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On March 2, 2016, the U.S. Department of Education (“DOE”) issued a Notice of Proposed Rulemaking (“NPRM”) seeking to amend the Individuals with Disabilities in Education Act implementing regulations. The NPRM seeks to address the “over-identification of certain students for special education services” and the issue of disproportionality in special education. Specifically, the DOE expresses concern about over-identification of students, particularly minority students, with disabilities which results in students being placed “in more restrictive environments and not taught to challenging academic standards.” The DOE notes that “the intention of these proposed regulations is not to limit services for children with disabilities who need them; rather, their purpose is to ensure that children are not mislabeled and receive appropriate services.”

The NPRM proposes four primary changes to the current IDEA regulations:

  1. Establishing and enforcing a “standard methodology that each state must use in its annual determination…of whether significant disproportionality based on race and ethnicity is occurring in the state and the LEAs of the state.”
  2. Clarifying “ambiguities in the existing regulations concerning significant disproportionality in the discipline of children with disabilities.” The DOE notes that children of color with disabilities “are more likely to be suspended and expelled than white children with disabilities, and that suspensions are associated with negative student outcomes.”
  3. Clarifying “IDEA’s requirements regarding their review, and when appropriate, revision.” Specifically, the DOE seeks to improve the “review of LEA policies, practices, and procedures when significant disproportionality is found.”
  4. Expanding “the scope of … the remedies required under IDEA.” Specifically, this proposed amendment “would require that LEAs identify and address factors contributing to significant disproportionality as part of the implementation and coordinated early intervening services and would expand the authorized use of funds reserved for these services to serve children from age 3 through grade 12, with and without disabilities.”

The DOE is accepting public comment on the proposed regulations until May 16, 2016. Comments can be submitted through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. Comments will not be accepted via fax or email.

The full text of the Notice of Proposed Rulemaking is available at:

For questions on the Notice of Proposed Rulemaking or how to submit a public comment, please contact Bennett Rodick or Kaitlin Atlas.