Full text of Public Law 105-17, Individuals with Disabilities Education Act Amendments of 1997
Part B | Section 619 of Part B | Part C | Part D
[DOCID: f:publ17.105]
[[Page 111 STAT. 37]]
Public Law 105-17
105th Congress
An Act
To amend the Individuals with Disabilities Education Act, to reauthorize
and make improvements to that Act, and for other purposes. <<NOTE: June
4, 1997 - [H.R. 5]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Individuals with
Disabilities Education Act Amendments of 1997. Children, youth and
families. Inter- governmental relations.>> assembled,
SECTION 1. SHORT <<NOTE: 20 USC 1400 note.>> TITLE.
This Act may be cited as the ``Individuals with Disabilities
Education Act Amendments of 1997''.
TITLE I--AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
SEC. 101. AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT.
Parts A through D of the Individuals with Disabilities Education Act
(20 U.S.C. 1400 et seq.) are amended to read as follows:
``PART A--GENERAL PROVISIONS
``SEC. 601. SHORT <<NOTE: 20 USC 1400.>> TITLE; TABLE OF CONTENTS;
FINDINGS; PURPOSES.
``(a) Short Title.--This Act may be cited as the `Individuals with
Disabilities Education Act'.
``(b) Table of Contents.--The table of contents for this Act is as
follows:
``Part A--General Provisions
``Sec. 601. Short title; table of contents; findings; purposes.
``Sec. 602. Definitions.
``Sec. 603. Office of Special Education Programs.
``Sec. 604. Abrogation of State sovereign immunity.
``Sec. 605. Acquisition of equipment; construction or alteration of
facilities.
``Sec. 606. Employment of individuals with disabilities.
``Sec. 607. Requirements for prescribing regulations.
``Part B--Assistance for Education of All Children with Disabilities
``Sec. 611. Authorization; allotment; use of funds; authorization of
appropriations.
``Sec. 612. State eligibility.
``Sec. 613. Local educational agency eligibility.
``Sec. 614. Evaluations, eligibility determinations, individualized
education programs, and educational placements.
``Sec. 615. Procedural safeguards.
``Sec. 616. Withholding and judicial review.
``Sec. 617. Administration.
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``Sec. 618. Program information.
``Part C--Infants and Toddlers with Disabilities
``Sec. 631. Findings and policy.
``Sec. 632. Definitions.
``Sec. 633. General authority.
``Sec. 634. Eligibility.
``Sec. 635. Requirements for statewide system.
``Sec. 636. Individualized family service plan.
``Sec. 637. State application and assurances.
``Sec. 638. Uses of funds.
``Sec. 639. Procedural safeguards.
``Sec. 640. Payor of last resort.
``Sec. 641. State Interagency Coordinating Council.
``Sec. 642. Federal administration.
``Sec. 643. Allocation of funds.
``Sec. 644. Federal Interagency Coordinating Council.
``Sec. 645. Authorization of appropriations.
``Part D--National Activities to Improve Education of Children with Disabilities
``subpart 1--state program improvement grants for children with
disabilities
``Sec. 651. Findings and purpose.
``Sec. 652. Eligibility and collaborative process.
``Sec. 653. Applications.
``Sec. 654. Use of funds.
``Sec. 655. Minimum State grant amounts.
``Sec. 656. Authorization of appropriations.
``subpart 2--coordinated research, personnel preparation, technical
assistance, support, and dissemination of information
``Sec. 661. Administrative provisions.
``chapter 1--improving early intervention, educational, and transitional
services and results for children with disabilities through coordinated
research and personnel preparation
``Sec. 671. Findings and purpose.
``Sec. 672. Research and innovation to improve services and results for
children with disabilities.
``Sec. 673. Personnel preparation to improve services and results for
children with disabilities.
``Sec. 674. Studies and evaluations.
``chapter 2--improving early intervention, educational, and transitional
services and results for children with disabilities through coordinated
technical assistance, support, and dissemination of information
``Sec. 681. Findings and purposes.
``Sec. 682. Parent training and information centers.
``Sec. 683. Community parent resource centers.
``Sec. 684. Technical assistance for parent training and information
centers.
``Sec. 685. Coordinated technical assistance and dissemination.
``Sec. 686. Authorization of appropriations.
``Sec. 687. Technology development, demonstration, and utilization, and
media services.
``(c) Findings.--The Congress finds the following:
``(1) Disability is a natural part of the human experience
and in no way diminishes the right of individuals to participate
in or contribute to society. Improving educational results for
children with disabilities is an essential element of our
national policy of ensuring equality of opportunity, full
participation, independent living, and economic self-sufficiency
for individuals with disabilities.
``(2) Before the date of the enactment of the Education for
All Handicapped Children Act of 1975 (Public Law 94-142)--
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``(A) the special educational needs of children with
disabilities were not being fully met;
``(B) more than one-half of the children with
disabilities in the United States did not receive
appropriate educational services that would enable such
children to have full equality of opportunity;
``(C) 1,000,000 of the children with disabilities in
the United States were excluded entirely from the public
school system and did not go through the educational
process with their peers;
``(D) there were many children with disabilities
throughout the United States participating in regular
school programs whose disabilities prevented such
children from having a successful educational experience
because their disabilities were undetected; and
``(E) because of the lack of adequate services
within the public school system, families were often
forced to find services outside the public school
system, often at great distance from their residence and
at their own expense.
``(3) Since the enactment and implementation of the
Education for All Handicapped Children Act of 1975, this Act has
been successful in ensuring children with disabilities and the
families of such children access to a free appropriate public
education and in improving educational results for children with
disabilities.
``(4) However, the implementation of this Act has been
impeded by low expectations, and an insufficient focus on
applying replicable research on proven methods of teaching and
learning for children with disabilities.
``(5) Over 20 years of research and experience has
demonstrated that the education of children with disabilities
can be made more effective by--
``(A) having high expectations for such children and
ensuring their access in the general curriculum to the
maximum extent possible;
``(B) strengthening the role of parents and ensuring
that families of such children have meaningful
opportunities to participate in the education of their
children at school and at home;
``(C) coordinating this Act with other local,
educational service agency, State, and Federal school
improvement efforts in order to ensure that such
children benefit from such efforts and that special
education can become a service for such children rather
than a place where they are sent;
``(D) providing appropriate special education and
related services and aids and supports in the regular
classroom to such children, whenever appropriate;
``(E) supporting high-quality, intensive
professional development for all personnel who work with
such children in order to ensure that they have the
skills and knowledge necessary to enable them--
``(i) to meet developmental goals and, to the
maximum extent possible, those challenging
expectations that have been established for all
children; and
``(ii) to be prepared to lead productive,
independent, adult lives, to the maximum extent
possible;
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``(F) providing incentives for whole-school
approaches and pre-referral intervention to reduce the
need to label children as disabled in order to address
their learning needs; and
``(G) focusing resources on teaching and learning
while reducing paperwork and requirements that do not
assist in improving educational results.
``(6) While States, local educational agencies, and
educational service agencies are responsible for providing an
education for all children with disabilities, it is in the
national interest that the Federal Government have a role in
assisting State and local efforts to educate children with
disabilities in order to improve results for such children and
to ensure equal protection of the law.
``(7)(A) The Federal Government must be responsive to the
growing needs of an increasingly more diverse society. A more
equitable allocation of resources is essential for the Federal
Government to meet its responsibility to provide an equal
educational opportunity for all individuals.
``(B) America's racial profile is rapidly changing. Between
1980 and 1990, the rate of increase in the population for white
Americans was 6 percent, while the rate of increase for racial
and ethnic minorities was much higher: 53 percent for Hispanics,
13.2 percent for African-Americans, and 107.8 percent for
Asians.
``(C) By the year 2000, this Nation will have 275,000,000
people, nearly one of every three of whom will be either
African-American, Hispanic, Asian-American, or American Indian.
``(D) Taken together as a group, minority children are
comprising an ever larger percentage of public school students.
Large-city school populations are overwhelmingly minority, for
example: for fall 1993, the figure for Miami was 84 percent;
Chicago, 89 percent; Philadelphia, 78 percent; Baltimore, 84
percent; Houston, 88 percent; and Los Angeles, 88 percent.
``(E) Recruitment efforts within special education must
focus on bringing larger numbers of minorities into the
profession in order to provide appropriate practitioner
knowledge, role models, and sufficient manpower to address the
clearly changing demography of special education.
``(F) The limited English proficient population is the
fastest growing in our Nation, and the growth is occurring in
many parts of our Nation. In the Nation's 2 largest school
districts, limited English proficient students make up almost
half of all students initially entering school at the
kindergarten level. Studies have documented apparent
discrepancies in the levels of referral and placement of limited
English proficient children in special education. The Department
of Education has found that services provided to limited English
proficient students often do not respond primarily to the
pupil's academic needs. These trends pose special challenges for
special education in the referral, assessment, and services for
our Nation's students from non-English language backgrounds.
``(8)(A) Greater efforts are needed to prevent the
intensification of problems connected with mislabeling and high
dropout rates among minority children with disabilities.
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``(B) More minority children continue to be served in
special education than would be expected from the percentage of
minority students in the general school population.
``(C) Poor African-American children are 2.3 times more
likely to be identified by their teacher as having mental
retardation than their white counterpart.
``(D) Although African-Americans represent 16 percent of
elementary and secondary enrollments, they constitute 21 percent
of total enrollments in special education.
``(E) The drop-out rate is 68 percent higher for minorities
than for whites.
``(F) More than 50 percent of minority students in large
cities drop out of school.
``(9)(A) The opportunity for full participation in awards
for grants and contracts; boards of organizations receiving
funds under this Act; and peer review panels; and training of
professionals in the area of special education by minority
individuals, organizations, and historically black colleges and
universities is essential if we are to obtain greater success in
the education of minority children with disabilities.
``(B) In 1993, of the 915,000 college and university
professors, 4.9 percent were African-American and 2.4 percent
were Hispanic. Of the 2,940,000 teachers, prekindergarten
through high school, 6.8 percent were African-American and 4.1
percent were Hispanic.
``(C) Students from minority groups comprise more than 50
percent of K-12 public school enrollment in seven States yet
minority enrollment in teacher training programs is less than 15
percent in all but six States.
``(D) As the number of African-American and Hispanic
students in special education increases, the number of minority
teachers and related service personnel produced in our colleges
and universities continues to decrease.
``(E) Ten years ago, 12 percent of the United States
teaching force in public elementary and secondary schools were
members of a minority group. Minorities comprised 21 percent of
the national population at that time and were clearly
underrepresented then among employed teachers. Today, the
elementary and secondary teaching force is 13 percent minority,
while one-third of the students in public schools are minority
children.
``(F) As recently as 1991, historically black colleges and
universities enrolled 44 percent of the African-American teacher
trainees in the Nation. However, in 1993, historically black
colleges and universities received only 4 percent of the
discretionary funds for special education and related services
personnel training under this Act.
``(G) While African-American students constitute 28 percent
of total enrollment in special education, only 11.2 percent of
individuals enrolled in preservice training programs for special
education are African-American.
``(H) In 1986-87, of the degrees conferred in education at
the B.A., M.A., and Ph.D. levels, only 6, 8, and 8 percent,
respectively, were awarded to African-American or Hispanic
students.
``(10) Minorities and underserved persons are socially
disadvantaged because of the lack of opportunities in training
and educational programs, undergirded by the practices in the
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private sector that impede their full participation in the
mainstream of society.
``(d) Purposes.--The purposes of this title are--
``(1)(A) to ensure that all children with disabilities have
available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for employment and
independent living;
``(B) to ensure that the rights of children with
disabilities and parents of such children are protected; and
``(C) to assist States, localities, educational service
agencies, and Federal agencies to provide for the education of
all children with disabilities;
``(2) to assist States in the implementation of a statewide,
comprehensive, coordinated, multidisciplinary, interagency
system of early intervention services for infants and toddlers
with disabilities and their families;
``(3) to ensure that educators and parents have the
necessary tools to improve educational results for children with
disabilities by supporting systemic-change activities;
coordinated research and personnel preparation; coordinated
technical assistance, dissemination, and support; and technology
development and media services; and
``(4) to assess, and ensure the effectiveness of, efforts to
educate children with disabilities.
``SEC. 602. <<NOTE: 20 USC 1401.>> DEFINITIONS.
``Except as otherwise provided, as used in this Act:
``(1) Assistive technology device.--The term `assistive
technology device' means any item, piece of equipment, or
product system, whether acquired commercially off the shelf,
modified, or customized, that is used to increase, maintain, or
improve functional capabilities of a child with a disability.
``(2) Assistive technology service.--The term `assistive
technology service' means any service that directly assists a
child with a disability in the selection, acquisition, or use of
an assistive technology device. Such term includes--
``(A) the evaluation of the needs of such child,
including a functional evaluation of the child in the
child's customary environment;
``(B) purchasing, leasing, or otherwise providing
for the acquisition of assistive technology devices by
such child;
``(C) selecting, designing, fitting, customizing,
adapting, applying, maintaining, repairing, or replacing
of assistive technology devices;
``(D) coordinating and using other therapies,
interventions, or services with assistive technology
devices, such as those associated with existing
education and rehabilitation plans and programs;
``(E) training or technical assistance for such
child, or, where appropriate, the family of such child;
and
``(F) training or technical assistance for
professionals (including individuals providing education
and rehabilitation services), employers, or other
individuals who provide services to, employ, or are
otherwise substantially involved in the major life
functions of such child.
``(3) Child with a disability.-
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``(A) In general.--The term `child with a disability
' means a child--
``(i) with mental retardation, hearing
impairments (including deafness), speech or
language impairments, visual impairments
(including blindness), serious emotional
disturbance (hereinafter referred to as `emotional
disturbance'), orthopedic impairments, autism,
traumatic brain injury, other health impairments,
or specific learning disabilities; and
``(ii) who, by reason thereof, needs special
education and related services.
``(B) Child aged 3 through 9.--The term `child with
a disability ' for a child aged 3 through 9 may, at the
discretion of the State and the local educational
agency, include a child--
``(i) experiencing developmental delays, as
defined by the State and as measured by
appropriate diagnostic instruments and procedures,
in one or more of the following areas: physical
development, cognitive development, communication
development, social or emotional development, or
adaptive development; and
``(ii) who, by reason thereof, needs special
education and related services.
``(4) Educational service agency.--The term `educational
service agency'--
``(A) means a regional public multiservice agency--
``(i) authorized by State law to develop,
manage, and provide services or programs to local
educational agencies; and
``(ii) recognized as an administrative agency
for purposes of the provision of special education
and related services provided within public
elementary and secondary schools of the State; and
``(B) includes any other public institution or
agency having administrative control and direction over
a public elementary or secondary school.
``(5) Elementary school.--The term `elementary school' means
a nonprofit institutional day or residential school that
provides elementary education, as determined under State law.
``(6) Equipment.--The term `equipment' includes--
``(A) machinery, utilities, and built-in equipment
and any necessary enclosures or structures to house such
machinery, utilities, or equipment; and
``(B) all other items necessary for the functioning
of a particular facility as a facility for the provision
of educational services, including items such as
instructional equipment and necessary furniture;
printed, published, and audio-visual instructional
materials; telecommunications, sensory, and other
technological aids and devices; and books, periodicals,
documents, and other related materials.
``(7) Excess costs.--The term `excess costs' means those
costs that are in excess of the average annual per-student
expenditure in a local educational agency during the preceding
school year for an elementary or secondary school student, as
may be appropriate, and which shall be computed after
deducting--
``(A) amounts received--
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``(i) under part B of this title;
``(ii) under part A of title I of the
Elementary and Secondary Education Act of 1965; or
``(iii) under part A of title VII of that Act;
and
``(B) any State or local funds expended for programs
that would qualify for assistance under any of those
parts.
``(8) Free appropriate public education.--The term `free
appropriate public education' means special education and
related services that--
``(A) have been provided at public expense, under
public supervision and direction, and without charge;
``(B) meet the standards of the State educational
agency;
``(C) include an appropriate preschool, elementary,
or secondary school education in the State involved; and
``(D) are provided in conformity with the
individualized education program required under section
614(d).
``(9) Indian.--The term `Indian' means an individual who is
a member of an Indian tribe.
``(10) Indian tribe.--The term `Indian tribe' means any
Federal or State Indian tribe, band, rancheria, pueblo, colony,
or community, including any Alaska Native village or regional
village corporation (as defined in or established under the
Alaska Native Claims Settlement Act).
``(11) 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 section 614(d).
``(12) Individualized family service plan.--The term
`individualized family service plan' has the meaning given such
term in section 636.
``(13) Infant or toddler with a disability.--The term
`infant or toddler with a disability ' has the meaning given
such term in section 632.
``(14) Institution of higher education.--The term
`institution of higher education'--
``(A) has the meaning given that term in section
1201(a) of the Higher Education Act of 1965; and
``(B) also includes any community college receiving
funding from the Secretary of the Interior under the
Tribally Controlled Community College Assistance Act of
1978.
``(15) Local educational agency.--
``(A) The term `local educational agency' means a
public board of education or other public authority
legally constituted within a State for either
administrative control or direction of, or to perform a
service function for, public elementary or secondary
schools in a city, county, township, school district, or
other political subdivision of a State, or for such
combination of school districts or counties as are
recognized in a State as an administrative agency for
its public elementary or secondary schools.
``(B) The term includes--
``(i) an educational service agency, as
defined in paragraph (4); and
``(ii) any other public institution or agency
having administrative control and direction of a
public elementary or secondary school.
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``(C) The term includes an elementary or secondary
school funded by the Bureau of Indian Affairs, but only
to the extent that such inclusion makes the school
eligible for programs for which specific eligibility is
not provided to the school in another provision of law
and the school does not have a student population that
is smaller than the student population of the local
educational agency receiving assistance under this Act
with the smallest student population, except that the
school shall not be subject to the jurisdiction of any
State educational agency other than the Bureau of Indian
Affairs.
``(16) Native language.--The term `native language', when
used with reference to an individual of limited English
proficiency, means the language normally used by the individual,
or in the case of a child, the language normally used by the
parents of the child.
``(17) Nonprofit.--The term `nonprofit', as applied to a
school, agency, organization, or institution, means a school,
agency, organization, or institution owned and operated by one
or more nonprofit corporations or associations no part of the
net earnings of which inures, or may lawfully inure, to the
benefit of any private shareholder or individual.
``(18) Outlying area.--The term `outlying area' means the
United States Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands.
``(19) Parent.--The term `parent'--
``(A) includes a legal guardian; and
``(B) except as used in sections 615(b)(2) and
639(a)(5), includes an individual assigned under either
of those sections to be a surrogate parent.
``(20) Parent organization.--The term `parent organization'
has the meaning given that term in section 682(g).
``(21) Parent training and information center.--The term
`parent training and information center' means a center assisted
under section 682 or 683.
``(22) Related services.--The term `related services' means
transportation, and such developmental, corrective, and other
supportive services (including speech-language pathology and
audiology services, psychological services, physical and
occupational therapy, recreation, including therapeutic
recreation, social work services, counseling services, including
rehabilitation counseling, orientation and mobility services,
and medical services, except that such medical services shall be
for diagnostic and evaluation purposes only) as may be required
to assist a child with a disability to benefit from special
education, and includes the early identification and assessment
of disabling conditions in children.
``(23) Secondary school.--The term `secondary school' means
a nonprofit institutional day or residential school that
provides secondary education, as determined under State law,
except that it does not include any education beyond grade 12.
``(24) Secretary.--The term `Secretary' means the Secretary
of Education.
``(25) Special education.--The term `special education'
means specially designed instruction, at no cost to parents, to
meet the unique needs of a child with a disability, including--
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``(A) instruction conducted in the classroom, in the
home, in hospitals and institutions, and in other
settings; and
``(B) instruction in physical education.
``(26) Specific learning disability.--
``(A) In general.--The term `specific learning
disability ' means a disorder in one or more of the
basic psychological processes involved in understanding
or in using language, spoken or written, which disorder
may manifest itself in imperfect ability to listen,
think, speak, read, write, spell, or do mathematical
calculations.
``(B) Disorders included.--Such term includes such
conditions as perceptual disabilities, brain injury,
minimal brain dysfunction, dyslexia, and developmental
aphasia.
``(C) Disorders not included.--Such term does not
include a learning problem that is primarily the result
of visual, hearing, or motor disabilities, of mental
retardation, of emotional disturbance, or of
environmental, cultural, or economic disadvantage.
``(27) State.--The term `State' means each of the 50 States,
the District of Columbia, the Commonwealth of Puerto Rico, and
each of the outlying areas.
``(28) State educational agency.--The term `State
educational agency' means the State board of education or other
agency or officer primarily responsible for the State
supervision of public elementary and secondary schools, or, if
there is no such officer or agency, an officer or agency
designated by the Governor or by State law.
``(29) Supplementary aids and services.--The term
`supplementary aids and services' means, aids, services, and
other supports that are provided in regular education classes or
other education-related settings to enable children with
disabilities to be educated with nondisabled children to the
maximum extent appropriate in accordance with section 612(a)(5).
``(30) Transition services.--The term `transition services'
means a coordinated set of activities for a student with a
disability that--
``(A) is designed within an outcome-oriented
process, which promotes movement from school to post-
school activities, including post-secondary education,
vocational training, integrated employment (including
supported employment), continuing and adult education,
adult services, independent living, or community
participation;
``(B) is based upon the individual student's needs,
taking into account the student's preferences and
interests; and
``(C) includes instruction, related services,
community experiences, the development of employment and
other post-school adult living objectives, and, when
appropriate, acquisition of daily living skills and
functional vocational evaluation.
``SEC. 603. OFFICE <<NOTE: 20 USC 1402.>> OF SPECIAL EDUCATION
PROGRAMS.
``(a) Establishment.--There shall be, within the Office of Special
Education and Rehabilitative Services in the Department of Education, an
Office of Special Education Programs, which shall
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be the principal agency in such Department for administering and
carrying out this Act and other programs and activities concerning the
education of children with disabilities.
``(b) Director.--The Office established under subsection (a) shall
be headed by a Director who shall be selected by the Secretary and shall
report directly to the Assistant Secretary for Special Education and
Rehabilitative Services.
``(c) Voluntary and Uncompensated Services.--Notwithstanding section
1342 of title 31, United States Code, the Secretary is authorized to
accept voluntary and uncompensated services in furtherance of the
purposes of this Act.
``SEC. 604. ABROGATION <<NOTE: 20 USC 1403.>> OF STATE SOVEREIGN
IMMUNITY.
``(a) In General.--A State shall not be immune under the eleventh
amendment to the Constitution of the United States from suit in Federal
court for a violation of this Act.
``(b) Remedies.--In a suit against a State for a violation of this
Act, remedies (including remedies both at law and in equity) are
available for such a violation to the same extent as those remedies are
available for such a violation in the suit against any public entity
other than a State.
``(c) Effective Date.--Subsections (a) and (b) apply with respect to
violations that occur in whole or part after the date of the enactment
of the Education of the Handicapped Act Amendments of 1990.
``SEC. 605. ACQUISITION <<NOTE: 20 USC 1404.>> OF EQUIPMENT;
CONSTRUCTION OR ALTERATION OF FACILITIES.
``(a) In General.--If the Secretary determines that a program
authorized under this Act would be improved by permitting program funds
to be used to acquire appropriate equipment, or to construct new
facilities or alter existing facilities, the Secretary is authorized to
allow the use of those funds for those purposes.
``(b) Compliance With Certain Regulations.--Any construction of new
facilities or alteration of existing facilities under subsection (a)
shall comply with the requirements of--
``(1) appendix A of part 36 of title 28, Code of Federal
Regulations (commonly known as the `Americans with Disabilities
Accessibility Guidelines for Buildings and Facilities'); or
``(2) appendix A of part 101-19.6 of title 41, Code of
Federal Regulations (commonly known as the `Uniform Federal
Accessibility Standards').
``SEC. 606. EMPLOYMENT <<NOTE: 20 USC 1405.>> OF INDIVIDUALS WITH
DISABILITIES.
``The Secretary shall ensure that each recipient of assistance under
this Act makes positive efforts to employ and advance in employment
qualified individuals with disabilities in programs assisted under this
Act.
``SEC. 607. REQUIREMENTS <<NOTE: 20 USC 1406.>> FOR PRESCRIBING
REGULATIONS.
``(a) Public Comment Period.--The Secretary shall provide a public
comment period of at least 90 days on any regulation proposed under part
B or part C of this Act on which an opportunity for public comment is
otherwise required by law.
``(b) Protections Provided to Children.--The Secretary may not
implement, or publish in final form, any regulation prescribed pursuant
to this Act that would procedurally or substantively lessen the
protections provided to children with disabilities under this
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Act, as embodied in regulations in effect on July 20, 1983 (particularly
as such protections relate to parental consent to initial evaluation or
initial placement in special education, least restrictive environment,
related services, timelines, attendance of evaluation personnel at
individualized education program meetings, or qualifications of
personnel), except to the extent that such regulation reflects the clear
and unequivocal intent of the Congress in legislation.
``(c) Policy Letters and Statements.--The Secretary may not, through
policy letters or other statements, establish a rule that is required
for compliance with, and eligibility under, this part without following
the requirements of section 553 of title 5, United States Code.
``(d) Correspondence From Department of Education Describing
Interpretations of This Part.--
``(1) In general <<NOTE: Federal Register,
publication.>> .--The Secretary shall, on a quarterly basis,
publish in the Federal Register, and widely disseminate to
interested entities through various additional forms of
communication, a list of correspondence from the Department of
Education received by individuals during the previous quarter
that describes the interpretations of the Department of
Education of this Act or the regulations implemented pursuant to
this Act.
``(2) Additional information.--For each item of
correspondence published in a list under paragraph (1), the
Secretary shall identify the topic addressed by the
correspondence and shall include such other summary information
as the Secretary determines to be appropriate.
``(e) Issues of National Significance.--If the Secretary receives a
written request regarding a policy, question, or interpretation under
part B of this Act, and determines that it raises an issue of general
interest or applicability of national significance to the implementation
of part B, the Secretary shall--
``(1) include a statement to that effect in any written
response;
``(2) widely disseminate that response to State educational
agencies, local educational agencies, parent and advocacy
organizations, and other interested organizations, subject to
applicable laws relating to confidentiality of information; and
``(3) not later than one year after the date on which the
Secretary responds to the written request, issue written
guidance on such policy, question, or interpretation through
such means as the Secretary determines to be appropriate and
consistent with law, such as a policy memorandum, notice of
interpretation, or notice of proposed rulemaking.
``(f ) Explanation.--Any written response by the Secretary under
subsection (e) regarding a policy, question, or interpretation under
part B of this Act shall include an explanation that the written
response--
``(1) is provided as informal guidance and is not legally
binding; and
``(2) represents the interpretation by the Department of
Education of the applicable statutory or regulatory requirements
in the context of the specific facts presented.
[[Page 111 STAT. 49]]
**
``PART B--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES | Return to Top of Page
``SEC. 611. AUTHORIZATION; <<NOTE: 20 USC 1411.>> 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;
[[Page 111 STAT. 50]]
``(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
[[Page 111 STAT. 51]]
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
[[Page 111 STAT. 52]]
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--
[[Page 111 STAT. 53]]
``(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 under subpart 1 of part D
if the State receives funds under that subpart.
[[Page 111 STAT. 54]]
``(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.
[[Page 111 STAT. 55]]
``(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 614A(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
[[Page 111 STAT. 56]]
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
[[Page 111 STAT. 57]]
``(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;
[[Page 111 STAT. 58]]
``(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
[[Page 111 STAT. 59]]
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
[[Page 111 STAT. 60]]
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 <<NOTE: 20 USC 1412.>> 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:
[[Page 111 STAT. 61]]
``(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.
[[Page 111 STAT. 62]]
``(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.--
[[Page 111 STAT. 63]]
``(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
[[Page 111 STAT. 64]]
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
[[Page 111 STAT. 65]]
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
[[Page 111 STAT. 66]]
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,
[[Page 111 STAT. 67]]
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, <<NOTE: Reports.>> 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.
[[Page 111 STAT. 68]]
``(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
[[Page 111 STAT. 69]]
``(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;
[[Page 111 STAT. 70]]
``(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
[[Page 111 STAT. 71]]
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 <<NOTE: Applicability.>> 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
[[Page 111 STAT. 72]]
``(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 <<NOTE: Records.>> 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 <<NOTE: Records.>> 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.
[[Page 111 STAT. 73]]
``SEC. 613. LOCAL <<NOTE: 20 USC 1413.>> 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
[[Page 111 STAT. 74]]
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--
[[Page 111 STAT. 75]]
``(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
[[Page 111 STAT. 76]]
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
[[Page 111 STAT. 77]]
``(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
[[Page 111 STAT. 78]]
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
[[Page 111 STAT. 79]]
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
[[Page 111 STAT. 80]]
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.
[[Page 111 STAT. 81]]
``SEC. 614. EVALUATIONS, <<NOTE: 20 USC 1414.>> 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;
[[Page 111 STAT. 82]]
``(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--
[[Page 111 STAT. 83]]
``(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
[[Page 111 STAT. 84]]
``(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
[[Page 111 STAT. 85]]
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
[[Page 111 STAT. 86]]
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
[[Page 111 STAT. 87]]
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.
[[Page 111 STAT. 88]]
``(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 <<NOTE: 20 USC 1415.>> 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--
[[Page 111 STAT. 89]]
``(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;
[[Page 111 STAT. 90]]
``(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
[[Page 111 STAT. 91]]
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.
[[Page 111 STAT. 92]]
``(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
[[Page 111 STAT. 93]]
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--
[[Page 111 STAT. 94]]
``(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.--
[[Page 111 STAT. 95]]
``(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).
[[Page 111 STAT. 96]]
``(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
[[Page 111 STAT. 97]]
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.
[[Page 111 STAT. 98]]
``(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.
[[Page 111 STAT. 99]]
``(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 <<NOTE: 20 USC 1416.>> 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
[[Page 111 STAT. 100]]
shall be forthwith transmitted by the clerk of the court to
the <<NOTE: Records.>> 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. <<NOTE: 20 USC 1417.>> 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.
[[Page 111 STAT. 101]]
``(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 <<NOTE: 20 USC 1418.>> 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
[[Page 111 STAT. 102]]
``(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 <<NOTE: 20 USC 1419.>> GRANTS. | Return to Top of Page
``(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;
[[Page 111 STAT. 103]]
``(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--
[[Page 111 STAT. 104]]
``(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
[[Page 111 STAT. 105]]
612(a)(16) and 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.
Part B | Section 619 of Part B | Part C | Part D | Return to Top of Page