. Reg. 35782, 35838 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.18(b)(1)–(3)).

13720 U.S.C. § 1401(10)(B) (2004).

138Id. § 1401(10)(B)(ii).

139Id. § 1415 (a)–(m).

140Id. § 1415(b)(1).

141See 70 Fed. Reg. 35782, 35868 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.501(c)).

142Id. at 35807, citing 20 U.S.C. § 1415(b)(1).

14320 U.S.C. § 1415(b)(2)(B) (2004).

144Id. § 1415(b)(2)(A)(i); but see id. § 1414(a)(1)(D)(iii)(cc), suggesting that informed parental consent need not be soughtfor a ward of the state.

145Id. § 1415(b)(2)(A).



require that the surrogate parent have noother personal or professional conflict withthe interests of the child and must have theskills and knowledge to assure accurate rep-resentation of those interests.146

Specific procedures also require the localeducational agency to appoint a surrogateparent for an unaccompanied homelessminor as defined by the McKinney-VentoHomeless Assistance Act.147 Proposedregulations, however, delete an arguablyimportant safeguard for children in fostercare. The earlier definition of “parent” waslimited to those foster parents who had an“ongoing, long-term parental relationshipwith the child.” The Individuals withDisabilities Education Improvement Actdeletes this limitation. Thus, many a childwho is in foster care and moves frequentlymay be deprived of adequate representa-tion that would otherwise be availablethrough the appointment of a trainedsurrogate parent with responsibility forthe child.

1. Procedural Safeguards NoticeIn its quest to reduce paperwork,Congress altered the mechanisms for par-ents receiving notice of the proceduralsafeguards available to them. Schools arenow required to supply parents a copy ofthe procedural safeguards only once ayear, except that a copy must also be givenupon initial referral or request for evalu-ation, upon the first filing of a complaint,and at the request of a parent.148 Such acopy may be posted on the local educa-tional agency’s website if one exists.149However, placement of the proceduralsafeguards’ notice on a website alone maynot be construed to satisfy the local edu-

cational agency’s requirement to “give” acopy of the safeguards to parents.

The notice must fully explain all the avail-able procedural safeguards.150 New com-ponents in the notice include informationabout the opportunity to present andresolve complaints through a new thirty-day resolution session; the time period forfiling a complaint that triggers the right toan administrative due process hearing; theavailability of mediation; the right to file acivil action; and information regardingattorney fee reimbursement.151

2. Due Process Complaint NoticeThe IDEA , as amended, clarifies thateither the parent or the public agencymay file a complaint requesting a dueprocess hearing regarding any matterconcerning identification, evaluation,educational placement, or the provisionof a free appropriate public education to achild.152 Either party (or its attorney)seeking a due process hearing on theircomplaint must give “due process com-plaint notice” to the other party and “for-ward a copy of such notice” to the stateeducation agency.153 The complaint shallbe confidential.154

The “due process complaint notice” mustinclude the child’s name, address (or othercontact information), school attended,and a brief description of the nature of theproblem with relevant facts; a proposedresolution; and an allegation that a “viola-tion” occurred within the applicable two-year statute of limitations.155 The stateeducational agency must “develop amodel form to assist parents in filing acomplaint and due process complaintnotice” to comply with the above require-

14670 Fed. Reg. 35782, 35874 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.519).

14720 U.S.C. § 1415(b)(2)(A)(ii) (2004), citing 42 U.S.C. § 11434a(6).

148Id. § 1415(d)(1)(A).

149Id. § 1415(d)(1)(B).

15070 Fed. Reg. 35782, 35869–70 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.504(c)).

15120 U.S.C. § 1415(d)(2) (2004).

152Id. § 1415(b)(6)(A); 70 Fed. Reg. 35782, 35870 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.507).

15320 U.S.C. § 1415(b)(7)(A)(i) (2004).

154Id. § 1415(b)(7)(A); 70 Fed. Reg. 35782, 35870 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.508(a)).

15520 U.S.C. §§ 1415(b)(7)(A)(ii), 1415(b)(6) (2004).



ments.156 As interpreted by theEducation Department, the “due processcomplaint” seeking a due process hearingand the “notice complaint” are the samedocument.157

The due process complaint notice is pre-sumed sufficient unless the receivingparty notifies the hearing officer andcomplainant in writing within fifteendays of receiving the complaint that theparty does not believe that the noticemeets the requirements.158 In thatinstance, the impartial hearing officermust determine sufficiency within fivedays and immediately notify both partiesin writing of that determination.159 Thiscan amount to a twenty-day delay even ifthe complaint is found to be sufficient.

If the local educational agency receiving thisdue process complaint notice has notalready sent the required written noticeregarding the subject matter of the com-plaint to the parent, within ten days theagency must send the parent a response thatincludes what should have been in thenotice.160 Such response must explain whythe agency proposed or refused to take theaction raised in the complaint, what otheroptions the IEP team considered, and whythose options were rejected.161 However,even when the agency responds to a parent’scomplaint by sending “prior writtennotice,” the agency is not precluded fromchallenging the parent’s due process com-plaint notice on sufficiency grounds.162Alternatively a noncomplaining party that

has given prior written notice or for whomthat requirement is not relevant to the mat-ter at issue shall, within ten days of receiv-ing the complaint, send to the other party awritten response that addresses the issuesraised in the complaint.163

Furthermore, issues not raised in the origi-nal due process complaint notice may notbe raised at a hearing without the otherparty’s consent. A due process complaintnotice may be amended but only with theconsent of the other party or if the hearingofficer grants permission no later than fivedays prior to the scheduled hearing.164 If aparty successfully files an amended com-plaint, the timeline for the hearing recom-mences at that point.165

3. New Statute of LimitationsThe Individuals with Disabilities EducationImprovement Act establishes for the firsttime a statute of limitations requiring theparent or public agency presenting a com-plaint to allege any violation of the IDEAwithin two years of when the parent or pub-lic agency knew or should have known aboutthe alleged action forming the basis of thecomplaint.166 Three exceptions are given.

First, the two-year statutory period may beabrogated by a state statute of limitationsfor “presenting such a complaint.”167Neither the IDEA, as amended, nor theproposed regulations, however, protectparents if the state statute of limitations ismore restrictive.168 If the EducationDepartment does not resolve this matter

156Id. § 1415(b)(8).

15770 Fed. Reg. 35782, 35870 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.508).

15820 U.S.C. §§ 1415(c)(2)(A), (c)(2)(C) (2004).

159Id. § 1415(c)(2)(D).

160Id. § 1415(c)(2)(B)(i).

161The local educational agency must also describe (1) each evaluation procedure, assessment, or report that the agencyused as a basis of the proposed or refused action and (2) the factors applied in the agency’s decision. Id. § 1415(c)(2)(B)(i).

162Id. §1415(c)(2)(B)(i)(II).

163Id. §1415(c)(2)(B)(ii).

164Id. §1415(c)(2)(E).

165Id. §1415(c)(2)(E)(ii).

166Id. § 1415(b)(6)(B).

167Id.

168See id.; 70 Fed. Reg. 35782, 35870 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.507(a)(2)).



in a final regulation, advocates shouldconsider challenging any state statute thatis less protective than the specific two-year federally mandated time frame and,in particular, where the state statute oflimitation is not specific to state specialeducation law but derived from state tortor other cause of action.

Second, the two-year federal statute oflimitations does not apply if the localeducational agency or other public agencyresponsible for a free appropriate publiceducation makes affirmative misrepre-sentations to the parents that it hasresolved the problem forming the basis ofthe complaint, or the local educationalagency or other agency has withheld,from the parent, information required tobe disclosed.169 To avoid the manipula-tion of the due process notice complaintand the resolution session (e.g., throughmisuse and abuse of the sufficiencyprocess and mediation), the EducationDepartment needs to establish that thestatute of limitations for purposes of adue process complaint and a request for adue process hearing are tolled with thefiling of the complaint notice.

Third, the amended statute provides for aninety-day statute of limitations for theappeal (when a state has a two-tieradministrative hearing system) or for fil-ing a civil action in court.170 Once again,if the state has an explicit statute of limi-tations governing these types of actions,state law governs.

4. Complaint ResolutionAs before, voluntary mediation conduct-ed by a qualified impartial mediator maybe used for alternative dispute resolu-tion.171 The proposed regulations clarifythat mediation is available to resolve anydispute, including matters arising before

a party files a due process complaintnotice requesting a hearing. TheIndividuals with Disabilities EducationImprovement Act underscores thatmediation is to be voluntary. While publicagencies may establish procedures toencourage parents’ use of mediation,including meeting with disinterestedparties, such as the state-based ParentTraining Information Center, whosemembers can explain the process, suchmeetings may no longer be required.172

A new provision of the statute explicitlyrequires that any resolution that arises outof mediation must be executed through alegally binding written document, signed byboth parties and stating that all discussionsoccurring during mediation are confiden-tial and may not be used as evidence in anysubsequent due process hearing or othercivil proceeding.173 Presumably for such adocument to be legally binding, the termsmust reflect agreement by the parties,honor the rights of the child as third-partybeneficiary, and must not be uncon-scionable.174

Marking a significant change in the dueprocess system, the Individuals withDisabilities Education Improvement Actadds an intermediary step to the com-plaint process: it requires the local edu-cational agency to convene a “resolutionmeeting” among the parents, “relevant”members of the IEP team, and an agencyrepresentative with authority to commiton behalf of the district within fifteendays of receiving the parents’ due processcomplaint notice seeking an impartialhearing.175 The resolution session mustbe convened unless the parents and theschool district agree in writing to waive itor agree to use mediation.176

At this resolution meeting, the local edu-

16920 U.S.C. § 1415(b)(6)(B) (2004).

170Id. § 1415(i)(2)(B).

171Id. § 1415(e)(2)(A).

172Id. § 1415(e)(2)(B).

173Id. § 1415(e)(2)(F).

174Advocates should note that the proposed regulations eliminate the prior safeguard allowing both parties input in theselection of a mediator when a mediator is not selected on a random or rotational basis from a list of qualified persons.

17520 U.S.C. § 1415(f)(1)(B)(i) (2004).

176Id. § 1415(f)(1)(B)(i)(IV).



cational agency may not have an attorneypresent unless parents are accompaniedby counsel.177 Such a meeting offers par-ents a final and, in some cases, a firstopportunity to sit down with schoolauthorities who may have been unre-sponsive and an opportunity to gatherinformation about the school’s position.Similarly the school district may obtaininformation from the parent that may notbe in the parent’s interest to disclose.

If the meeting resolves the complaint, theIndividuals with Disabilities EducationImprovement Act requires the schooldistrict and the parents to execute a“legally binding agreement” enforceablein federal or state court. Either party mayvoid the agreement within three businessdays of its execution. The legality andfairness of this process are highly ques-tionable. For an agreement to be legallybinding and enforceable by a court ofcompetent jurisdiction, the agreementmust reflect a meeting of the minds with-in the parameters of the law—since par-ents cannot give their children’s rightsaway—and the agreement must not be“unconscionable.” Three business days ishardly adequate for a parent to obtain andmeet with counsel and for counsel toreview the child’s records.

The proposed regulations refer to a “ res-olution period” of thirty days. andexpressly state that only after this thirty-day period expires does the forty-five-day timeline for an administrative dueprocess hearing decision commence.178

Of particular concern is that this newprocess may result in substantial delay. Alocal educational agency has fifteen daysto challenge the “sufficiency” of the par-ent’s notice of due process complaint,

and the state hearing officer has five daysto determine the “sufficiency” of thecomplaint. If the thirty-day resolutionsession is not successful, fifty days willpass before a due process hearing mayeven begin.179

5. Impartial Hearing Officer Decisions

The Individuals with Disabilities EducationImprovement Act sets stricter statutorystandards regarding who may be allowed toact as an impartial hearing officer at anadministrative due process hearing. Thestatute incorporates from prior regulationsrequirements that an impartial hearingofficer may not have any personal or profes-sional conflict of interest that would com-promise the officer’s impartiality in theproceedings.180 The Individuals withDisabilities Education Improvement Actalso states that an impartial hearing officermust know and be able to understand thelaw, conduct hearings, and render and writedecisions in accordance with appropriate,standard legal practice.181

In rather troubling, limiting languageCongress amended the IDEA to requirethat a hearing officer’s decision shall bemade on “substantive grounds” based on adetermination of whether child received afree appropriate public education, not onprocedural grounds.182 The statuteexplicitly identifies limited exceptionswhen an impartial hearing officer maydecide a case based upon “procedural”grounds: the procedural inadequaciesmust have impeded the child’s right to afree appropriate public education, signifi-cantly impeded the parents’ opportunityto participate in decision making, orcaused a deprivation of educational ben-efits.183 The new law is careful to recog-nize that this requirement is not meant to

177Id. § 1415(f)(1)(B)(i)(III).

178Id. § 1415(f)(B)(ii); 70 Fed. Reg. 35782, 35871 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.510(b)(2)).

179Under prior law, a party had a right to complain and a right to an administrative due process hearing before an impar-tial hearing officer who was required to issue a decision within forty-five days of the filing of the complaint. Although theforty-five-day timeline was rarely met, what should be of some concern is that the new time frame for commencing ahearing is at least fifty days later.

18020 U.S.C. § 1415(f)(3)(A)(i)(II) (2004).

181Id. §§ 1415(f)(3)(A)(ii)–(iv).

182Id. § 1415(f)(3)(E).

183Id. § 1415(f)(3)(E)(ii).



preclude an impartial hearing officerfrom ordering a local educational agencyto comply with the procedural safeguardsof 20 U.S.C. § 1415, nor is it meant to limitor otherwise affect the right of parents tofile a state-level complaint with the stateeducational agency.184

Most procedural rights under the IDEAare linked to the delivery of a free appro-priate public education. Parents andadvocates must be prepared to demon-strate that the violation at issue is beyondde minimis and impedes the child’s rightto a free appropriate public education,the parents’ right to participate in deci-sion making, or the child’s right to edu-cational benefits. Furthermore, parentsare expressly authorized by statute tocomplain about “any matter relating to theidentification, evaluation, or educationalplacement of the child, or the provision ofa free appropriate public education tosuch child,” and thus the broad right tocomplain about “any matter” is not limit-ed strictly to nonprocedural matters con-cerning the substantive provision of afree appropriate public education.185Rules of statutory construction requirethat the provisions be read to be consis-tent to the extent possible. Section615(b)(6) provides for the more specificlanguage governing a parent’s filing of adue process complaint, and thus the sec-tion presumably controls. To the extentthat a parent is barred by this new provi-sion from raising a matter concerning therange of issues identified by Section615(b)(6), “futility” is a recognizedexception to the requirement of Section615(i)(2) that parties exhaust theiradministrative remedies before filing a

judicial action.

Attorney fees may now be awarded to aprevailing local educational agency orstate educational agency against the par-ents’ attorney if the action was “frivolous,unreasonable, or without foundation” orif the attorney continued litigating after it“clearly became frivolous, unreasonable,or without foundation.”186 Attorney feesmay also be awarded to the local educa-tional agency or state educational agencyagainst either the parents themselves ortheir attorney if the complaint or cause ofaction was presented for an improperpurpose, such as to harass, cause unnec-essary delay, or needlessly increase thecost of litigation.187 Such fees may besought for any action or proceeding,including administrative and districtcourt hearings, brought under the proce-dural safeguards section of the IDEA (20U.S.C. § 1415).188 Results of the manda-tory resolution session—if resolution isreached—are exempt from the fee-shift-ing provision.189

B. Discipline Procedures and SchoolAuthority to Remove Students

The Individuals with Disabilities EducationImprovement Act continues to allow schoolauthorities to suspend a student with a dis-ability for up to ten school days (if nondis-abled students who violate the “code of stu-dent conduct” are similarly treated) withoutdetermining whether the alleged misbe-havior is a manifestation of the student’sdisability.190 The proposed regulationscontinue to limit this exclusion to ten con-secutive school days in the same schoolyear.191 A student may similarly beremoved for a series of suspensions of each

184Id. §§ 1415(f)(3)(E)(iii), (f)(3)(F).

185Id. § 1415(b)(6)(A) (emphasis added).

186Id. § 1415(i)(3)(B)(ii).

187Id. § 1415(i)(3)(B)(iii).

188Id. §1415(i)(3)(B)(i); 70 Fed. Reg. 35782, 35873 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.516(a)(1)).Furthermore, 70 Fed. Reg. 35782, 35873 (to be codified at 34 C.F.R. § 300.517(c)(2)(C)(ii)) implicitly bolsters this point bynoting that fees may not be awarded relating to an individualized education program (IEP) team meeting “unless themeeting is convened as a result of an administrative proceeding or judicial action….”

18920 U.S.C. § 1415(i)(3)(D)(iii) (2004).

190Id. § 1415(k)(1)(B). Note that, as established by Goss v. Lopez, 419 U.S. 565 (1975), all students have a right to writ-ten notice of what behavior or activity is considered a violation of the “student code of conduct” and a due process hear-ing before any exclusionary discipline is imposed.

19170 Fed. Reg. 35782, 35875 (proposed June 21, 2005) (to be codified at 34 C.F.R. § 300.530(b)(1)).



less than ten school days for separate inci-dents in the same school year, provided,however, that these removals do not consti-tute a “pattern” of exclusion requiring themto be considered as a single continuousexclusion, thereby giving rise to rights andprotection provisions under the Individualswith Disabilities Education ImprovementAct.192 When a “pattern” exists, no studentwith a disability may be removed for morethan ten cumulative school days from thestudent’s current educational placementwithout a manifestation determination.193

1. Removals and “Change in Placement”

A school district may propose a suspen-sion of more than ten consecutive schooldays in a school year, a suspension thatinc

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