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Part B - ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES 
PartB
Sec. 611
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Section 1
Title I
Sec. 101
Part A
PartB
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Subpart 1
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Chapter 1
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Title II
 

PART B -- ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES 
 
  SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION OF APPROPRIATIONS.  (a) GRANTS TO STATES-  (1) PURPOSE OF GRANTS- The Secretary shall make grants to States and the outlying areas, and provide funds to the Secretary of the Interior, to assist them to provide special education and related services to children with disabilities in accordance with this part. 

(2) MAXIMUM AMOUNTS- The maximum amount of the grant a State may receive under this section for any fiscal year is -- 

(A) the number of children with disabilities in the State who are receiving special education and related services --  (i) aged 3 through 5 if the State is eligible for a grant under section 619; and 

(ii) aged 6 through 21; multiplied by 

(B) 40 percent of the average per-pupil expenditure in public elementary and secondary schools in the United States. 
(b) OUTLYING AREAS AND FREELY ASSOCIATED STATES-  (1) FUNDS RESERVED- From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve not more than one percent, which shall be used --  (A) to provide assistance to the outlying areas in accordance with their respective populations of individuals aged 3 through 21; and 

(B) for fiscal years 1998 through 2001, to carry out the competition described in paragraph (2), except that the amount reserved to carry out that competition shall not exceed the amount reserved for fiscal year 1996 for the competition under part B of this Act described under the heading 'SPECIAL EDUCATION' in Public Law 104-134

(2) LIMITATION FOR FREELY ASSOCIATED STATES-  (A) COMPETITIVE GRANTS- The Secretary shall use funds described in paragraph (1)(B) to award grants, on a competitive basis, to Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the freely associated States to carry out the purposes of this part. 
(B) AWARD BASIS- The Secretary shall award grants under subparagraph (A) on a competitive basis, pursuant to the recommendations of the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those recommendations shall be made by experts in the field of special education and related services. 

(C) ASSISTANCE REQUIREMENTS- Any freely associated State that wishes to receive funds under this part shall include, in its application for assistance -- 

(i) information demonstrating that it will meet all conditions that apply to States under this part; 

(ii) an assurance that, notwithstanding any other provision of this part, it will use those funds only for the direct provision of special education and related services to children with disabilities and to enhance its capacity to make a free appropriate public education available to all children with disabilities; 

(iii) the identity of the source and amount of funds, in addition to funds under this part, that it will make available to ensure that a free appropriate public education is available to all children with disabilities within its jurisdiction; and 

(iv) such other information and assurances as the Secretary may require. 

(D) TERMINATION OF ELIGIBILITY- Notwithstanding any other provision of law, the freely associated States shall not receive any funds under this part for any program year that begins after September 30, 2001. 

(E) ADMINISTRATIVE COSTS- The Secretary may provide not more than five percent of the amount reserved for grants under this paragraph to pay the administrative costs of the Pacific Region Educational Laboratory under subparagraph (B). 

(3) LIMITATION- An outlying area is not eligible for a competitive award under paragraph (2) unless it receives assistance under paragraph (1)(A). 

(4) SPECIAL RULE- The provisions of Public Law 95-134, permitting the consolidation of grants by the outlying areas, shall not apply to funds provided to those areas or to the freely associated States under this section. 

(5) ELIGIBILITY FOR DISCRETIONARY PROGRAMS- The freely associated States shall be eligible to receive assistance under subpart 2 of part D of this Act until September 30, 2001. 

(6) DEFINITION- As used in this subsection, the term 'freely associated States' means the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. 

(c) SECRETARY OF THE INTERIOR- From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve 1.226 percent to provide assistance to the Secretary of the Interior in accordance with subsection (i)

(d) ALLOCATIONS TO STATES- 

(1) IN GENERAL- After reserving funds for studies and evaluations under section 674(e), and for payments to the outlying areas and the Secretary of the Interior under subsections (b) and (c), the Secretary shall allocate the remaining amount among the States in accordance with paragraph (2) or subsection (e), as the case may be. 

(2) INTERIM FORMULA- Except as provided in subsection (e), the Secretary shall allocate the amount described in paragraph (1) among the States in accordance with section 611(a)(3),(4)and (5)and(b)(1), (2), and (3) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997, except that the determination of the number of children with disabilities receiving special education and related services under such section 611(a)(3) may, at the State's discretion, be calculated as of the last Friday in October or as of December 1 of the fiscal year for which the funds are appropriated. 

(e) PERMANENT FORMULA-  (1) ESTABLISHMENT OF BASE YEAR- The Secretary shall allocate the amount described in subsection (d)(1) among the States in accordance with this subsection for each fiscal year beginning with the first fiscal year for which the amount appropriated under subsection (j) is more than $4,924,672,200. 

(2) USE OF BASE YEAR- 

(A) DEFINITION- As used in this subsection, the term 'base year' means the fiscal year preceding the first fiscal year in which this subsection applies. 

(B) SPECIAL RULE FOR USE OF BASE YEAR AMOUNT- If a State received any funds under this section for the base year on the basis of children aged 3 through 5, but does not make a free appropriate public education available to all children with disabilities aged 3 through 5 in the State in any subsequent fiscal year, the Secretary shall compute the State's base year amount, solely for the purpose of calculating the State's allocation in that subsequent year under paragraph (3) or (4), by subtracting the amount allocated to the State for the base year on the basis of those children. 

(3) INCREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) is equal to or greater than the amount allocated to the States under this paragraph for the preceding fiscal year, those allocations shall be calculated as follows: 

(A) (i) Except as provided in subparagraph (B), the Secretary shall --  (I) allocate to each State the amount it received for the base year; 

(II) allocate 85 percent of any remaining funds to States on the basis of their relative populations of children aged 3 through 21 who are of the same age as children with disabilities for whom the State ensures the availability of a free appropriate public education under this part; and 

(III) allocate 15 percent of those remaining funds to States on the basis of their relative populations of children described in subclause (II) who are living in poverty. 

(ii) For the purpose of making grants under this paragraph, the Secretary shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary.  (B) Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following:  (i) No State's allocation shall be less than its allocation for the preceding fiscal year.

(ii) No State's allocation shall be less than the greatest of -- 

(I) the sum of --  (aa) the amount it received for the base year; and 

(bb) one third of one percent of the amount by which the amount appropriated under subsection (j) exceeds the amount appropriated under this section for the base year; 

(II) the sum of --  (aa) the amount it received for the preceding fiscal year; and 

(bb) that amount multiplied by the percentage by which the increase in the funds appropriated from the preceding fiscal year exceeds 1.5 percent; or 

(III) the sum of --  (aa) the amount it received for the preceding fiscal year; and 

(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated from the preceding fiscal year. 

(iii) Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of --  (I) the amount it received for the preceding fiscal year; and 

(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated. 

(C) If the amount available for allocations under this paragraph is insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to subparagraph (B)(i)
(4) DECREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) is less than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows: 
(A) If the amount available for allocations is greater than the amount allocated to the States for the base year, each State shall be allocated the sum of --  (i) the amount it received for the base year; and 

(ii) an amount that bears the same relation to any remaining funds as the increase the State received for the preceding fiscal year over the base year bears to the total of all such increases for all States. 

(B) (i) If the amount available for allocations is equal to or less than the amount allocated to the States for the base year, each State shall be allocated the amount it received for the base year. 

(ii) If the amount available is insufficient to make the allocations described in clause (i), those allocations shall be ratably reduced. 

(f) STATE-LEVEL ACTIVITIES-  (1) GENERAL-  (A) Each State may retain not more than the amount described in subparagraph (B) for administration and other State-level activities in accordance with paragraphs (2) and (3)

(B) For each fiscal year, the Secretary shall determine and report to the State educational agency an amount that is 25 percent of the amount the State received under this section for fiscal year 1997, cumulatively adjusted by the Secretary for each succeeding fiscal year by the lesser of -- 

(i) the percentage increase, if any, from the preceding fiscal year in the State's allocation under this section; or 

(ii) the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. 

(C) A State may use funds it retains under subparagraph (A) without regard to --  (i) the prohibition on commingling of funds in section 612(a)(18)(B); and 

(ii) the prohibition on supplanting other funds in section 612(a)(18)(C)

(2) STATE ADMINISTRATION-  (A) For the purpose of administering this part, including section 619 (including the coordination of activities under this part with, and providing technical assistance to, other programs that provide services to children with disabilities) -- 
(i) each State may use not more than twenty percent of the maximum amount it may retain under paragraph (1)(A) for any fiscal year or $500,000 (adjusted by the cumulative rate of inflation since fiscal year 1998, as measured by the percentage increase, if any, in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), whichever is greater; and 

(ii) each outlying area may use up to five percent of the amount it receives under this section for any fiscal year or $35,000, whichever is greater. 

(B) Funds described in subparagraph (A) may also be used for the administration of part C of this Act, if the State educational agency is the lead agency for the State under that part. 
(3) OTHER STATE-LEVEL ACTIVITIES- Each State shall use any funds it retains under paragraph (1) and does not use for administration under paragraph (2) for any of the following:  (A) Support and direct services, including technical assistance and personnel development and training. 

(B) Administrative costs of monitoring and complaint investigation, but only to the extent that those costs exceed the costs incurred for those activities during fiscal year 1985. 

(C) To establish and implement the mediation process required by section 615(e), including providing for the costs of mediators and support personnel. 

(D) To assist local educational agencies in meeting personnel shortages. 

(E) To develop a State Improvement Plan under subpart 1 of part D. 

(F) Activities at the State and local levels to meet the performance goals established by the State under section 612(a)(16) and to support implementation of the State Improvement Plan undersubpart 1 of part D if the State receives funds under that subpart. 

(G) To supplement other amounts used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under this section. This system shall be coordinated with and, to the extent appropriate, build on the system of coordinated services developed by the State under part C of this Act. 

(H) For subgrants to local educational agencies for the purposes described in paragraph (4)(A)

(4) (A) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES FOR CAPACITY-BUILDING AND IMPROVEMENT- In any fiscal year in which the percentage increase in the State's allocation under this section exceeds the rate of inflation (as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), each State shall reserve, from its allocation under this section, the amount described in subparagraph (B) to make subgrants to local educational agencies, unless that amount is less than $100,000, to assist them in providing direct services and in making systemic change to improve results for children with disabilities through one or more of the following:  (i) Direct services, including alternative programming for children who have been expelled from school, and services for children in correctional facilities, children enrolled in State-operated or State-supported schools, and children in charter schools. 

(ii) Addressing needs or carrying out improvement strategies identified in the State's Improvement Plan under subpart 1 of part D

(iii) Adopting promising practices, materials, and technology, based on knowledge derived from education research and other sources. 

(iv) Establishing, expanding, or implementing interagency agreements and arrangements between local educational agencies and other agencies or organizations concerning the provision of services to children with disabilities and their families. 

(v) Increasing cooperative problem-solving between parents and school personnel and promoting the use of alternative dispute resolution. 

(B) MAXIMUM SUBGRANT- For each fiscal year, the amount referred to in subparagraph (A) is --  (i) the maximum amount the State was allowed to retain under paragraph (1)(A) for the prior fiscal year, or for fiscal year 1998, 25 percent of the State's allocation for fiscal year 1997 under this section; multiplied by 

(ii) the difference between the percentage increase in the State's allocation under this section and the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. 

(5) REPORT ON USE OF FUNDS- As part of the information required to be submitted to the Secretary under section 612, each State shall annually describe --  (A) how amounts retained under paragraph (1) will be used to meet the requirements of this part; 

(B) how those amounts will be allocated among the activities described in paragraphs (2) and (3) to meet State priorities based on input from local educational agencies; and 

(C) the percentage of those amounts, if any, that will be distributed to local educational agencies by formula. 

(g) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES-  (1) SUBGRANTS REQUIRED- Each State that receives a grant under this section for any fiscal year shall distribute any funds it does not retain under subsection (f) (at least 75 percent of the grant funds) to local educational agencies in the State that have established their eligibility under section 613, and to State agencies that received funds under section 614(a)(1)(A) of this Act for fiscal year 1997, as then in effect, and have established their eligibility under section 613, for use in accordance with this part. 

(2) ALLOCATIONS TO LOCAL EDUCATIONAL AGENCIES- 

(A) INTERIM PROCEDURE- For each fiscal year for which funds are allocated to States under subsection (d)(2), each State shall allocate funds under paragraph (1) in accordance with section 611(d) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997. 

(B) PERMANENT PROCEDURE- For each fiscal year for which funds are allocated to States under subsection (e), each State shall allocate funds under paragraph (1) as follows: 

(i) BASE PAYMENTS- The State shall first award each agency described in paragraph (1) the amount that agency would have received under this section for the base year, as defined in subsection (e)(2)(A), if the State had distributed 75 percent of its grant for that year under section 611(d), as then in effect. 

(ii) ALLOCATION OF REMAINING FUNDS- After making allocations under clause (i), the State shall -- 

(I) allocate 85 percent of any remaining funds to those agencies on the basis of the relative numbers of children enrolled in public and private elementary and secondary schools within the agency's jurisdiction; and 

(II) allocate 15 percent of those remaining funds to those agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency. 

(3) FORMER CHAPTER 1 STATE AGENCIES-  (A) To the extent necessary, the State --  (i) shall use funds that are available under subsection (f)(1)(A) to ensure that each State agency that received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 receives, from the combination of funds under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount equal to --  (I) the number of children with disabilities, aged 6 through 21, to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, subject to the limitation in subparagraph (B); multiplied by 

(II) the per-child amount provided under such subpart for fiscal year 1994; and 

(ii) may use those funds to ensure that each local educational agency that received fiscal year 1994 funds under that subpart for children who had transferred from a State-operated or State-supported school or program assisted under that subpart receives, from the combination of funds available under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount for each such child, aged 3 through 21 to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, equal to the per-child amount the agency received under that subpart for fiscal year 1994.  (B) The number of children counted under subparagraph (A)(i)(I) shall not exceed the number of children aged 3 through 21 for whom the agency received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965.  (4) REALLOCATION OF FUNDS- If a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all children with disabilities residing in the area served by that agency with State and local funds, the State educational agency may reallocate any portion of the funds under this part that are not needed by that local agency to provide a free appropriate public education to other local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas they serve.  (h) DEFINITIONS- For the purpose of this section --  (1) the term 'average per-pupil expenditure in public elementary and secondary schools in the United States' means --  (A) without regard to the source of funds --  (i) the aggregate current expenditures, during the second fiscal year preceding the fiscal year for which the determination is made (or, if satisfactory data for that year are not available, during the most recent preceding fiscal year for which satisfactory data are available) of all local educational agencies in the 50 States and the District of Columbia); plus 

(ii) any direct expenditures by the State for the operation of those agencies; divided by 

(B) the aggregate number of children in average daily attendance to whom those agencies provided free public education during that preceding year; and 
(2) the term 'State' means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. 
(i) USE OF AMOUNTS BY SECRETARY OF THE INTERIOR-  (1) PROVISION OF AMOUNTS FOR ASSISTANCE-  (A) IN GENERAL- The Secretary of Education shall provide amounts to the Secretary of the Interior to meet the need for assistance for the education of children with disabilities on reservations aged 5 to 21, inclusive, enrolled in elementary and secondary schools for Indian children operated or funded by the Secretary of the Interior. The amount of such payment for any fiscal year shall be equal to 80 percent of the amount allotted under subsection (c) for that fiscal year. 

(B) CALCULATION OF NUMBER OF CHILDREN- In the case of Indian students aged 3 to 5, inclusive, who are enrolled in programs affiliated with the Bureau of Indian Affairs (hereafter in this subsection referred to as 'BIA') schools and that are required by the States in which such schools are located to attain or maintain State accreditation, and which schools have such accreditation prior to the date of enactment of the Individuals with Disabilities Education Act Amendments of 1991, the school shall be allowed to count those children for the purpose of distribution of the funds provided under this paragraph to the Secretary of the Interior. The Secretary of the Interior shall be responsible for meeting all of the requirements of this part for these children, in accordance with paragraph (2)

(C) ADDITIONAL REQUIREMENT- With respect to all other children aged 3 to 21, inclusive, on reservations, the State educational agency shall be responsible for ensuring that all of the requirements of this part are implemented. 

(2) SUBMISSION OF INFORMATION- The Secretary of Education may provide the Secretary of the Interior amounts under paragraph (1) for a fiscal year only if the Secretary of the Interior submits to the Secretary of Education information that -- 
(A) demonstrates that the Department of the Interior meets the appropriate requirements, as determined by the Secretary of Education, of sections 612 (including monitoring and evaluation activities) and 613

(B) includes a description of how the Secretary of the Interior will coordinate the provision of services under this part with local educational agencies, tribes and tribal organizations, and other private and Federal service providers; 

(C) includes an assurance that there are public hearings, adequate notice of such hearings, and an opportunity for comment afforded to members of tribes, tribal governing bodies, and affected local school boards before the adoption of the policies, programs, and procedures described in subparagraph (A)

(D) includes an assurance that the Secretary of the Interior will provide such information as the Secretary of Education may require to comply with section 618

(E) includes an assurance that the Secretary of the Interior and the Secretary of Health and Human Services have entered into a memorandum of agreement, to be provided to the Secretary of Education, for the coordination of services, resources, and personnel between their respective Federal, State, and local offices and with State and local educational agencies and other entities to facilitate the provision of services to Indian children with disabilities residing on or near reservations (such agreement shall provide for the apportionment of responsibilities and costs including, but not limited to, child find, evaluation, diagnosis, remediation or therapeutic measures, and (where appropriate) equipment and medical or personal supplies as needed for a child to remain in school or a program); and 

(F) includes an assurance that the Department of the Interior will cooperate with the Department of Education in its exercise of monitoring and oversight of this application, and any agreements entered into between the Secretary of the Interior and other entities under this part, and will fulfill its duties under this part. Section 616(a) shall apply to the information described in this paragraph. 

(3) PAYMENTS FOR EDUCATION AND SERVICES FOR INDIAN CHILDREN WITH DISABILITIES AGED 3 THROUGH 5-  (A) IN GENERAL- With funds appropriated under subsection (j), the Secretary of Education shall make payments to the Secretary of the Interior to be distributed to tribes or tribal organizations (as defined under section 4 of the Indian Self-Determination and Education Assistance Act) or consortia of the above to provide for the coordination of assistance for special education and related services for children with disabilities aged 3 through 5 on reservations served by elementary and secondary schools for Indian children operated or funded by the Department of the Interior. The amount of such payments under subparagraph (B) for any fiscal year shall be equal to 20 percent of the amount allotted under subsection (c)

(B) DISTRIBUTION OF FUNDS- The Secretary of the Interior shall distribute the total amount of the payment under subparagraph (A) by allocating to each tribe or tribal organization an amount based on the number of children with disabilities ages 3 through 5 residing on reservations as reported annually, divided by the total of those children served by all tribes or tribal organizations. 

(C) SUBMISSION OF INFORMATION- To receive a payment under this paragraph, the tribe or tribal organization shall submit such figures to the Secretary of the Interior as required to determine the amounts to be allocated under subparagraph (B). This information shall be compiled and submitted to the Secretary of Education. 

(D) USE OF FUNDS- The funds received by a tribe or tribal organization shall be used to assist in child find, screening, and other procedures for the early identification of children aged 3 through 5, parent training, and the provision of direct services. These activities may be carried out directly or through contracts or cooperative agreements with the BIA, local educational agencies, and other public or private nonprofit organizations. The tribe or tribal organization is encouraged to involve Indian parents in the development and implementation of these activities. The above entities shall, as appropriate, make referrals to local, State, or Federal entities for the provision of services or further diagnosis. 

(E) BIENNIAL REPORT- To be eligible to receive a grant pursuant to subparagraph (A), the tribe or tribal organization shall provide to the Secretary of the Interior a biennial report of activities undertaken under this paragraph, including the number of contracts and cooperative agreements entered into, the number of children contacted and receiving services for each year, and the estimated number of children needing services during the 2 years following the one in which the report is made. The Secretary of the Interior shall include a summary of this information on a biennial basis in the report to the Secretary of Education required under this subsection. The Secretary of Education may require any additional information from the Secretary of the Interior. 

(F) PROHIBITIONS- None of the funds allocated under this paragraph may be used by the Secretary of the Interior for administrative purposes, including child count and the provision of technical assistance. 

(4) PLAN FOR COORDINATION OF SERVICES- The Secretary of the Interior shall develop and implement a plan for the coordination of services for all Indian children with disabilities residing on reservations covered under this Act. Such plan shall provide for the coordination of services benefiting these children from whatever source, including tribes, the Indian Health Service, other BIA divisions, and other Federal agencies. In developing the plan, the Secretary of the Interior shall consult with all interested and involved parties. It shall be based on the needs of the children and the system best suited for meeting those needs, and may involve the establishment of cooperative agreements between the BIA, other Federal agencies, and other entities. The plan shall also be distributed upon request to States, State and local educational agencies, and other agencies providing services to infants, toddlers, and children with disabilities, to tribes, and to other interested parties. 

(5) ESTABLISHMENT OF ADVISORY BOARD- To meet the requirements of section 612(a)(21), the Secretary of the Interior shall establish, not later than 6 months after the date of the enactment of the Individuals with Disabilities Education Act Amendments of 1997, under the BIA, an advisory board composed of individuals involved in or concerned with the education and provision of services to Indian infants, toddlers, children, and youth with disabilities, including Indians with disabilities, Indian parents or guardians of such children, teachers, service providers, State and local educational officials, representatives of tribes or tribal organizations, representatives from State Interagency Coordinating Councils under section 641 in States having reservations, and other members representing the various divisions and entities of the BIA. The chairperson shall be selected by the Secretary of the Interior. The advisory board shall -- 

(A) assist in the coordination of services within the BIA and with other local, State, and Federal agencies in the provision of education for infants, toddlers, and children with disabilities; 

(B) advise and assist the Secretary of the Interior in the performance of the Secretary's responsibilities described in this subsection; 

(C) develop and recommend policies concerning effective inter- and intra-agency collaboration, including modifications to regulations, and the elimination of barriers to inter- and intra-agency programs and activities; 

(D) provide assistance and disseminate information on best practices, effective program coordination strategies, and recommendations for improved educational programming for Indian infants, toddlers, and children with disabilities; and 

(E) provide assistance in the preparation of information required under paragraph (2)(D)

(6) ANNUAL REPORTS- 
(A) IN GENERAL- The advisory board established under paragraph (5) shall prepare and submit to the Secretary of the Interior and to the Congress an annual report containing a description of the activities of the advisory board for the preceding year. 

(B) AVAILABILITY- The Secretary of the Interior shall make available to the Secretary of Education the report described in subparagraph (A)

(j) AUTHORIZATION OF APPROPRIATIONS- For the purpose of carrying out this part, other than section 619, there are authorized to be appropriated such sums as may be necessary. 
 
  SEC. 612. STATE ELIGIBILITY. (a) IN GENERAL- A State is eligible for assistance under this part for a fiscal year if the State demonstrates to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets each of the following conditions:  (1) FREE APPROPRIATE PUBLIC EDUCATION-  (A) IN GENERAL- A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school. 

(B) LIMITATION- The obligation to make a free appropriate public education available to all children with disabilities does not apply with respect to children: 

(i) aged 3 through 5 and 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges; and 

(ii) aged 18 through 21 to the extent that State law does not require that special education and related services under this part be provided to children with disabilities who, in the educational placement prior to their incarceration in an adult correctional facility: 

(I) were not actually identified as being a child with a disability under section 602(3) of this Act; or 

(II) did not have an individualized education program under this part. 

(2) FULL EDUCATIONAL OPPORTUNITY GOAL- The State has established a goal of providing full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal. 

(3) CHILD FIND- 

(A) IN GENERAL- All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services. 

(B) CONSTRUCTION- Nothing in this Act requires that children be classified by their disability so long as each child who has a disability listed in section 602 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under this part. 

(4) INDIVIDUALIZED EDUCATION PROGRAM- An individualized education program, or an individualized family service plan that meets the requirements of section 636(d), is developed, reviewed, and revised for each child with a disability in accordance with section 614(d)

(5) LEAST RESTRICTIVE ENVIRONMENT- 

(A) IN GENERAL- To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 

(B) ADDITIONAL REQUIREMENT- 

(i) IN GENERAL- If the State uses a funding mechanism by which the State distributes State funds on the basis of the type of setting in which a child is served, the funding mechanism does not result in placements that violate the requirements of subparagraph (A). 

(ii) ASSURANCE- If the State does not have policies and procedures to ensure compliance with clause (i), the State shall provide the Secretary an assurance that it will revise the funding mechanism as soon as feasible to ensure that such mechanism does not result in such placements. 

(6) PROCEDURAL SAFEGUARDS-  (A) IN GENERAL- Children with disabilities and their parents are afforded the procedural safeguards required by section 615

(B) ADDITIONAL PROCEDURAL SAFEGUARDS- Procedures to ensure that testing and evaluation materials and procedures utilized for the purposes of evaluation and placement of children with disabilities will be selected and administered so as not to be racially or culturally discriminatory. Such materials or procedures shall be provided and administered in the child's native language or mode of communication, unless it clearly is not feasible to do so, and no single procedure shall be the sole criterion for determining an appropriate educational program for a child. 

(7) EVALUATION- Children with disabilities are evaluated in accordance with subsections (a) through (c) of section 614

(8) CONFIDENTIALITY- Agencies in the State comply with section 617(c) (relating to the confidentiality of records and information). 

(9) TRANSITION FROM PART C TO PRESCHOOL PROGRAMS- Children participating in early-intervention programs assisted under part C, and who will participate in preschool programs assisted under this part, experience a smooth and effective transition to those preschool programs in a manner consistent with section 637(a)(8). By the third birthday of such a child, an individualized education program or, if consistent with sections 614(d)(2)(B) and 636(d), an individualized family service plan, has been developed and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency under section 637(a)(8)

(10) CHILDREN IN PRIVATE SCHOOLS- 

(A) CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR PARENTS-  (i) IN GENERAL- To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under this part by providing for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under subsection (f)(I) Amounts expended for the provision of those services by a local educational agency shall be equal to a proportionate amount of Federal funds made available under this part. 

(II) Such services may be provided to children with disabilities on the premises of private, including parochial, schools, to the extent consistent with law. 

(ii) CHILD-FIND REQUIREMENT- The requirements of paragraph (3) of this subsection (relating to child find) shall apply with respect to children with disabilities in the State who are enrolled in private, including parochial, elementary and secondary schools. 
(B) CHILDREN PLACED IN, OR REFERRED TO, PRIVATE SCHOOLS BY PUBLIC AGENCIES-  (i) IN GENERAL- Children with disabilities in private schools and facilities are provided special education and related services, in accordance with an individualized education program, at no cost to their parents, if such children are placed in, or referred to, such schools or facilities by the State or appropriate local educational agency as the means of carrying out the requirements of this part or any other applicable law requiring the provision of special education and related services to all children with disabilities within such State. 
(ii) STANDARDS- In all cases described in clause (i), the State educational agency shall determine whether such schools and facilities meet standards that apply to State and local educational agencies and that children so served have all the rights they would have if served by such agencies.  (C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOLS WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY-  (i) IN GENERAL- Subject to subparagraph (A), this part does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility. 

(ii) REIMBURSEMENT FOR PRIVATE SCHOOL PLACEMENT- If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. 

(iii) LIMITATION ON REIMBURSEMENT- The cost of reimbursement described in clause (ii) may be reduced or denied -- 

(I) if --  (aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or 

(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa); 

(II) if, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 615(b)(7), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or 

(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents. 

(iv) EXCEPTION- Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement may not be reduced or denied for failure to provide such notice if -- (I) the parent is illiterate and cannot write in English; 

(II) compliance with clause (iii)(I) would likely result in physical or serious emotional harm to the child; 

(III) the school prevented the parent from providing such notice; or 

(IV) the parents had not received notice, pursuant to section 615, of the notice requirement in clause (iii)(I). 

(11) STATE EDUCATIONAL AGENCY RESPONSIBLE FOR GENERAL SUPERVISION-  (A) IN GENERAL- The State educational agency is responsible for ensuring that --  (i) the requirements of this part are met; and 

(ii) all educational programs for children with disabilities in the State, including all such programs administered by any other State or local agency -- 

(I) are under the general supervision of individuals in the State who are responsible for educational programs for children with disabilities; and 

(II) meet the educational standards of the State educational agency. 

(B) LIMITATION- Subparagraph (A) shall not limit the responsibility of agencies in the State other than the State educational agency to provide, or pay for some or all of the costs of, a free appropriate public education for any child with a disability in the State. 

(C) EXCEPTION- Notwithstanding subparagraphs (A) and (B), the Governor (or another individual pursuant to State law), consistent with State law, may assign to any public agency in the State the responsibility of ensuring that the requirements of this part are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons. 

(12) OBLIGATIONS RELATED TO AND METHODS OF ENSURING SERVICES-  (A) ESTABLISHING RESPONSIBILITY FOR SERVICES- The Chief Executive Officer or designee of the officer shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each public agency described in subparagraph (B) and the State educational agency, in order to ensure that all services described in subparagraph (B)(i) that are needed to ensure a free appropriate public education are provided, including the provision of such services during the pendency of any dispute under clause (iii). Such agreement or mechanism shall include the following: 
(i) AGENCY FINANCIAL RESPONSIBILITY- An identification of, or a method for defining, the financial responsibility of each agency for providing services described in subparagraph (B)(i) to ensure a free appropriate public education to children with disabilities, provided that the financial responsibility of each public agency described in subparagraph (B), including the State Medicaid agency and other public insurers of children with disabilities, shall precede the financial responsibility of the local educational agency (or the State agency responsible for developing the child's IEP). 

(ii) CONDITIONS AND TERMS OF REIMBURSEMENT- The conditions, terms, and procedures under which a local educational agency shall be reimbursed by other agencies. 

(iii) INTERAGENCY DISPUTES- Procedures for resolving interagency disputes (including procedures under which local educational agencies may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism. 

(iv) COORDINATION OF SERVICES PROCEDURES- Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in subparagraph (B)(i). 

(B) OBLIGATION OF PUBLIC AGENCY-  (i) IN GENERAL- If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy or pursuant to subparagraph (A), to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in sections 602(1) relating to assistive technology devices, 602(2) relating to assistive technology services, 602(22) relating to related services, 602(29) relating to supplementary aids and services, and 602(30) relating to transition services) that are necessary for ensuring a free appropriate public education to children with disabilities within the State, such public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement. 

(ii) REIMBURSEMENT FOR SERVICES BY PUBLIC AGENCY- If a public agency other than an educational agency fails to provide or pay for the special education and related services described in clause (i), the local educational agency (or State agency responsible for developing the child's IEP) shall provide or pay for such services to the child. Such local educational agency or State agency may then claim reimbursement for the services from the public agency that failed to provide or pay for such services and such public agency shall reimburse the local educational agency or State agency pursuant to the terms of the interagency agreement or other mechanism described in subparagraph (A)(i) according to the procedures established in such agreement pursuant to subparagraph (A)(ii). 

(C) SPECIAL RULE- The requirements of subparagraph (A) may be met through --  (i) state statute or regulation; 
(ii) signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or 

(iii) other appropriate written methods as determined by the Chief Executive Officer of the State or designee of the officer. 

(13) PROCEDURAL REQUIREMENTS RELATING TO LOCAL EDUCATIONAL AGENCY ELIGIBILITY- The State educational agency will not make a final determination that a local educational agency is not eligible for assistance under this part without first affording that agency reasonable notice and an opportunity for a hearing. 

(14) COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT- The State has in effect, consistent with the purposes of this Act and with section 635(a)(8), a comprehensive system of personnel development that is designed to ensure an adequate supply of qualified special education, regular education, and related services personnel that meets the requirements for a State improvement plan relating to personnel development in subsections (b)(2)(B) and (c)(3)(D) of section 653

(15) PERSONNEL STANDARDS- 

(A) IN GENERAL- The State educational agency has established and maintains standards to ensure that personnel necessary to carry out this part are appropriately and adequately prepared and trained. 

(B) STANDARDS DESCRIBED- Such standards shall -- 

(i) be consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services; 

(ii) to the extent the standards described in subparagraph (A) are not based on the highest requirements in the State applicable to a specific profession or discipline, the State is taking steps to require retraining or hiring of personnel that meet appropriate professional requirements in the State; and 

(iii) allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulations, or written policy, in meeting the requirements of this part to be used to assist in the provision of special education and related services to children with disabilities under this part. 

(C) POLICY- In implementing this paragraph, a State may adopt a policy that includes a requirement that local educational agencies in the State make an ongoing good-faith effort to recruit and hire appropriately and adequately trained personnel to provide special education and related services to children with disabilities, including, in a geographic area of the State where there is a shortage of such personnel, the most qualified individuals available who are making satisfactory progress toward completing applicable course work necessary to meet the standards described in subparagraph (B)(i), consistent with State law, and the steps described in subparagraph (B)(ii) within three years. 
(16) PERFORMANCE GOALS AND INDICATORS- The State --  (A) has established goals for the performance of children with disabilities in the State that --  (i) will promote the purposes of this Act, as stated in section 601(d); and 

(ii) are consistent, to the maximum extent appropriate, with other goals and standards for children established by the State; 

(B) has established performance indicators the State will use to assess progress toward achieving those goals that, at a minimum, address the performance of children with disabilities on assessments, drop-out rates, and graduation rates; 

(C) will, every two years, report to the Secretary and the public on the progress of the State, and of children with disabilities in the State, toward meeting the goals established under subparagraph (A); and 

(D) based on its assessment of that progress, will revise its State improvement plan under subpart 1 of part D as may be needed to improve its performance, if the State receives assistance under that subpart. 

(17) PARTICIPATION IN ASSESSMENTS-  (A) IN GENERAL- Children with disabilities are included in general State and district-wide assessment programs, with appropriate accommodations, where necessary. As appropriate, the State or local educational agency --  (i) develops guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in State and district-wide assessment programs; and 

(ii) develops and, beginning not later than July 1, 2000, conducts those alternate assessments. 

(B) REPORTS- The State educational agency makes available to the public, and reports to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:  (i) The number of children with disabilities participating in regular assessments.

(ii) The number of those children participating in alternate assessments. 

(iii) (I) The performance of those children on regular assessments (beginning not later than July 1, 1998) and on alternate assessments (not later than July 1, 2000), if doing so would be statistically sound and would not result in the disclosure of performance results identifiable to individual children. 
(II) Data relating to the performance of children described under subclause (I) shall be disaggregated --  (aa) for assessments conducted after July 1, 1998; and 

(bb) for assessments conducted before July 1, 1998, if the State is required to disaggregate such data prior to July 1, 1998. 

(18) SUPPLEMENTATION OF STATE, LOCAL, AND OTHER FEDERAL FUNDS-  (A) EXPENDITURES- Funds paid to a State under this part will be expended in accordance with all the provisions of this part. 

(B) PROHIBITION AGAINST COMMINGLING- Funds paid to a State under this part will not be commingled with State funds. 

(C) PROHIBITION AGAINST SUPPLANTATION AND CONDITIONS FOR WAIVER BY SECRETARY- Except as provided in section 613, funds paid to a State under this part will be used to supplement the level of Federal, State, and local funds (including funds that are not under the direct control of State or local educational agencies) expended for special education and related services provided to children with disabilities under this part and in no case to supplant such Federal, State, and local funds, except that, where the State provides clear and convincing evidence that all children with disabilities have available to them a free appropriate public education, the Secretary may waive, in whole or in part, the requirements of this subparagraph if the Secretary concurs with the evidence provided by the State. 

(19) MAINTENANCE OF STATE FINANCIAL SUPPORT-  (A) IN GENERAL- The State does not reduce the amount of State financial support for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year. 

(B) REDUCTION OF FUNDS FOR FAILURE TO MAINTAIN SUPPORT- The Secretary shall reduce the allocation of funds under section 611 for any fiscal year following the fiscal year in which the State fails to comply with the requirement of subparagraph (A) by the same amount by which the State fails to meet the requirement. 

(C) WAIVERS FOR EXCEPTIONAL OR UNCONTROLLABLE CIRCUMSTANCES- The Secretary may waive the requirement of subparagraph (A) for a State, for one fiscal year at a time, if the Secretary determines that -- 

(i) granting a waiver would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State; or 
(ii) the State meets the standard in paragraph (18)(C) of this section for a waiver of the requirement to supplement, and not to supplant, funds received under this part.  (D) SUBSEQUENT YEARS- If, for any year, a State fails to meet the requirement of subparagraph (A), including any year for which the State is granted a waiver under subparagraph (C), the financial support required of the State in future years under subparagraph (A) shall be the amount that would have been required in the absence of that failure and not the reduced level of the State's support. 

(E) REGULATIONS- 

(i) The Secretary shall, by regulation, establish procedures (including objective criteria and consideration of the results of compliance reviews of the State conducted by the Secretary) for determining whether to grant a waiver under subparagraph (C)(ii). 

(ii) The Secretary shall publish proposed regulations under clause (i) not later than 6 months after the date of the enactment of the Individuals with Disabilities Education Act Amendments of 1997, and shall issue final regulations under clause (i) not later than 1 year after such date of enactment. 

(20) PUBLIC PARTICIPATION- Prior to the adoption of any policies and procedures needed to comply with this section (including any amendments to such policies and procedures), the State ensures that there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities. 

(21) STATE ADVISORY PANEL- 

(A) IN GENERAL- The State has established and maintains an advisory panel for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the State. 

(B) MEMBERSHIP- Such advisory panel shall consist of members appointed by the Governor, or any other official authorized under State law to make such appointments, that is representative of the State population and that is composed of individuals involved in, or concerned with, the education of children with disabilities, including -- 

(i) parents of children with disabilities; 

(ii) individuals with disabilities; 

(iii) teachers; 

(iv) representatives of institutions of higher education that prepare special education and related services personnel; 

(v) State and local education officials; 

(vi) administrators of programs for children with disabilities; 

(vii) representatives of other State agencies involved in the financing or delivery of related services to children with disabilities; 

(viii) representatives of private schools and public charter schools; 

(ix) at least one representative of a vocational, community, or business organization concerned with the provision of transition services to children with disabilities; and 

(x) representatives from the State juvenile and adult corrections agencies. 

(C) SPECIAL RULE- A majority of the members of the panel shall be individuals with disabilities or parents of children with disabilities. 

(D) DUTIES- The advisory panel shall -- 

(i) advise the State educational agency of unmet needs within the State in the education of children with disabilities; 

(ii) comment publicly on any rules or regulations proposed by the State regarding the education of children with disabilities; 

(iii) advise the State educational agency in developing evaluations and reporting on data to the Secretary under section 618

(iv) advise the State educational agency in developing corrective action plans to address findings identified in Federal monitoring reports under this part; and 

(v) advise the State educational agency in developing and implementing policies relating to the coordination of services for children with disabilities. 

(22) SUSPENSION AND EXPULSION RATES-  (A) IN GENERAL- The State educational agency examines data to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities --  (i) among local educational agencies in the State; or 

(ii) compared to such rates for nondisabled children within such agencies. 

(B) REVIEW AND REVISION OF POLICIES- If such discrepancies are occurring, the State educational agency reviews and, if appropriate, revises (or requires the affected State or local educational agency to revise) its policies, procedures, and practices relating to the development and implementation of IEPs, the use of behavioral interventions, and procedural safeguards, to ensure that such policies, procedures, and practices comply with this Act.  (b) STATE EDUCATIONAL AGENCY AS PROVIDER OF FREE APPROPRIATE PUBLIC EDUCATION OR DIRECT SERVICES- If the State educational agency provides free appropriate public education to children with disabilities, or provides direct services to such children, such agency --  (1) shall comply with any additional requirements of section 613(a), as if such agency were a local educational agency; and 

(2) may use amounts that are otherwise available to such agency under this part to serve those children without regard to section 613(a)(2)(A)(i) (relating to excess costs). 

(c) EXCEPTION FOR PRIOR STATE PLANS-  (1) IN GENERAL- If a State has on file with the Secretary policies and procedures that demonstrate that such State meets any requirement of subsection (a), including any policies and procedures filed under this part as in effect before the effective date of the Individuals with Disabilities Education Act Amendments of 1997, the Secretary shall consider such State to have met such requirement for purposes of receiving a grant under this part. 

(2) MODIFICATIONS MADE BY STATE- Subject to paragraph (3), an application submitted by a State in accordance with this section shall remain in effect until the State submits to the Secretary such modifications as the State deems necessary. This section shall apply to a modification to an application to the same extent and in the same manner as this section applies to the original plan. 

(3) MODIFICATIONS REQUIRED BY THE SECRETARY- If, after the effective date of the Individuals with Disabilities Education Act Amendments of 1997, the provisions of this Act are amended (or the regulations developed to carry out this Act are amended), or there is a new interpretation of this Act by a Federal court or a State's highest court, or there is an official finding of noncompliance with Federal law or regulations, the Secretary may require a State to modify its application only to the extent necessary to ensure the State's compliance with this part. 

(d) APPROVAL BY THE SECRETARY-  (1) IN GENERAL- If the Secretary determines that a State is eligible to receive a grant under this part, the Secretary shall notify the State of that determination. 

(2) NOTICE AND HEARING- The Secretary shall not make a final determination that a State is not eligible to receive a grant under this part until after providing the State -- 

(A) with reasonable notice; and 

(B) with an opportunity for a hearing. 

(e) ASSISTANCE UNDER OTHER FEDERAL PROGRAMS- Nothing in this title permits a State to reduce medical and other assistance available, or to alter eligibility, under titles V and XIX of the Social Security Act with respect to the provision of a free appropriate public education for children with disabilities in the State. 

(f) BY-PASS FOR CHILDREN IN PRIVATE SCHOOLS- 

(1) IN GENERAL- If, on the date of enactment of the Education of the Handicapped Act Amendments of 1983, a State educational agency is prohibited by law from providing for the participation in special programs of children with disabilities enrolled in private elementary and secondary schools as required by subsection (a)(10)(A), the Secretary shall, notwithstanding such provision of law, arrange for the provision of services to such children through arrangements which shall be subject to the requirements of such subsection. 

(2) PAYMENTS- 

(A) DETERMINATION OF AMOUNTS- If the Secretary arranges for services pursuant to this subsection, the Secretary, after consultation with the appropriate public and private school officials, shall pay to the provider of such services for a fiscal year an amount per child that does not exceed the amount determined by dividing --  (i) the total amount received by the State under this part for such fiscal year; by 

(ii) the number of children with disabilities served in the prior year, as reported to the Secretary by the State under section 618

(B) WITHHOLDING OF CERTAIN AMOUNTS- Pending final resolution of any investigation or complaint that could result in a determination under this subsection, the Secretary may withhold from the allocation of the affected State educational agency the amount the Secretary estimates would be necessary to pay the cost of services described in subparagraph (A)

(C) PERIOD OF PAYMENTS- The period under which payments are made under subparagraph (A) shall continue until the Secretary determines that there will no longer be any failure or inability on the part of the State educational agency to meet the requirements of subsection (a)(10)(A)

(3) NOTICE AND HEARING-  (A) IN GENERAL- The Secretary shall not take any final action under this subsection until the State educational agency affected by such action has had an opportunity, for at least 45 days after receiving written notice thereof, to submit written objections and to appear before the Secretary or the Secretary's designee to show cause why such action should not be taken. 
(B) REVIEW OF ACTION- If a State educational agency is dissatisfied with the Secretary's final action after a proceeding under subparagraph (A), such agency may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings on which the Secretary based the Secretary's action, as provided in section 2112 of title 28, United States Code

(C) REVIEW OF FINDINGS OF FACT- The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence. 

(D) JURISDICTION OF COURT OF APPEALS; REVIEW BY UNITED STATES SUPREME COURT- Upon the filing of a petition under subparagraph (B), the United States court of appeals shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28, United States Code
 
 

SEC. 613. LOCAL EDUCATIONAL AGENCY ELIGIBILITY. 
(a) IN GENERAL- A local educational agency is eligible for assistance under this part for a fiscal year if such agency demonstrates to the satisfaction of the State educational agency that it meets each of the following conditions:  (1) CONSISTENCY WITH STATE POLICIES- The local educational agency, in providing for the education of children with disabilities within its jurisdiction, has in effect policies, procedures, and programs that are consistent with the State policies and procedures established under section 612

(2) USE OF AMOUNTS- 

(A) IN GENERAL- Amounts provided to the local educational agency under this part shall be expended in accordance with the applicable provisions of this part and --  (i) shall be used only to pay the excess costs of providing special education and related services to children with disabilities; 

(ii) shall be used to supplement State, local, and other Federal funds and not to supplant such funds; and 

(iii) shall not be used, except as provided in subparagraphs (B) and (C), to reduce the level of expenditures for the education of children with disabilities made by the local educational agency from local funds below the level of those expenditures for the preceding fiscal year. 

(B) EXCEPTION- Notwithstanding the restriction in subparagraph (A)(iii), a local educational agency may reduce the level of expenditures where such reduction is attributable to -- 
(i) the voluntary departure, by retirement or otherwise, or departure for just cause, of special education personnel; 

(ii) a decrease in the enrollment of children with disabilities; 

(iii) the termination of the obligation of the agency, consistent with this part, to provide a program of special education to a particular child with a disability that is an exceptionally costly program, as determined by the State educational agency, because the child -- 

(I) has left the jurisdiction of the agency;

(II) has reached the age at which the obligation of the agency to provide a free appropriate public education to the child has terminated; or

(III) no longer needs such program of special education; or 

(iv) the termination of costly expenditures for long-term purchases, such as the acquisition of equipment or the construction of school facilities. 
(C) TREATMENT OF FEDERAL FUNDS IN CERTAIN FISCAL YEARS-  (i) Notwithstanding clauses (ii) and (iii) of subparagraph (A), for any fiscal year for which amounts appropriated to carry out section 611 exceeds $4,100,000,000, a local educational agency may treat as local funds, for the purpose of such clauses, up to 20 percent of the amount of funds it receives under this part that exceeds the amount it received under this part for the previous fiscal year. 

(ii) Notwithstanding clause (i), if a State educational agency determines that a local educational agency is not meeting the requirements of this part, the State educational agency may prohibit the local educational agency from treating funds received under this part as local funds under clause (i) for any fiscal year, only if it is authorized to do so by the State constitution or a State statute. 

(D) SCHOOLWIDE PROGRAMS UNDER TITLE I OF THE ESEA- Notwithstanding subparagraph (A) or any other provision of this part, a local educational agency may use funds received under this part for any fiscal year to carry out a schoolwide program under section 1114 of the Elementary and Secondary Education Act of 1965, except that the amount so used in any such program shall not exceed --  (i) the number of children with disabilities participating in the schoolwide program; multiplied by  (ii) (I) the amount received by the local educational agency under this part for that fiscal year; divided by 

(II) the number of children with disabilities in the jurisdiction of that agency. 

(3) PERSONNEL DEVELOPMENT- The local educational agency --  (A) shall ensure that all personnel necessary to carry out this part are appropriately and adequately prepared, consistent with the requirements of section 653(c)(3)(D); and 

(B) to the extent such agency determines appropriate, shall contribute to and use the comprehensive system of personnel development of the State established under section 612(a)(14)

(4) PERMISSIVE USE OF FUNDS- Notwithstanding paragraph (2)(A) or section 612(a)(18)(B) (relating to commingled funds), funds provided to the local educational agency under this part may be used for the following activities:  (A) SERVICES AND AIDS THAT ALSO BENEFIT NONDISABLED CHILDREN- For the costs of special education and related services and supplementary aids and services provided in a regular class or other education-related setting to a child with a disability in accordance with the individualized education program of the child, even if one or more nondisabled children benefit from such services. 

(B) INTEGRATED AND COORDINATED SERVICES SYSTEM- To develop and implement a fully integrated and coordinated services system in accordance with subsection (f)

(5) TREATMENT OF CHARTER SCHOOLS AND THEIR STUDENTS- In carrying out this part with respect to charter schools that are public schools of the local educational agency, the local educational agency --  (A) serves children with disabilities attending those schools in the same manner as it serves children with disabilities in its other schools; and 

(B) provides funds under this part to those schools in the same manner as it provides those funds to its other schools. 

(6) INFORMATION FOR STATE EDUCATIONAL AGENCY- The local educational agency shall provide the State educational agency with information necessary to enable the State educational agency to carry out its duties under this part, including, with respect to paragraphs (16) and (17) of section 612(a), information relating to the performance of children with disabilities participating in programs carried out under this part. 

(7) PUBLIC INFORMATION- The local educational agency shall make available to parents of children with disabilities and to the general public all documents relating to the eligibility of such agency under this part. 

(b) EXCEPTION FOR PRIOR LOCAL PLANS-  (1) IN GENERAL- If a local educational agency or State agency has on file with the State educational agency policies and procedures that demonstrate that such local educational agency, or such State agency, as the case may be, meets any requirement of subsection (a), including any policies and procedures filed under this part as in effect before the effective date of the Individuals with Disabilities Education Act Amendments of 1997, the State educational agency shall consider such local educational agency or State agency, as the case may be, to have met such requirement for purposes of receiving assistance under this part. 

(2) MODIFICATION MADE BY LOCAL EDUCATIONAL AGENCY- Subject to paragraph (3), an application submitted by a local educational agency in accordance with this section shall remain in effect until it submits to the State educational agency such modifications as the local educational agency deems necessary.

(3) MODIFICATIONS REQUIRED BY STATE EDUCATIONAL AGENCY- If, after the effective date of the Individuals with Disabilities Education Act Amendments of 1997, the provisions of this Act are amended (or the regulations developed to carry out this Act are amended), or there is a new interpretation of this Act by Federal or State courts, or there is an official finding of noncompliance with Federal or State law or regulations, the State educational agency may require a local educational agency to modify its application only to the extent necessary to ensure the local educational agency's compliance with this part or State law. 

(c) NOTIFICATION OF LOCAL EDUCATIONAL AGENCY OR STATE AGENCY IN CASE OF INELIGIBILITY- If the State educational agency determines that a local educational agency or State agency is not eligible under this section, the State educational agency shall notify the local educational agency or State agency, as the case may be, of that determination and shall provide such local educational agency or State agency with reasonable notice and an opportunity for a hearing. 

(d) LOCAL EDUCATIONAL AGENCY COMPLIANCE- 

(1) IN GENERAL- If the State educational agency, after reasonable notice and an opportunity for a hearing, finds that a local educational agency or State agency that has been determined to be eligible under this section is failing to comply with any requirement described in subsection (a), the State educational agency shall reduce or shall not provide any further payments to the local educational agency or State agency until the State educational agency is satisfied that the local educational agency or State agency, as the case may be, is complying with that requirement. 

(2) ADDITIONAL REQUIREMENT- Any State agency or local educational agency in receipt of a notice described in paragraph (1) shall, by means of public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of such agency. 

(3) CONSIDERATION- In carrying out its responsibilities under paragraph (1), the State educational agency shall consider any decision made in a hearing held under section 615 that is adverse to the local educational agency or State agency involved in that decision. 

(e) JOINT ESTABLISHMENT OF ELIGIBILITY-  (1) JOINT ESTABLISHMENT-  (A) IN GENERAL- A State educational agency may require a local educational agency to establish its eligibility jointly with another local educational agency if the State educational agency determines that the local educational agency would be ineligible under this section because the local educational agency would not be able to establish and maintain programs of sufficient size and scope to effectively meet the needs of children with disabilities. 

(B) CHARTER SCHOOL EXCEPTION- A State educational agency may not require a charter school that is a local educational agency to jointly establish its eligibility under subparagraph (A) unless it is explicitly permitted to do so under the State's charter school statute. 

(2) AMOUNT OF PAYMENTS- If a State educational agency requires the joint establishment of eligibility under paragraph (1), the total amount of funds made available to the affected local educational agencies shall be equal to the sum of the payments that each such local educational agency would have received under section 611(g) if such agencies were eligible for such payments. 

(3) REQUIREMENTS- Local educational agencies that establish joint eligibility under this subsection shall -- 

(A) adopt policies and procedures that are consistent with the State's policies and procedures under section 612(a); and 

(B) be jointly responsible for implementing programs that receive assistance under this part. 

(4) REQUIREMENTS FOR EDUCATIONAL SERVICE AGENCIES-  (A) IN GENERAL- If an educational service agency is required by State law to carry out programs under this part, the joint responsibilities given to local educational agencies under this subsection shall --  (i) not apply to the administration and disbursement of any payments received by that educational service agency; and 

(ii) be carried out only by that educational service agency. 

(B) ADDITIONAL REQUIREMENT- Notwithstanding any other provision of this subsection, an educational service agency shall provide for the education of children with disabilities in the least restrictive environment, as required by section 612(a)(5)
(f) COORDINATED SERVICES SYSTEM-  (1) IN GENERAL- A local educational agency may not use more than 5 percent of the amount such agency receives under this part for any fiscal year, in combination with other amounts (which shall include amounts other than education funds), to develop and implement a coordinated services system designed to improve results for children and families, including children with disabilities and their families.  (2) ACTIVITIES- In implementing a coordinated services system under this subsection, a local educational agency may carry out activities that include --  (A) improving the effectiveness and efficiency of service delivery, including developing strategies that promote accountability for results; 

(B) service coordination and case management that facilitates the linkage of individualized education programs under this part and individualized family service plans under part C with individualized service plans under multiple Federal and State programs, such as title I of the Rehabilitation Act of 1973 (vocational rehabilitation), title XIX of the Social Security Act (Medicaid), and title XVI of the Social Security Act (supplemental security income); 

(C) developing and implementing interagency financing strategies for the provision of education, health, mental health, and social services, including transition services and related services under this Act; and 

(D) interagency personnel development for individuals working on coordinated services. 

(3) COORDINATION WITH CERTAIN PROJECTS UNDER ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965- If a local educational agency is carrying out a coordinated services project under title XI of the Elementary and Secondary Education Act of 1965 and a coordinated services project under this part in the same schools, such agency shall use amounts under this subsection in accordance with the requirements of that title. 
(g) SCHOOL-BASED IMPROVEMENT PLAN-  (1) IN GENERAL- Each local educational agency may, in accordance with paragraph (2), use funds made available under this part to permit a public school within the jurisdiction of the local educational agency to design, implement, and evaluate a school-based improvement plan that is consistent with the purposes described in section 651(b) and that is designed to improve educational and transitional results for all children with disabilities and, as appropriate, for other children consistent with subparagraphs (A) and (B) of subsection (a)(4) in that public school. 

(2) AUTHORITY- 

(A) IN GENERAL- A State educational agency may grant authority to a local educational agency to permit a public school described in paragraph (1) (through a school-based standing panel established under paragraph (4)(B)) to design, implement, and evaluate a school-based improvement plan described in paragraph (1) for a period not to exceed 3 years. 

(B) RESPONSIBILITY OF LOCAL EDUCATIONAL AGENCY- If a State educational agency grants the authority described in subparagraph (A), a local educational agency that is granted such authority shall have the sole responsibility of oversight of all activities relating to the design, implementation, and evaluation of any school-based improvement plan that a public school is permitted to design under this subsection. 

(3) PLAN REQUIREMENTS- A school-based improvement plan described in paragraph (1) shall --  (A) be designed to be consistent with the purposes described in section 651(b) and to improve educational and transitional results for all children with disabilities and, as appropriate, for other children consistent with subparagraphs (A) and (B) of subsection (a)(4), who attend the school for which the plan is designed and implemented; 

(B) be designed, evaluated, and, as appropriate, implemented by a school-based standing panel established in accordance with paragraph (4)(B)

(C) include goals and measurable indicators to assess the progress of the public school in meeting such goals; and 

(D) ensure that all children with disabilities receive the services described in the individualized education programs of such children. 

(4) RESPONSIBILITIES OF THE LOCAL EDUCATIONAL AGENCY- A local educational agency that is granted authority under paragraph (2) to permit a public school to design, implement, and evaluate a school-based improvement plan shall --  (A) select each school under the jurisdiction of such agency that is eligible to design, implement, and evaluate such a plan; 

(B) require each school selected under subparagraph (A), in accordance with criteria established by such local educational agency under subparagraph (C), to establish a school-based standing panel to carry out the duties described in paragraph (3)(B)

(C) establish -- 

(i) criteria that shall be used by such local educational agency in the selection of an eligible school under subparagraph (A)

(ii) criteria that shall be used by a public school selected under subparagraph (A) in the establishment of a school-based standing panel to carry out the duties described in paragraph (3)(B) and that shall ensure that the membership of such panel reflects the diversity of the community in which the public school is located and includes, at a minimum -- 

(I) parents of children with disabilities who attend such public school, including parents of children with disabilities from unserved and underserved populations, as appropriate; 

(II) special education and general education teachers of such public school; 

(III) special education and general education administrators, or the designee of such administrators, of such public school; and 

(IV) related services providers who are responsible for providing services to the children with disabilities who attend such public school; and  (iii) criteria that shall be used by such local educational agency with respect to the distribution of funds under this part to carry out this subsection;  (D) disseminate the criteria established under subparagraph (C) to local school district personnel and local parent organizations within the jurisdiction of such local educational agency; 

(E) require a public school that desires to design, implement, and evaluate a school-based improvement plan to submit an application at such time, in such manner, and accompanied by such information as such local educational agency shall reasonably require; and 

(F) establish procedures for approval by such local educational agency of a school-based improvement plan designed under this subsection. 

(5) LIMITATION- A school-based improvement plan described in paragraph (1) may be submitted to a local educational agency for approval only if a consensus with respect to any matter relating to the design, implementation, or evaluation of the goals of such plan is reached by the school-based standing panel that designed such plan. 

(6) ADDITIONAL REQUIREMENTS- 

(A) PARENTAL INVOLVEMENT- In carrying out the requirements of this subsection, a local educational agency shall ensure that the parents of children with disabilities are involved in the design, evaluation, and, where appropriate, implementation of school-based improvement plans in accordance with this subsection. 

(B) PLAN APPROVAL- A local educational agency may approve a school-based improvement plan of a public school within the jurisdiction of such agency for a period of 3 years, if -- 

(i) the approval is consistent with the policies, procedures, and practices established by such local educational agency and in accordance with this subsection; and 

(ii) a majority of parents of children who are members of the school-based standing panel, and a majority of other members of the school-based standing panel, that designed such plan agree in writing to such plan. 

(7) EXTENSION OF PLAN- If a public school within the jurisdiction of a local educational agency meets the applicable requirements and criteria described in paragraphs (3) and (4) at the expiration of the 3-year approval period described in paragraph (6)(B), such agency may approve a school-based improvement plan of such school for an additional 3-year period. 
(h) DIRECT SERVICES BY THE STATE EDUCATIONAL AGENCY-  (1) IN GENERAL- A State educational agency shall use the payments that would otherwise have been available to a local educational agency or to a State agency to provide special education and related services directly to children with disabilities residing in the area served by that local agency, or for whom that State agency is responsible, if the State educational agency determines that the local education agency or State agency, as the case may be --  (A) has not provided the information needed to establish the eligibility of such agency under this section; 

(B) is unable to establish and maintain programs of free appropriate public education that meet the requirements of subsection (a)

(C) is unable or unwilling to be consolidated with one or more local educational agencies in order to establish and maintain such programs; or 

(D) has one or more children with disabilities who can best be served by a regional or State program or service-delivery system designed to meet the needs of such children. 

(2) MANNER AND LOCATION OF EDUCATION AND SERVICES- The State educational agency may provide special education and related services under paragraph (1) in such manner and at such locations (including regional or State centers) as the State agency considers appropriate. Such education and services shall be provided in accordance with this part. 
(i) STATE AGENCY ELIGIBILITY- Any State agency that desires to receive a subgrant for any fiscal year under section 611(g) shall demonstrate to the satisfaction of the State educational agency that --  (1) all children with disabilities who are participating in programs and projects funded under this part receive a free appropriate public education, and that those children and their parents are provided all the rights and procedural safeguards described in this part; and 

(2) the agency meets such other conditions of this section as the Secretary determines to be appropriate. 

(j) DISCIPLINARY INFORMATION- The State may require that a local educational agency include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken against the child and transmit such statement to the same extent that such disciplinary information is included in, and transmitted with, the student records of nondisabled children. The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child. If the State adopts such a policy, and the child transfers from one school to another, the transmission of any of the child's records must include both the child's current individualized education program and any such statement of current or previous disciplinary action that has been taken against the child. 
 
  SEC. 614. EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.  (a) EVALUATIONS AND REEVALUATIONS-  (1) INITIAL EVALUATIONS-  (A) IN GENERAL- A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation, in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this part. 

(B) PROCEDURES- Such initial evaluation shall consist of procedures -- 

(i) to determine whether a child is a child with a disability (as defined in section 602(3)); and 

(ii) to determine the educational needs of such child. 

(C) PARENTAL CONSENT-  (i) IN GENERAL- The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 602(3)(A) or 602(3)(B) shall obtain an informed consent from the parent of such child before the evaluation is conducted. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services. 

(ii) REFUSAL- If the parents of such child refuse consent for the evaluation, the agency may continue to pursue an evaluation by utilizing the mediation and due process procedures under section 615, except to the extent inconsistent with State law relating to parental consent. 

(2) REEVALUATIONS- A local educational agency shall ensure that a reevaluation of each child with a disability is conducted --  (A) if conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years; and 

(B) in accordance with subsections (b) and (c)

(b) EVALUATION PROCEDURES-  (1) NOTICE- The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b)(3), (b)(4), and (c) of section 615, that describes any evaluation procedures such agency proposes to conduct. 

(2) CONDUCT OF EVALUATION- In conducting the evaluation, the local educational agency shall -- 

(A) use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities; 

(B) not use any single procedure as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and 

(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 

(3) ADDITIONAL REQUIREMENTS- Each local educational agency shall ensure that --  (A) tests and other evaluation materials used to assess a child under this section --  (i) are selected and administered so as not to be discriminatory on a racial or cultural basis; and 

(ii) are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so; and 

(B) any standardized tests that are given to the child --  (i) have been validated for the specific purpose for which they are used; 

(ii) are administered by trained and knowledgeable personnel; and 

(iii) are administered in accordance with any instructions provided by the producer of such tests; 

(C) the child is assessed in all areas of suspected disability; and 

(D) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided. 

(4) DETERMINATION OF ELIGIBILITY- Upon completion of administration of tests and other evaluation materials --  (A) the determination of whether the child is a child with a disability as defined in section 602(3) shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and 

(B) a copy of the evaluation report and the documentation of determination of eligibility will be given to the parent. 

(5) SPECIAL RULE FOR ELIGIBILITY DETERMINATION- In making a determination of eligibility under paragraph (4)(A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of instruction in reading or math or limited English proficiency. 
(c) ADDITIONAL REQUIREMENTS FOR EVALUATION AND REEVALUATIONS-  (1) REVIEW OF EXISTING EVALUATION DATA- As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team described in subsection (d)(1)(B) and other qualified professionals, as appropriate, shall --  (A) review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom-based assessments and observations, and teacher and related services providers observation; and 

(B) on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine -- 

(i) whether the child has a particular category of disability, as described in section 602(3), or, in case of a reevaluation of a child, whether the child continues to have such a disability; 

(ii) the present levels of performance and educational needs of the child; 

(iii) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and 

(iv) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general curriculum. 

(2) SOURCE OF DATA- The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified by the IEP Team under paragraph (1)(B)

(3) PARENTAL CONSENT- Each local educational agency shall obtain informed parental consent, in accordance with subsection (a)(1)(C), prior to conducting any reevaluation of a child with a disability, except that such informed parent consent need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child's parent has failed to respond. 

(4) REQUIREMENTS IF ADDITIONAL DATA ARE NOT NEEDED- If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability, the local educational agency -- 

(A) shall notify the child's parents of --  (i) that determination and the reasons for it; and 

(ii) the right of such parents to request an assessment to determine whether the child continues to be a child with a disability; and 

(B) shall not be required to conduct such an assessment unless requested to by the child's parents. 
(5) EVALUATIONS BEFORE CHANGE IN ELIGIBILITY- A local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.  (d) INDIVIDUALIZED EDUCATION PROGRAMS-  (1) DEFINITIONS- As used in this title:  (A) INDIVIDUALIZED EDUCATION PROGRAM- The term 'individualized education program' or 'IEP' means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes --  (i) a statement of the child's present levels of educational performance, including --  (I) how the child's disability affects the child's involvement and progress in the general curriculum; or 

(II) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities; 

(ii) a statement of measurable annual goals, including benchmarks or short-term objectives, related to --  (I) meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum; and 

(II) meeting each of the child's other educational needs that result from the child's disability; 

(iii) a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child --  (I) to advance appropriately toward attaining the annual goals; 

(II) to be involved and progress in the general curriculum in accordance with clause (i) and to participate in extracurricular and other nonacademic activities; and 

(III) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this paragraph; 

(iv) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in clause (iii)(v) (I) a statement of any individual modifications in the administration of State or districtwide assessments of student achievement that are needed in order for the child to participate in such assessment; and 
(II) if the IEP Team determines that the child will not participate in a particular State or districtwide assessment of student achievement (or part of such an assessment), a statement of --  (aa) why that assessment is not appropriate for the child; and 

(bb) how the child will be assessed; 

(vi) the projected date for the beginning of the services and modifications described in clause (iii), and the anticipated frequency, location, and duration of those services and modifications;  (vii) (I) beginning at age 14, and updated annually, a statement of the transition service needs of the child under the applicable components of the child's IEP that focuses on the child's courses of study (such as participation in advanced-placement courses or a vocational education program);  (II) beginning at age 16 (or younger, if determined appropriate by the IEP Team), a statement of needed transition services for the child, including, when appropriate, a statement of the interagency responsibilities or any needed linkages; and 

(III) beginning at least one year before the child reaches the age of majority under State law, a statement that the child has been informed of his or her rights under this title, if any, that will transfer to the child on reaching the age of majority under section 615(m); and 

(viii) a statement of --  (I) how the child's progress toward the annual goals described in clause (ii) will be measured; and 

(II) how the child's parents will be regularly informed (by such means as periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of -- 

(aa) their child's progress toward the annual goals described in clause (ii); and 

(bb) the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year. 

(B) INDIVIDUALIZED EDUCATION PROGRAM TEAM- The term 'individualized education program team' or 'IEP Team' means a group of individuals composed of --  (i) the parents of a child with a disability; 

(ii) at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment); 

(iii) at least one special education teacher, or where appropriate, at least one special education provider of such child; 

(iv) a representative of the local educational agency who -- 

(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; 

(II) is knowledgeable about the general curriculum; and 

(III) is knowledgeable about the availability of resources of the local educational agency; 

(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi)

(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and 

(vii) whenever appropriate, the child with a disability. 

(2) REQUIREMENT THAT PROGRAM BE IN EFFECT-  (A) IN GENERAL- At the beginning of each school year, each local educational agency, State educational agency, or other State agency, as the case may be, shall have in effect, for each child with a disability in its jurisdiction, an individualized education program, as defined in paragraph (1)(A)

(B) PROGRAM FOR CHILD AGED 3 THROUGH 5- In the case of a child with a disability aged 3 through 5 (or, at the discretion of the State educational agency, a 2 year-old child with a disability who will turn age 3 during the school year), an individualized family service plan that contains the material described in section 636, and that is developed in accordance with this section, may serve as the IEP of the child if using that plan as the IEP is -- 

(i) consistent with State policy; and 

(ii) agreed to by the agency and the child's parents. 

(3) DEVELOPMENT OF IEP-  (A) IN GENERAL- In developing each child's IEP, the IEP Team, subject to subparagraph (C), shall consider --  (i) the strengths of the child and the concerns of the parents for enhancing the education of their child; and 

(ii) the results of the initial evaluation or most recent evaluation of the child. 

(B) CONSIDERATION OF SPECIAL FACTORS- The IEP Team shall --  (i) in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior; 

(ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child's IEP; 

(iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child; 

(iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and 

(v) consider whether the child requires assistive technology devices and services. 

(C) REQUIREMENT WITH RESPECT TO REGULAR EDUCATION TEACHER- The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1)(A)(iii)
(4) REVIEW AND REVISION OF IEP-  (A) IN GENERAL- The local educational agency shall ensure that, subject to subparagraph (B), the IEP Team --  (i) reviews the child's IEP periodically, but not less than annually to determine whether the annual goals for the child are being achieved; and 

(ii) revises the IEP as appropriate to address -- 

(I) any lack of expected progress toward the annual goals and in the general curriculum, where appropriate; 

(II) the results of any reevaluation conducted under this section; 

(III) information about the child provided to, or by, the parents, as described in subsection (c)(1)(B)

(IV) the child's anticipated needs; or 

(V) other matters. 

(B) REQUIREMENT WITH RESPECT TO REGULAR EDUCATION TEACHER- The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the review and revision of the IEP of the child. 
(5) FAILURE TO MEET TRANSITION OBJECTIVES- If a participating agency, other than the local educational agency, fails to provide the transition services described in the IEP in accordance with paragraph (1)(A)(vii), the local educational agency shall reconvene the IEP Team to identify alternative strategies to meet the transition objectives for the child set out in that program. 

(6) CHILDREN WITH DISABILITIES IN ADULT PRISONS- 

(A) IN GENERAL- The following requirements do not apply to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons:  (i) The requirements contained in section 612(a)(17) and paragraph (1)(A)(v) of this subsection (relating to participation of children with disabilities in general assessments). 

(ii) The requirements of subclauses (I) and (II) of paragraph (1)(A)(vii) of this subsection (relating to transition planning and transition services), do not apply with respect to such children whose eligibility under this part will end, because of their age, before they will be released from prison. 

(B) ADDITIONAL REQUIREMENT- If a child with a disability is convicted as an adult under State law and incarcerated in an adult prison, the child's IEP Team may modify the child's IEP or placement notwithstanding the requirements of sections 612(a)(5)(A) and 614(d)(1)(A) if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated. 
(e) CONSTRUCTION- Nothing in this section shall be construed to require the IEP Team to include information under one component of a child's IEP that is already contained under another component of such IEP. 

(f) EDUCATIONAL PLACEMENTS- Each local educational agency or State educational agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child. 
 
 

SEC. 615. PROCEDURAL SAFEGUARDS.  (a) ESTABLISHMENT OF PROCEDURES- Any State educational agency, State agency, or local educational agency that receives assistance under this part shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies. 

(b) TYPES OF PROCEDURES- The procedures required by this section shall include -- 

(1) an opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child; 

(2) procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual (who shall not be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child) to act as a surrogate for the parents; 

(3) written prior notice to the parents of the child whenever such agency -- 

(A) proposes to initiate or change; or 

(B) refuses to initiate or change; the identification, evaluation, or educational placement of the child, in accordance with subsection (c), or the provision of a free appropriate public education to the child; 

(4) procedures designed to ensure that the notice required by paragraph (3) is in the native language of the parents, unless it clearly is not feasible to do so; 

(5) an opportunity for mediation in accordance with subsection (e)

(6) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child; 

(7) procedures that require the parent of a child with a disability, or the attorney representing the child, to provide notice (which shall remain confidential) -- 

(A) to the State educational agency or local educational agency, as the case may be, in the complaint filed under paragraph (6); and 

(B) that shall include -- 

(i) the name of the child, the address of the residence of the child, and the name of the school the child is attending; 
(ii) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and 

(iii) a proposed resolution of the problem to the extent known and available to the parents at the time; and 

(8) procedures that require the State educational agency to develop a model form to assist parents in filing a complaint in accordance with paragraph (7)
(c) CONTENT OF PRIOR WRITTEN NOTICE- The notice required by subsection (b)(3) shall include --  (1) a description of the action proposed or refused by the agency; 

(2) an explanation of why the agency proposes or refuses to take the action; 

(3) a description of any other options that the agency considered and the reasons why those options were rejected; 

(4) a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action; 

(5) a description of any other factors that are relevant to the agency's proposal or refusal; 

(6) a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and 

(7) sources for parents to contact to obtain assistance in understanding the provisions of this part. 

(d) PROCEDURAL SAFEGUARDS NOTICE-  (1) IN GENERAL- A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents, at a minimum --  (A) upon initial referral for evaluation; 

(B) upon each notification of an individualized education program meeting and upon reevaluation of the child; and 

(C) upon registration of a complaint under subsection (b)(6)

(2) CONTENTS- The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner, available under this section and under regulations promulgated by the Secretary relating to -- 
(A) independent educational evaluation; 

(B) prior written notice; 

(C) parental consent; 

(D) access to educational records; 

(E) opportunity to present complaints; 

(F) the child's placement during pendency of due process proceedings; 

(G) procedures for students who are subject to placement in an interim alternative educational setting; 

(H) requirements for unilateral placement by parents of children in private schools at public expense; 

(I) mediation; 

(J) due process hearings, including requirements for disclosure of evaluation results and recommendations; 

(K) State-level appeals (if applicable in that State); 

(L) civil actions; and 

(M) attorneys' fees. 

(e) MEDIATION-  (1) IN GENERAL- Any State educational agency or local educational agency that receives assistance under this part shall ensure that procedures are established and implemented to allow parties to disputes involving any matter described in subsection (b)(6) to resolve such disputes through a mediation process which, at a minimum, shall be available whenever a hearing is requested under subsection (f) or (k)

(2) REQUIREMENTS- Such procedures shall meet the following requirements: 

(A) The procedures shall ensure that the mediation process --  (i) is voluntary on the part of the parties; 

(ii) is not used to deny or delay a parent's right to a due process hearing under subsection (f), or to deny any other rights afforded under this part; and 

(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques. 

(B) A local educational agency or a State agency may establish procedures to require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with --  (i) a parent training and information center or community parent resource center in the State established under section 682 or 683; or 

(ii) an appropriate alternative dispute resolution entity; to encourage the use, and explain the benefits, of the mediation process to the parents. 

(C) The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services. 

(D) The State shall bear the cost of the mediation process, including the costs of meetings described in subparagraph (B)

(E) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute. 

(F) An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement. 

(G) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process. 

(f) IMPARTIAL DUE PROCESS HEARING-  (1) IN GENERAL- Whenever a complaint has been received under subsection (b)(6) or (k) of this section, the parents involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency. 

(2) DISCLOSURE OF EVALUATIONS AND RECOMMENDATIONS- 

(A) IN GENERAL- At least 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing. 

(B) FAILURE TO DISCLOSE- A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party. 

(3) LIMITATION ON CONDUCT OF HEARING- A hearing conducted pursuant to paragraph (1) may not be conducted by an employee of the State educational agency or the local educational agency involved in the education or care of the child.  (g) APPEAL- If the hearing required by subsection (f) is conducted by a local educational agency, any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency. Such agency shall conduct an impartial review of such decision. The officer conducting such review shall make an independent decision upon completion of such review. 

(h) SAFEGUARDS- Any party to a hearing conducted pursuant to subsection (f) or (k), or an appeal conducted pursuant to subsection (g), shall be accorded -- 

(1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities; 

(2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses; 

(3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and 

(4) the right to written, or, at the option of the parents, electronic findings of fact and decisions (which findings and decisions shall be made available to the public consistent with the requirements of section 617(c) (relating to the confidentiality of data, information, and records) and shall also be transmitted to the advisory panel established pursuant to section 612(a)(21)). 

(i) ADMINISTRATIVE PROCEDURES-  (1) IN GENERAL-  (A) DECISION MADE IN HEARING- A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g) and paragraph (2) of this subsection. 

(B) DECISION MADE AT APPEAL- A decision made under subsection (g) shall be final, except that any party may bring an action under paragraph (2) of this subsection. 

(2) RIGHT TO BRING CIVIL ACTION-  (A) IN GENERAL- Any party aggrieved by the findings and decision made under subsection (f) or (k) who does not have the right to an appeal under subsection (g), and any party aggrieved by the findings and decision under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. 

(B) ADDITIONAL REQUIREMENTS- In any action brought under this paragraph, the court -- 

(i) shall receive the records of the administrative proceedings; 

(ii) shall hear additional evidence at the request of a party; and 

(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. 

(3) JURISDICTION OF DISTRICT COURTS; ATTORNEYS' FEES-  (A) IN GENERAL- The district courts of the United States shall have jurisdiction of actions brought under this section without regard to the amount in controversy. 

(B) AWARD OF ATTORNEYS' FEES- In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party. 

(C) DETERMINATION OF AMOUNT OF ATTORNEYS' FEES- Fees awarded under this paragraph shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection. 

(D) PROHIBITION OF ATTORNEYS' FEES AND RELATED COSTS FOR CERTAIN SERVICES- 

(i) Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if --  (I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins; 

(II) the offer is not accepted within 10 days; and 

(III) the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement. 

(ii) Attorneys' fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection (e) that is conducted prior to the filing of a complaint under subsection (b)(6) or (k) of this section. 
(E) EXCEPTION TO PROHIBITION ON ATTORNEYS' FEES AND RELATED COSTS- Notwithstanding subparagraph (D), an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer. 
(F) REDUCTION IN AMOUNT OF ATTORNEYS' FEES- Except as provided in subparagraph (G), whenever the court finds that --  (i) the parent, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy; 

(ii) the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience; 

(iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or 

(iv) the attorney representing the parent did not provide to the school district the appropriate information in the due process complaint in accordance with subsection (b)(7); the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this section. 

(G) EXCEPTION TO REDUCTION IN AMOUNT OF ATTORNEYS' FEES- The provisions of subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section. 
(j) MAINTENANCE OF CURRENT EDUCATIONAL PLACEMENT- Except as provided in subsection (k)(7), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed. 

(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING- 

(1) AUTHORITY OF SCHOOL PERSONNEL-  (A) School personnel under this section may order a change in the placement of a child with a disability --  (i) to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives would be applied to children without disabilities); and 

(ii) to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days if -- 

(I) the child carries a weapon to school or to a school function under the jurisdiction of a State or a local educational agency; or 
(II) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency.  (B) Either before or not later than 10 days after taking a disciplinary action described in subparagraph (A) --  (i) if the local educational agency did not conduct a functional behavioral assessment and implement a behavioral intervention plan for such child before the behavior that resulted in the suspension described in subparagraph (A), the agency shall convene an IEP meeting to develop an assessment plan to address that behavior; or 

(ii) if the child already has a behavioral intervention plan, the IEP Team shall review the plan and modify it, as necessary, to address the behavior. 

(2) AUTHORITY OF HEARING OFFICER- A hearing officer under this section may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer --  (A) determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of such child is substantially likely to result in injury to the child or to others; 

(B) considers the appropriateness of the child's current placement; 

(C) considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and 

(D) determines that the interim alternative educational setting meets the requirements of paragraph (3)(B)

(3) DETERMINATION OF SETTING-  (A) IN GENERAL- The alternative educational setting described in paragraph (1)(A)(ii) shall be determined by the IEP Team. 

(B) ADDITIONAL REQUIREMENTS- Any interim alternative educational setting in which a child is placed under paragraph (1) or (2) shall -- 

(i) be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP; and 

(ii) include services and modifications designed to address the behavior described in paragraph (1) or paragraph (2) so that it does not recur. 

(4) MANIFESTATION DETERMINATION REVIEW-  (A) IN GENERAL- If a disciplinary action is contemplated as described in paragraph (1) or paragraph (2) for a behavior of a child with a disability described in either of those paragraphs, or if a disciplinary action involving a change of placement for more than 10 days is contemplated for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the local educational agency that applies to all children --  (i) not later than the date on which the decision to take that action is made, the parents shall be notified of that decision and of all procedural safeguards accorded under this section; and 

(ii) immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action. 

(B) INDIVIDUALS TO CARRY OUT REVIEW- A review described in subparagraph (A) shall be conducted by the IEP Team and other qualified personnel. 

(C) CONDUCT OF REVIEW- In carrying out a review described in subparagraph (A), the IEP Team may determine that the behavior of the child was not a manifestation of such child's disability only if the IEP Team -- 

(i) first considers, in terms of the behavior subject to disciplinary action, all relevant information, including --  (I) evaluation and diagnostic results, including such results or other relevant information supplied by the parents of the child; 

(II) observations of the child; and 

(III) the child's IEP and placement; and 

(ii) then determines that --  (I) in relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement; 

(II) the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and 

(III) the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action. 

(5) DETERMINATION THAT BEHAVIOR WAS NOT MANIFESTATION OF DISABILITY- 
(A) IN GENERAL- If the result of the review described in paragraph (4) is a determination, consistent with paragraph (4)(C), that the behavior of the child with a disability was not a manifestation of the child's disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except as provided in section 612(a)(1)

(B) ADDITIONAL REQUIREMENT- If the public agency initiates disciplinary procedures applicable to all children, the agency shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action. 

(6) PARENT APPEAL-  (A) IN GENERAL-  (i) If the child's parent disagrees with a determination that the child's behavior was not a manifestation of the child's disability or with any decision regarding placement, the parent may request a hearing. 

(ii) The State or local educational agency shall arrange for an expedited hearing in any case described in this subsection when requested by a parent. 

(B) REVIEW OF DECISION-  (i) In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the public agency has demonstrated that the child's behavior was not a manifestation of such child's disability consistent with the requirements of paragraph (4)(C)

(ii) In reviewing a decision under paragraph (1)(A)(ii) to place the child in an interim alternative educational setting, the hearing officer shall apply the standards set out in paragraph (2)

(7) PLACEMENT DURING APPEALS-  (A) IN GENERAL- When a parent requests a hearing regarding a disciplinary action described in paragraph (1)(A)(ii) or paragraph (2) to challenge the interim alternative educational setting or the manifestation determination, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(A)(ii) or paragraph (2), whichever occurs first, unless the parent and the State or local educational agency agree otherwise. 

(B) CURRENT PLACEMENT- If a child is placed in an interim alternative educational setting pursuant to paragraph (1)(A)(ii) or paragraph (2) and school personnel propose to change the child's placement after expiration of the interim alternative placement, during the pendency of any proceeding to challenge the proposed change in placement, the child shall remain in the current placement (the child's placement prior to the interim alternative educational setting), except as provided in subparagraph (C)

(C) EXPEDITED HEARING-  (i) If school personnel maintain that it is dangerous for the child to be in the current placement (placement prior to removal to the interim alternative education setting) during the pendency of the due process proceedings, the local educational agency may request an expedited hearing. 

(ii) In determining whether the child may be placed in the alternative educational setting or in another appropriate placement ordered by the hearing officer, the hearing officer shall apply the standards set out in paragraph (2)

(8) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES-  (A) IN GENERAL- A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in paragraph (1), may assert any of the protections provided for in this part if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. 

(B) BASIS OF KNOWLEDGE- A local educational agency shall be deemed to have knowledge that a child is a child with a disability if -- 

(i) the parent of the child has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to personnel of the appropriate educational agency that the child is in need of special education and related services; 

(ii) the behavior or performance of the child demonstrates the need for such services; 

(iii) the parent of the child has requested an evaluation of the child pursuant to section 614; or 

(iv) the teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of such agency or to other personnel of the agency. 

(C) CONDITIONS THAT APPLY IF NO BASIS OF KNOWLEDGE-  (i) IN GENERAL- If a local educational agency does not have knowledge that a child is a child with a disability (in accordance with subparagraph (B)) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii)
(ii) LIMITATIONS- If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under paragraph (1) or (2), the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this part, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities.  (9) REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND JUDICIAL AUTHORITIES-  (A) Nothing in this part shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability. 

(B) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime. 

(10) DEFINITIONS- For purposes of this subsection, the following definitions apply:  (A) CONTROLLED SUBSTANCE- The term 'controlled substance' means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)). 

(B) ILLEGAL DRUG- The term 'illegal drug' -- 

(i) means a controlled substance; but 

(ii) does not include such a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law. 

(C) SUBSTANTIAL EVIDENCE- The term 'substantial evidence' means beyond a preponderance of the evidence. 

(D) WEAPON- The term 'weapon' has the meaning given the term 'dangerous weapon' under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code

(l) RULE OF CONSTRUCTION- Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part. 

(m) TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY- 

(1) IN GENERAL- A State that receives amounts from a grant under this part may provide that, when a child with a disability reaches the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law) --  (A) the public agency shall provide any notice required by this section to both the individual and the parents; 

(B) all other rights accorded to parents under this part transfer to the child; 

(C) the agency shall notify the individual and the parents of the transfer of rights; and 

(D) all rights accorded to parents under this part transfer to children who are incarcerated in an adult or juvenile Federal, State, or local correctional institution. 

(2) SPECIAL RULE- If, under State law, a child with a disability who has reached the age of majority under State law, who has not been determined to be incompetent, but who is determined not to have the ability to provide informed consent with respect to the educational program of the child, the State shall establish procedures for appointing the parent of the child, or if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of eligibility of the child under this part. 
 
  SEC. 616. WITHHOLDING AND JUDICIAL REVIEW. 
(a) WITHHOLDING OF PAYMENTS-  (1) IN GENERAL- Whenever the Secretary, after reasonable notice and opportunity for hearing to the State educational agency involved (and to any local educational agency or State agency affected by any failure described in subparagraph (B)), finds --  (A) that there has been a failure by the State to comply substantially with any provision of this part; or 

(B) that there is a failure to comply with any condition of a local educational agency's or State agency's eligibility under this part, including the terms of any agreement to achieve compliance with this part within the timelines specified in the agreement; the Secretary shall, after notifying the State educational agency, withhold, in whole or in part, any further payments to the State under this part, or refer the matter for appropriate enforcement action, which may include referral to the Department of Justice. 

(2) NATURE OF WITHHOLDING- If the Secretary withholds further payments under paragraph (1), the Secretary may determine that such withholding will be limited to programs or projects, or portions thereof, affected by the failure, or that the State educational agency shall not make further payments under this part to specified local educational agencies or State agencies affected by the failure. Until the Secretary is satisfied that there is no longer any failure to comply with the provisions of this part, as specified in subparagraph (A) or (B) of paragraph (1), payments to the State under this part shall be withheld in whole or in part, or payments by the State educational agency under this part shall be limited to local educational agencies and State agencies whose actions did not cause or were not involved in the failure, as the case may be. Any State educational agency, State agency, or local educational agency that has received notice under paragraph (1) shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of such agency.  (b) JUDICIAL REVIEW-  (1) IN GENERAL- If any State is dissatisfied with the Secretary's final action with respect to the eligibility of the State under section 612, such State may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings upon which the Secretary's action was based, as provided in section 2112 of title 28, United States Code

(2) JURISDICTION; REVIEW BY UNITED STATES SUPREME COURT- Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28, United States Code

(3) STANDARD OF REVIEW- The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence. 

(c) DIVIDED STATE AGENCY RESPONSIBILITY- For purposes of this section, where responsibility for ensuring that the requirements of this part are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons is assigned to a public agency other than the State educational agency pursuant to section 612(a)(11)(C), the Secretary, in instances where the Secretary finds that the failure to comply substantially with the provisions of this part are related to a failure by the public agency, shall take appropriate corrective action to ensure compliance with this part, except --  (1) any reduction or withholding of payments to the State is proportionate to the total funds allotted under section 611 to the State as the number of eligible children with disabilities in adult prisons under the supervision of the other public agency is proportionate to the number of eligible individuals with disabilities in the State under the supervision of the State educational agency; and 

(2) any withholding of funds under paragraph (1) shall be limited to the specific agency responsible for the failure to comply with this part. 
 
 

SEC. 617. ADMINISTRATION.
(a) RESPONSIBILITIES OF SECRETARY- In carrying out this part, the Secretary shall --  (1) cooperate with, and (directly or by grant or contract) furnish technical assistance necessary to, the State in matters relating to --  (A) the education of children with disabilities; and 

(B) carrying out this part; and 

(2) provide short-term training programs and institutes. 
(b) RULES AND REGULATIONS- In carrying out the provisions of this part, the Secretary shall issue regulations under this Act only to the extent that such regulations are necessary to ensure that there is compliance with the specific requirements of this Act. 

(c) CONFIDENTIALITY- The Secretary shall take appropriate action, in accordance with the provisions of section 444 of the General Education Provisions Act (20 U.S.C. 1232g), to assure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the Secretary and by State and local educational agencies pursuant to the provisions of this part. 

(d) PERSONNEL- The Secretary is authorized to hire qualified personnel necessary to carry out the Secretary's duties under subsection (a) and under sections 618, 661, and 673 (or their predecessor authorities through October 1, 1997) without regard to the provisions of title 5, United States Code, relating to appointments in the competitive service and without regard to chapter 51 and subchapter III of chapter 53 of such title relating to classification and general schedule pay rates, except that no more than twenty such personnel shall be employed at any time. 
 
 

SEC. 618. PROGRAM INFORMATION.  (a) IN GENERAL- Each State that receives assistance under this part, and the Secretary of the Interior, shall provide data each year to the Secretary --  (1) (A) on --  (i) the number of children with disabilities, by race, ethnicity, and disability category, who are receiving a free appropriate public education; 

(ii) the number of children with disabilities, by race and ethnicity, who are receiving early intervention services; 

(iii) the number of children with disabilities, by race, ethnicity, and disability category, who are participating in regular education; 

(iv) the number of children with disabilities, by race, ethnicity, and disability category, who are in separate classes, separate schools or facilities, or public or private residential facilities; 

(v) the number of children with disabilities, by race, ethnicity, and disability category, who, for each year of age from age 14 to 21, stopped receiving special education and related services because of program completion or other reasons and the reasons why those children stopped receiving special education and related services; 

(vi) the number of children with disabilities, by race and ethnicity, who, from birth through age 2, stopped receiving early intervention services because of program completion or for other reasons; and 

(vii) (I) the number of children with disabilities, by race, ethnicity, and disability category, who under subparagraphs (A)(ii) and (B) of section 615(k)(1), are removed to an interim alternative educational setting;  (II) the acts or items precipitating those removals; and 

(III) the number of children with disabilities who are subject to long-term suspensions or expulsions; and 

(B) on the number of infants and toddlers, by race and ethnicity, who are at risk of having substantial developmental delays (as described in section 632), and who are receiving early intervention services under part C; and 
(2) on any other information that may be required by the Secretary. 
(b) SAMPLING- The Secretary may permit States and the Secretary of the Interior to obtain the data described in subsection (a) through sampling. 

(c) DISPROPORTIONALITY- 

(1) IN GENERAL- Each State that receives assistance under this part, and the Secretary of the Interior, shall provide for the collection and examination of data to determine if significant disproportionality based on race is occurring in the State with respect to --  (A) the identification of children as children with disabilities, including the identification of children as children with disabilities in accordance with a particular impairment described in section 602(3); and 

(B) the placement in particular educational settings of such children. 

(2) REVIEW AND REVISION OF POLICIES, PRACTICES, AND PROCEDURES- In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of such children, in accordance with paragraph (1), the State or the Secretary of the Interior, as the case may be, shall provide for the review and, if appropriate, revision of the policies, procedures, and practices used in such identification or placement to ensure that such policies, procedures, and practices comply with the requirements of this Act. 
SEC. 619. PRESCHOOL GRANTS.  (a) IN GENERAL- The Secretary shall provide grants under this section to assist States to provide special education and related services, in accordance with this part --  (1) to children with disabilities aged 3 through 5, inclusive; and 

(2) at the State's discretion, to 2-year-old children with disabilities who will turn 3 during the school year. 

(b) ELIGIBILITY- A State shall be eligible for a grant under this section if such State --  (1) is eligible under section 612 to receive a grant under this part; and 

(2) makes a free appropriate public education available to all children with disabilities, aged 3 through 5, residing in the State. 

(c) ALLOCATIONS TO STATES-  (1) IN GENERAL- After reserving funds for studies and evaluations under section 674(e), the Secretary shall allocate the remaining amount among the States in accordance with paragraph (2) or (3), as the case may be.

(2) INCREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) is equal to or greater than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows: 

(A) (i) Except as provided in subparagraph (B), the Secretary shall --  (I) allocate to each State the amount it received for fiscal year 1997; 

(II) allocate 85 percent of any remaining funds to States on the basis of their relative populations of children aged 3 through 5; and 

(III) allocate 15 percent of those remaining funds to States on the basis of their relative populations of all children aged 3 through 5 who are living in poverty. 

(ii) For the purpose of making grants under this paragraph, the Secretary shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary. 
(B) Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following:  (i) No State's allocation shall be less than its allocation for the preceding fiscal year. 
(ii) No State's allocation shall be less than the greatest of --  (I) the sum of --  (aa) the amount it received for fiscal year 1997; and 

(bb) one third of one percent of the amount by which the amount appropriated under subsection (j) exceeds the amount appropriated under this section for fiscal year 1997; 

(II) the sum of --  (aa) the amount it received for the preceding fiscal year; and 

(bb) that amount multiplied by the percentage by which the increase in the funds appropriated from the preceding fiscal year exceeds 1.5 percent; or 

(III) the sum of --  (aa) the amount it received for the preceding fiscal year; and 

(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated from the preceding fiscal year. 

(iii) Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of --  (I) the amount it received for the preceding fiscal year; and 

(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated. 

(C) If the amount available for allocations under this paragraph is insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to subparagraph (B)(i)
(3) DECREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) is less than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows:  (A) If the amount available for allocations is greater than the amount allocated to the States for fiscal year 1997, each State shall be allocated the sum of --  (i) the amount it received for fiscal year 1997; and 

(ii) an amount that bears the same relation to any remaining funds as the increase the State received for the preceding fiscal year over fiscal year 1997 bears to the total of all such increases for all States. 

(B) If the amount available for allocations is equal to or less than the amount allocated to the States for fiscal year 1997, each State shall be allocated the amount it received for that year, ratably reduced, if necessary.  (4) OUTLYING AREAS- The Secretary shall increase the fiscal year 1998 allotment of each outlying area under section 611 by at least the amount that that area received under this section for fiscal year 1997.  (d) RESERVATION FOR STATE ACTIVITIES-  (1) IN GENERAL- Each State may retain not more than the amount described in paragraph (2) for administration and other State-level activities in accordance with subsections (e) and (f)

(2) AMOUNT DESCRIBED- For each fiscal year, the Secretary shall determine and report to the State educational agency an amount that is 25 percent of the amount the State received under this section for fiscal year 1997, cumulatively adjusted by the Secretary for each succeeding fiscal year by the lesser of -- 

(A) the percentage increase, if any, from the preceding fiscal year in the State's allocation under this section; or 

(B) the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor. 

(e) STATE ADMINISTRATION-  (1) IN GENERAL- For the purpose of administering this section (including the coordination of activities under this part with, and providing technical assistance to, other programs that provide services to children with disabilities) a State may use not more than 20 percent of the maximum amount it may retain under subsection (d) for any fiscal year. 

(2) ADMINISTRATION OF PART C- Funds described in paragraph (1) may also be used for the administration of part C of this Act, if the State educational agency is the lead agency for the State under that part. 

(f) OTHER STATE-LEVEL ACTIVITIES- Each State shall use any funds it retains under subsection (d) and does not use for administration under subsection (e) --  (1) for support services (including establishing and implementing the mediation process required by section 615(e)), which may benefit children with disabilities younger than 3 or older than 5 as long as those services also benefit children with disabilities aged 3 through 5; 

(2) for direct services for children eligible for services under this section; 

(3) to develop a State improvement plan under subpart 1 of part D

(4) for activities at the State and local levels to meet the performance goals established by the State under section 612(a)(16) to support implementation of the State improvement plan under subpart 1 of part D if the State receives funds under that subpart; or 

(5) to supplement other funds used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under this section for a fiscal year. 

(g) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES-  (1) SUBGRANTS REQUIRED- Each State that receives a grant under this section for any fiscal year shall distribute any of the grant funds that it does not reserve under subsection (d) to local educational agencies in the State that have established their eligibility under section 613, as follows:  (A) BASE PAYMENTS- The State shall first award each agency described in paragraph (1) the amount that agency would have received under this section for fiscal year 1997 if the State had distributed 75 percent of its grant for that year under section 619(c)(3), as then in effect. 

(B) ALLOCATION OF REMAINING FUNDS- After making allocations under subparagraph (A), the State shall -- 

(i) allocate 85 percent of any remaining funds to those agencies on the basis of the relative numbers of children enrolled in public and private elementary and secondary schools within the agency's jurisdiction; and 

(ii) allocate 15 percent of those remaining funds to those agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency. 

(2) REALLOCATION OF FUNDS- If a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all children with disabilities aged 3 through 5 residing in the area served by that agency with State and local funds, the State educational agency may reallocate any portion of the funds under this section that are not needed by that local agency to provide a free appropriate public education to other local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities aged 3 through 5 residing in the areas they serve. 
(h) PART C INAPPLICABLE- Part C of this Act does not apply to any child with a disability receiving a free appropriate public education, in accordance with this part, with funds received under this section. 

(i) DEFINITION- For the purpose of this section, the term 'State' means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. 

(j) AUTHORIZATION OF APPROPRIATIONS- For the purpose of carrying out this section, there are authorized to be appropriated to the Secretary $500,000,000 for fiscal year 1998 and such sums as may be necessary for each subsequent fiscal year.
Continue to Part C

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