Unfortunately, neither the House bill nor the Senate bill included mandatory funding. Therefore mandatory funding was not an issue for the Conference Committee. The good news, however, is that the authorization levels of the new law have been increased by approximately $2.3 billion each year. Were the appropriations to match the authorizations levels, full funding to the federal government's commitment would be reached by 2011. The bad news is that the authorization levels carry no guarantees - the appropriations for 2005 recently passed by Congress was $10.7 billion rather than the $12.4 billion that was authorized.

  • With respect to maintenance of efforts, when local school districts have fully met their IDEA program requirements and receive increases in federal funds above the previous year, they may reduce the level of expenditures, but not more than 50 % of the amount of such increase - and these funds must be used to carry out activities authorized under ESEA of 1965.
  • Local school districts may use not more than 15 percent of their Part B IDEA funding to develop and implement coordinated, early intervening services, which may include interagency financing structures for students in K-12, with a particular emphasis on students in K-3 who have not been identified as needing special education or related services but who need additional academic and behavioral support to succeed in a general education environment. This may include professional development, providing educational and behavioral evaluations, services, including scientifically based literacy instruction. (This provision is especially intended to reduce the overrepresentation or disproportionality of minority students identified for special education programs.
  • Local school districts that chose to develop and maintain such programs must annually report to the state educational agency: 1) the number of students served; and 2) the number of students who subsequently receive special education and related services during the preceding 2-year period.
  • The law allows states to establish risk pools to assist local school districts in meeting the high need children with disabilities by reserving for each fiscal year 10 percent of the amount of funds the state reserves for state-level activities.
  • These funds must be used by the local school districts - not the state - a portion percent of each fiscal year may be used to support innovative and effective ways of cost sharing among local school districts. The funds may be used to implement a

*(Information in italics denotes changes in the law)

  • placement neutral cost sharing and reimbursement program of high need, low incidence, catastrophic, or extraordinary aid.
  • The risk-sharing pools may NOT be used to pay costs that otherwise would be reimbursed as medical assistance for a child with a disability under the State Medicaid program under title XIX of the Social Security Act. Additionally, the funds may NOT be used to support legal fees, court costs, or other costs associated with litigation.
  • The definition of high need child may vary from state to state, but the state education agency must coordinate with representatives from local school districts in developing the definition. Additionally, the law establishes some minimum criteria for state plans including the cost of the high need child, eligibility, funding mechanisms, and public reporting.
  • In establishing the risk pools, the state education agency is exempt from laws regarding the commingling of funds or supplanting funds.



  • Although the requirement for manifestation determinations remains in the new law, local school districts have the authority on a case-by-case basis to determine if the student should be removed from the classroom and placed in an alternative setting, pending such determinations.
  • School personnel may remove a child with a disability who violates a code of student conduct from their current placement for up to 10 days without a hearing.
  • School personnel may remove a child with a disability for not more than 45 school days to an interim alternative educational setting without regard to a manifestation of the disability increases where a child carries or posses a weapon, knowingly posses or uses illegal drugs or sells or solicits the sale of a controlled substance; or has inflicted serious bodily injury upon another person.
  • An appeal is authorized if the parent disagrees with any placement decision or the manifestation determination or if the local school district believes that maintaining the current placement is substantially likely to result in injury to the child or to others.
  • When an appeal has been requested by either the parent or the local school district, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer unless the parent and the state or local school district agree that the child should be moved. (This is a significant change from previous law where the "stay-put" provision prohibited removing the student until a manifestation determination was made).
  • If a local school district does not have knowledge that the child has a disability prior to taking disciplinary action, the child may be subjected to disciplinary action without regard for the disability as other children without a disability.

*(Information in italics denotes changes in the law)

  • If a request for an evaluation is made during the time period the child is subject to disciplinary action, the evaluation must be conducted in an expedited manner.
  • During the appeal process, the student may remain in the alternative placement pending an expedited hearing. The burden of proof no longer rests solely with the local school district.
  • Educational services must continue to be provided to students with disabilities even if students are removed from the classroom or the school.


Teacher Quality

  • Special education teachers must continue to be certified either through the state or alternative routes, state-licensing requirements, or by applicable State public charter school law.
  • The qualification of special education teachers who exclusively teach children with disabilities shall be based on assessments tied to the alternate achievement standards of the students rather than the NCLB requirements. In these circumstances, the teacher may meet the requirements through the elementary, middle or secondary teacher certification requirements or demonstrate subject matter knowledge appropriate to the level of instruction being provided as determined by the state.
  • For veteran special education teachers who teach 2 or more core academic subjects exclusively to children with disabilities, their qualifications must be based on demonstrated competence in all core academic subjects in the same manner as required for other teachers. This qualifications determination may be based on a single, high objective uniform State standard of evaluation (HOUSSE) covering multiple subjects. Requirements must be met by the end of the 2005-2006 academic year.
  • New special education teachers who teach multiple subjects must meet the highly qualified requirements under NCLB in mathematics, language arts or science - which may also include HOUSSE. However, these requirements must be met not later than 2 years after employment.
  • General education teachers and other teachers who are highly qualified in particular subjects may teach those subjects to children with disabilities either in the general education classroom or in a self-contained classroom.
  • Consultative services relative to special education teachers do not include instruction in core academic subjects, but may include adjustments to the learning environment, modifications of instructional methods, adaptation of curricula, the use of behavioral supports and interventions, or the use of appropriate accommodations to meet the needs of individual children.


Ensuring Related Services & Financial Obligations

  • Related services are defined as services that include transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audio logy services, interpreting services,

*(Information in italics denotes changes in the law)

  • psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a free appropriate public education as descried in IEPs, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions of children. The definition does NOT include a medical device that is surgically implanted or the replacement of such device.
  • Interagency agreements must be established regarding financial responsibilities for ensuring services to students with disabilities.
  • While the law establishes the local school district as the payer of last resort, the bill now authorizes local school districts to claim reimbursements for the services from the public agency that failed to provide or pay for such services.
  • Public agencies must reimburse the local school district pursuant to the terms of the interagency agreement.

*(Information in italics denotes changes in the law)

NSBA will continue to work closely with Department of Education officials in developing the regulations to implement this important program.

For further information, please contact Reginald M. Felton, director of federal relations at 703-838-6782, or by e-mail,


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