Individuals With Disabilities Education Improvement Act of 2004 (IDEIA) from Encyclopedia of Special Education: A Reference for the Education of Children, Adolescents, and Adults with Disabilities and Other Exceptional Individuals The Individuals with Disabilities Education Act (IDEA), formerly known as the Education for All Handicapped Children Act of 1975 (EHA; PL 94-142), and most recently amended in 2004 by the Individuals with Disabilities Education Improvement Act (IDEIA; PL 108-446), represents a more than 30year national commitment, beginning with EHA, to children with disabilities. IDEA, a federal statute, is the main special education law in the United States, and when initially enacted in 1975, it represented the most sweeping statement this nation has ever made regarding the rights of children with disabilities (Haring, McCormick, & Haring,). The purpose of the law, as most recently articulated by the IDEA, is: (1)(A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; (B) to ensure that the rights of children with disabilities and parents of such children are protected; and (C) to assist States, localities, educational service agencies and Federal agencies to provide for the education of all children with disabilities; (2) to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families; (3) to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting system improvement activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services; and, (4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities. (20 U.S.C. § 1400[d]; Sec. 601[d]) Historical Background Early legislation and case law, spanning over a 20-year period, foreshadowed the enactment of the initial version of the law, EHA, in 1975 (Jacob-Timm & Hartshorne,). Three landmark court cases, Brown v. Board of Education of Topeka (1954), Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (PARC; 1971, 1972), and Mills v. Board of Education (1972), marked a turning point in the education of children with disabilities and provided the impetus for the development and enactment of federal legislation assuring a free appropriate public education for children with disabilities. Prior to the Brown case, many school districts throughout the nation were operated under the “separate but equal” policy (i.e., segregated classrooms based on race) that were in actuality not equal. Many minorities (African Americans, in the case of Brown) were excluded from an equal educational opportunity in public schools. This practice, according to the Brown ruling, was in violation of the “equal protection clause” of the 14th Amendment to the U.S. Constitution. Education, which is considered to be a property right, is protected under the equal protection clause, and in the Brown ruling, the property right of African Americans to an education at the public expense was violated by the school district’s racially discriminatory policies (Jacob-Timm & Hartshorne,). Following the Brown ruling and other successful court challenges to racial discrimination in the public schools, parents of children with disabilities began to file lawsuits on behalf of their children, alleging that the children’s right to an education at the public expense was being violated under the equal protection clause. Prior to the 1970s, many schools denied children with disabilities access to a public education based on school district policies, which required a child to meet certain admission standards (e.g., possession of a certain level of adaptive living and cognitive skills). In PARC, parents of children with Mental Retardation brought suit against Pennsylvania because their children were denied access to a public education. In a consent decree, the parents of the children with Mental Retardation won access to the public schools for their children. Similarly, in Mills, the parents of children with behavioral, emotional, and learning problems brought suit on behalf of their children against the District of Columbia for denial of access to a public education. In a consent decree followed by a court order, the court ruled that the schools were required to provide each child with a disability a free and publicsupported education, regardless of the degree of severity or nature of the child’s disability (Jacob-Timm & Hartshorne,). In response to the successful resolution of the PARC and Mills cases, 36 additional “right-to-education” cases were filed in 27 different jurisdictions by parents on behalf of their children with disabilities (Martin,). These cases served as a signal to the U.S. Congress that federal legislation was needed to ensure a full educational opportunity to all children with disabilities (Jacob-Timm & Hartshorne,). In addition to case law, early attempts were made by the U.S. Congress to address the needs of children with disabilities. Funds were made available through various education laws and amendments to develop or improve special education resources, programs, services, and personnel. Beginning as early as the 1960s with the passage of PL 87-276, Congress authorized support for the training of teachers to work with the deaf and for speech pathologists and audiologists to work with individuals with speech and hearing impairments (Abramson,; Reynolds & Fletcher-Janzen,). In 1965, the Elementary and Secondary Education Act (ESEA; PL 8910), one of the first major federal programs to aid education, was enacted. One year later, Congress amended the ESEA (PL 89-750) and, with these amendments, grants were provided to states to assist in the development and improvement of programs to educate children with disabilities (Jacob-Timm & Hartshorne,). Students with disabilities were also assisted when the 1968 Amendments to the Vocational Education Act (PL 90-576) were passed. With these amendments, funds were made available for students with disabilities in vocational education programs (Abramson,; Reynolds & Fletcher-Janzen,). The needs of young children with disabilities were addressed with the establishment of model programs under the Handicapped Children’s Early Education Assistance Act (PL 90-538) in 1968 (Abramson,; Reynolds & Fletcher-Janzen,). In 1970, Congress repealed and replaced the 1966 amendments to the ESEA (PL 89-750; Jacob-Timm & Hartshorne,). Public Law 99-230, which replaced PL 89-750, established a grant program similar to PL 89-750 to encourage states to develop special education resources and personnel (Turnbull,). Federal government assistance to states for special education increased with the passage of the Education Amendments of 1974 (PL 93-380). This act also put schools on notice that federal funding for special education purposes would be contingent on the development of a state plan with the goal of providing children with disabilities a full educational opportunity (Jacob-Timm & Hartshorne,). Congress also attempted to address the needs of children with disabilities through antidiscrimination legislation (Martin,). An amendment to Title VI of the Civil Rights Act of 1964 was one of the first pieces of legislation that attempted to ensure equal educational opportunities for children with disabilities. Nine years later, this amendment became part of Section 504 of the Rehabilitation Act of 1973. Section 504 is a civil rights act that prohibits discrimination against children with disabilities in schools receiving federal funds. Federal funds are not available to schools not in compliance with the act (Jacob-Timm & Hartshorne,). Through enactment of antidiscrimination legislation and education laws, passage of amendments to existing education laws, and litigation, the stage was set for the introduction of a comprehensive federal statute that would reaffirm and strengthen the educational rights of children with disabilities and increase the federal government’s financial commitment to children with disabilities (Abramson,; Reynolds & Fletcher-Janzen,). The Education for All Handicapped Children Act was originally introduced as a Senate bill in 1972. After 3 years of extensive hearings, the U.S. Congress passed the bill in 1975 and President Gerald Ford signed the bill into law on November 29, 1975. EHA was amended in 1978 (PL 98733), 1983 (PL 98-199), twice in 1986 (PL 99-457 and PL 99-372), in 1988 (PL 100-630), and 1990 (PL 101476; Jacob-Timm & Hartshorne,). In 1990, President George H. W. Bush signed PL 104-476 into law. The 1990 Amendments changed the EHA’s name to the Individuals with Disabilities Education Act. The law was significantly amended and reauthorized in 1997 (PL 105-17) and signed into law by President Bill Clinton. The 1997 act restructured the IDEA into four parts: Part A, General Provisions; Part B, Assistance for Education of All Children with Disabilities; Part C, Infants and Toddlers with Disabilities; and Part D, National Activities to Improve Education of Children with Disabilities (PL 105-17). In 2002, Congress passed the cornerstone of President George W. Bush’s education reform package, the controversial No Child Left Behind Act (NCLB; PL 107-110), which made significant changes to the ESEA. The intent behind the NCLB is to improve education by increasing teacher and school accountability, primarily through increased testing of all students’ reading and math skills and requirements that schools demonstrate “adequate yearly progress” in their students’ proficiency. Students in special education programs are not exempt from the NCLB’s requirement that schools demonstrate adequate yearly progress. States and school districts are allowed to use alternate assessment standards in determining whether certain students meet proficiency requirements, but only for a maximum of 1% of their students, regardless of the number of students who might have serious learning disabilities or otherwise be considered children with disabilities under the IDEA. The NCLB also imposes teacher education requirements, promotes the use of evidence-based educational interventions, and provides parents with some ability to choose alternate schools if their child’s local school fails to demonstrate adequate yearly progress for a specified period of time (Applequist,). The law continues to generate controversy due to what one organization describes as the law’s focus on “punishments rather than assistance, mandates rather than support for effective programs, [and] privatization rather than teacher-led, family oriented solutions” (National Education Association, n.d.). When the IDEA next came before Congress for reauthorization, numerous changes were made in the statute to bring it into compliance with NCLB. The reauthorizing bill, IDEIA (PL 108-446), was enacted on December 3, 2004, by President George W. Bush. The majority of the IDEA’s provisions went into effect on July 1, 2005, though most of the regulations regarding implementing IDEA were not published until 2006 (Jacob, Decker, & Hartshorne,). The Department of Education published regulations to implement the 2004 legislation for IDEA Part B in the Federal Register on August 14, 2006 (71 Fed. Reg. 46,540), with supplemental regulations published on December 1, 2008 (73 Fed. Reg. 73,006). Proposed regulations for IDEA Part C were published in 2007 but were withdrawn. As of August 2011, revised proposed new rules for Part C had not been published (Jacob et al.,). The IDEA consists of three titles. Title I, which is the primary focus of this article, amends and restates the IDEA, retaining the four-part structure established by the 1997 amendments. It is in Title I that the majority of changes relating to NCLB appear. Title II amends the Education Sciences Reform Act of 2002 (20 U.S.C. § 9501 et seq.), establishing a National Center for Special Education Research to sponsor research into the needs of infants, toddlers, and children with disabilities to improve their developmental, educational, and transitional results and research to improve services provided under the IDEA and support its implementation (20 U.S.C. § 9567). Title III makes miscellaneous changes to other statutory provisions, primarily in order to make them consistent with the changes to the law made by Titles I and II. IDEA Overview The key provisions of IDEA include the requirement that states provide a free appropriate public education (FAPE) for all children qualified under the statute, nondiscriminatory assessment, the individualized education program (IEP), procedural safeguards, confidentiality of records, provision of education services in the least restrictive environment (LRE), and related services. State educational agencies (SEAs) are responsible for ensuring that local educational agencies (LEAs) provide FAPE to all children with disabilities. A free appropriate public education must be made available to all children with disabilities, regardless of the nature or severity of their disability, and consists of special education and related services. Related services are support services required to assist children with disabilities to benefit from special education. Examples of related services include psychological services, physical and occupational therapy, speech pathology, audiology, and orientation and mobility services. Related services cannot stand alone under Part B of the IDEA. Instead, such services must be attached to a special education program. In other words, a child must be eligible for special education under IDEA Part B in order to receive related services (34 C.F.R. § 300.8). Special education and related services must be provided to children with disabilities at no cost to the children’s parents or the children (34 C.F.R. § 300.34[c]). Another key requirement of the IDEA is nondiscriminatory assessment. Testing and evaluation materials must be selected and administered so as not to be culturally or racially discriminatory. In addition, tests must be administered in the child’s native language or other mode of communication, unless it is unfeasible to do so. LEAs must also ensure that standardized tests given to a child are validated for the purpose for which they are used and are administered by trained personnel in accordance with the test producer’s instructions. The child must be assessed in all areas of suspected disability. The child must also be assessed with a variety of technically sound assessment tools and strategies, the instruments must be technically sound, and no single procedure must be used as the sole criterion for determining eligibility (34 C.F.R. § 300.306[a][2]). Prior to the 2004 amendments, IDEA regulations stated that a team could only determine that a child has a specific learning disability if the child had a severe discrepancy between an area of academic achievement and intellectual ability. Under IDEA 2004, schools no longer are required to take into consideration whether a severe discrepancy exists between achievement and intellectual ability; states “must permit the use of a process based on the child’s response to scientific, research based interventions” 34 C.F.R. § 300.307[a][2]). In practice, this means that standardized tests of intellectual ability and academic achievement are no longer requirements for the diagnosis of a learning disability. An IEP is required for each child with a disability who is receiving special education. The initial IEP meeting must be held within 30 days after the determination that the child needs special education and related services (34. C.F.R. § 300.323 [c][1]). Each LEA must have an IEP in place for each such child at the beginning of each school year. The child’s IEP is reviewed and revised on at least an annual basis by the IEP team, and a reevaluation is conducted at least once every 3 years. The IEP team consists of the parent of the child, at least one special education teacher and one regular education teacher if the child is or may be participating in the regular education program, a representative of the LEA who is qualified to provide or supervise the provision of specially designed instruction and who is knowledgeable about the general curriculum and resources available, an individual who can interpret the instructional implications of evaluation results, other individuals at the discretion of the parent or LEA, and the child when appropriate (34. C.F.R. § 300.321 [b][3]). The IEP serves as the mechanism by which goals and objectives are established, programs are planned, and progress of the child is monitored (Abramson,; Reynolds & Fletcher-Janzen,). Procedural safeguards are also included in the IDEA. Such safeguards are discussed at length later in this article. These safeguards are intended to ensure that children with disabilities and their parents have certain rights and that these rights are protected under the law. Parents are given the opportunity to present their complaints regarding possible violations of their rights through mediation, due process hearings, and/or civil action with respect to any matter relating to the identification, evaluation, or placement of a child (34 C.F.R. 300.300). Parents’ rights also extend to the educational records of their child. Educational and psychological records pertaining to the child must remain confidential except to those individuals who are directly involved in a child’s education and who have a specific reason for reviewing the records (34 C.F.R. § 99.3). Parents have the right to examine all records, not just relevant records, with respect to the identification, evaluation, and placement of their child, and the provision of FAPE (34 C.F.R. § 99.10). Additional limitations and requirements regarding the confidentiality of students’ records can be found in the entry for the Family Educational Rights and Privacy Act (FERPA). Special education and related services must be provided in the Least Restrictive Environment (LRE) for children with disabilities in public or private institutions. In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services he or she needs, and a child with a disability is not removed from education in a general education classroom if modifications can be reasonably made to accommodate these needs (300 C.F.R. § 300.116[d–e]). Part A: General Provisions Part A, General Provisions, includes the congressional findings that constitute the underpinnings of the IDEA, definitions of key terms used in the statute (e.g., “child with a disability”), and provisions establishing an Office of Special Education and Rehabilitative Services to administer the terms of the IDEA, revoking state immunity under the 11th Amendment to the U.S. Constitution for violation of the IDEA, and various other administrative provisions (relating to, e.g., promulgation of federal regulations under the IDEA; requirements that State rules, regulations, and policies be in compliance with the IDEA; and questionably named “paperwork reduction” provisions; 20 U.S.C. § 1400–1409; Sec. 601-610). The new legislation made some changes to the congressional findings, including some adjustment to the language used to describe certain demographic changes over time and the addition of a specific reference to “improvement efforts under the Elementary and Secondary Education Act of 1965” (20 U.S.C. § 1400[c][5][C]), a reference to the changes promulgated under NCLB. It also made minor changes to the statement of the IDEA’s purposes (e.g., replacing “systemic change activities” with “system improvement activities” and adding “further education” to subsection [1][A] of the statement of purposes; see introductory portion of this article for the full text of the statement of purposes; 20 U.S.C. § 1400[d]; Sec. 601[d]). The 2004 legislation also adds a number of new defined terms, including core academic subjects, highly qualified (as in, “highly qualified special education teachers”), homeless children, and limited English proficiency, that relate to provisions of ESEA/NCLB and are part of the new statute’s push to make IDEA consistent with, or possibly subordinate to, NCLB (20 U.S.C. § 1401; Sec. 602). Furthermore, the new statute expands the definition of parent to include natural, adoptive, and foster parents, as well as guardians, and individuals acting in place of a natural or adoptive parents (e.g., grandparent, stepparent, other relative) of children who may be eligible to receive special education services under the IDEA, thus allowing for greater participation by those filling parenting roles in the processes outlined by the statute (20 U.S.C. § 1401; Sec. 602). The new statute also adds school nurse services to the list of services that make up the defined term related services, and makes other minor changes and additions to the defined terms list. Part B: Assistance for Education of All Children With Disabilities Part B, Assistance for Education of All Children with Disabilities, contains what many would argue are the key components of the IDEA, including the formulas for calculating the maximum amounts states are eligible to receive under the act; provisions governing state and LEA eligibility for assistance under the IDEA; provisions governing evaluations, individual eligibility, IEPs, and educational placements; procedural safeguards for children and their parents; monitoring and enforcement provisions; and preschool grants. This section will look at the regulations for each section in Part B separately for ease of reference. Authorization, Allotment, and Use of Funds IDEA includes information on the authorization of federal funds to the states and state requirements to receive federal funds. The federal government provides funds to the states to financially assist the states in the education of children with disabilities. The IDEA regulations increased funding for this act on an annual basis going from just over $12 billion in FY 2005 to more than $26 billion in FY 2011 [20 U.S.C. 1411(i)]. These funds are used to serve over 6 million students between the ages of 3 and 21 who have been identified (NECTAC, 2011), and are divided among states based on a formula that looks at the number of students identified with disabilities and the number of students who are living in poverty [34 CFR 300.700(b)(2) [20 U.S.C. 1411(a)(2)(B)]. It is required that portions of these funds be used to carry out monitoring, enforcement and complaint investigation; and to establish and implement the mediation process required by IDEA, including providing for the cost of mediators and support personnel [34 CFR 300.704(b)(3)] [20 U.S.C. 1411(e)(2)(B)]. States have the discretion to use funds for several other activities such as including support and direct services; expanding technology to reduce paperwork; assisting local educational agencies (LEAs) in providing positive behavioral interventions and supports and mental health services for children with disabilities; improving the use of technology in the classroom by children with disabilities to enhance learning; and providing technical assistance to schools and LEAs including professional development for regular and special education teachers in order to help improve academic achievement of students with disabilities [34 CFR 300.704(b)(4)] [20 U.S.C. 1411(e)(2)(C)(x),(xi)]. States are also allowed to use some of these funds to provide early intervention services to children with disabilities to promote school readiness [34 CFR 300.704(f)] [20 U.S.C. 1411(e)(7)]. State Eligibility In order for states to receive federal funding, they have to document that they provide an education for students with disabilities that complies with IDEA provisions that include: Free appropriate public education (FAPE). The state must ensure that a free appropriate public education is available to all children with disabilities. However, under the 2004 legislation, a state that provides early intervention services in accordance with Part C of the IDEA (which covers infants and toddlers with disabilities) to a child who is eligible for services under Section 619 (which relates to preschool grants) is not required to provide such child with a free appropriate public education (20 U.S.C. § 1412[a][1]; Sec. 612[a][1]). Child find. The state must actively seek to locate all children with disabilities within a state. The state must implement policies and procedures to assure that all children with disabilities, including those who are homeless, wards of the state, or attending private schools, are evaluated (34 CFR. § 300.111[a]. The state must identify students who are suspected of being disabled and in need of special education even if they are advancing from grade to grade, highly mobile, or migrant children (34 CFRCFR § 300.11[c]. An accurate report of children receiving services under IDEA must be made to the federal government each year (34 CFR § 300.640). Individualized education program (IEP). An individualized education program or individualized family service plan (IFSP) must be developed, reviewed, and revised for each child with a disability (CFR § 300.321). Least restrictive environment (LRE). The state must establish procedural safeguards to ensure that children with and without disabilities are educated together to the maximum extent appropriate, and students with disabilities are only removed from the regular classroom environment “when the nature or severity of the disability is such that education in regular classes with the use of supplemental aids and services cannot be achieved satisfactorily” (34 CFR § 300.114 [a][2]). Procedural safeguards. Parents are afforded the right to confidentiality of identifiable information, the right to examine records, and the right to consent or decline any intervention service without jeopardizing the right to other services (34 CFR § 300.300). Greater detail on procedural safeguards is provided in a later section of this article. Evaluation. Evaluations must be completed within 60 days of receiving parental consent for evaluation, and must establish procedures to assure that a full and individual evaluation is provided for every child who may qualify as having a disability (34 CFR § 300.301 [a-c]). Children in private schools. The child must retain all IDEA rights in the private school setting, and the state must monitor the services provided to ensure compliance with IDEA requirements (34 CFR § 300.146). If the placement is made by the state or local educational agency, the cost of placement must be paid by that agency (34 CFR § 300.146[a][2]). Ensuring services. The SEA must establish interagency agreements with public agencies responsible for providing and paying for special education or related services used by children with disabilities. The State Education Agency is now responsible for making an appropriate education available for all students in the state, including those who are homeless, residing in mental health facilities or hospitals, and are in homes for individuals with disabilities (34 CFR § 300.149). Personnel qualifications. The state must ensure that personnel who work with children with disabilities have the highest qualified standards. In particular, under the new legislation, individuals who are employed as special education teachers must be highly qualified as that term is defined in Part A (which in turn is designed to conform to requirements under NCLB) in accordance with the deadlines established by NCLB. Trained and supervised paraprofessionals may assist in providing services to children with disabilities (20 U.S.C. § 1412[a][14]; Sec. 612[a][14]). Performance goals and indicators. Under the new legislation, the state must establish goals for the performance of children with disabilities that are the same as the state’s definition of adequate yearly progress under NCLB, address graduation and dropout rates, and are consistent (to the extent appropriate) with any other goals and standards for children adopted by the state. The state must also develop indicators to judge children’s progress, including measurable annual objectives for progress under ESEA/NCLB for children with disabilities, and must report to the secretary of the Department of Education (DOE) and to the public on the state’s progress, and the progress of children with disabilities in the state, toward meeting the goals established (20 U.S.C. § 1412[a][15]; Sec. 612[a][15]). Participation in assessments. According to the new legislation, all children with disabilities must be included in all general state and district-wide assessment programs, including NCLB-required assessments, “with appropriate accommodations and alternate assessments where necessary and as indicated in their respective IEPs” (20 U.S.C. § 1412[a][16][A]; Sec. 612[a][16][A]). States are required to develop guidelines for the provision of appropriate accommodations, and such guidelines must be aligned with the state’s academic achievement standards under NCLB (20 U.S.C. § 1412[a][16]; Sec. 612[a][16]). Prohibition on mandatory medication. The 2004 legislation added a new provision prohibiting SEA and LEA personnel from requiring any child to obtain a prescription for a substance covered by the Controlled Substances Act as a condition of attending school, receiving an evaluation under Section 614, or receiving services under this statute, generally (20 U.S.C. § 1412[a][25]; Sec. 612[a][25]). The Office of Special Education Programs (OSEP) within the DOE monitors compliance with IDEA by reviewing each state’s plan. OSEP does not monitor individual school districts, rather it reviews state plans for ensuring compliance with IDEA. These reviews are all available on the U.S. Department of Education public web site (U.S. Department of Education, n.d). IDEA Part B now requires the State Education Agency be responsible for making available an appropriate education for all children with disabilities in the state including those who are homeless, residing in mental health facilities or hospitals, or in homes for individuals with developmental disabilities (Jacob et al.,). Local Educational Agency Eligibility IDEA Part B requires the State Educational Agency to ensure that all children with disabilities aged 3 to 21 meet key IDEA standards (34 CFR § 300.101, 300.149). The law also allows the SEA to delegate the responsibility of providing special education and remedial services to local education agencies (LEAs). The LEA is usually the board of education of a public school district, the educational administrative unit of a public institution, or a charter school that is established by the state (Jacob et al.,). Section 613 of the IDEA outlines the conditions LEAs must meet to be eligible for funding. To be eligible for funding, each LEA’s plan must be consistent with the state plan. Once funding is received, LEAs are not allowed to reduce financial support for education of children with disabilities to schools by more than 50% of the amount of the current grant that is in excess of the amount of the grant in the previous fiscal year under the IDEA, and to the extent that the LEA reduces any such financial support it must use an amount equal to the amount of the reduction to carry out activities authorized under the ESEA/NCLB. LEAs must provide funding and serve children with disabilities who attend public charter schools in the same manner as children with disabilities who attend public schools. The new legislation also allows LEAs to allocate as much as 15% of the money they receive under the IDEA to develop and implement coordinated early intervening services. These services are targeted to students who “need additional academic and behavior support to succeed in the general education environment” but who have not been identified as having a disability (34 CFR § 300.226[a]). The state may require LEAs to meet other conditions as well. The state may require LEAs to include disciplinary information in the records of children with disabilities and to transmit the record with the disciplinary information included in the same manner that disciplinary information is included in, and transmitted with, the student records of nondisabled children. The information transmitted may include a description of the behavior and disciplinary action taken, and any other additional information that is relevant to the safety of the child or others. When the child with a disability transfers to another school (e.g., to another elementary school), the child’s most current IEP and all disciplinary action would be included in and transferred with the child’s records (20 U.S.C. § 1413; Sec. 613). Evaluations, Eligibility Determinations, IEPs, and Educational Placements Under IDEA Part B, a child with a disability is defined as a child having: [M]ental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disorder”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deafblindness, or multiple disabilities. (34 CFR § 300.8[a]) For a child to be eligible for services under IDEA Part B, the student must have one of the disabilities categorized above, and a need for special education services must be established. Also, a child is not eligible for special education and related services if the determinant factor for that determination is a lack of appropriate instruction in reading, including the essential components of reading instruction; lack of appropriate instruction in math; or limited English proficiency (CFR § 300.306 [b]). If a state requires a medical evaluation to determine whether a child has a disability, this evaluation must be provided at no cost to the parent (Jacob et al.,). A significant change from previous versions of this legislation is found in the requirements for determining whether a child has a specific learning disability. Previous IDEA regulations stated that a team could only determine that a child has a specific learning disability only if the child had a severe discrepancy between an area of academic achievement and intellectual ability. Under IDEA 2004, schools no longer are required to take into consideration whether a severe discrepancy exists between achievement and intellectual ability; states “must permit the use of a process based on the child’s response to scientific, research based interventions” 34 CFR § 300.307[a][2]). In practice, this means that standardized tests of intellectual ability and academic achievement are no longer requirements for the diagnosis of a learning disability. An initial evaluation of a child may be requested by a parent, and SEA, another state agency, or an LEA. The law generally requires a full and individual initial evaluation of the child to be conducted within 60 days (a change from the previous law of 60 school days) of receipt of parental consent to the evaluation in order to determine the educational needs of such child, before the initial provision for special education and related services is provided. The initial evaluation must be conducted with a variety of assessment tools and strategies and must use technically sound instruments. The child must be initially assessed in all areas of suspected disability. Assessments and evaluation materials used must meet certain statutory requirements, including nonbiased protections as well as the need to address the child’s educational experiences and primary language. IDEA also indicates that each state or local agency must ensure that parents of a child with a disability are members of any group that makes decisions on the identification, evaluation, and educational placement of a child (34 CFR § 300.501). The IEP team must include, as appropriate, (a) the parent(s) of the child; (b) one (or more) of the child’s regular education teachers; (c) one (or more) of the child’s special education teachers or, where appropriate, special education providers; (d) a representative of the LEA who is qualified to provide or supervise the provision of specially designed instruction to meet the needs of children with disabilities, knowledgeable about the general education curriculum, and knowledgeable about the availability of resources of the LEA; (e) an individual who can interpret the instructional implications of the evaluation results (e.g., a school psychologist), (f) at the discretion of the LEA or parent, other individuals who have knowledge or special expertise regarding the child; and (g) when appropriate, the child with the disability. The new legislation provides that a member of the IEP team may be excused from a meeting of the IEP team if the parent and LEA agree that the attendance of the team member is not necessary for the purposes of the scheduled meeting (e.g., the member’s area of the child’s curriculum or related services is not being modified or discussed in the meeting), or if the parents and LEA consent to the member’s excusal from the meeting and the member submits written input into the development or modification of the IEP prior to the meeting (34 CFR § 300.321). Upon completion of the evaluation process, a determination is made as to whether a child qualifies as a child with a disability or not. A team of qualified professionals and a parent of the child make the determination about the child’s eligibility and the educational needs of the child. The parent must be given a copy of the evaluation report and documentation of the determination of eligibility at no cost (CFR § 300.322). After eligibility for special education and related services has been determined, an IEP must be developed. The 2004 legislation expands upon prior requirements about what must be included in the IEP. An IEP is a written statement developed, reviewed, and revised by the IEP team for a child with a disability. It includes information regarding (a) the child’s present level of academic achievement and functional performance, (b) measurable annual goals (including academic and functional goals), (c) a description of how the child’s progress toward meeting the annual goals will be measured and how the parent will be informed of such progress, (d) an explanation of the extent to which the child will not participate with nondisabled children in academic or nonacademic settings, (e) program modifications or supports for school personnel that will be provided to the child, (f) projected date for the beginning of services and anticipated frequency, location, and duration of services, (g) if the child is 16, the IEP must include appropriate postsecondary goals related to training, education, employment, independent living skills, and or transition services, and (g) a statement of rights that will be transferred to the student if he/she will reach the age of majority within the year (34 CFR § 300.320[a]). Each child’s IEP must be reviewed and revised at least annually, and each child must be seen for reevaluation at least once every 3 years, or more often if warranted (34 CFR § 300.323 [c][2]). If the IEP team determines that no additional assessment data are required for a reevaluation, they are not required to conduct further assessment unless requested by the child’s parents or teacher. During the annual review of the IEP, the team must determine whether the annual goals for the child are being achieved and revise the IEP as appropriate to address: (a) any lack of progress toward goals, (b) the results of any reevaluations, (c) information about the child provided by parents, or (d) child’s anticipated needs (34 CFR § 300.324[b][1]). In addition, the 2004 legislation establishes a pilot program permitting states to allow parents and LEAs to conduct long-term planning by offering the option of a comprehensive, multiyear IEP, not to exceed 3 years, that is designed to coincide with natural transition points for the child (e.g., from elementary school to middle school). The program must be optional for parents, and the IEP must include annual review of the child’s IEP to determine the child’s levels of progress and whether the child’s annual goals are being met (20 U.S.C. § 1414[d][5]; Sec. 614[d][5]). Procedural Safeguards IDEA requires procedural safeguards to be put into place to assure the rights of children with disabilities and their parents. The procedural safeguards include: Consent: Parental written consent must be obtained before conducting an evaluation or placing a child in special education (34 CFR § 300.300[a][1]). If the parent refuses consent to the initial evaluation, the school agency may request mediation or a hearing to override a parent’s refusal to give consent (34 CFR § 300.300 [a][3]). Parent consent is also required for subsequent reevaluations of a child, or for any changes in placement for the child (34 CFR § 300.300[c][2]; 34 CFR § 300.300[b][23]). Notice: IDEA divides information sent to parents into two different types of notice: prior written notice and procedural safeguards notice. Prior notice is required a reasonable time before the proposed school action whenever the SEA or LEA proposes to initiate or change the identification, evaluation, education placement, or program (Jacob & Hartshorne,). IDEA requires that notice be provided in a way understandable to the parent and must include a description of the proposed action; a description of each evaluation procedure, record, or report; a statement that parents have protection under procedural safeguards; sources for parents to contact to obtain assistance in understanding the provisions; a description of other options considered and why they were rejected (CFR § 300.503 [b]). The procedural safeguards notice must include a full explanation of the procedural safeguards in an understandable manner (34 CFR § 300.504[d]). The notice must include information pertaining to independent educational evaluations, prior written notice, parental consent, access to education records, opportunity to present and resolve complaints, the availability of mediation, procedures for students who are subject to placement in an interim alternative educational setting, requirements for unilateral placements by parents of children in private schools at public expense, hearings on due process complaints, statelevel appeals, civil actions and attorney’s fees (34 CFR § 300.504[c]). Complaints: The IDEA requires the school to have procedures that require a school or parent to provide the other party with a written due process complaint, which must remain confidential (34 CFR § 300.508[a]). The complaint must include the description of the nature of the problem and a proposed resolution to the problem (34 CFR § 300.508[b]). The party receiving the complaint has 10 days to send the other party a response that specifically addresses the issues raised in the due process complaint (34 CFR § 300.508[f]). Resolution meetings: Within 15 days of receiving notice of the parents due process complaint, and prior to the initiation of a hearing, the school must convene a resolution meeting with the parents and members of the IEP team who have knowledge of the facts identified in the complaint (CFR § 300.510[a]), unless the school and parent agree in writing to waive the meeting or use the mediation process (34 CFR § 300.510 [a][3]). If the dispute is resolved in the meeting the parties sign a legally binding agreement, but if the complaint is not resolved, a due process hearing is held within 30 days of the receipt of the due process complaint (34 CFR § 300.510). Mediation. Procedures for resolving disputes through a mediation process must be established by an educational agency and must ensure that the process is voluntary, does not deny or delay a due process hearing, and is conducted by a qualified and impartial mediator (34 CFR § 300.506[b]). The educational agency bears the cost of the process, and must maintain a list of qualified mediators that are selected on an impartial basis. (34 CFR § 300.506[b]). Discussions that occur during mediation are confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding that arises from the dispute (34 CFR § 300.506[b][8]). Due process hearing: Parents and the school have a right to an impartial due process hearing on any matter regarding the identification, evaluation, or educational placement of a child. The educational agency maintains the list of hearing officers and qualifications. Each party has the right to be accompanied by legal counsel and other experts and the meeting must occur at a time and place convenient to the parents (34 CFR § 300.512). The hearing can be open to the public if the parents choose, and a final decision must be made by the officer within 45 days. The decision is final unless a party initiates an appeal to the SEA or begins a court action (34 CFR § 300.514[b]). Discipline of Students With Disabilities School personnel may order a change in placement for not more than 10 school days to an interim AES, another setting, or suspension for a child with a disability who violates the school’s code of student conduct, to the same extent such alternatives are applied to children without disabilities (20 U.S.C. § 1415[k][1]; Sec. 615[k][1]). Within 10 school days of any decision to change the placement of the child under this section, the LEA, the parent, and relevant members of the IEP team are required to review all relevant information in the student’s file, including his or her IEP, to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability, or if the conduct was a direct result of the LEA’s failure to implement the IEP. If either of these is found to be the case, then the IEP is required to determine that the conduct at issue was a manifestation of the child’s disability (20 U.S.C. § 1415[k][1][E]; Sec. 615[k][1][E]). If the behavior that prompted an LEA is not the result of either the child’s disability or inadequate services, the child may be disciplined under the general code of conduct in the same manner and severity as a nondisabled peer, but the child must continue to receive FAPE. However, upon any determination that the conduct was a manifestation of the child’s disability, the IEP team is required to conduct a functional behavioral assessment and implement a behavioral intervention plan for the child, or, if a behavioral intervention plan was already in existence, the IEP team must review such behavioral intervention plan and modify it as necessary, and, except as described in the following, return the child to the placement from which he or she was removed, unless the parent and the LEA agree to change the placement as part of the modification of the behavioral intervention plan (20 U.S.C. § 1415[k][1][F]; Sec. 615[k][1][F]). Parents have the right to appeal any step of this process (20 U.S.C. § 1415; Sec. 615). Notwithstanding the foregoing, school personnel are permitted to move a student to an interim AES for not more than 45 school days, even if the conduct was determined to be a manifestation of the child’s disability, in cases where the child (a) carries a weapon to school or to a school function, (b) possesses, uses, or sells illegal drugs at school or a school function, or (c) inflicts serious bodily injury upon another person while at school or a school function. Under these circumstances, the child must continue to receive educational services to enable the child to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the child’s IEP, and should receive, as appropriate, a functional behavioral assessment and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur (20 U.S.C. § 1415[k][1][D]; Sec. 615[k][1][D]). A hearing officer may also order a change in placement for a child with a disability. The hearing officer may order a change in placement to an interim AES for not more than 45 school days if the hearing officer finds that keeping the child in his or her current placement is substantially likely to result in injury to the child or to others (20 U.S.C. § 1415[k][3]; Sec. 615[k][3]). Monitoring, Technical Assistance, and Enforcement The 2004 legislation has resulted in significant changes to this section of the IDEA. Each state must have in place a performance plan that evaluates the state’s efforts to implement the provisions of the IDEA and describes how the state will improve such implementation. The performance plan must establish measurable and rigorous targets for improvement in certain priority areas (20 U.S.C. § 1416[b]; Sec. 616[b]). The performance plan is reviewed and approved by the secretary of the DOE (20 U.S.C. § 1416[c]; Sec. 616[c]). Based on the information provided by the state in its annual performance report, the secretary determines if the state (a) meets the requirements of the IDEA, (b) needs assistance in implementing its requirements, (c) needs intervention in implementing its requirements, or (d) needs substantial intervention in implementing its requirements (20 U.S.C. § 1416[d]; Sec. 616[d]). If the secretary determines that a state needs assistance or intervention for 2 or 3 consecutive years, respectively, the new legislation provides certain options for the secretary to help (or force) the state to improve its performance. If the secretary determines that a state needs substantial intervention, the secretary is permitted to take stronger actions, including certain enforcement actions and the withholding of further payments to the state under the IDEA until identified problems are corrected (20 U.S.C. § 1416[e]; Sec. 616[e]). If any state does not agree with the secretary’s decision with respect to the state plan, then the state may file a petition with the U.S. Court of Appeals for judicial review of the secretary’s action. The judgment of the court shall be subject to review by the U.S. Supreme Court (20 U.S.C. § 1416[e][8]; Sec. 616[e][8]). In the most recent (20092010) report, OSEP rated 28 states as “meets the requirements of IDEA,” 20 states as “needs assistance,” and 2 states (Illinois and Utah) as “needs intervention.” As of this time, the federal government has not withheld funding from any state for failing to meet the requirements of IDEA (Education Week,). Preschool Grants Preschool grants are available to states to assist the states in providing special education and related services to children with disabilities aged 3 to 5, though states at their own discretion may also include 2-year-old children with disabilities who will turn 3 during the school year (20 U.S.C. § 1419[a]; Sec. 619[a]). Under the new legislation, the funding formula has changed to conform to the formula change in Part B (20 U.S.C. § 1419[c]; Sec. 619[c]). Section 619 also establishes limitations on the percentage of funds allocated under Section 619 that a state may retain for state administrative and other state-level activities (20 U.S.C. § 1419[d]; Sec. 619[d]). Part C: Infants and Toddlers With Disabilities Part C of the Act, Infants and Toddlers with Disabilities, contains information about children under the age of 3. Similar to part B, it establishes regulations of how children with disabilities are identified, assessed, and served. It is designed to encourage states to develop and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency program of early intervention services for infants and toddlers with disabilities and their families (34 CFR § 303.1). Each state must develop a public awareness program and a comprehensive directory of early intervention services that is available to the general public, and a lead agency in charge of assisting the needs of infants and toddlers with disabilities (34 CFR § 303.1). IDEA Part C defines an infant or toddler with (a) a disability as one who is experiencing developmental delays in one or more areas of cognitive, physical, communication, social or emotional, or adaptive development; or (b) has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay. These factors may be biological or environmental (34 CFR § 303.16). Evaluations must be made available to assess the unique needs of the child to assess cognitive, physical, communication, social/emotional, or adaptive needs of the child, and of the family if the family consents (34 CFR § 303.322). This evaluation must be completed within 45 days of a referral. At the conclusion of the evaluation, a written individualized family service plan (IFSP) is developed rather than an IEP. Services rendered as a result of the IFSP are (a) designed to meet the developmental needs of the child and the needs of the family related to enhancing the child’s development, (b) selected in collaboration with the parents, (c) provided under public supervision by qualified personnel in conformity with an individualized family service plan, and (d) provided at no cost, unless federal or state law provides for a system of payments by families. Services include family training, counseling, home visits; speech-language pathology and audiology services; occupational therapy; physical therapy; psychological services; service coordination services; medical diagnostic services; early screening services; nursing services; social work services; vision services; assistive technology; and transportation to such services (34CFR §§ 303.1213). Part D: National Activities to Improve Education of Children With Disabilities Part D, National Activities to Improve Education of Children with Disabilities, includes all other discretionary programs (i.e., state improvement grants, personnel preparation, research, technical assistance, parent training, dissemination). State improvement grants are made available to assist SEAs and their partners in reforming and improving systems for providing educational, early intervention, and transitional services to improve results for students. Grants are also made available for research and innovation and personnel preparation to improve services and results for children with disabilities (20 U.S.C. §§ 1451–1482; Sec. 651–682). Controversies in IDEA As mentioned earlier, this legislation is the main special education law in the United States, and has had a great impact on how children with disabilities are educated in the country. Each version of IDEA has produced controversies, and this article will discuss two controversies that exist in the current version. One area of concern is the fact that the law serves as a federal mandate to states, but does not fully fund the requirements; the other area of concern is the way in which schools have implemented the new Response to Intervention (RTI) system of evaluating children suspected of having a learning disability. The IDEA is a piece of federal legislation that imposes significant costs on school and local education agencies to provide services for children with disabilities. The law requires schools to provide a wide range of services, including speech therapy, audiology, physical therapy, nursing, counseling, and educational interventions that can be quite expensive. The cost of special education in the United States has been estimated to be estimated at close to $80 billion, with federal funding for the program usually falling below 15% (New America Foundation,). In 2009, the American Recovery and Reinvestment Act (PL 111-5) was passed; nearly doubling funds provided for IDEA by adding $12.5 billion, but this was a 1year addition of funds. This means that state and local educational agencies are often tasked with the challenge of raising funds for these very expensive requirements when states have many other competing needs. An area of controversy that is specific to the most recent amendment is the way in which students with a specific learning disability are evaluated. As mentioned earlier, previous versions of the legislation required students to demonstrate a significant discrepancy between measured intelligence and achievement in a given academic area. Under IDEA 2004, schools no longer are required to take into consideration whether a severe discrepancy exists between achievement and intellectual ability; states “must permit the use of a process based on the child’s response to scientific, research based interventions” (34 CFR § 300.307[a][2]). In implementing this new Response to Intervention (RTI) system of evaluating students, some parents have complained that school districts have used this system as a way to delay providing a full evaluation. For example, an Office of Civil Rights (OCR) investigation was triggered by a parent’s complaint that a school district had a policy of requiring an 8-week RTI intervention before a student could be considered for an evaluation (Acalanes Union High School District Office for Civil Rights, Western Division, San Francisco [California], 2009). Investigation such as these led to a memo from the U.S. Department of Education’s Office of Special Education Programs (OSEP), clarifying that “States and LEAs have an obligation to ensure that evaluations of children suspected of having a disability are not delayed or denied because of implementation of an RTI strategy.” References Abramson, M. (1987). Education for All Handicapped Children Act of 1975 (PL 94-142). In C. R. Reynolds; L. Mann (Eds.), Encyclopedia of special education (pp. 583-585). Wiley New York NY. Check for full text Applequist, K. F. (2005). Special education legislation. In E. Fletcher-Janzen; C. R. Reynolds (Eds.), Special educators’ almanac. Wiley Hoboken NJ. Check for full text Focus on IDEA. (1997, July). Span update. National Association of School Psychologists Bethesda MD. Check for full text Education Week. (2011). State Ratings in Special Education. Retrieved from http://www.edweek.org/ew/section/infographics/36idea_map.html. Check for full text Haring, N. G.; McCormick, L.; Haring, T. (1994). Exceptional children and youth: An introduction to special education (6th ed). Prentice Hall New York NY. Check for full text Individuals with Disabilities Act of 1997, 20 U.S.C. §§1400 et seq. (West, 1997). Jacob, S.; Decker, D. M.; Hartshorne, T. S. (2011). Ethics and law for school psychologists (6th ed). Wiley Hoboken NJ. Check for full text Jacob-Timm, S.; Hartshorne, T. (1995). Ethics and law for school psychologists. Clinical Psychology Publishing Brandon VT. Check for full text Martin, R. (1979). Educating handicapped children: The legal mandate. Research Press Champaign IL. Check for full text Moore v. District of Columbia, 907 F.2d 165 (D.C. Cir. 1990). Check for full text National Association of State Directors of Special Education. (1997). Comparison of key issues: Current law & 1997 IDEA Amendments. Author Washington, DC. Check for full text National Education Association. (n.d.). No Child Left Behind Act (NCLB)/ESEA. Retrieved from http://www.nea.org/home/NoChildLeftBehindAct.html. Check for full text New America Foundation (2011). Federal Education Budget Project. Retrieved from http://febp.newamerica.net/. Check for full text Reynolds, C. R.; Fletcher-Janzen, E. (1990). Education For All Handicapped Children Act of 1975 (PL 94142). In C. R. Reynolds; L. Mann (Eds.), Concise encyclopedia of special education (pp. 386-88). Wiley New York NY. Check for full text Turnbull, H. R. (1990). Free appropriate public education (3rd ed). Love Denver CO. Check for full text U.S. Department of Education (n.d.). Special education and rehabilitative services: IDEA 2004 resources. Retrieved from http://www.ed.gov/. Check for full text U.S. Department of Education (2011) Part B State Performance Plans (SPP) Letters and Annual Performance Report (APR) Letters. Retrieved from http://www2.ed.gov/fund/data/report/idea/partbspap/allyears.html. Check for full text Cecil R. Reynolds Patricia A. Lowe James E. Walsh Texas A&M University Bastrop Mental Health Associates College Station TexasUniversity of Kansas Lawrence KansasThe Chicago School of Professional Psychology Chicago Illinois Wiley Copyright © 2014 by John Wiley & Sons, Inc. All rights reserved. APA Chicago Harvard MLA Reynolds, C. R., Lowe, P. A., & Walsh, J. E. (2013). Individuals with disabilities education improvement act of 2004 (IDEIA). In C. R. Reynolds, K. J. Vannest, & E. Fletcher-Janzen (Eds.), Encyclopedia of special education: a reference for the education of children, adolescents, and adults with disabilities and other exceptional individuals (4th ed.). Wiley. Credo Reference: https://lopes.idm.oclc.org/login?url=https://search.credoreference.com/content/entry/wileyse/individu als_with_disabilities_education_improvement_act_of_2004_ideia/0?institutionId=5865 Encyclopedia of Special Education: A Reference for the Education of Children, Adolescents, and Adults with Disabilities and Other Exceptional Individuals Previous Article Next Article The highly acclaimed Encyclopedia of Special Education addresses issues of importance ranging from theory to practice and is a critical reference for researchers as well as those working in the special education field. This completely updated and comprehensive A-Z reference includes about 200 new entries, with increased attention given to those topics that have grown in importance since the publication of the third edition, such as technology, service delivery policies, international issues, neuropsychology, and RTI. The latest editions of assessment instruments frequently administered in special education settings are discussed. Editor(s): Cecil R. Reynolds, Kimberly J. Vannest, Elaine Fletcher-Janzen Edition: 4th Articles: 2,736 Images: 96 People: 140 Related Searches Individualized Education Program Individuals with Disabilities Education Act Special education Education policy Resource room Learning disability Educational psychology High school Related Articles Full text Article Service Delivery Models in Encyclopedia of Special Education: A Reference for the Education of Children, Adolescents, and Adults with Disabilities and Other Exceptional Individuals Service delivery models are programs, processes, and safeguards established to ensure a free, appropriate public education for children and youths w 3240 words from Wiley Full text Article special education in Encyclopedia of New Jersey Title 6A, Chapter 14, is the current New Jersey administrative code for special education, superceding the state's first comprehensive special... 480 words from Rutgers University Press Full text Article Measurable Annual Goals in Encyclopedia of Special Education: A Reference for the Education of Children, Adolescents, and Adults with Disabilities and Other Exceptional Individuals When the Education for All Handicapped Children Act (EAHCA) was passed in 1975, the Individualized Education Program (IEP) became the centerpiece of 503 words from Wiley Full text Article Individuals With Disabilities Education Act, History of in Encyclopedia of Special Education: A Reference for the Education of Children, Adolescents, and Adults with Disabilities and Other Exceptional Individuals In the early 1970s only 20% of children with disabilities were educated in America’s public schools. 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