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IDEA 2004: Final Regulations Update

Written by Candace Cortiella | March 10, 2009

The U.S. Department of Education approved new federal regulations governing the implementation of the Individuals with Disabilities Education law as amended by the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004).

These regulations are closely aligned with the federal IDEA law. NCLD has prepared a summary to highlight key provisions that impact how schools identify students with learning disabilities, develop and implement the Individualized Education Program (IEP) as well as planning for transition from high school to college and highly qualified teachers.

Highlights of Key Provisions and Important Changes

Building on important changes made in IDEA 2004, the federal regulations provide extensive direction on the procedures for identifying children with learning disabilities. These changes from previous regulations seek to facilitate more appropriate and timely identification of children with LD so that they can benefit from research-based interventions that have been shown to produce better achievement and behavioral outcomes.

Key aspects of the new regulations include:

  • Every state must develop specific criteria, in accordance with the requirements in the regulations, to determine whether a child has a specific learning disability and, as a result of that disability, requires special education. A state’s criteria must not require the use of a “severe discrepancy” between intellectual ability and achievement as part of LD determination and must permit the use of a process based on a child’s response to scientific, research-based interventions. All school districts within a state must use the criteria developed by the state.
  • Determination of the existence of a specific learning disability is done by the child’s parents and a team of qualified professions
  • Determining factors now include:
    • Inadequate achievement measured against expectations for a child’s age or the grade-level standards set by the state
    • Insufficient progress when using a process based on response to scientific, research-based interventions (frequently referred to as RTI)
    • Evidence of a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, grade-level standards or intellectual development

As with previous requirements, it must be determined that the child’s learning difficulties are not primarily the results of a visual, hearing or motor disability, mental retardation, emotional disturbance, cultural factors, environmental or economic disadvantage, limited English proficiency or lack of appropriate instruction in reading or math.

Parents must be provided with documentation of assessments of achievement used as part of an intervention process and must be notified of their right to request an evaluation under IDEA. The timeframe for completion of an evaluation may be extended by mutual written consent of the parents and the school.

In its Analysis of Comments and Changes that accompany the final regulations, the U.S. Department of Education has clarified that the evaluation of a child suspected of having LD must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education. RTI is only one component of the process and determining why a child has not responded to research-based interventions requires a comprehensive evaluation.

Highly Qualified Special Education Teachers

Special education teachers who teach core academic subjects (as defined by the No Child Left Behind Act) to students with disabilities must be “highly qualified” in special education and also be highly qualified in the academic subjects they teach.

The National Center for Learning Disabilities had requested clarification regarding the instructional activities of special education teachers not teaching a core academic subject. Specifically, that such teachers could only provide consultative services to a highly qualified general education teacher and should restrict their services to areas that supplement not supplant the direct instruction provided by the highly qualified general education teacher in core academic subjects. This clarification was not provided in final regulation.

The final regulations clarify that teachers in private schools—including private school teachers hired or contracted by school districts to provide services to children placed in private schools by their parents—do not need to meet the “highly qualified” requirements of IDEA.

Individualized Education Programs (IEP)

IDEA 2004 established new provisions that allow members of the IEP team to be excused from attending IEP meetings under certain circumstances. The regulations clarify that the members who can be excused are:

  • The regular education teacher
  • The special education teacher
  • The representative of the school district who is qualified to provide or supervise the provision of special education services
  • Individual(s) who can interpret the instructional implications of evaluation results.

While IEP team members can only be excused if parents and the school provide written informed consent, the National Center for Learning Disabilities requested that federal regulations also clarify that the consent for excusal had to take place in advance of the IEP meeting. This requirement was not added to the final regulations.

IDEA 2004 included a new provision requiring the special education and related services, supplemental aids and services outlined on a student’s IEP need to be based on “peer-reviewed research” to the “extent practicable.”

While a definition of “peer-reviewed research” is not included in the final regulations, the Analysis of Comments and Changes indicate that “peer-reviewed research” refers to research that is reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of the field before the research is published. According to the U.S. Department of Education, this new requirement establishes that schools must use methods that research has shown to be effective, to the extent that methods based on peer-reviewed research are available.

IDEA 2004 changed the requirement for periodic reports to parents regarding their child’s progress toward attaining the annual goals in the IEP. While periodic reports continue to be required, these reports no longer need to provide information regarding whether the progress being made is sufficient to achieve the annual goal in the time specified. Additionally, periodic reports are no longer required to be given to parents as frequently as progress reports, such as report cards, are given to parents of non-disabled students. The National Center for Learning Disabilities had asked for final regulations to continue these two important provisions, however, these requirements were not included.

Draft IDEA 2004 regulations had eliminated important requirements regarding the accessibility of student’s IEP to teachers and others responsible for implementation. The National Center for Learning Disabilities had requested that this language be restored and the final regulations reflect that request. Final regulations require that “each teacher and provider is informed of his or her specific responsibilities related to implementing the child’s IEP; and the specific appropriate accommodations and supports that must be provided for the child in accordance with the IEP.”

Summary of Performance

IDEA 2004 established a new requirement calling for a “summary of academic and functional performance” to be given to every student who exits special education by graduating with a regular diploma or exceeding the age for special education under state law.

The National Center for Learning Disabilities, along with other organizations concerned with the postsecondary experiences of students with disabilities that require documentation for services and accommodations, had requested additional regulatory language that would provide states with more guidance regarding the information to include in a performance summary. No further language was included in final regulations.

In its Analysis of Comments and Changes the U.S. Department of Education stated that it did not believe that IDEA regulations should require schools to conduct evaluations for children to meet the entrance or eligibility requirements of another institution or agency. To do so would impose a significant cost on schools and exceed requirements of IDEA 2004.

Given that the new requirement for the performance summary replaces the requirement for a re-evaluation upon exiting special education, the National Center for Learning Disabilities is disappointed that the final regulations provide no additional specifics that might help ensure that the summary is sufficient to support the needs of children with LD in postsecondary settings.


Candace Cortiella’s work as director of the nonprofit The Advocacy Institute focuses on improving the lives of people with learning disabilities, through public policy and other initiatives. She is also a member of NCLD’s professional advisory board. The mother of a young adult with learning disabilities, she lives in the Washington, D.C., area.

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