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NEA Assesses Final IDEA Regulations




NEA's preliminary analysis offers a mixed review for the Department of Education's final regulations for implementing the reauthorized Individuals with Disabilities Education Act.

NEA special education expert Patti Ralabate prepared the analysis after an initial review of the more than 1,700 pages of regulations that were issued on August 3, 2006 and that will become effective on Oct. 13, 2006. NEA staff will continue to analyze the regulations and issue additional reports as that work is completed.  You can access the final regulations here.

Background

On December 3, 2004, President Bush signed the Individuals with Disabilities Education Improvement Act (IDEA) into law. This reauthorization bill was approved by Congress by overwhelmingly bipartisan votes (397-3 in the House; approved by unanimous consent -- or, essentially, 100-0 -- in the Senate). There were a number of positive provisions in the bill, such as increased focus on professional development, paperwork reduction measures, measures encouraging early intervention, and an attempt to give educators more flexibility in disciplining students to maintain safe learning environments.

In January and February of 2005, the U.S. Department of Education conducted its first round of regional public hearings to receive input about what individuals in the field thought the Department should include in its regulations. NEA members and staff offered testimony at each hearing. The draft regulations posted on June 10, 2005 served as a basic framework for these final regulations.

The following preliminary analysis focuses on four subject areas:  1) definition of a "highly qualified" Special Education teacher, 2) excusal from IEP team meetings, 3) definition of "specific learning disability," and 4) discipline. Additional items are added under 'other.' Please look for further guidance from NEA as we continue to analyze the final regulations and their potential impact on educators and students.

Preliminary Analysis of Final IDEA Regulations

Highly Qualified

  • The final IDEA regulations codify the 'highly qualified' (HQ) requirements from the law (IDEA 2004). Specifically, special education teachers who do not teach core academic content must meet these minimum requirements to be considered HQ: 1) have State certification as a special education teacher or have passed a special education licensing exam, and 2) hold a license from the State as a special education teacher. Any special ed teacher who teaches core academic subjects must demonstrate core content competencies in order to teach those subjects.
  • The Department explained in the commentary section that special ed teachers who work as consulting teachers must meet the minimum requirements (stated above in the first bullet) and they are exempt from having to meet the HQ requirements for every subject they help teach. This language appropriately recognizes the instructional expertise of special educators who possess at least a Bachelor's degree and a state license to teach as a special ed teacher. It also recognizes the reality of what more and more special educators do every day -- floating in and out of general education classrooms ensuring that each child with a disability has the benefit of instructional strategies appropriate for him or her.
  • NEA is pleased to see that the Department responded to our request for a clear definition of who is a new special education teacher. The regulations clarify that the definition of a new special ed teacher means newly hired after the date of enactment of IDEA -- or hired after December 3, 2004. In its commentary, the Department stated that they viewed any teacher who has been teaching less than one year as a special education teacher to be a NEW special ed teacher. For example, if a veteran general ed teacher receives a license as a special ed teacher, he or she should be treated as a NEW special ed teacher and, therefore, covered under the same provisions (i.e., timeline, HOUSSE) as a new special ed teacher who is entirely new to the profession of teaching.
  • In addition, new special ed teachers can have up to two years of employment to demonstrate that they are HQ.
  • The final regulations clarify that the State may develop a separate HOUSSE for special ed teachers provided that it does not establish a lower standard for content knowledge for special ed teachers and that it meets all the requirements for a HOUSSE for general ed teachers. It also confirms that a State may develop a separate HOUSSE for special ed teachers that addresses competency in multiple subjects -- in other words, a multi-subject HOUSSE. NEA has strongly supported this provision.
  • NEA is disappointed that the regulations established the rule that individuals who do not intend to teach core academic subjects but who are making progress in an alternative route to certification can be deemed highly qualified as a special ed teacher even before completing the alternative route program. This provision first appeared in ESEA/NCLB and was repeated in IDEA 2004. We will continue to voice our strong objection to this loophole, which will now be codified as a result of these regulations. This policy is akin to saying that a first year law student who makes good grades can be deemed fit to practice law.
  • During the public hearings, NEA suggested that the new regulations include a provision encouraging states and local districts to establish caseload/classroom size standards that take into account total workload activities required and performed by school-based personnel. NEA is disappointed that the regulations continue to ignore the important issue of caseload/class size standards for special educators.
  • NEA urged the Department to apply the same HQ definition to special ed teachers in charter schools as is applied to special ed teachers in public schools. The regulations do not do this. Instead, they defer to state requirements for charter schools stating that special ed teachers teaching in a charter school must meet the certification or licensing requirements, if any, that are included in the State's public charter school law.

Excusal from IEP Team Meetings

  • The final regulations now allow a parent and the LEA to consent to the excusal of an IEP team member, even if that IEP team member's academic area will be discussed at the meeting; provided, that the member provides written input prior to the meeting.
  • New language has been added to stipulate that the excusal clause only applies to the mandated attendees at the IEP meeting (i.e., the regular education teacher, at least one special education teacher or special education provider, a representative of the LEA such as a principal or administrator, and someone who is qualified to interpret assessment results, such as a school psychologist or counselor).
  • This provision does not apply to individuals that the LEA or parent may invite - so this provision cannot be used to bar individuals from attending if the parent or LEA invite them.
  • The Department responded to NEA's concern about this provision potentially being used as a mechanism to exclude team members rather than excuse them. The commentary for the final regulations state that districts that routinely excuse team members would not be in compliance with IDEA 2004.
  • During the public hearings on the regulations, NEA made the case that an IEP team member should be given reasonable notice prior to the meeting in order to prepare the written comments. NEA also argued that the form of the written input must be flexible and not unduly burdensome. The Department did not change the regulations. Instead, it suggested that the written input issue is within the prevue of State and local districts. This is an area that state and local NEA Affiliates should consider addressing as States or local districts develop guidance or state education code revisions.

Specific Learning Disability Definition

  • The draft regulations went far beyond the IDEA 2004 statute in terms of the states' authority in defining a specific learning disability (SLD). The draft regulations allowed a state to prohibit the use of the IQ discrepancy model all together. Some educators were concerned that school districts would stop conducting comprehensive evaluations as part of determining if students are learning disabled. While many educators agree that the discrepancy model is not an accurate indicator of a SLD, prohibiting its use was beyond what IDEA 2004 stated.
  • In an improvement over the draft regulations, the final regulations do NOT allow States to PROHIBIT the use of the IQ discrepancy model. Instead, States must PERMIT the child's response to scientific, research-based intervention (RtI) in defining eligibility for IDEA services under the category of SLD. This is a welcomed focus on intervention and instruction prior to referral for special education without abandoning the valuable information provided by comprehensive evaluations.
  • The SLD definition also includes a new provision that requires school districts to promptly request parental consent to evaluate a child suspected of having a learning disability who has not made adequate progress: 1) after an appropriate period of time of appropriate instruction (presumably this includes the use of RtI), or 2) whenever a referral is made. This provision is in response to concerns that the use of a 'response-to-intervention' (RtI) process could significantly delay special education evaluations.
  • NEA is pleased that the Department included a provision that allows educators the right to submit a dissenting opinion about whether a student has a specific learning disability. This provision existed in IDEA '97 and was carried over into these new regulations.

Discipline

  • The final regulations clarify that a school district (LEA) is not required to provide children suspended for more than 10 school days, services in exactly the same manner and setting as they were receiving prior to the discipline. The special education and related services provided to the child, however, must allow the child to progress towards meeting the IEP goals and participation in general curriculum.
  • A child who is removed from his placement for disciplinary reasons and who requires special education and related services to participate in the general education curriculum and make progress towards IEP goals, must have those services provided at public expense, and under public supervision, and in conformity with the IEP to the appropriate extent.
  • There is a simplified process for the process of determining if the misbehavior/misconduct is the result of the student's disability (Manifestation Determination Review- MDR). There are fewer factors to be considered and a provision has been added requiring the IEP Team to review the student's file to determine if the conduct was caused by, or had a direct and substantial relationship to the student's disability, or if the conduct in question was the direct result of the district's (LEA's) failure to implement the IEP.
  • The Department responded to inquiries from NEA regarding new language added to IDEA 2004 allowing removal of students who have caused bodily injury. School personnel can remove a student regardless of whether the behavior was the result of or a manifestation of the child's disability if the child has inflicted serious bodily injury upon another person at school, on school premises, or at a school function. Serious bodily injury is defined "as bodily injury that involves substantial risk of death; extreme body pain"; protracted an obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty."

Other issues

  • Tourette's syndrome was added as a chronic or acute health problem to the 'Other Health Impaired' definition.
  • The definition of "scientifically-based research" from ESEA/NCLB was added.
  • The new regulations clarify that a 'Free Appropriate Public Education" (FAPE) must be available to any child with a disability, even though the child has not failed or been retained in school. This is an important point since some States and districts include whether or not the student has failed or been retained as a criterion for eligibility for special ed services.
  • States are required to adopt the National Instructional Materials Accessibility Standard (NIMAS) which is related to making print materials accessible to students who are blind or have print disabilities. The regulations also require States to take reasonable steps to make instructional materials accessible to the students who need them at the same time as those instructional materials are provided to students who do not have a disability.
  • These regulations clarify that an alternative degree that is not fully aligned with the State's academic standards, such as a certificate of completion or a general educational development credential (GED) is not considered a regular high school diploma.
  • In addition, the rules underscore that children with disabilities must have access to extracurricular services and activities to the maximum extent appropriate.
  • A provision was added requiring school districts to get parent permission each time they access the parent's public benefits (such as Medicaid) or insurance, and to notify the parents that refusal to allow access does not mean the school district does not have to serve their child.