[Senate Report 108-185]
[From the U.S. Government Publishing Office]
Calendar No. 362
108th Congress Report
SENATE
1st Session 108-185
======================================================================
INDIVIDUALS WITH DISABILITIES EDUCATION ACT
_______
November 3, 2003.--Ordered to be printed
_______
Mr. Gregg, from the Committee on Health, Education, Labor, and
Pensions, submitted the following
R E P O R T
[To accompany S. 1248]
The Committee on Health, Education, Labor, and Pensions, to
which was referred the bill (S. 1248) to reauthorize the
Individuals with Disabilities Education Act, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill (as amended) do
pass.
CONTENTS
Page
I. Introduction.....................................................1
II. Purpose and summary..............................................2
III. Background and need for legislation..............................2
IV. Legislative history and committee action.........................4
V. Explanation of bill and committee views..........................5
VI. Cost estimate...................................................63
VII. Regulatory impact statement.....................................63
VIII.Application of law to the legislative branch....................64
IX. Section-by-section analysis.....................................64
X. Changes in existing law.........................................85
I. Introduction
S. 1248 is the product of an extensive bipartisan effort
among Senators on the committee, as well as significant input
from parents of children with disabilities, children with
disabilities, educators, the U.S. Department of Education, and
other individuals interested in improving the quality of
education for children with disabilities. What makes this
legislation unique is that it was bipartisan in its inception.
II. Purpose and Summary
In reporting S. 1248, the Individuals with Disabilities
Education Improvement Act of 2003, the committee improves the
Individuals with Disabilities Education Act (IDEA) through
provisions that: (1) encourage informal and speedy resolution
of problems, prevent misidentification of students, and reduce
bureaucratic paperwork for teachers; (2) provide local fiscal
relief through risk pools and allowing localities to use a
percentage of IDEA funds in a flexible manner; (3) shift IDEA
from a compliance-driven model to a performance-driven model;
(4) make schools safer by providing greater clarity and
flexibility in the law, as well as supporting approaches,
including behavioral interventions, that prevent dangerous
discipline problems; (5) provide increased resources to better
train teachers and parents; (6) facilitate better transitioning
for students with disabilities from school to post-secondary
experiences; and (7) strengthen implementation of the law to
ensure that every child with a disability receives a free
appropriate public education (FAPE).
III. Background and Need for Legislation
Congress established a State grant program for the
Education of Handicapped Children under title VI of the
Elementary and Secondary Education Amendments of 1966 (P.L. 89-
750). In 1970, Congress authorized the Education of the
Handicapped Act (EHA) as title VI of P.L. 91-230. With the
enactment of P.L. 91-230, the State grant program established
in 1966 was redesignated as part B of the EHA.
In 1975, Congress passed the Education for All Handicapped
Children Act, P.L. 94-142. It amended part B, the State grant
program in the EHA. P.L. 94-142 refined and expanded
requirements for State participation in the State grant
program. In accepting State grant funds, a State was required
to provide a free appropriate public education (FAPE) to all
children with disabilities in the State according to specific
procedures and civil rights protections.
From 1979 through 1994, a series of amendments to the EHA
refined and increased in number discretionary programs in
personnel preparation, research, demonstration, and technical
assistance. In 1986, the Handicapped Children's Protection Act,
P.L. 99-372, was enacted. In amending part B of the EHA, P.L.
99-372 authorized attorneys' fees for parents who prevail in
due process proceedings and judicial actions against school
districts. Also in 1986, P.L. 99-457 was enacted, creating a
new part H in the EHA. Part H provides funds for State programs
in early intervention services for infants and toddlers with
disabilities from birth through two years of age. The EHA
amendments of 1990, P.L. 101-476, renamed the statute as the
Individuals with Disabilities Education Act (IDEA). In 1994,
P.L. 103-382, the Improving America's Schools Act of 1994,
eliminated the separate authorization for the chapter 1
Handicapped Program and merged its authorization for funding
with part B funding under the IDEA and gave school districts
the discretion to remove children with disabilities to an
interim alternative educational setting for up to 45 days when
such children bring firearms to school.
In the 105th Congress, the ``Individuals with Disabilities
Education Act Amendments of 1997,'' P.L. 105-17, was enacted
into law. Amendments to the legislation were comprehensive in
nature and addressed a wide range of legal and programmatic
issues affecting early intervention and special education. The
1997 law required that the individualized education program of
each child with a disability relate programming for the child
to achievement in the general education curriculum. Further,
States had to establish performance goals and indicators for
children with disabilities as well as include them in
assessments. Schools were given specific statutory authority
regarding discipline of students with disabilities, and new,
but limited, authority was given to hearing officers to change
the placement of children with disabilities. The law was
clarified to ensure that children with disabilities were
specifically entitled to special educational services, even if
expelled from school. States were required to ensure that
parents were offered mediation before going to a formal due
process hearing over a dispute. The 1997 amendments also
created new State and substate formulas in the grants to States
and preschool programs, generally basing grant amounts on
broader population factors rather than counts of children with
disabilities served. When federal appropriations for the grants
to States program exceed $4.1 billion and a school district
received a larger award, the district would be permitted to
reduce local spending on special education by a certain amount.
The 14 discretionary grant programs were consolidated into two
new special purpose programs. A third new special purpose
program focuses on statewide special education reform.
During this reauthorization of the Individuals with
Disabilities Education Act, the committee believes it is
crucial to concentrate on improving educational outcomes for
children by focusing on accountability for results. The
committee believes this can be accomplished by a number of
means, including supporting teachers and other staff by
providing high quality training and reducing paperwork burdens,
encouraging more efficient and effective conflict resolution
between parents and schools, providing earlier access to
services and supports to children to reduce the need for IDEA
services, and improving funding.
In the 107th Congress, the Committee on Health, Education,
Labor, and Pension held four hearings to solicit
recommendations for the reauthorization of IDEA.
On March 21, 2002, at a hearing entitled: ``IDEA: What's
Good for Kids? What Works for Schools?'', the following
individuals testified: Robert Pasternack, Assistant Secretary,
Office of Special Education and Rehabilitative Services, U.S.
Department of Education, Washington, DC; Lilliam Rangel-Diaz,
Board of Directors, National Council on Disability, Washington,
DC; Valarie Findley, Parent, Des Moines, Iowa; Bob Runkel,
Montana State Director of Special Education, Helena, Montana;
Bob Vaadeland, Superintendent, Minnewaska Area Schools,
Glenwood, Minnesota; and Kim Ratcliffe, Director of Special
Education of Columbia Public Schools, Columbia, Missouri.
On April 25, 2002, at a hearing entitled: ``IDEA:
Behavioral Supports in Schools,'' the following individuals
testified: Sarah A. Flanagan, Falls Church,Virginia; Kathleen
B. Boundy, J.D., Co-Director, Center for Law and Education,
Boston, Massachusetts; George Sugai, Ph.D., Co-Director, Center
on Positive Behavioral Interventions and Supports, University
of Oregon; Marsha Weissman, Executive Director, Center for
Community Alternatives, Inc., Syracuse, New York; and Dr.
Ronnie M. Jackson, Superintendent, Dale County School District,
Dale County, Alabama.
On June 6, 2002, at a hearing entitled: ``Accountability
and IDEA: What Happens When the Bus Doesn't Come Anymore?'',
the following individuals testified: Marisa Brown, Parent,
Vienna, Virginia; David W. Gordon, Superintendent, Elk Grove
Unified School District, Elk Grove, California; Stan Shaw,
Professor and Coordinator, Special Education Program,
University of Connecticut, Storrs, Connecticut; Arlene
Mayerson, Directing Attorney, Disability Rights Education
Defense Fund, Inc., Berkeley, California; and Lawrence C.
Gloeckler, Deputy Commissioner, Vocational and Educational
Services for Individuals with Disabilities, New York State
Education Department, Albany, New York.
On July 9, 2002, the following individuals testified at a
hearing on the President's Commission on Excellence in Special
Education: Terry Branstad, Chairman, President's Commission on
Excellence in Special Education, Washington, DC; Douglas Gill,
Chair, Finance Task Force, President's Commission on Excellence
in Special Education, Washington, DC; and Douglas Huntt, Chair,
Transition Task Force, President's Commission on Excellence in
Special Education, Washington, DC.
In addition, between June 16 and 19, 2003, both majority
and minority staff for the committee met with 83 groups to hear
their concerns and recommendations regarding S. 1248.
THE PRESIDENT'S COMMISSION ON EXCELLENCE IN SPECIAL EDUCATION
The committee has also taken into consideration
recommendations made by the President's Commission on
Excellence in Special Education, released in July 2002. While
the Commission report was filled with a number of more detailed
recommendations, its three major recommendations were: (1)
Focus on results--not on process; (2) Embrace a model of
prevention, not a model of failure; and (3) Consider children
with disabilities as general education children first.
THE PRESIDENT'S PRINCIPLES FOR IDEA REAUTHORIZATION
February 25, 2003, U.S. Secretary of Education Rod Paige
released a set of principles to guide the Education Department
in its work toward seeking reauthorization of the Individuals
with Disabilities Education Act (IDEA). Those principles were:
(1) Stronger accountability for results; (2) Simplify paperwork
for States and communities and increase flexibility for all;
(3) Focus on doing what works; and (4) Increase choices and
meaningful involvement for parents.
IV. Legislative History and Committee Action
The committee considered S. 1248 on June 25, 2003. Senator
Gregg, Chairman of the Committee on Health, Education, Labor,
and Pensions, and Senator Kennedy, the ranking member of the
committee, offered one amendment in the nature of a substitute.
Along with a number of smaller technical changes, there were
five main differences between the substitute amendment and S.
1248 as introduced.
The first change added a new provision clarifying that
there is no right of action based solely upon the failure of a
State educational agency or local educational agency staff
person to be highly qualified.
The second change amended the discipline provisions of the
bill. The substitute restored current law language describing
instances of weapons possession, drug possession or
solicitation, and definitions of ``illegal drug'' and
``controlled substance.'' The revised language also requires
school districts to notify parents when a disciplinary action
is contemplated. It states that when a child is removed from
their current educational placement for disciplinary reasons, a
school district must conduct a functional behavioral assessment
if it has not previously done so. Finally, the substitute
clarifies that a school may request a hearing to change a
child's placement if it believes maintaining that placement is
substantially likely to result in injury to the child or to
others.
The third major change in the substitute added a new
provision permitting States to create a seamless system for
infants, toddlers, and preschoolers with disabilities, giving
parents the opportunity to choose to have their child continue
early intervention services until the age of 5.
Fourth, the substitute amendment established a commission
to study, evaluate, and make appropriate recommendations to
Congress and to the Secretary of Education on the issue of
universal design and accessibility of curriculum and
instructional materials for use by all children, with a
particular emphasis on children with disabilities.
The fifth major change in the substitute amendment added
new provisions providing for a smooth transition of research
activities from the Office of Special education to the
Institute of Education Sciences.
Final Action: The substitute amendment was adopted and the
bill as amended was reported favorably by unanimous roll call
vote of 21-0.
V. Explanation of Bill and Committee Views
The purpose of the Individuals with Disabilities Education
Improvement Act is to improve educational results for children
with disabilities by:
Providing a performance-driven framework for
accountability to ensure that children with
disabilities receive a free appropriate public
education;
Encouraging early informal resolution of problems,
reducing misidentification of students, and limiting
paperwork for teachers and other education personnel;
Providing fiscal relief to school districts;
Providing increased resources to better train
teachers and parents;
Providing better interagency support for post-
secondary transition; and
Strengthening effective enforcement of the law.
Nearly 30 years ago, the Education for All Handicapped
Children's Act was enacted to provide keys to the schoolhouse
door for children with disabilities. Previously, many of these
children did not have the opportunity to receive a public
education in America's classrooms. Today the school house door
is open. The committee's focus during this reauthorization is
on the quality of education children are receiving under the
law. The committee has sought to ensure that the framework of
IDEA helps to produce improved educational results for children
with disabilities.
The committee affirms that States and school districts must
be held accountable for complying with IDEA. However, many
school representatives, policy analysts, and even some parents
of children with disabilities believe that the current
accountability provisions in the IDEA law focus more on
measuring compliance with legal processes, rather than gauging
student performance and results. Therefore, the committee has
worked to make changes to the law which will focus compliance
and enforcement efforts on student performance.
The committee is concerned about the paperwork burden
experienced by special education teachers. According to a
recent study by the Council for Exceptional Children, a
majority of special educators estimate that they spend a day or
more each week on paperwork, and 83 percent report spending
from half to one and a half days per week in IEP-related
meetings. The committee has included a number of provisions
that will reduce unnecessary paperwork and excessive meetings
for both teachers and parents.
The committee is discouraged to hear that many parents,
teachers, and school officials find that some current IDEA
provisions encourage an adversarial, rather than a cooperative,
atmosphere, in regards to special education. In response, the
committee has made changes to promote better cooperation and
understanding between parents and schools, leading to better
educational programs and related services for children with
disabilities.
The committee has also found that certain aspects of the
law create an inflexibility which can discourage improved
services for children, create hardships for parents, and hamper
the effectiveness of teachers. Therefore, S. 1248 gives both
parents and school personnel more flexibility to ensure that
children with disabilities receive the appropriate educational
and related services in a more expeditious manner.
The committee is also aware of problems in appropriately
identifying students for IDEA. S. 1248 targets services and
teacher training in order to reduce the number of inappropriate
identifications, as well as making accurate identifications in
a more timelymanner. The legislation provides new opportunities
to provide early intervening services for students who do not meet the
definition of a child with a disability, but who need additional
academic or behavioral support to succeed in a general education
environment.
Finally, the committee wants to emphasize that schools must
be safe harbors for all children and classrooms must be
conducive to learning. S. 1248 adds provisions to assist
teachers and other educational personnel by supporting training
to address behavioral issues, and clarifying rules for
implementing disciplinary decisions. These provisions will help
schools keep classrooms safer, while balancing the child's
right to receive appropriate educational and related services
under IDEA.
TITLE I--AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
Amendments to part A of the Individuals with Disabilities Education Act
Definitions
In section 602, the committee made a number of small
revisions and additions to the definitions for the law. The
definition of a child with a disability aged 3 through 9
(section 602(3)(B)) is changed to make clear that a State has
discretion to classify children as disabled due to a
developmental delay any subset of children within the age range
of 3 and 9, including ages 3 through 5. This change reflects
the same policy in regulations (34 C.F.R. 300.313(a)(1)).
The definition of ``core academic subject'' is added at
section 602(4), and has the same meaning as that found in the
Elementary and Secondary Education Act of 1965, which was
reauthorized by the No Child Left Behind Act of 2001 (NCLB),
P.L. 107-110. The definition was added in conjunction with the
new definition of ``highly qualified'' in section 602(10).
Highly qualified teachers
S. 1248 includes a definition of ``highly qualified special
education teacher'' which acknowledges that special education
teachers' responsibilities vary widely. The committee is aware
that many special education students may be provided
instruction by individuals who are either untrained in working
with children with a particular disability or individuals who
lack appropriate content knowledge. Therefore, the committee
intends that special education teachers have both content
knowledge and training in special education instruction. The
committee further recognizes that many children with
disabilities are taught both by regular and special education
teachers. As a result, the definition of a highly qualified
special education teacher is designed to work in concert with
the definition of a ``highly qualified'' regular education
teacher in NCLB to ensure that the vast majority of special
education students have access to a teacher who has
demonstrated competence in the subject areas they are teaching.
For example, S. 1248 stipulates that special education teachers
who team-teach in a regular education classroom by adjusting
the learning environment and modifying instructional methods
must be licensed to teach special education, but do not have to
be certified in other subject areas. It is the assumption of
the committee that in such a classroom, the regular education
teacher is highly qualified in the requisite subject areas, and
therefore the child has access to instruction by a teacher who
has demonstrated content knowledge. It is not the intent of the
committee that consultation occur outside the classroom,
thereby shortchanging a mainstreamed child with a disability of
direct instruction by a teacher who has demonstrated individual
subject mastery.
S. 1248 makes it clear that this definition of highly
qualified special education teacher is what should be applied
to ``special education teacher'' when the issue of highly
qualified teachers is mentioned in NCLB. For example, under S.
1248, in carrying out NCLB's parental right to know language
regarding teachers (sec. 1111(h)(6) of NCLB), school districts
would use the definition of highly qualified special education
teacher in S. 1248. The only exception is that NCLB's deadline
by which all teachers have to be highly qualified was extended
by one year for special education teachers, to the 2006-07
school year. This one-year extension results from recognition
of the shortage of special education teachers and the
challenges of applying a new definition of a highly qualified
teacher.
S. 1248 adds a new definition for ``limited English
proficient'' (section 602(17)), which is the same as that found
under NCLB.
S. 1248 amends both section 602(1) and section 602(25) to
clarify that the definitions of ``assistive technology device''
and ``related services'' do not include a medical device that
is surgically implanted, or the post-surgical maintenance,
programming, or replacement of such device, or an external
device connected with the use of a surgically implanted medical
device (other than the costs of performing routine maintenance
and monitoring of such external device at the same time the
child is receiving other services under the act).
Recent cases around the country have shown that hearing
officers and courts alike are unsure as to whether maintenance
and programming of implanted medical devices are covered under
IDEA. Many schools have argued that IDEA does not require
coverage of these items, and that requiring such coverage will
prove very costly to school districts.
The committee acknowledges that we have only begun to see
the future of implanted medical devices and other new
technology to help children with disabilities. For example,
some children with seizure disorders have implanted vagus nerve
stimulators to help control seizures. Implanted electronic
muscle stimulators can help children walk. However, the
committee does not believe that surgically implanted medical
devices and the costs associated with programming and
maintaining them are items that should be covered under IDEA.
The committee does believe, however, that schools should
perform routine maintenance and monitoring of external devices
connected with the use of a surgically implanted medical
device. For example, school personnel should cover activities
such as changing a battery in the external processor used in
connection with a cochlear implant, ensuring that the processor
is turned on, or performing other troubleshooting that may
arise in regard to the proper functioning of the device while
the child is at school. However, the committee does not intend
that mapping a cochlear implant, or even costs associated with
mapping, such as transportation costs and insurance copayments,
be the responsibility of a school district.
The committee clarifies the definition of ``related
services'' (section 602(25)) by adding interpreting services,
school health services, and travel training instruction to the
list contained in current law. The committee intends that
counseling services and other related services may be provided
by marriage and family therapists, where appropriate, and to
the extent authorized by State law. Finally, with respect to
children who are deaf or hard of hearing, the term
``interpreting services'' includes, but is not limited to, oral
transliteration services, cued language transliteration
services, and sign language interpreting services.
The definition of ``transition services'' (section 602(33))
has been amended to emphasize a focus on improving the academic
and functional achievement of a child with a disability.
Policy letters and regulations
Section 607 is revised significantly to reflect the
committee's intent to implement the enacted law in an efficient
and effective manner. The changes provide States, local
educational agencies, and parents with the secure knowledge
that once the law and implementing regulations are finalized
there will not be significant changes in the way the law is
interpreted or implemented without the opportunity to react to
such changes.
Section 607(a) consolidates language on regulations with
section 617 of the current act to create a clear, concise
section on the Department's authority to regulate under the
act. This provision clearly expresses the committee's intent
that the Secretary should regulate only where necessary to
ensure compliance with the act. Further, section 607(b)
prohibits the Secretary from issuing regulations that violate
or contradict the provisions of the act. The committee
encourages the Secretary to take a careful and deliberate
approach to developing regulations.
At the same time, the committee encourages the Secretary to
expedite the regulatory process so that parents, teachers,
school officials, and States can have a thorough and complete
understanding of the law and regulations within one year of the
date of enactment of the bill. The Department's long delay in
issuing regulations under the 1997 act increased the challenges
of implementation of the new law. While it is important to
solicit public input on the implementing regulations, it is
also equally important to keep the regulatory process from
causing undue delay in finalizing regulations so that States
and local educational agencies can begin to implement the
reauthorized law in a timely manner. Section 607(c) requires
the Secretary to allow public input for not more than 90 days
on any regulations issued under this act.
The committee feels that the Secretary should be
particularly thoughtful in issuing policy letters, and
therefore makes several changes to the requirements regarding
policy letters. Section 607(d) requires the Secretary to
subject policy letters that establish a rule of compliance to
public comment requirements to ensure that there is adequate
notice regarding the Department's interpretation of the act.
Additionally, section 607(e) requires the Secretary to state
that any particular policy letter is written in response to the
specific facts presented. Finally, section 607(f) maintains the
requirement that a list of the policy letters be published in
the Federal Register on a quarterly basis to ensure that there
is adequate public information about any interpretations of
policy the Department issues.
The committee recognizes the need for the Secretary to
issue correspondence under the act for a variety of reasons;
however, the committee is concerned that previous policy
letters have been interpreted by States and local educational
agencies to be binding upon them, even in unrelated situations
or circumstances. The Secretary has the ability, through the
regulatory process, to impose rules for complying with the act,
and should not attempt to use policy letters to subvert the
rulemaking process. This section does not prohibit or prevent
the Secretary from issuing standard letters of communication
regarding specific language in the bill or implementing
regulations, but requires the Secretary to carefully delineate
responses that go beyond a mere recitation of law or regulation
to offering a policy interpretation. Any letter issued after
the date of enactment of the Individuals With Disabilities
Education Improvement Act that purports to offer an
interpretation of policy is subject to the new requirements of
the bill.
State rulemaking
Section 608 is a new section of the act regarding the
efforts of States to establish their own rules and regulatory
systems to ensure compliance with the act. The committee feels
that there is a tremendous amount of confusion about the level
of requirements under the act, and that it is often convenient
to place responsibility for the burden of the requirements on
the act or regulations. While the committee agrees that the act
and regulations should be clear and concise, it is also clear
that State and local educational agencies have added additional
requirements for compliance with individual State laws
regarding the education of children with disabilities. Through
section 608(a), the committee is in no way attempting to reduce
State input or State practice in this area, but intends to make
clear what is a Federal obligation and what is a State or local
educational agency requirement for compliance with the act.
However, the committee does intend that States not use Federal
funds to administer State-imposed requirements. Section 608(b)
encourages States to maintain their focus on improving results
for children with disabilities, rather than on process
compliance, and to ensure that all State policies are designed
to support the improved academic achievement of all students.
Inaddition to the emphasis on academic achievement, the
committee recognizes that for some children, functional improvement is
also crucial.
GAO Study on Paperwork Reduction
The committee is very interested in reducing the paperwork
burden on teachers, schools, local educational agencies, and
States. To that end, a new section 609 calls for an independent
review of Federal, State, and local requirements relating to
the education of children with disabilities to determine which
requirements are responsible for causing the paperwork burden.
The bill calls on the Comptroller General to issue a
comprehensive report regarding the paperwork requirements to
enable Congress to determine what appropriate steps can be made
to reduce that burden and enable teachers to spend more time in
the classroom with children with disabilities.
Amendments to part B of the Individuals With Disabilities Education Act
Funding formula
Section 611 sets out funding for States, outlying areas,
freely associated States, local educational agencies, and the
Secretary of the Interior for the education of children with
disabilities living on reservations or enrolled in elementary
or secondary schools for Indian children operated or funded by
the Secretary of the Interior.
During the last reauthorization of IDEA, Congress took
important steps to decouple funding from the identification of
students with disabilities to eliminate incentives for States
to increase grants by overidentifying students for special
education services. In establishing the permanent formula,
Congress determined that States would receive a base amount of
funding including a student-identification component but
provided for all future funding after a base year (1999) to be
calculated using a weighted growth factor based on changes in
population (85 percent) and poverty (15 percent).
However, because total funding levels for Part B were below
the base year trigger and significantly below the cumulative
maximum grant calculation for all the States during the last
reauthorization of IDEA, the underlying formula for the maximum
grant calculation and the issue of its modification to be
consistent with the newly established permanent formula was not
addressed. As a result, the maximum grant calculation is still
based on the number of children with disabilities eligible for
services. Thus, the incentive for States to overidentify is re-
established under current law in the years leading up to and
including the year(s) the maximum grant language is operative.
The committee has addressed this problem in this
reauthorization in section 611 by incorporating the population
and poverty components of the permanent formula to establish
the amount available to provide States with their maximum
grants. By doing so, S. 1248 immediately addresses the issue of
overidentification by locking in place each State's identified
number of children with disabilities who were eligible in the
2002-03 school year--a number, and proportion of the total
school-aged population that cannot be altered. Moving forward,
S. 1248 calculates the amount needed to fund each State's
maximum grant based on the number of eligible children
nationwide in 2002-03 and updates this amount using the
identical census and poverty factors in the permanent formula
and the inflation-adjusted average per pupil expenditure. In
this way, the committee intends to remove any fiscal incentive
to overidentify in years leading up to and including years in
which Congress provides the maximum grants.
Section 611(b) provides for continued support to the
outlying areas and to provide each freely associated State that
meets relevant requirements a grant equal to the amount it
received under this part in FY 2003. As opposed to P.L. 105-17
that included a sunset provision for the eligibility of the
freely associated States, the committee intends that freely
associated States continue to remain eligible for funding--at
the FY 2003 level--in order to provide continued assistance in
serving their children with disabilities.
In 1999, Congress appropriated an amount to trigger the
permanent formula established under P.L. 105-17 for allocating
funds among the States. Because the permanent formula is now
operative and the interim formula is no longer needed, S. 1248
repeals the language differentiating between an interim and
permanent formula.
State level activities
The committee has restructured the calculation for
determining the amount that States may use for State
administration and other activities. State reserves for
administration are limited to the greater of the amount
reserved for FY2003 or $800,000 increased by inflation for
subsequent years. By so doing, the small State minimum has been
increased from $500,000 to $800,000. State reserves for other
State-level activities are linked to percentages of the overall
grant (less amounts reserved for State administration) for
FY2004 and FY2005, with reserves thereafter through FY2009
increased by inflation. With the anticipated increases in
federal funding for IDEA, the committee believes that this
amount will provide States with sufficient resources to
administer the program.
As opposed to P.L. 105-17, which listed a set of required
activities which States must undertake, S. 1248 creates two
types of State activities: required and optional. The committee
retains the establishment of mediation system as a required
activity, as well as monitoring and complaint investigation,
but adds enforcement to this list. In addition, States must
also use a portion of State activity funds to support the State
protection and advocacy system to advise and assist parents in
the areas of dispute resolution and due process, voluntary
mediation, and the opportunity to resolve complaints. The
committee intends that nothing would prohibit the State
protection and advocacy system from using the funds it receives
under this subsection to subcontract with another not-for-
profit legal organization that has legal expertise in special
education advocacy and representation.
States may also direct funds toward a variety of optional
activities according to the needs in their State, including:
support and direct services, paperwork reduction,
positivebehavioral interventions and supports and mental health
services, technology, transition programs, meeting personnel shortages,
capacity building, alternate programming for those expelled from
school, and the development of appropriate accommodations and alternate
assessments for children with disabilities.
Risk Pool
The bill requires States to reserve 2 percent of Part B
funds (less the amount reserved for State administration) to
establish a risk pool fund to assist school districts in
serving high-need children with disabilities or unanticipated
special education costs. The risk pool fund will be
particularly beneficial for small school districts, rural
school districts and charter schools. For example, all States
will now reserve funds to assist a school district that
educates a severely disabled child at cost of $100,000, or a
small school district that unexpectedly enrolls multiple
children with disabilities.
The committee recognizes that States currently
administering risk pool programs share many of the principles
of the model prescribed and should be allowed to continue these
successful programs. However, it is important that these
reimbursement or cost-sharing policies not override educational
and placement decisions best made by a student's IEP team.
Accordingly, the term ``placement neutral'' in this section is
intended to ensure that policies for placement settings of
high-need students do not favor public, non public or out-of-
district placements; rather, children should be receiving the
services to which they are entitled in the setting that is
consistent with their IEP. To ensure that each public agency is
meeting its responsibility to children with disabilities, the
committee added language to clarify that the risk pool funds
shall not be used to pay costs that otherwise are reimbursable
as medical assistance for a child with a disability under a
State Medicaid program.
Payor of Last Resort
In order to clarify existing uncertainty regarding public
agencies' obligations and responsibilities of ensuring
provision of, and ultimate financial responsibility for,
services within a State, the committee has made expenditure of
administrative funds by a State under section 611 contingent
upon a State's certification that the agreements to establish
these responsibilities within a State are current.
The committee further clarifies in section 612 of part B
and section 640 of part C that if there are instances when a
public agency initially fails to provide or pay for the special
education and related services but is required to do so under a
State's current system of arrangements, the local educational
agency that did so is authorized to claim reimbursement. The
committee intends that the public agency which failed to
provide or pay for such services pursuant to the current
agreement be required to meet its financial responsibility.
Subgrants to local educational agencies
The committee added language to the section on subgrants to
local educational agencies to clarify that public charter
schools that operate as local educational agencies (LEAs) are
entitled to these subgrants, the same as any other LEA. The
committee has also removed obsolete and outdated language,
including references to Chapter 1 State agencies.
State Eligibility
Section 612 establishes the conditions of State eligibility
for part B funds. The committee believes strongly that States
should be held accountable for complying with the federal IDEA
law, so that students with disabilities receive the education
and services they need to succeed and become educated and
productive citizens when they leave high school.
A recent study by the National Council on Disability found
that every State and the District of Columbia is out of
compliance with IDEA requirements. This has raised the question
of whether the statute and regulations make it impossible for
any State to be in full compliance. The committee believes that
States and school districts want to assist children with
disabilities in achieving high educational outcomes and
functional performance and recognizes that some of the
requirements that States must meet focus too much on process
and not enough on student progress.
One example of process compliance within the 1997 law is
the requirement in section 612(a) for States to submit a State
plan that ``demonstrates to the satisfaction'' of the Secretary
that the State has in effect policies and procedures to ensure
that it has met the enumerated conditions of the law. The
Secretary has interpreted this provision to require States to
submit thousands of pages of documents pursuant to an 813-point
procedural checklist furnished by the Department of Education.
This includes having to send the Department copies of each
State statute, court order, State Attorney General opinion, and
other State documents that verify the source of the State's
policy relating to a free appropriate public education. This
diverts the focus away from the goal of the law: improved
educational results for children with disabilities.
Therefore, the committee has amended section 612(a) to now
require that States must merely ``provide assurances'' that
they have the appropriate policies and procedures in place to
ensure that they have met the law's requirements. The committee
hopes that this change in the law will encourage both the
Secretary and the States to spend more time and effort on
achieving successful outcomes by students. The committee still
expects States to meet the law's requirements, even though
States are relieved of the burden of creating a paper trail to
prove compliance. The committee expects that, if the Secretary
receives information indicating that a State has provided false
assurances or is not fulfilling its assurances, the Secretary
shall disapprove the State plan and take immediate corrective
action.
Least Restrictive Environment
The committee is concerned that some States continue to use
funding mechanisms that create financial incentives for, and
disincentives against, certain placements forstudents with
disabilities. Mechanisms that tie funding to educational settings
undermine the IEP Team's responsibility to make placement decisions
based upon the individual needs of a child. To address this issue, new
provisions in section 612(a)(5)(B) prohibit States from having funding
mechanisms that distribute funds based upon of the type of setting in
which a child is served, and requires that States revise such policies
or procedures that are currently in effect.
Foreign adopted children
The committee has heard of a number of instances in which
parents with adopted foreign born children have felt as if
school districts have not provided appropriate evaluation
procedures for children suspected of having a disability. For
example, these children have been asked to take tests in their
native language, long after they have begun using English as a
primary language. In addition, school personnel often require
foreign born children to wait long periods of time before going
through the IDEA evaluation process on the mistaken assumption
that the child is not familiar enough with English to receive
an appropriate evaluation. The committee encourages States to
consider the needs of foreign born children as a part of its
obligation in section 612(a)(6) to ensure that testing and
evaluation materials and procedures utilized for the purposes
of evaluation and placement of children with disabilities be
selected and administered so as not to be culturally
discriminatory.
Transition from part C to preschool programs
No changes were made to section 612(a)(9), which requires
States to have policies and procedures in place to ensure
smooth and effective transitions for children with disabilities
and their families from the Part C infants and toddlers program
to the preschool program. Although no changes were made to this
section, the committee would like to highlight a new option
provided for under Part C of the bill that would authorize
States to create a seamless system for infants, toddlers and
preschoolers with disabilities, giving parents the opportunity
to continue services with the provider of their choice. This
provision is more fully discussed in the section of the report
that covers Part C.
Private school students
Section 612(a)(10) includes a number of changes with regard
to provisions that impact parentally-placed private school
children with disabilities. The intent of these changes is to
clarify the responsibilities of LEAs to ensure that services to
these children are provided in a fair and equitable manner.
Many of the changes reflect current policy enumerated either in
existing IDEA regulations or the No Child Left Behind Act.
First, the bill clarifies that the proportional amount of
money obliged to serve these children must be used to provide
some direct services. The bill specifically states that to the
extent practicable, the LEA shall provide direct services to
children with disabilities in private schools. It is the
committee's intent that school districts place a greater
emphasis on services provided directly to such children--like
specifically designed instructional activities and related
services--rather than devoting funds solely to indirect
services such as professional development for private school
personnel.
Second, the bill not only stresses the importance of direct
services for these children, but it also contains several
provisions designed to ensure that the proportional amount
dedicated to serving children in private schools is accurate.
Under the bill, an LEA must provide data on the number of
students evaluated and found to have a disability and served
under this part. Such requirements help to ensure that these
funds are serving their intended purpose. The bill specifies
that child find, the mechanism used by LEAs to generate funds
to serve children who are parentally placed in private schools,
is conducted in a comparable time period as for other students
attending public schools. The bill clarifies that the cost of
child find, including individual evaluations, may not be
considered in meeting the LEA's proportional obligation.
The bill also requires LEAs to consult with private school
officials on the child find process, determination of
proportional share of federal funds, provision of services,
alternative delivery mechanisms and third party providers. A
sign-off is required from private school officials to document
that the consultation process was carried out. If private
school officials believe the consultation process was not
followed, they have a right to appeal to the State Education
Agency. Both the consultative and appeals process are very
similar to provisions in NCLB; therefore, the committee does
not believe including these provisions places an undue burden
on LEAs.
Finally, in an effort to streamline and simplify the
provision of services to parentally-placed private school
children with disabilities, the bill stipulates that the LEA in
which the private school is located is responsible for ensuring
equitable services. This stipulation protects LEAs from having
to work with private schools located in multiple jurisdictions
when students attend private schools across district lines.
Children in out-of-State or out-of-district residential
treatment or special education schools
The committee has heard that there is often confusion
regarding which public agency has the obligation to pay for
children with disabilities who are placed by public agencies in
residential treatment or special education schools that are
out-of-local educational agency or out-of-State. Many of these
children have multiple and complicated problems, and often are
victims of severe neglect, sexual and physical abuse, violence,
and abandonment. These children may be in the foster care
system or parental rights may have been terminated with the
State becoming the legal guardian. Under IDEA, when such
children are placed by public agencies, the State is
responsible for determining which agency is responsible for
paying for educational and related services for these children.
The committee encourages States to clarify agency financial
obligations and responsibilities in these situations, and to
make information about those obligations and responsibilities
available to school districts and parents of children with
disabilities.
Obligations related to and methods of ensuring services
In order to clarify existing uncertainty regarding public
agencies' obligations and responsibilities of ensuring
provision of, and ultimate financial responsibility for,
services within a State, the committee has made expenditure of
administrative funds by a State under section 611 contingent
upon a State's certification that the agreements to establish
these responsibilities within a State are current.
The committee further clarifies in section 612(a)(12) that
if there are instances when a public agency initially fails to
provide or pay for the special education and related services
but is required to do so under a State's current system of
arrangements, the local educational agency that did so is
authorized to claim reimbursement. The committee intends that
the public agency which failed to provide or pay for such
services pursuant to the current agreement be required to meet
its financial responsibility.
Personnel standards (612(a)(14))
Given the emphasis on improving the quality of personnel in
both the No Child Left Behind Act and this Act, the bill
stipulates that States must adopt a policy that requires local
educational agencies to take measurable steps to recruit, hire,
and retain highly qualified personnel. With regard to teachers,
the bill requires that all special education teachers teaching
in an elementary, middle or secondary school be highly
qualified no later than the end of the 2006-07 school year.
The committee eliminated Section 612(a)(14) of the 1997
law, which requires States to develop a comprehensive system of
personnel development. The committee is not convinced that the
current requirement has provided any added value to State
efforts to secure an adequate supply of qualified personnel.
The committee believes the provision in NCLB that requires
States to develop a plan to ensure that all teachers, including
special education teachers, be highly qualified by a date
certain, coupled with the aforementioned requirement for LEAs
to take measurable steps to both recruit and retain high
qualified personnel will have a greater impact on increasing
the number of highly qualified personnel. Finally, the
committee believes changing the State Improvement Grant program
to the State Personnel Preparation and Professional Development
Grant program in Part D will also have a significant impact on
ensuring that children have access to highly qualified
personnel. Part D requires not only that the State identify and
address the State and local needs for the preparation of
personnel serving children with disabilities, but also that all
money provided for under this grant program be spent
exclusively on efforts to recruit, train and retain highly
qualified personnel, especially teachers.
While the committee is interested in securing a high
quality workforce to provide services to children with
disabilities under IDEA, it recognizes the personnel shortages
and constraints faced by States and school districts in
addressing those shortages. The committee urges the U.S.
Department of Education to work with States to assist school
districts in implementing strategies to improve the recruitment
of and retention of fully qualified personnel in fields where
such shortages exist.
The bill mandates that standards governing the
qualifications of related service personnel be consistent with
any State-approved or State-recognized certification or
licensing or other comparable requirement that applies to the
specific professional discipline of related service providers.
The bill further stipulates that the State must ensure that
related service personnel serving children with disabilities
have not had their certification or licensure requirements
waived on an emergency, temporary or provisional basis.
Finally, Section 612(a)(14)(E) makes clear that,
notwithstanding any other individual right of action that a
parent or student may maintain under this part, nothing in this
subsection shall be construed to create a right of action on
behalf of an individual student for the failure of a particular
SEA or LEA staff person to be highly qualified. Further,
nothing in the subsection prevents a parent from filing a State
complaint regarding staff qualifications with the SEA, as
provided for under the IDEA regulations (34 C.F.R. 300.660-662)
and under 20 U.S.C. 1221e-3.
Academic achievement and functional performance of children
with disabilities
S. 1248 makes a series of significant modifications to
reflect the important changes to accountability that were
enacted under the No Child Left Behind Act. NCLB established a
rigorous accountability system for States and local educational
agencies to ensure that all children, including children with
disabilities, are held to high academic achievement standards
and that States and local educational agencies are held
accountable for the adequate yearly progress of all students.
Most importantly, NCLB requires schools and local educational
agencies to disaggregate their data to examine the results of
children with disabilities and ensure that such subgroup is
making adequate yearly progress towards reaching proficiency.
The bill carefully aligns the IDEA with the accountability
system established under NCLB to ensure that there is one
unified system of accountability for States, local educational
agencies, and schools. The committee also recognizes that
functional performance is critical for many children with
disabilities in order to improve educational outcomes.
Performance goals and indicators (section 612(a)(15))
Section 612(a)(15) maintains the requirement that States
must establish performance goals and indicators for children
with disabilities, but revises the language to align with
provisions of NCLB involving adequate yearly progress. Since
NCLB already established a system to measure the educational
results for all children, including children with disabilities,
the committee believes that any goals for the performance of
children with disabilities should be the same as the State
definition of adequately yearly progress, which include the
State's objectives for progress by children with disabilities
as provided for under NCLB. The section maintains the current
law requirement that the performance goals should address
graduation and drop-out rates, in addition to the goals
established by the State for children with disabilities under
section 1111(b) of the Elementary and Secondary Education Act,
as amended by NCLB.
Participation in assessments (section 612(a)(16))
Given the emphasis on accountability and academic
achievement in NCLB and this Act, appropriately assessing
students with disabilities is essential. The 1997 amendments to
this Act required that students with disabilities be included
in State and districtwide assessment programs and
accountability systems. Students could take assessments with or
without accommodations, and alternate assessments were required
to be provided for students with significant disabilities who
are unable to be included in assessment programs, even with
accommodations. The committee considers accountability for the
progress of students with significant disabilities to be
extremely important. Consequently, section 612(a)(16) requires
that alternate assessments be a part of, not separate from,
State and districtwide assessment programs and accountability
systems.
The decision of whether a child should take a regular
assessment with or without accommodations, or to take an
alternate assessment is guided by two factors: State or
district guidelines regarding accommodations and assessments,
and by the IEP team.
The committee recognizes that, for some students with
significant disabilities, measuring achievement, especially
academic achievement, can be challenging. There are some
students for whom the curriculum focuses on functional skills
that cannot be easily translated into core academic content
such as reading or math. However, adapted curricula can be
aligned with State standards and the progress of these students
still can be measured through assessments. To ensure greater
accountability for these students, the bill contains new
requirements for the development and administration of
alternate assessments that are aligned with the State's
academic content and achievement standards, or for the
development of alternate standards for those children with
significant cognitive disabilities.
The committee believes that accountability for the progress
of students with disabilities requires the use of assessments
that are valid, reliable, and accessible for the widest range
of students and abilities. Therefore, S.1248 requires, to the
extent feasible, that States and local educational agencies
develop and use universally designed assessments.
Instructional materials for blind and print-disabled
students
The committee is concerned that many blind or print-
disabled students are regularly denied timely access to
instructional materials. Currently, instructional materials
needed in specialized formats such as Braille, synthesized
speech, and digital text, are often not provided to the
students who require them. The committee feels strongly that
instructional materials should be provided to blind and print-
disabled students at the same time their fellow students
without print disabilities are receiving the same materials.
The committee convened a hearing on this issue in the 107th
Congress at which it heard from both students and educators who
have witnessed firsthand the great difficulties facing those
who are blind or print-disabled and experiencing delays in
receiving their instructional materials.
Presently, many States require instructional materials in
diverse electronic file formats, making it difficult for
educational agencies to obtain required textbooks from
publishers in the form suitable for use in reproducing the
material in the required specialized format. Frequently
required file formats (e.g., ASCII) are often ill-suited for
the needs of those who actually use the publisher-provided
files (pursuant to a special exemption in the Federal Copyright
Act) to reproduce and distribute copies of the required
instructional materials in the needed specialized formats for
blind and print-disables students.
In order to ensure the timely provision of instructional
materials for blind and print-disabled students, the bill
creates a new section, sec. 675, Accessibility of instructional
materials, that would require the Secretary, not later than 180
days after enactment, to promulgate an ``Instructional
Materials Accessibility Standard'' to be used by publishers in
the preparation of electronic files for reproducing print
instructional materials in specialized formats. A National File
Format Initiative funded by the Office of Special Education
Programs (OSEP) is now finalizing recommendations about such a
standard, and the committee anticipates that this effort will
inform the Secretary's rule making by developing a format
requirement that will be more convenient for the publishers who
must produce the electronic files and the people who use them
to reproduce the content of the print instructional materials
in needed specialized formats.
Sections 612(a)(22) and 613(a)(6) of the bill call for
State and local educational agencies to adopt the Instructional
Materials Accessibility Standard in a timely manner after it is
published in the Federal Register, so that not later than two
years after the date of enactment any purchase agreement for
print instructional materials (as defined in the provision)
will require the publisher of the materials to apply that
standard when providing electronic files to be used in
reproducing the instructional materials in specialized formats
for students with print disabilities. The committee has
provided the two-year transition period for actually applying
the standard in the production of the required electronic files
in order to meet the adaptation needs of the publishers who
must provide the files and the authorized entities who actually
use the files to convert the printed instructional materials
into specialized formats.
The committee feels that a central repository, providing
for the collection and dissemination of instructional materials
in the formats required for their suitable translation for use
by blind and print-disabled students, is essential to ensure
their timely availability. To serve this need, the bill
includes a provision in section 675 establishing the National
Instructional Materials Access Center. The Center would serve
to facilitate the collection and dissemination of instructional
materials for blind and print-disabled students by requiring
publishers ``on or before delivery of the print instructional
materials,'' to provide a copy to the Center, so whenever the
file is needed, it is readily available. The Center will
additionally provide a single point of contact for any entity
authorized to have access to the electronic file. The committee
feels, that taken together,these two factors will significantly
reduce the time required for the procurement and distribution of
instructional materials in the format suitable for use by blind and
print-disabled individuals.
Local educational agency eligibility
The majority of section 613 relates to local eligibility
requirements under part B. Similar to section 612(a) for State
plans, the bill amends section 613(a) to require that local
educational agencies must ``provide assurances'' rather than
``demonstrate to the satisfaction'' of the State that they have
the appropriate policies and procedures in place to ensure that
they have met the law's requirements. While the committee has
expressed its concern that the current federal IDEA law has
overemphasized paperwork compliance, the committee is also
concerned that States have engaged in similar practices with
local educational agencies. The committee wants to encourage
both the States and local educational agencies to spend more
time and efforts on successful outcomes by students. The
committee still expects local educational agencies to meet the
law's requirements, even though they are relieved of the burden
of creating a paper trail to prove compliance. The committee
expects that, if a State receives information indicating that a
school district has provided false assurances or is not
fulfilling its assurances, the State shall disapprove the
district's plan and take corrective action.
Local flexibility
The committee recognizes that because the Federal
Government has not met its commitment to provide 40 percent of
the estimated additional costs of serving children with
disabilities, local and State educational agencies have paid
more than their share of these costs for over 25 years. In
addition, because the local funds flexibility provision in
current law is limited to a fraction of new funding and
available only on a year-to-year basis, few school districts
have been able to utilize the flexibility option to dampen the
fiscal effect of covering a portion of the Federal Government's
share of the costs of Part B.
To make the local funds flexibility more meaningful to the
agencies that are covering the direct costs of providing
services to children with disabilities, the committee amends
section 613(a)(2)(C) to allow local school districts to use up
to 8 percent of the federal funds they receive under Part B as
local funds, and up to 25 percent as local funds once full
funding is achieved. The committee believes that because this
flexibility is no longer linked to new funding it provides a
more tangible opportunity for school districts to utilize the
flexibility and better align funding among programs based on
local priorities, including financing strategies to increase
reimbursement from Medicaid for eligible services.
Personnel development (section 613(a)(3))
The bill is amended to state that a local educational
agency must ensure that personnel development activities
connected with this expenditure must be consistent with the
bill's requirements in section 612(a)(14), as well as personnel
provisions under NCLB.
Permissive use of funds (613(a)(4))
S. 1248 revises the list of allowable uses that a local
educational agency may undertake with its Part B funds: they
may be used for early intervening educational services
(described below), as well as for administrative case
management. The committee recognizes that one area creating
paperwork for teachers and related services personnel is the
lack of technology for recordkeeping, data collection, and
related case management activities. The bill makes clear that
local educational agencies may use funds for technology to
assist personnel in this area.
Charter schools
The bill makes two key changes to section 613(a)(5)
regarding the treatment of charter schools that are public
schools of the local educational agency (LEA). Current law
includes provisions to ensure that charter schools are treated
equitably both in the distribution of funds and the provision
of services. Both changes are consistent with current law and
are intended to further assist both the charter schools and the
LEA in better serving children with disabilities that attend
charter schools.
First, with regard to the distribution of IDEA funds to
charter schools, the committee strengthens current law which
requires that LEAs provide funds to charter schools on the same
basis as they provide funds to other public schools. Given the
unique nature, enrollment practices, and size of charter
schools, the committee recognizes that LEAs should have the
authority to distribute IDEA funds to charter schools based on
relative enrollment and proportional distribution.
Second, on the issue of providing services, the bill
clarifies that the LEA shall provide supplemental and related
services on site at the charter school to the same extent the
LEA has a policy or practice of providing such services on site
to its other public schools. The intent of this language is to
ensure that parents who choose to send their child with a
disability to a charter school are not unduly burdened to go
off site to receive services for their child. The committee
believes that to the extent that an LEA provides on site
services to students with disabilities enrolled in traditional
public schools they should provide on site services at charter
schools so as not to unfairly disadvantage and inconvenience
parents of children with disabilities enrolled in charter
schools.
The aforementioned provisions are designed to assist
charter schools that are public schools of the LEA. Some
charter schools are independent of the LEA; they are in fact
recognized by the State and considered their own LEA. As these
charter schools are significantly smaller than most LEAs they
are more exposed to varying and unforeseen costs than most
traditional LEAs.
Although the committee believes that the risk pool
described earlier will be beneficial to many LEAs, the
committee believes the risk pool will be especially helpfulin
ensuring that charters schools treated as separate LEAs receive
additional resources to serve children with disabilities.
Records regarding migratory children with disabilities
(613(a)(9))
S. 1248 adds a new provision, section 613(a)(9), requiring
local educational agencies to cooperate in the Secretary's
efforts under NCLB to ensure the linkage of records pertaining
to migratory children with a disability for the purpose of
electronically exchanging, among the States, health and
educational information regarding such children.
Early intervening services (section 613(f))
The committee is greatly concerned that too many children
are being identified as needing special education and related
services, and has sought approaches to help prevent students
from being inappropriately identified for services under IDEA.
Research shows that with appropriate, early regular education
interventions, many children can learn to perform effectively
in the regular education environment without the need for
special education services. These procedures also have the
promise of reducing the amount or intensity of services needed
for children who ultimately do get appropriately referred for
special education. For example, both the President's Commission
on Excellence in Special Education and the National Research
Council's report on minority students in special education
cited with approval to the results of large scale clinical
trials indicating that early intervention on reading skills in
conjunction with positive behavior programs resulted in
improved academic achievement and reduction in behavioral
difficulties in high-risk, predominantly minority children.
Research supported by OSEP on addressing behavioral and
emotional problems in schools also indicates that universal
screening can greatly assist in early identification of
children at risk for these problems and that more significant
behavioral problems and emotional disabilities can be
significantly reduced through classroom-based approaches
involving positive behavioral interventions and classroom
management techniques. Other evidence shows that when schools
make available services, such as mental health services, not
normally available in schools, to at-risk children the number
of special education referrals can be reduced.
Therefore, the committee believes that it makes sense to
give school districts flexibility to use up to 15 percent of
their IDEA funds to develop and implement coordinated, early
intervening educational services for students who are not
receiving special education services but who require additional
academic and behavioral support to succeed in a regular
education environment, and who may be likely referrals to
special education programs and services at a later time. These
activities have the promise of benefiting both the regular
education environment and the special education program by
reducing academic and behavioral problems in the regular
education environment and the number of referrals for special
education and the intensity of special education services
required for some students.
Section 613(f) of the act would be revised to authorize
such use of IDEA funds, in combination with other non-special
education funds, to develop and implement coordinated, early
intervening educational support services that include
activities such as professional development for teachers and
other school staff so that they can deliver scientifically-
based academic and behavioral interventions; providing
educational and behavioral evaluations, services and supports,
including scientifically-based literacy instruction; and
developing and implementing interagency financing strategies
for the provision of those evaluations, services and supports.
An example of innovative early intervening services may include
programs that develop children's cognitive and perceptual
abilities.
It has come to the committee's attention that many children
struggle in school as a result of trauma and the effects of
traumatic events. The committee encourages local educational
agencies to respond to the needs of these children through
early intervening programs established in this section.
The committee does not intend for early intervening to
prevent or delay a student from receiving an evaluation to
determine the presence of a disability and the need for special
education and related services. The committee encourages local
educational agencies to develop a systematic process by which
they determine whether or not a student receiving early
intervention services should be subsequently referred for an
evaluation.
Use of IDEA funds for activities authorized under this
provision would not violate excess costs, commingling, or
supplement not supplant requirements of the act. Students who
participate in receiving these services would not be entitled
to a free appropriate public education under the act, however,
unless they were found eligible for services as a ``child with
a disability'' as defined by section 602(3) of the act.
Finally, school districts may use funds available under this
subsection to carry out a coordinated, early intervention
educational support services that are also funded under NCLB,
as long as the IDEA funds are used to supplement and not
supplant NCLB funds for the activities and services assisted
under the coordinated, comprehensive, educational support
system.
Elimination of School-Based Improvement Plan (section
613(g))
S. 1248 eliminates the authority in current section 613(g)
for a School-Based Improvement Plan, because this provision has
not been effective. Schools can undertake school improvement
activities and realize improved educational and transitional
results for children with disabilities without incurring the
additional administrative and paperwork burdens required under
this authority.
State agency flexibility (section 613(j))
The committee recognizes that certain State educational
agencies pay all or a significant portion of the non-Federal
share of costs of direct services to special education
students. These State agencies are essentially like other local
educational agencies that provide direct services; they have
paid more than their share of these costs for over 25 years
because the Federal Government has not met its commitment to
provide 40 percent of the estimated additional costs of serving
children with disabilities. Accordingly, section 613(j)
authorizes the small number of States that pay 80 percent or
more of the non-Federal special education costs to treat
portions of Federal funds as general funds tosupport
educational purposes described in NCLB and for other education-related
purposes.
Evaluations, eligibility determinations, IEPs, and
placements
The committee has added a new provision (section
614(a)(1)(B)) clarifying that a parent, a State educational
agency, other State agency, or local educational agency has a
right to request an initial evaluation to determine whether a
child qualifies for IDEA services. While current IDEA law
already allows parents to request evaluations, the committee
wants to ensure that parents are aware of this right. The
committee does not intend to alter the ability of teachers or
other personnel of LEAs to initiate requests for evaluations of
their students.
The committee believes that it is important that children
are evaluated in a timely manner. Therefore, S. 1248 contains a
timeline in which a local educational agency must conduct an
evaluation. Under section 614(a)(1)(C), the eligibility
determination must be completed within 60 days after parental
consent is given for the initial evaluation, or, if the State
has instituted a timeframe for completing evaluations, within
the time imposed by State law. The committee also feels that
this provision will discourage a local educational agency from
unnecessarily delaying an evaluation in cases where a child is
receiving early intervening services under section 613(f).
Parental consent
There are cases in which a parent may refuse to consent to
their child's receipt of special education and related services
offered by the local educational agency once it has been
determined that the child is a child with a disability. In this
situation, section 614(a)(1)(D)(iii) states that a local
educational agency does not violate the FAPE requirement by
failing to provide the special education and related services
refused by the parent on behalf of the child. However, the
committee expects that, in such a case, the local educational
agency must make every reasonable effort to obtain consent from
the parent. Further, the local educational agency has an
obligation to provide FAPE to the child if the parent provides
consent at a future time or under a new circumstance.
Reevaluations
In the interest of parents, children, and school districts,
the committee believes that requiring costly and time-consuming
reevaluations when both parents and local educational agencies
deem them to be unnecessary is counterproductive. To this end,
the committee has amended section 614(a)(2) to state clearly
that the local educational agency does not have to conduct a
reevaluation of a child with a disability if both the parent
and the local educational agency agree that it is unnecessary.
Evaluations
In section 614(b)(2), the committee has added ``academic
information'' to the list of information the local educational
agency should gather in the evaluation process of a child,
believing it to be a critical factor to consider in determining
whether a child is a child with a disability.
The committee has revised the ``Additional Requirements''
section in 614(b)(3) to provide local educational agencies more
clarity in the procedures they should use in selecting and
administering tests and other evaluations to determine a
child's eligibility under IDEA. In particular, tests and
evaluations should be provided and administered, to the extent
practicable, in the language and form most likely to yield
accurate information on what the child knows and can do
academically, developmentally, and functionally. The committee
hopes that, by striking the phrase ``in the child's native
language,'' schools will perform more accurate assessments on
foreign born children who have been adopted by families in the
United States. The committee has heard of instances in which
schools have attempted to evaluate these children in a native
language which they no longer use, yielding inaccurate results.
In addition, school personnel have often required that foreign
born children wait long periods of time before going through
the IDEA evaluation process on the mistaken assumption that the
child is not familiar enough with English to receive an
appropriate evaluation. The committee encourages local
educational agencies to conduct prompt evaluations of these
children when requested, and believes that other changes made
in section 614 regarding the parental right to request an
evaluation, as well as a 60 day timeline for conducting an
evaluation, will address the current problem many foreign born
children have in regard to evaluation for IDEA eligibility.
In addition, it is reported that some foreign born adopted
children are refused services even after testing shows evidence
of a disability because of the mistaken assumption that such
disabilities are simply from a lack of English proficiency. The
committee encourages schools to recognize the differences
between language acquisition in ESL students and language
acquisition for foreign-born adopted children.
Further, some have reported to the committee that some
foreign-born adopted children are denied services under section
614(b)(5), which states that 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'' or under section 602(29)(c),
which states that a child cannot be determined to have a
specific learning disability if the disability is ``primarily
the result of ``environmental, cultural or economic
disadvantage.'' The committee wishes to clarify that these
clauses should not be used to deny services to children with
disabilities simply because they were born in a foreign country
and were thus not exposed to English instruction, nor because
they have experienced institutionalization or were born into
disadvantaged circumstances.
The committee has also revised the Special Rule for
Eligibility Determination (section 614(b)(5)) by stating that
the determinant factor for determining whether the child is a
child with a disability cannot be a lack of ``scientifically
based'' reading instruction. The phrase ``scientifically
based'' was added to align IDEA with the No Child Left Behind
Act, and its meaning is the same as defined under that act.
Specific learning disabilities
The committee believes that the IQ-achievement discrepancy
formula, which considers whether a child has a severe
discrepancy between achievement and intellectual ability,
should not be a requirement for determining eligibility under
the IDEA. There is no evidence that the IQ-achievement
discrepancy formula can be applied in a consistent and
educationally meaningful (i.e., reliable and valid) manner. In
addition, this approach has been found to be particularly
problematic for students living in poverty or culturally and
linguistically different backgrounds, who may be erroneously
viewed as having intrinsic intellectual limitations when their
difficulties on such tests really reflect lack of experience or
educational opportunity.
The committee has heard from many experts about innovations
and advances in the methodologies used to determine the
existence of specific learning disabilities. In response to
this growing base of knowledge, the bill clarifies that, in
determining whether or not a student has a specific learning
disability, a local educational agency is not required to take
into account a severe discrepancy between IQ and achievement.
This would not prohibit the use of this model, however, if an
LEA chooses to base its decisions on the discrepancy formula.
The bill allows local educational agencies to make an
eligibility determination through the use of another mechanism,
such as through a process based upon a child's response to
scientific, research-based intervention. This provision is
supported by the findings of the President's Commission on
Excellence in Special Education. The Commission recommended
that the identification process for children with high-
incidence disabilities be simplified and that assessments that
reflect learning and behavior in the classroom be encouraged,
with less reliance on the assessments of IQ and achievement
that are now prominent. The Commission also recommended that a
student's response to scientifically based instruction become
part of the criteria for SLD identification. However, the
Commission noted that the development of these responses to
instruction models is uneven and that technical assistance from
OSEP will be critical for implementation. In addition, the
Commission noted that parents should always have the right to
request an evaluation, and current placement decisions should
be respected.
While the committee believes that allowing this flexibility
is appropriate, it also acknowledges that the research base
supporting such changes continues to advance and improve.
Section 614(b)(3)(A)(iii) will require that all procedures,
including alternate procedures, be valid and reliable for the
purpose for which they are used; the committee expects that new
methodologies adopted for use by local educational agencies
also will be based on sound research findings. In order to
prevent radical differences in how local educational agencies
determine the presence of specific learning disabilities, the
committee encourages States to develop research-based models
that can be adopted by local educational agencies. Further, the
committee emphasizes that nothing in the new statutory language
would prohibit a State from establishing a consistent statewide
process for determining whether a child has a specific learning
disability. States should collaborate with LEAs to identify the
criteria for determining an SLD and ensuring the consistency
and integrity of the classification system across the State. In
addition, the committee strongly encourages the Secretary of
Education to assist States and LEAs in this effort by
developing guidance and technical assistance systems for the
improvement of SLD identification and eligibility.
The committee also emphasizes that nothing in this new
provision prevents a parent from requesting a full evaluation
of a child. Parental input is critical in this area, as parents
most always know their child better than anyone else does.
A scientific, research based intervention model of SLD
identification, such as that allowed in the committee bill,
recognizes the prelude to any intervention process must be
effective, research-based instruction in the regular education
classroom. Gathering data on each student can help teachers and
others frame concerns about a student's progress. The new law
supports a continuum of intervention options--regular and
special educators and related service providers working
together as part of a coherent system that is accountable for
educational outcomes for students with SLD.
Interventions are most effective when they are implemented
consistently and with fidelity, with a sufficient level of
intensity, and are relevant to individual student needs. Above
all, an improved system contemplates the design and timely
implementation of individualized interventions, monitoring
progress on specified academic and behavioral skills relative
to peers in the same educational setting, and full individual
assessments as needed, to identify strengths and weaknesses in
relevant skills areas and to rule out other disabilities or
non-cognitive factors as the primary cause of low achievement.
Exit evaluations
The committee has heard that local educational agencies
feel compelled by current statutory language to conduct a
reevaluation of a child with a disability when he or she either
graduates from secondary school or ages out of IDEA
eligibility. Both parents and schools have complained that a
reevaluation seems unnecessary, time-consuming, and costly. The
committee agrees. Therefore, the committee has included
language in section 614(c)(5)(B), based upon existing Federal
education regulations (34 C.F.R. 300.534(c)(2)), stating that a
student does not need to be reevaluated before leaving
secondary school. The bill also requires local educational
agencies to provide a summary of the child's performance. The
committee intends for this summary to provide specific,
meaningful, and understandable information to the student, the
student's family, and any agency, including postsecondary
schools, which may provide services to the student upon
transition. The committee does not intend that the contents of
this summary be subject to any determination of whether a free
appropriate public education has been provided. Further, the
committee does not expect local educational agencies to conduct
any new assessments or evaluations in providing the summary;
rather, it should be based upon information the school has
already gathered on the child.
Individualized education programs
In describing what an individualized education program
(IEP) should contain, section 614(d)(1)(A)(i)(I) of the bill
states that an IEP must include a statement of the child's
present levels of ``academic achievement and functional
performance,'' rather than simply ``educational performance''
as required by the 1997 law. The committeebelieves that it is
important to emphasize academic achievement, consistent with NCLB, and
recognizes that for some children, functional performance is also a
critical element that should be measured. The committee intends that
the statement of measurable annual goals should include academic goals,
and, where appropriate, functional goals.
Elimination of benchmarks and short-term objectives
Current IDEA law requires that a child's IEP must contain a
statement of measurable annual goals for the child, including
benchmarks or short-term objectives. Additionally, the IEP must
include a statement of how the child's progress toward the
annual goals will be measured and how the child's parents will
be regularly informed of their child's progress toward the
annual goals and the extent to which that progress is
sufficient to enable the child to achieve the goals by the end
of the year.
While benchmarks and short-term objectives are thought by
some to help track the child's progress, their inclusion in
IEPs contributes greatly to the paperwork burden on educators
and parents, and often bears no relationship to the non-linear
reality of a child's development. Special education practice
via short-term objectives too often focuses on achieving only
small incremental improvements in student performance to the
detriment of more effective longer range planning. Short-term
objectives and benchmarks can focus too much on minor details
and distract from the real purpose of special education, which
is to ensure that all children and youth with disabilities
achieve high educational outcomes and are prepared to
participate fully in the social and economic fabric of their
communities.
Both education officials and the President's Commission on
Excellence in Special Education have found that benchmarks and
short-term objectives to be unnecessary and time consuming.
Some teachers have commented that their lesson plans that are
aligned with the district curriculum frameworks are more useful
than the benchmarks and short-term objectives required by IDEA.
During the last reauthorization of IDEA in 1997, the
continued value of short-term objectives was debated, and
benchmarks were added. To date, States and LEAs have made
minimal use of benchmarks; most do use short-term objectives,
but continue to question their utility.
With all these factors in mind, the committee has revised
section 614(d)(1)(A) to eliminate the requirement for
benchmarks and short-term objectives. The committee does not
intend for the elimination of these requirements to lessen
parental input or information, or to eliminate the need to
break annual goals into instructional objectives.
In order to measure and report the students' progress
toward their annual goals, the IEP must instead contain a
description of how the child's progress toward meeting the
annual goals will be measured, as well as when periodic reports
on the child's progress, such as through the use of quarterly
or other periodic reports, will be provided. The committee
feels that such progress reports are especially important for
students whose IEPs contain non-academic goals and whose
progress may not be measured easily by standardized tests or
grades. These progress updates must provide parents with
specific, meaningful, and understandable information on the
progress children are making.
The committee expects that eliminating the requirements for
benchmarks and short-term objectives will reduce unproductive
paperwork and allow greater attention to be focused on the
child's annual IEP goals and on the methods of measuring
progress and reporting that progress to parents in a meaningful
way.
Some parents have expressed concern about losing the
individualization in instruction via short-term objectives.
However, individualization in practice occurs through the
accommodations and modifications provisions in the IEP. The
committee feels that the new language is sufficiently explicit
and will yield more instructionally relevant information to be
used by teachers as well as reported to parents regarding a
student's progress, and provide a clear and more appropriate
accountability mechanism for monitoring and reporting progress
than do short-term objectives and benchmarks.
For most students with disabilities, many of their IEP
goals would likely conform to State and district wide academic
content standards and progress indicators consistent with
standards based reform within education and the new
requirements of NCLB. IEPs would also include other goals that
the IEP Team deemed appropriate for the student, such as life
skills, self-advocacy, social skills, and desired post-school
activities. Moreover, since parents will receive individual
student reports on their child with a disability's achievement
on assessments under NCLB, they will have additional
information to evaluate how well their children are doing
against grade-level standards.
Accommodations and alternate assessments
The committee expects local educational agencies to test
their students with disabilities using State or districtwide
assessments administered to children without disabilities. To
accurately assess a child's progress, the committee recognizes
that for some children this framework would include certain
necessary accommodations, an alternate assessment, or an
alternate assessment based upon alternative standards for those
children with significant cognitive disabilities.
The bill also amends the current law's provision regarding
districtwide assessments to incorporate proper terminology used
today by test creators and researchers. Where the 1997 law said
that IEPs must state the individual modifications to be made
for a child to participate in a State or districtwide
assessment, S. 1248 requires a statement of ``appropriate
accommodations'' to be made for such assessments. In the
testing field today, a ``modification'' to a test may affect
the validity of that test, while an ``accommodation'' to a test
will not affect the test's validity. Since the committee
desires improved academic achievement for all children with
disabilities, it is critical that assessment devices for these
children are accurate and valid. The bill also provides that if
the IEP team determines that a child shall take an alternate
assessment, then it must state why the child cannot participate
in the regular assessment and why the particular alternate
assessment selected is appropriate for that child.
Transition services
Both parents and local educational agencies have complained
that the current section 614(d) regarding transition services
in the IEP creates some confusion as to what schools are
obligated to provide to students at various times. The
President's Commission on Excellence in Special Education
recommended that the arbitrary age 14/16 distinctions should be
replaced with a uniform standard at an appropriate age or
school point readily understandable by teachers and students.
The committee has heeded this suggestion and revised the law
accordingly. Under S. 1248, beginning not later than the first
IEP to be in effect when the child is 14, and updated annually
thereafter, the IEP must contain: (1) appropriate measurable
postsecondary goals based upon age appropriate assessments
related to training, education, employment, and, where
appropriate, independent living skills; and (2) the transition
services the child needs to reach those goals. The committee
believes that eliminating the arbitrary age 14/16 distinction
and providing more specifics in the legislation will assist
local educational agencies in providing improved transition
services to students.
Streamlining the IEP
The committee is greatly concerned about the paperwork
burdens experienced by teachers and other education personnel
in connection with writing IEPs. Lengthy and complex IEPs are
not necessarily beneficial to students if they create confusion
and take teachers away from instructional time with children.
The committee has examined a number of actual IEPs, and has
discovered that many items in those documents are not required
by federal IDEA law. While it has proven difficult to determine
the source or sources generating this additional paperwork, the
committee wants to ensure that the federal law does not
contribute to this problem. Therefore, section 614(d)(1)(A)(ii)
provides that nothing in the section shall be construed to
require that additional information be included in an IEP
beyond what is explicitly required in the section. The bill
retains an existing provision ensuring that the IEP team does
not need to include information under one component of an IEP
that is already contained in another component of the IEP. The
committee also recognizes that section 617 requires the
Department of Education to develop a model IEP, suitable for
adoption by a State or LEA, which will accommodate the
committee's desire for a streamlined, straightforward,
expression of only the requirements mandated by this Act.
However, the committee does not intend to eliminate the
requirement to individualize an IEP based upon each child's own
unique needs.
The IEP team and IEP meetings
The committee has made no changes to the members of the IEP
team (section 614(d)(1)(B)), but wants to reiterate the
importance of the attendance of certain members. It has come to
the attention of the committee that, despite the requirement in
IDEA 1997, many IEP meetings are conducted without a member
present who is knowledgeable about the availability of
resources of the local educational agency. Many disagreements
arising at IEP meetings could be resolved if this person were
in attendance instead of intervening only after a parent has
filed a complaint. The committee encourages local educational
agencies to prevent complaints by ensuring that such a
representative is in attendance and by providing IEP team
members with the skills to constructively facilitate IEP
meetings. Secondly, the committee encourages the participation
of the child on the team to the greatest extent possible.
The committee has heard from many individuals that the
amount of time spent preparing for and attending IEP meetings,
and the number of individuals required to attend such meetings,
reduces the amount of time that personnel spend with students.
Scheduling IEP meetings involves coordinating the schedules of
a number of individuals, including parents, who are balancing
work and family demands. At the same time, a certain member of
the IEP team may not be needed at an IEP meeting if the topics
of discussion do not involve that member. Or, an IEP meeting
may be scheduled, but an IEP member later learns that they have
an unavoidable scheduling conflict, which could force the
cancellation of the IEP meeting.
To address these concerns, the bill provides parents and
schools with greater flexibility regarding the personnel
attending IEP meetings. Under section 614(d)(1)(C), a member of
the IEP team can be excused from the meeting if no
modifications are being made to that member's area of
curriculum or service; or, when a relevant modification is
made, if the member provides input prior to the meeting. The
committee expects this input to be meaningful, understandable,
and preferably in writing. The IEP team member, the parent, and
the local educational agency must agree to any such excusal,
and the committee expects the local educational agency to
ensure that the parent is making an informed decision. The bill
also requires that local educational agencies encourage the
consolidation of IEP meetings and reevaluation meetings
(section 614(d)(3)(D)) to ease time burdens for parents, school
personnel, and related service providers.
Parents and professionals alike feel that parent
involvement in IEP meetings could be increased if parents could
participate in meetings through alternative means. Section
614(f) of the bill clarifies that it is appropriate for parents
and LEAs agree to participate in IEP Team and placement
meetings via means such as video conferences and conference
calls. This does not, however, negate a parent's right to
request an in-person meeting. Further, the committee
acknowledges that many meetings, such as meetings related to
procedural safeguards in section 615, may be more appropriately
handled through in-person meetings.
The committee heard testimony that, often, common sense
changes developed by a teacher and a parent to improve the
child's educational services cannot be implemented without
reconvening an IEP meeting, which requires coordinating the
schedules of a number of people, and often forces a parent to
take off work to attend. Such a process is so burdensome that
often changes that could benefit a student are simply not made.
The committee feels strongly that educators and parents need to
have the flexibility to make minor changes to IEPs during the
time span covered by the IEP without sending legal notices of a
meeting, without convening the full IEP team, or rewriting the
entire IEP. Therefore, section 614(d)(3)(D) of the bill allows
the parent of a child with a disability and the local
educational agency, through the responsible teacher or service
provider, to amend or modify the child's current IEP without
having to convene an IEP meeting. Such an amendment is not
appropriate, however, as a substitute for an annual IEPmeeting,
and the parent should make an informed decision when agreeing to such
an amendment.
Requirement that program be in effect
As does the 1997 law, S. 1248 requires that each child have
an IEP in effect at the beginning of each school year (section
614(d)(2)). The committee understands that many children with
disabilities who enter and exit local educational agencies
during the course of the school year, especially migrant
children, foster children, and homeless children, experience a
gap in services. The committee believes that, when a child
enters a new local educational agency, the services identified
on his or her former IEP should be provided until the receiving
local educational agency develops a new IEP.
Development of IEP
The bill adds a new factor that the IEP team must consider
in developing a child's IEP: the academic, developmental, and
functional needs of the child (section 614(d)(3)(A)). The
committee recognizes that all students may not experience all
of these needs simultaneously, and that this requirement shall
apply when necessary.
Special factors
The committee has heard a great deal from professionals
about the behavior of students with disabilities, the danger
posed by some behavior, and the effect that behavior has on the
learning environment. The committee believes that, in most
cases, the behavior of students can be addressed and prevented
effectively through positive behavioral interventions and
supports. Therefore, section 614(d)(3)(B)(i) requires IEP teams
to provide positive behavioral interventions and supports for
children with disabilities whose behavior impedes their
learning or the learning of others. The committee believes that
taking this proactive approach should result in reductions in
behavior problems and disciplinary referrals, as well as
improved educational results for students with disabilities.
Blind or visually impaired students may require specialized
instruction to acquire skills that sighted students gain from
visual observation. Section 614(d)(3)(B)(iii) contains a new
provision requiring an IEP team working with blind or visually
impaired students to consider, when appropriate, instructional
services related to functional performance skills, orientation
and mobility, and skills in the use of assistive technology
devices, including low vision devices. The committee intends
the term ``functional performance skills'' to facilitate
inclusion in the IEP for blind or visually impaired students
instruction in a variety of skills necessary for independent
living. These skills are critical in preparing children for
employment, social integration, and full participation in their
communities. The committee also emphasizes the importance of
orientation and mobility training as a part of an IEP for a
child who is blind.
Three year IEPs
A new provision, section 614(d)(5), allows parents and
local educational agencies to develop a 3-year IEP for students
aged 18 and older, with an emphasis on interagency coordination
with adult programs. The committee intends that those local
educational agencies choosing to offer this option do so with
the purpose of focusing on the post-secondary transition goals
of students. A 3-year IEP will provide parents with the ability
to engage the school district in long term planning for their
child's post-secondary future. This option serves as a
mechanism to focus on the long-term goals of the child with a
disability upon leaving school. The committee expects local
educational agencies to ensure that parents are making an
informed decision when exercising this option.
Children with degenerative diseases
The committee has heard from many parents and teachers
regarding the special situations of children with a medical
condition that is degenerative (i.e., a disease that results in
negative progression and cannot be corrected or fully
stabilized). For these children who have been found to be
eligible under IDEA, services under the IEP can be provided to
help maintain the child's present level of functioning for as
long as possible in order for the child to fully benefit from
special education services. In developing an IEP for these
children, the IEP Team may consider recommendations from
professional consultants familiar with the child and the
medical condition in the development of the IEP. The IEP Team
can include related services designed to provide therapeutic
services prior to loss of original abilities to extend current
skills and throughout the child's enrollment in school. These
services may include occupational and physical therapy, self-
help, mobility and communication, as appropriate.
Procedural safeguards
Through its revisions to section 615, the committee intends
to preserve and protect procedural safeguards so that all
students with disabilities receive a free and appropriate
public education, while also giving parents and schools the
opportunity to resolve issues in a constructive manner. The
committee has also sought to simplify and clarify the law to
assist schools in serving students and their parents in more
positive and effective ways.
The right to present complaints
The committee has revised section 615 in a number of areas,
such as subsection (b)(6), to clarify that local educational
agencies, as well as parents, have the right to present
complaints.
Notice of complaint
In the interest of resolving disputes in the most effective
and efficient way possible, it is critical that a party has
timely notice of a complaint filed against them. The committee
has heard of situations in which a local educational agency
does not learn of a parent's complaint in a timely manner,
because the State educational agency has not yet forwarded that
complaint to the local agency. Therefore, S. 1248 revises
section 615(b)(7) to require that the party filing the due
process complaint under section 615(b)(6) must send the
complaint to the other party, as well as to the State agency.
The committee put in the 1997 law a very important
requirement that a parent filing a due process complaint must
provide the local educational agency with sufficient notice of
the complaint, including: the child's name, address, and
school; a description of the nature of the problem, including
facts related to that problem, and a proposed resolution to the
problem to the extent known and available at the time to the
parent. S. 1248 adds a new requirement that, in the case of a
homeless child or youth, the notice must contain available
contact information for the child and the name of the school
they are attending.
The committee does not intend for a notice of a due process
complaint to reach the level of specificity and detail of a
pleading or complaint filed in a court of law. The purpose of
the sufficiency requirement is to ensure that the other party,
which is generally the school district, will have an awareness
and understanding of the issues forming the basis of the
complaint.
In the 1997 reauthorization, the committee assumed that
this notice requirement would give school districts adequate
notice to be able to defend their actions at due process
hearings, or even to resolve the dispute without having to go
to due process. Unfortunately, the Department of Education's
regulation (34 CFR 300.507(c)(4)) interpreting this provision
nullified the statutory notice requirement by providing that a
parent's failure to provide notice required by section
615(b)(7) will not delay or deny a parent's right to a due
process hearing. As a result, the committee has heard of
situations in which a parent or their attorneys have filed a
notice of complaint stating only that ``Child was denied
FAPE,'' leaving the school with no idea as to what the real
issues would be at the due process hearing, and forcing the
school to prepare for any and every issue that could be
possibly raised against it. While section 615(i)(3)(F)(iv)
authorizes a court to reduce attorneys fees when the attorney
representing the parent did not provide the school district the
appropriate information in the due process complaint, this
still does not prevent the loss of time, money, and other
resources spent by a school district that has to prepare for
this type of situation, and it would not address the case in
which a parent, representing himself, fails to provide adequate
notice.
Therefore section 615(b)(7)(B) states that a due process
hearing may not occur unless and until the requesting party has
filed a complaint that meets the notice requirements of section
615(b)(7)(A)(ii). The committee believes that this language
merely restates the intent of the 1997 law, which was to avoid
the case of a school district having to prepare for and attend
a due process hearing based upon an insufficient notice. S.
1248 makes clear that this sufficiency of notice requirement
applies to local educational agencies filing due process
complaints as well. While the committee agrees that a party's
right to a due process hearing should not be delayed or denied
for no reason, a party's failure to provide notice of their
complaint to the other party is reasonable grounds for delaying
a hearing until the other party is reasonably apprised of the
issues underlying the complaint.
If the hearing officer determines that the notice of the
complaint does not meet the sufficiency requirements, then the
party must amend their complaint. The committee intends that if
such an amendment is necessary, the appropriate timelines for
completion of the hearing begin upon the filing of the amended
complaint. The committee encourages local educational agencies
to provide parents with a list of local parent training and
information centers, the State protection and advocacy system,
and other groups that may assist parents in filing a sufficient
complaint. In addition, the committee has expanded the existing
model forms provision, section 615(b)(9), to require that
States develop a model form to assist parents in not only
filing complaints, but also in filing due process complaint
notices.
A due process complaint notice filed under section
615(b)(7)(A) is deemed to be sufficient for purposes of going
to a due process hearing. However, if the party receiving the
notice believes it to be insufficient, section 615(c)(2)
requires the receiving party to notify the hearing officer and
the other party within 20 days of receiving the notice. A
hearing officer then has five days from receipt of the notice
of insufficiency to determine whether the due process complaint
notice meets the statutory requirements. This determination
shall be made on the face of the complaint. There should be no
hearing or appeal in regard to the hearing officer's
determination. The party contesting the sufficiency of the
notice should also understand that the sufficiency requirement
may not be used as a mechanism to delay a due process hearing.
Even though the statute gives a party 20 days to file a notice
of insufficiency, the applicable time frames for conducting and
completing a due process hearing begin to run 15 days after the
local educational agency has received due process complaint
notice or, in the case of the hearing officer's determination
that the notice was deficient, the receipt of the revised due
process complaint notice.
Normally, when a parent files a due process complaint under
section 615(b)(7), he or she previously asked the school to
take some type of action in regard to the education of their
child with a disability. IDEA requires a school to provide the
parent with written notice of its response to the parent's
request, explaining the school's course of action regarding the
child. However, there may be cases in which a parent has not
brought a problem to the school's attention until the school
receives a parent's due process complaint. To address this type
of situation, the committee has added a new provision, section
615(b)(8), which requires the school to provide a parent with a
prior written notice under section 615(c), when learning of a
parent's dispute for the first time in a parent's due process
complaint. The contents of this notice should be no different
in this situation than it is when issued before a due process
complaint is filed. The committee does not intend for this
prior written notice to reach the level of specificity and
detail of an answer filed in a court of law. The committee is
hopeful that such a written response from the school may, in
fact, help a parent to resolve a disagreement, and eliminate
the need to proceed to a due process hearing.
Procedural safeguards notice
While the procedural safeguards notice is critical for
notifying parents and children with disabilities of their
rights under the law, parents, as well as district personnel,
have often criticized the frequent distribution of this notice
within a year. Many view this as an example of either federal
excess or as contributing to the uncomfortable feeling of an
adversarial legal process as opposed to an educational
practice. If a school holds an annual IEP meeting, conducts a
reevaluation of a child, and then needs a follow-up IEP meeting
in the course of a school year, the school must provide the
parent a procedural safeguards notice at least three different
times during that year. This process can create additional
expense to print and mail the extensive document, and may even
create a sense of mistrust on the part of parents. The
committee believes that it does not make sense to require the
issuance of a lengthy statement of procedural safeguards
multiple times during a single school year. Therefore, section
615(d)(1) has been amended to require that parents receive the
procedural safeguards generally only once a year. Schools would
most likely send this notice to parents either at the beginning
of the school year, or at the annual IEP meeting for the child.
In addition, the procedural safeguards notice must be given in
three instances: upon initial referral or parental request for
an evaluation; upon a parent's registration of a due process
complaint under section 615(b)(6); or when requested by the
parent. The committee also encourages States and local
educational agencies to post their notice of procedural
safeguards on their websites. In addition, a new subsection (n)
of section 615 provides that a parent may elect to receive
notices by e-mail, if the public agency makes such option
available.
S. 1248 also revises section 615(d)(2) to require that the
procedural safeguards notice inform parents regarding the time
period in which parents can file complaints, the school
district's opportunity to resolve a complaint before a due
process hearing, and the time period in which a party can
appeal a hearing officer's decision to court.
Mediation
The committee is encouraged by the success of mediation
occurring throughout the nation in resolving disputes between
parties under IDEA. For example, a recent Michigan survey found
that 82.3 percent of people surveyed said they strongly agreed
with the statement that they would use mediation again. In
Texas, 96 percent of parents and school district personnel who
used mediation would do so again. Between 1992 and 2000, the
Texas Education Agency received 3,637 referrals for special
education mediation, and conducted 1,108 mediation settlements.
Settlements were agreed to in 77 percent of the cases,
amounting to an estimated savings of $50 million in attorneys'
fees and related expenses. According to a General Accounting
Office report released in September 2003, 93 percent of the
mediation cases in California resulted in agreements between
families and schools during the 2001-02 fiscal year; the cost
of a mediator was about one-tenth of that of a hearing officer.
The committee wants to build upon this success by encouraging
parties to consider mediation as an option at earlier stages of
disagreements and disputes. Accordingly, S. 1248 revises
section 615(e) to clarify that parents can ask for mediation
before filing a complaint under section 615(b)(6). The
committee takes note of States such as New Hampshire, which
encourages mediation by scheduling a mediation session when a
parent files for a due process hearing, and then allows the
parent to decline the mediation process.
Because the committee places such a high value on the
successful use of mediation, it has added a provision stating
that a written mediation agreement is enforceable in court. A
mediation agreement is a written contract entered into between
two parties, and should be afforded the same legal protection
as other binding contracts.
The bill revises section 615(e)(2)(B) to provide that a
State agency may establish procedures to offer--rather than
require--parents, as well as to schools who choose not to use
the mediation process, an opportunity to speak with a
disinterested party regarding the benefits of mediation. The
committee, however, also believes that a hearing officer, in
the same fashion as a Federal or State judge, has the authority
to mandate that a matter proceed to mediation as part of the
hearing officer's plenary power once a complaint has been
filed.
Qualifications of mediators
The committee is puzzled by the Department of Education's
regulation, 34 CFR 300.506(c), which does not allow an unbiased
person from another local educational agency to mediate a
dispute. While it makes sense to disallow an LEA employee to
mediate a dispute involving that individual's own LEA, the
committee believes that a total ban on the use of any such
employees is too restrictive, and could lead to a lack of
qualified mediators. Therefore, the committee expects that the
Department of Education will revise this regulation.
S. 1248 revises section 615(f)(1) to clarify that both a
parent, as well as a local educational agency, has an
opportunity to have a due process hearing after filing a
complaint.
Although it is to be expected that a parent would try to
resolve a disagreement with the IEP team before filing a due
process complaint, the committee has heard of instances in
which a school district learns for the first time that a parent
has a problem with the district when it receives a notice of
the parent's complaint. When this occurs, the school district
has not had the opportunity to resolve the disagreement before
going to a due process hearing. The committee believes that the
parties should have a forum to resolve matters in a more
informal way before moving to a more adversarial process. The
bill adds a new provision, section (f)(1)(B), to provide this
forum.
During this resolution session, the parent will meet with
the IEP team to discuss his or her complaint and the specific
issues that form the basis of the complaint, and the local
educational agency shall have an opportunity to resolve the
complaint. The committee intends the local educational agency
to promptly schedule the resolution session and the parent to
facilitate the occurrence of the resolution session by not
delaying the meeting or refusing to attend. The committee does
not intend that either party would have the right to refuse to
participate in the resolution session. However, the parties may
agree to waive the resolution session, such as in cases where
the localeducational agency is aware of the parent's complaint,
and has already attempted to resolve the matter during an IEP team
meeting, or when the parties have agreed to take their dispute to
mediation.
At the resolution session, a representative who has
decisionmaking authority on behalf of the local educational
agency must be in attendance, and the agency may not have an
attorney present unless the parent is accompanied by an
attorney or a third party advocate. The committee expects that
State protection and advocacy agencies, as well as parent
training and information centers can provide parents support
they may need to participate in these resolution sessions. The
committee does not intend that an agreement must be reached
during the meeting, as parties will often need time to consider
proposed methods of resolution. Therefore, the local
educational agency has 15 days from receipt of the complaint to
resolve the matter. The parties shall memorialize any
resolution agreement in a written document that is enforceable
in court, as is any other written settlement agreement.
If the local educational agency and parent cannot resolve
their issues within 15 days of receipt of the due process
complaint, the due process hearing may occur, and all of the
applicable timelines for a due process hearing under the law
shall commence. The committee does not intend that the
resolution session be used simply as a means to delay a due
process hearing. It simply intends that a school district be
given 15 days to resolve a disagreement before the timeframe
for conducting a due process hearing begins.
A school district's belief that a parent has failed to meet
the notice requirements of section 615(b)(7)(B) should not
delay a resolution session between the parties. In fact, the
parent may be able to more clearly articulate their problem
during the session, which would give the LEA sufficient
information to try to resolve the problem. In this case, if
agreement is still not reached, the LEA should waive the notice
sufficiency requirement for the due process hearing, as it has
been apprised of the problem, and has the opportunity to
prepare its position for the due process hearing. In addition,
if the parent raises new issues at the resolution session, but
the school and parent cannot resolve these issues, the school
can agree to allow these new issues to be discussed at the due
process hearing. If, after the resolution session, the school
district still does not understand the nature of the problem in
the parent's notice of complaint, the LEA may rely on its
insufficiency of notice claim. The goal of these new provisions
is fairness: to be sure that a district is aware of a problem
and has a chance to resolve it in a less formal manner before
having to spend the time and resources for a due process
hearing. The purpose is not to make parents go to another IEP
meeting to explain an issue that has already reached an impasse
with the district.
Qualifications of Hearing Officers
S. 1248 adds statutory requirements regarding
qualifications of hearing officers. The committee does not
intend that the phrase ``professional interest that conflicts
with the person's objectivity'' would exclude members of
professional associations or exclude special educators from
other school districts from serving as hearing officers
provided that they meet the qualifications detailed in section
615(f)(3)(A). Similarly, these requirements should not exclude
other individuals who have expertise in the area of special
education, including parents of children with disabilities,
from serving as hearing officers, as long as they are unbiased
and have the appropriate qualifications to serve.
Under section 615(f)(3)(B), at the due process hearing, the
party requesting the hearing may not raise issues that were not
raised in the notice filed under subsection (b)(7), unless the
other party agrees. It is also expected that the hearing
officer will also use common sense and principles of fairness
in determining whether a party is raising a new issue. This
provision is not intended to preclude a party--particularly a
parent and their child--from exercising their rights to a due
process hearing under the law. This is to ensure that both
parties have a clear understanding of the subject matter of the
complaint and can adequately prepare to present their position
to the hearing officer. The committee has heard of instances in
which a party raises completely new issues at a due process
hearing that were not in any way contained in a notice of a
complaint. As a result, the other party is surprised at the due
process hearing, and has not adequately prepared, which can
result in a waste of time for both parties and for the hearing
officer, as well as a significant expenditure of resources on
both sides. The committee sees no value in keeping a party in
the dark and forcing it to prepare for every possible complaint
that could be made.
There is some concern that these new requirements would
prevent a parent from being able to come to the due process
hearing and raise new issues that were not raised in the
complaint, because the parent did not understand they legally
had other complaints, or because they did not properly
articulate those complaints. However, section 615(f)(3)(C)
makes clear that nothing prevents a parent from filing a new
complaint with new issues. In addition, S. 1248 allows a parent
to amend their original complaint in limited circumstances
before a due process hearing occurs: with the written consent
of the other party, or with the permission of the hearing
officer. However, the school district must have the opportunity
to resolve the amended complaint, and the timelines for holding
a due process hearing would recommence. The committee wants to
ensure that both parties have an understanding of the disputed
issues, so that they can be prepared to have a meaningful due
process hearing that will bring a fair resolution. The
committee does not intend that a school district use the
sufficiency requirement in a strictly technical way to preclude
a parent from discussing an issue at a due process hearing of
which the district was fully aware.
Timeline for requesting hearing
Section 615(f)(3)(D) creates a new two year timeline for
requesting a hearing on claims for reimbursed or ongoing
compensatory education services. If the State has developed an
explicit timeline for requesting a due process hearing either
through statute or regulation, that State provision will apply.
The bill also provides for exceptions to the timeline in
limited instances. The committee does not intend that common
law determinations of statutes of limitation override this
specific directive or the specific State or regulatory
timeline.
This new provision is not intended to alter the principle
under IDEA that children may receive compensatory education
services, as affirmed in School Comm. of Burlington v.
Department of Education of Massachusetts, 471 U.S. 359 (1985)
and Florence County School District Four v. Carter, 510 U.S. 7
(1993) and otherwise limited under section 612(a)(10)(C).
First, the statute of limitations will bar consideration of
claims where: (1) the allegation relates to conduct or services
that are more than two years prior to the commencement of due
process on the basis of that conduct or those services, or upon
the unilateral placement of the child in a private school or
with a private service provider, and (2) during that two year
period, either (a) the services are not alleged to have been at
cost or inappropriate, or (b) the conduct is not alleged to
have been appropriate. In essence, where the issue giving rise
to the claim is more than two years old and not ongoing, the
claim is barred; where the conduct or services at issue are
ongoing to the previous two years, the claim for compensatory
education services may be made on the basis of the most recent
conduct or services and the conduct or services that were more
than two years old at the time of due process or the private
placement. Second, the statute of limitations will bar
consideration of claims for reimbursement of private school
tuition or services where the child has not attended school
with the public entity for more than two years. Simply put, if
a child leaves a public school and the parent chooses to place
the child in a private school, the parent must claim through
due process that they are entitled to reimbursement for those
services prior to the two year anniversary of that student's
departure.
Decision of hearing officer
The committee has been made aware of cases in which a
hearing officer has found that a school denied FAPE to a child
with a disability based upon a mere procedural technicality,
rather than an actual showing that the child's education was
harmed by the procedural flaw. For example, because a school
has failed to provide a parent with a notice of procedural
safeguards for the third or fourth time in a school year, a
hearing officer may have found a FAPE violation. The
ramifications of this are great when considering that such a
finding can subject a school district to the payment of
attorneys' fees. The committee does not believe that the law
intends such a result. Hearing officers should generally make
decisions based upon true substantive grounds, not mere
technical flaws.
Section 615(f)(3)(F) directs hearing officers to make
decisions on due process complaints on substantive grounds
based upon a determination of whether the child in question
received a free appropriate public education. This entails
going beyond whether there was a mere technical flaw, and
requires an inquiry into whether the alleged action or inaction
affected the child's receipt of FAPE. The committee does not
intend for this provision to be an invitation to local
educational agencies to become lax in following the procedures
under the law. The committee also acknowledges that there are
procedural violations which can deny a child a free appropriate
public education. For example, a school's failure to give a
parent access to initial evaluation information to make an
informed and timely decision about their child's education can
amount to a FAPE violation. In these cases, the hearing officer
may find a FAPE violation only if the procedural inadequacies
compromised the child's right to an appropriate public
education; seriously hampered the parents' opportunity to
participate in the process; or caused a substantial deprivation
of educational benefits.
The committee also believes that requiring that hearing
officers possess a number of qualifications, such as having the
knowledge and ability to render and write decisions in
accordance with appropriate, standard legal practice, will help
ensure that due process complaints are correctly decided under
the law.
S. 1248 also contains a provision (section 615(f)(3)(G))
making it clear that nothing in section 615 shall be construed
to affect a parent's right to file a complaint with the State
educational agency, including complaints of procedural
violations.
Parents representing their children in civil actions
The statutory language of IDEA makes clear that a parent
has a right to file a due process complaint and to have the
opportunity for a due process hearing. It is unquestioned that
parents have the right to bring a complaint and participate in
a due process hearing without an attorney.
However, there has been disagreement as to whether a parent
may, in effect, ``represent'' their child in a civil action
that results from an appeal of a due process hearing. The
committee is aware of the current conflict between a number of
federal circuit courts regarding this issue, and understands
that some courts have decided this issue based upon a
distinction between procedural and substantive claims brought
by a parent.
Both Federal and State laws generally prevent a non-
attorney parent from representing his or her child in a court
proceeding, as these laws provide that a person can only
represent himself or herself, and not proceed on behalf of
their minor child. Moreover, it is well-settled law that a
minor is disqualified from representing himself or herself in a
civil action.
A parent who does not have the financial resources to hire
an attorney, but yet does not meet the financial need criteria
for court-appointed counsel, or who cannot find an attorney to
take their case on a contingency basis, has no ability to
protect their child's interests if they are disallowed from
going to court. This seems particularly unfair if a school
district, rather than the parent, appeals a due process hearing
decision to State or Federal court.
It makes little sense if the parents who are explicitly
permitted to invoke administrative remedies and to exhaust them
could not be parties for purposes of bringing suit. IDEA relies
upon the central role played by parents in assuring that their
child with a disability receives a free appropriate public
education.
Based on current statutory language and on the rich
legislative history emphasizing the importance of parental
involvement, the committee believes that parents have a right
to represent their child in court, without a lawyer, for
purposes of IDEA law,regardless of whether their claims involve
procedural or substantive issues. Therefore, the committee has amended
section 615(i)(2) to clarify that a parent of a child with a disability
may represent the child in any action under this part in State or
Federal court, without the assistance of an attorney. The committee
makes clear that this provision applies only to civil actions brought
under IDEA as a result of an appeal from a due process hearing
decision. Further, the committee does not intend that this provision
alter State laws or court determinations regarding parental rights or
child custody issues.
Timeline for appeals
S. 1248 contains a new provision, section 615(i)(2)(B),
which gives a party 90 days from the date of the decision of
the hearing officer for appealing a due process hearing
decision to State or federal district court, or if there is an
explicit State time limitation set out by State statute or
regulation, in such time as the State law allows. Again, the
committee does not intend for common law to override the
particularity of this provision.
Provisions for administrative and judicial review
Under section 615, the committee intends that parties to
disputes exhaust available administrative remedies before
proceeding to a judicial forum. For this reason the bill's
provisions regarding the review of such disputes, including the
timelines for filing complaints and procedural and substantive
grounds, are applicable initially in the administrative forum
provided section 615, as well as in a judicial forum that may
be sought.
Attorneys' fees
The 1997 law does not allow the awarding of attorneys' fees
relating to any IEP Team meeting, unless the meeting is
convened as the result of an administrative proceeding or
judicial action, or, at the State's discretion, for a
mediation. S. 1248 makes clear (section 615(i)(3)(D)(iii)) that
attorneys' fees cannot be awarded in connection with a
resolution session between the parties pursuant to section
615(f)(1)(B). In addition, section 615(i)(3)(F) clarifies that
a parent's attorney, as well as the parent, may be the one
responsible for unreasonably protracting the final resolution
of a controversy between the parties, and could therefore
trigger the court's reduction of attorneys' fees to the parent.
Discipline
In response to concerns expressed by school administrators,
teachers, and even parents, the committee has revised section
615(k) to make it simpler, easier to administer, and more fair
to all students.
S. 1248 distinguishes three categories of disciplinary
actions that a school district can take. The first is paragraph
(1)(A), the 10-day rule, which the bill retains from current
law. Under this category, a school may order a change of
placement for a child who violates a code of student conduct to
an appropriate interim educational setting, another setting, or
suspension, for 10 consecutive school days or less, to the same
extent that it would apply such a discipline measure to a child
without a disability. No manifestation determination is
necessary in order to take action in this first category.
Some have expressed concern about the language ``violation
of school code'' or ``violation of a code of student conduct''
contained in section 615. However, the committee notes that the
1997 law uses a similar phrase, and does not intend for the
language in S. 1248 to have a different meaning.
In the second category, if a school chooses to discipline a
child for a violation of the school code for a period beyond 10
consecutive school days, then the school can apply the same
disciplinary procedures that it would apply to a child without
a disability, as long as the school has determined that the
violation in question was not a manifestation of the child's
disability. However, if the child's disability did cause the
violation of the school code, the ``stay put'' rule applies.
However, the school, working through the IEP team, could obtain
the parent's consent to remove the child for more than 10
consecutive school days for disciplinary reasons.
The third category, similar to the 1997 law, covers cases
involving weapons or drugs, and also adds a new situation to
this category: when a child has committed serious bodily injury
upon another person. The definition of ``serious bodily
injury'' is taken from 18 U.S.C. 1365(3)(h), and means bodily
injury which involves a substantial risk of death; extreme
physical pain; protracted and obvious disfigurement; or
protracted loss or impairment of the function of a bodily
member, organ, or mental faculty. If a child commits acts
involving any of these three instances, a school can remove the
child from the regular classroom setting for up to 45 school
days, regardless of whether the child's behavior was a
manifestation of his or her disability. Because of the inherent
and immediate dangers connected with this category of cases,
school personnel need to retain the ability to take swift
action to address these situations, to ensure the safety of all
students, teachers, and other such personnel. Indeed, Congress
recognized this when it passed the Gun Free Schools Act, which
provides that a State wishing to receive federal education
dollars must have in place a State law requiring the one year
expulsion of a student found with a firearm at school. If the
child's behavior is determined not to be a manifestation of the
disability, regular disciplinary consequences can be applied in
addition to the 45 day removal, subject to section 612(a)(1).
Even if the child's behavior is later determined to be a
manifestation of his disability, the committee believes it is
critical that schools have the flexibility to keep the child
out of his regular setting for up to 45 days.
When a disability has been determined to result in the
child's behavior, a school will not be able to apply the same
long term disciplinary procedures applicable to all children,
but it does have the opportunity to work with the parent and
the IEP team to determine what appropriate actions should be
taken to address the child's behavior. The committee encourages
parents to work with school personnel and the IEP team in a
cooperative and common sense way in determining the best course
of action for the child that results in the child's continued
right to receive a free appropriate public education, and a
safe and secure classroom for all children. The committee
believes that a child'sright to receive a free appropriate
public education does not have to conflict with a safe and secure
classroom for all.
For other cases involving a less immediate threat to
safety, but which would result in a disciplinary removal
lasting beyond 10 consecutive school days, the committee
believes that a school must conclude that a child's behavior
was not a manifestation of their disability before being able
to remove the child from their regular classroom setting for
more than 10 consecutive school days. This is, in fact, what
the 1997 law requires. The committee has simply restructured
the language to clarify the law.
The committee has also clarified and revised the law
regarding manifestation determinations. First, the bill makes
clear that a school does not have to conduct a manifestation
determination prior to taking a disciplinary action of 10
consecutive school days or less, or prior to a 45 day removal
for cases involving weapons, drugs, or serious bodily injury.
Second, the bill uses a more simplified, common sense procedure
for schools to use in making the actual manifestation
determination. Under the 1997 law, schools were forced to prove
a negative: that a child's behavior was not a manifestation of
his or her disability based upon a complicated set of factors.
Many schools found this test to be confusing and unfair. S.
1248 directs a school to determine whether the child's behavior
was a manifestation of his or her disability based upon two
questions: (1) Was the conduct in question the result of the
child's disability; and (2) did the conduct result from the
failure to implement the IEP or to implement behavioral
interventions as required under section 614(d)(3)(B)(i)? If the
answer to either of these questions is yes, then the school
must conclude that the child's conduct was indeed a
manifestation of his or her disability.
S. 1248 retains the 1997 law's requirement that a local
educational agency must promptly notify parents of a
disciplinary action in regard to their child, but puts this
notification requirement in a separate provision to highlight
its importance.
The bill also clarifies what services must be provided to a
child who is removed from his or her current placement for more
than 10 consecutive school days. The child must continue to
receive educational services pursuant to the FAPE requirement
of section 612(a)(1), so that he or she can continue to
participate in the general curriculum (although in another
setting), and progress toward meeting the goals in the child's
IEP. Further, the school must take other actions designed to
address the behavior violation so that it does not recur. The
child must receive behavioral intervention services under
section 614(d)(3)(B)(i), which applies to children whose
behavior impedes their learning or that of others. The child
should also receive a functional behavioral assessment, but
only if they did not receive such assessment before the
violation occurred. The committee believes that this modified
language better tracks the language in section 614. The bill
also states that the IEP team shall determine the child's
alternative educational setting.
S. 1248 lists the situations in which a party may request a
hearing regarding disciplinary decisions or proposed
disciplinary actions. A parent who disagrees with any decision
of the school district regarding a disciplinary action,
placement, or a manifestation determination, may request a
hearing, as can a local educational agency that believes that
maintaining the child's current placement is substantially
likely to result in injury to the child or others. At the
hearing requested by the parent, the hearing officer will
determine whether the local educational agency's decision was
appropriate. In a hearing held at the local educational
agency's request, the hearing officer may order a change in
placement of a child with a disability to an interim
alternative educational setting for not more than 45 days upon
a determination that maintaining the current placement is
substantially likely to result in injury to the child or
others. This is to address situations such as when a school
cannot make a unilateral change in the child's placement
because his behavior was a manifestation of his disability: the
school deems the child to be too dangerous to stay in a regular
classroom, but has been unable to reach agreement with the
parent as to an appropriate alternative placement for the
child.
The bill also changes the stay put rule in the 1997 law.
The bill requires that, during a parent's appeal under section
615(k)(1)(B), the child shall remain in the interim alternative
educational setting chosen by the IEP team pending the hearing
officer's decision or until the time period for the
disciplinary action expires, whichever occurs first, unless the
parent and public agency agree otherwise. However, the hearing
must occur within 20 days of the hearing request. Under
paragraph (4), the child stays in an interim setting as well in
all other cases. The committee does not intend that a parent
can get a child removed early from the 45 day placement for
weapons, drugs, or serious bodily injury if the manifestation
determination is reversed. However, if a parent contests facts
surrounding the claim the child actually carried a weapon,
brought drugs to school, or committed a serious bodily injury,
then the child may be returned to his or her original placement
if a hearing officer overturns the school district's decision.
Similarly, if a parent successfully contests the provision of
FAPE in the interim alternative educational setting chosen by
the IEP team, the child's placement could be changed before the
45 day period expires.
The committee maintains its intent that children who have
not yet been identified for IDEA should be afforded certain
protections under the law. However, the committee has heard
many concerns regarding the abuses resulting from the provision
in the 1997 law affording these protections. For example, under
current law, a school is deemed to have knowledge that a child
has a disability based on a claim that the child's ``behavior
or performance demonstrates the need'' for special education
and related services, or because a teacher made a stray,
isolated comment expressing ``concern about the behavior or
performance of the child'' to another teacher. The committee
believes that these provisions as written have had the
unintended consequence of providing a shield against the
ability of a school district to be able to appropriately
discipline a student. Therefore, S. 1248 revises this provision
to ensure that schools can appropriately discipline students,
while maintaining protections for students whom the school had
valid reason to know had a disability. Under two revised
provisions, a school will be deemed to know about a child's
disability if the child has engaged in a pattern of behavior
that should have alerted school personnel that the child may
need special education and related services; and when a teacher
or other school personnel has expressed concern about a pattern
ofbehavior to either the special education director, or to
other administrative personnel. The committee also makes clear that a
school will not be deemed to know that the child has a disability if
the child's parent has refused to allow an evaluation requested by the
school under section 614.
Transfer of parental rights at age of majority
The committee encourages States exercising their option to
allow the transfer of parental rights at the age of majority to
notify parents and students a year in advance to help them get
prepared for assuming exercise of procedural safeguards rights
under this Act (see section 614(d)(1)(A)(i)(VIII)(cc)).
Monitoring, technical assistance, and enforcement
Since its predecessor's passage in 1975, Federal monitoring
and enforcement of IDEA has primarily focused on State and
local process implementation of special education. This was
consistent with the general legislative purpose of the original
act, in that schools were failing to deliver adequate education
services to children with disabilities.
The underlying premise of the law was to educate children
in a manner equal to their nondisabled peers. Particularly
since the 1997 reauthorization and the enactment of the No
Child Left Behind Act in 2002, a policy consensus among
advocates and policy makers has formed that the next IDEA
reauthorization must shift from process accountability to
student performance accountability.
The revision of section 616 represents a significant
departure from past practice of Federal monitoring and
enforcement of IDEA. For the first time, the statute provides
the Secretary with clear authority to take action against a
State when there has been a persistent lack of progress in the
area of student achievement. The new focus on substantive
performance indicators under section 616 contrasts with
previous statutory obligations to collect data, that primarily
addressed demographic issues. The purpose of these provisions
is to shift the Federal monitoring and enforcement activities
away from SEA and LEA administrative process issues that have
historically driven compliance monitoring, to a system that
primarily focuses on substantive performance of students with
disabilities.
Section 616(a) requires the Secretary to monitor
implementation of the Act through oversight and a system of
indicators and to enforce the Act. It also requires States to
monitor implementation of the act by LEAs and enforce the act.
The subsection requires that the primary focus of Federal and
State monitoring activities shall be on improving educational
results and functional outcomes for all children with
disabilities, while ensuring compliance with program
requirements, with a particular emphasis on requirements
relating to improving educational results for children with
disabilities. The bill provides a list of priority areas which
the Secretary must monitor: the provision of a free appropriate
public education in the least restrictive environment,
transition services, State exercise of general supervisory
authority, and overrepresentation of racial and ethnic groups
in special education and related services, to the extent the
overrepresentation is the result of inappropriate policies,
procedures, and practices.
Using the performance indicators that States must establish
under section 612(a)(15), the Secretary will assess the
performance of States in the areas of assessments, drop-out
rates, and graduation rates.
The bill also requires that, within one year after
enactment, States must develop a State Compliance plan in
collaboration with the Secretary. This plan must include
benchmarks to measure continuous progress on the priority areas
listed above, as well as a description of strategies the State
will use to achieve the benchmarks. The committee believes that
it is appropriate for States, rather than the Secretary alone,
to develop benchmarks, since demographic and other factors can
vary widely among States. States are encouraged to solicit the
comments of parents of children with disabilities in the
development of benchmarks.
Section 616(c) provides the Secretary with new authority to
take a number of actions when there has been a lack of
satisfactory progress in regard to a State's indicators and
benchmarks, or noncompliance with the Act. If a State has
failed to make satisfactory progress in meeting its indicators
or has failed to meet its benchmarks for two consecutive years,
the Secretary may direct the use of State level funds for
technical assistance and/or withholding not less than 20
percent but not more than 50 percent of the State's funds for
State administration and activities. If, after 5 years, the
State has failed to meet its benchmarks or make satisfactory
progress in improving educational results for children with
disabilities pursuant to the State indicators, the Secretary
must take one or more of the following actions: seek to recover
funds under section 452 of the General Education Provisions Act
(GEPA); withhold (after notice and an opportunity for a
hearing) payments to the State; referral for appropriate
enforcement action, including referral to the Department of
Justice; suspend payments to a recipient, or suspend the
authority of the recipient to obligate Federal funds.
In addition, the subsection provides that if, at any time,
the Secretary determines that a State is not in substantial
compliance, or there is a substantial failure to comply with
any conditions of the LEA's or SEA's eligibility, the Secretary
shall take one or more of the following actions: request that
the State prepare a corrective action plan; impose special
conditions on the State's grant; require the State to enter
into a compliance agreement under section 457 of GEPA; recovery
of funds under section 452 of GEPA; withholding (after notice
and an opportunity for a hearing) any further payments to the
State; referral for appropriate enforcement action, including
referral to the Department of Justice; suspending payments to a
recipient; or suspending the authority of the recipient to
obligate Federal funds.
Finally, if at any time a State is in egregious
noncompliance or is willfully disregarding the provisions of
this Act, the Secretary may take any of the above-described
actions, and in addition, may either institute a cease and
desist action under GEPA, or refer the case to the Office of
the Inspector General.
The committee has also added a new provision, Section
616(e), dealing with State and local monitoring. State
educational agencies are required to monitor and enforce
implementation of the act and to implement a system for
monitoring the benchmarks in the State's compliance plan, and
States must also require LEAs to monitor and enforce
implementation. The subsection also requires the SEA to
prohibit the LEA from treating funds under the act as local
funds under section 613(a)(2)(C) for any fiscal year if the SEA
determines that a LEA is not meeting the requirements of the
act.
Model paperwork forms
The committee understands that the paperwork forms
associated with the Act are greatly varied from State to State
and district to district. A standard IEP in one State could be
seven pages while in a neighboring State that same child's IEP
would be eighteen pages. While some of this variance is related
to State or local policy, most of the differences relate to
confusion regarding what the act requires. Section 617(d) of
the bill requires the Secretary to develop model forms for the
IEP, IFSP, prior written notice, and procedural safeguards
notice. Each of these model forms will help inform local
educational agency efforts as they develop their own forms and
will result in decreased paperwork burdens while still ensuring
that all of the requirements of the act are met.
Program information
S. 1248 retains the important data collection requirements
under Section 618, while making some minor revisions. First,
States will be required to make this data available to the
public, as well as the Secretary. Second, States will be
required to provide the number and percentage of children in
various categories. Third, States must collect information on
the categories of gender, and, where appropriate, limited
English proficiency status. Fourth, section 618 expands the
information that must be collected in relation to certain
disciplinary actions, due process complaints and hearings, and
mediations. Finally, the bill contains a new provision ensuring
that the data which is collected by States must be reported in
a manner that does not result in the disclosure of data
identifiable to individual children.
Preschool grants
The bill makes minor technical and conforming changes to
the section 619 Preschool Grants program. Throughout S. 1248,
the committee stresses the importance of intervening early with
children to reduce the future impact of disabilities and
improve academic and functional outcomes for children. The
services provided for under section 619 can be an integral
component to a State's system of early intervention services to
children with disabilities. Such services should include a
strong educational component that promotes schools readiness.
The committee encourages preschool special education programs
to place more emphasis on pre-academic skills for young
children with disabilities, especially pre-literacy, pre-
numeracy, and language skills.
Amendments to Part C of the Individuals with Disabilities Education Act
The early years of a child's development lay the groundwork
for future years. The services that infants and toddlers with
disabilities and their families receive, in many cases, may
help prevent the need for more costly services once a child
reaches school age. Recognizing the importance of early
identification and intervention, the committee continues to
believe that the Part C program plays a vital role in assisting
children with disabilities and their families. New provisions
affecting the Part C program are designed to: (1) Ensure that a
greater number of children who are in need of early
intervention services receive them, (2) provide for a more
seamless transition of services from birth through school age,
and (3) ensure that programs appropriately prepare children for
preschool and school.
Services and personnel
S. 1248 revises section 632(4)(E) to clarify that sign
language and cued language services are included in the
definition of early intervention services. In addition, section
632(4)(F) provides that teachers of the deaf and vision
specialists, including ophthalmologists and optometrists, are
qualified personnel who may provide early intervention
services.
Program eligibility and child find
To ensure that disabled and developmentally delayed
children receive early intervention services, section 635(a)
includes a new definition of the term ``developmental delay.''
At a minimum, a State's definition of developmental delay must
now cover all infants and toddlers with a 35 percent or more
delay in any single developmental area, or a 25 percent or more
delay in two developmental areas. The committee believes for
the few States requiring even greater levels of delay, as a
requisite to receiving early intervention services, are short-
changing many infants and toddlers and their families who would
benefit from such services. The new definition of developmental
delay ensures that more children in need of early intervention
services will qualify for them.
Research on early childhood development demonstrates that
infants and toddlers who have been abused or neglected are at
increased risk of significant delays in language, cognition,
and behavior. In fact, these children have rates of
developmental delay approximately four to five times that found
among children in the general population. One study found that
more than half of over 200 children in foster care under the
age of 31 months had language delays. Too many infants and
toddlers who have been abused or neglected are falling through
the cracks and are not receiving the early intervention
services for which they may be eligible.
As there is a strong need for improving collaboration
between the child welfare and Part C systems in order to
provide early intervention services to abused and neglected
children, the bill requires States to develop policies to
require referrals of all children under age 3 in a
substantiated case of abuse or neglect for evaluation, and if
appropriate, early intervention services. The bill also
requires States to require referrals for all children who are
born and identified as affected by illegal substance abuse, or
withdrawal symptoms resulting from prenatal drug exposure.
These changes provide an importantenhancement of the State
child find system and will help States identify infants and toddlers
who are in need of Part C services.
Transition from early intervention to preschool
Throughout Part C, the committee emphasizes the importance
of planning for and providing a smooth transition from Part C
services to Part B services. To this end, the bill requires
that Individualized Family Services Plans (IFSP) include a
description of transition services for the child, and specifies
that transition services are a part of the responsibilities of
a service coordinator. Many children who receive effective
early intervention may not need to receive special education
services later, so the bill also recognizes exiting from early
intervention and special education services as a goal and a
part of transition planning. When applicable, steps for exiting
from early intervention must be included in transition plans,
and State policies and procedures must include exiting as a
part of ensuring a smooth transition from the program.
State flexibility for seamless zero to five program
As another effort to ensure the smooth transition from the
Part C program to the section 619 program, Part C includes a
new provision, specifically section 635(b), that would give
States the option to create a comprehensive and fluid system of
services for special needs children birth to school age. States
choosing to participate would have the option to commingle Part
C and Part B funds in order to better serve families with
children with special needs.
The committee feels that parents and families should have a
choice about the type of program and services their young
children receive. The committee has heard from parents of
children with disabilities who would prefer to keep the same
provider and services for their child, until school age, as
transition between the Part C program (infants and toddlers)
and the section 619 program (preschool) can be difficult or
undesirable for some parents. To address this concern, the
committee included a provision that would authorize States to
create a seamless system for infants, toddlers and preschoolers
with disabilities, giving parents the opportunity to continue
services with the provider of their choice.
Under this provision, if a State participates in this
flexibility option, the Governor will select which agency
administers the birth to school age special needs program. When
a family with a special needs child receiving services under
Part C reaches the age of exit, parents have the option to
waive a free appropriate public education (FAPE) and remain in
the Part C program, provided the Part C program includes an
educational component that promotes school readiness and
incorporates pre-literacy, pre-numeracy and language skills.
Although parents will have waived FAPE to continue services
under the Part C program, parents will continue to have all of
the procedural safeguards and due process rights that are
provided under the Part C program.
As a result of a parent's decision to forgo participating
in the Part B program before their child reaches school age,
parents are choosing to continue receiving services under Part
C including, continuing to pay any fees associated with
services for their child through the Part C program. Instead of
developing an individualized education plan (IEP), the family's
individualized family service plan (IFSP) plan will continue to
be followed and educational goals will be added.
States that choose to offer this seamless program shall
ensure that parents of children who are eligible under Part B
for preschool services are made fully aware of the differences
between the Part C program and the Part B program. Any
explanation of these differences must include a description of
the types of services, procedural safeguards and potential
costs to parents associated with the two programs. The
committee believes that in addition to being notified annually
of these differences, as is required under the bill; parents
should also be made aware of these differences at the
conference between the lead agency and family that is convened
at least 90 days prior to a child being eligible to receive
preschool services.
States participating in the seamless 0-5 program shall also
ensure that the Statewide system include referrals for
evaluations for early intervention services of a child below
the age of three who experience exposure to trauma or violence
or both.
As this is a new initiative, the bill includes a
requirement (section 665(f)) that the Secretary conduct a study
on the effects of this seamless system.
Nature of early intervention services
In 1997, the last time IDEA was reauthorized, a provision
was added to require that early intervention services be
provided in natural environments, and that such services be
provided in another setting only when early intervention could
not be achieved satisfactorily in a natural environment. S.
1248 requires that early intervention be provided in a natural
environment, unless a specific outcome cannot be met
satisfactorily in a natural environment. The committee
continues to believe that infants and toddlers with
disabilities should be served in natural environments with
their non-disabled peers to the maximum extent appropriate, but
this change gives parents and service providers more
flexibility in determining when it is or is not appropriate to
serve children in settings other than natural environments.
Consistent with the bill's overall focus on achievement and
accountability, new provisions have been added to Part C to
make the IFSPs more specific and outcome-oriented. In order to
increase accountability for the progress of infants and
toddlers, IFSPs must now include measurable outcomes, as
opposed to major outcomes. These measurable outcomes should
include, as appropriate, pre-literacy and language skills.
Including these skills on an IFSP recognizes the role that
early intervention plays in building the foundations for
academic success. In addition to existing IFSP requirements the
bill requires that IFSPs now include information on the
anticipated length and frequency of services. The committee
also specifies that, when a parent does not provide written
consent for all services on an IFSP, that only those services
for which consent was obtained will be provided.
Interagency coordination
Many agencies and programs are involved in the delivery of
Part C services, and the service system functions best and
serves children better when strong linkages and collaborations
between agencies and programs are formed. To encourage these
linkages, S. 1248 adds a representative from the State Medicaid
Agency as a required member of the State Interagency
Coordinating Council. Because Medicaid plays such an important
role in funding Part C programs, the committee believes the
participation of this agency is essential to improving services
for infants and toddlers with disabilities. The bill removes
the requirement that the Department of Education establish a
Federal Interagency Coordinating Committee (FICC) because the
committee does not believe that it has been effective in
coordinating policy at the Federal level.
Payor of last resort
In order to clarify existing uncertainty regarding public
agencies' obligations and responsibilities of ensuring
provision of, and ultimate financial responsibility for,
services within a State, the committee has made expenditure of
administrative funds by a State under section 611 and part C
contingent upon a State's certification that the agreements to
establish these responsibilities within a State are current.
The committee further clarifies in section 612 and section
640 that if there are instances when a public agency initially
fails to provide or pay for the special education and related
services but is required to do so under a State's current
system of arrangements, the local educational agency that did
so is authorized to claim reimbursement from the public agency
that failed to provide or pay for such services pursuant to the
current agreement, and the public agency that initially failed
to provide or pay for such services is required to meet its
financial responsibilities.
Amendments to part D of the Individuals with Disabilities Education Act
S. 1248 significantly restructures and reorganizes the
various programs and activities under part D in order to
enhance their impact on States, school districts, principals,
teachers, related services providers and parents' efforts to
improve the academic and functional outcomes of children with
disabilities.
Subpart 1, ``state personnel preparation and professional development
grants''
The committee is aware that the most significant variable
within the school related to student achievement is highly
qualified teachers. The committee is also aware that the
shortage of highly qualified special education teachers has
persisted for over two decades and is predicted to continue to
increase as the demand for special educators continues to grow.
Many special education students are often provided instruction
by individuals who are either untrained in working with
students with their particular disability or do not have
sufficient content knowledge in the subject they are teaching.
For example, a student with autism might be taught by a teacher
who has never been trained in how to provide instruction for
students with autism, while another child with a disability may
be receiving direct instruction in mathematics from a special
education teacher who lacks competency in that subject.
Ensuring that children with disabilities have access to
teachers who possess the knowledge (of core content areas) and
skills (to teach children with varying levels of aptitude) is
particularly important in light of the fact that the
accountability requirements in the No Child Left Behind Act
include children with disabilities.
As noted earlier in this report, S. 1248 includes a
definition of highly qualified as applied to special education
teachers, which acknowledges that special education teachers'
responsibilities vary widely. Given the shortage of special
education teachers and the new definition of ``highly
qualified'' special education teacher, the deadline to ensure
that all special education teachers employed by public schools
are highly qualified was extended by one year, specifically the
end of the 2006-07 school year.
The committee is aware that, given the expectation to meet
the 2006-07 deadline, States will need to strengthen their
personnel preparation and personnel development activities and
programs. As a result, the committee significantly changed the
emphasis of the State Improvement Grant Program, by: re-
designating it as the State Personnel Preparation and
Professional Development Program (SPPPDP), targeting all
funding exclusively to personnel preparation and professional
development, and placing a strong emphasis on supporting
States' efforts to recruit, train and retain highly qualified
special education teachers. The committee encourages States to
coordinate their efforts under this subpart with their efforts
under NCLB to ensure that both special and regular education
teachers are highly qualified and possess the knowledge and
skills to successfully educate children with disabilities.
In tandem with the emphasis on teachers and personnel
preparation, under the SPPPDP States are required to partner
with institutions of higher education in the State. The
committee intends for States to utilize the expertise of
institutions of higher education throughout the State to ensure
the provision of special education pre-service support and
professional development. Furthermore, it is the intention of
the committee that, as feasible, several institutions of higher
education throughout the State participate in the grants,
reflecting the geographic diversity of the State and ensuring
the inclusion of the range of expertise in the various
institutions of higher education.
Currently, the State Improvement Grant Program is a
competitive grant program. Under S. 1248, priority in awarding
SPPPDP grants is to be given to those States with the greatest
personnel shortages or those States that demonstrate the
greatest difficulty in meeting the personnel standards outlined
in section 612(a)(14) and the 2006-07 highly qualified special
education teacher deadline.
In their applications, States must provide an assurance
that they will carry out each of the personnel preparation and
professional development activities outlined in their
professional development plan (a plan that is based on an
assessment of the State and local needs related to preparation,
ongoing training and professional development of personnel
serving children with disabilities). This requirement is
designed to ensure thatthe plan crafted by the State is
directly tied to the activities the State will actually implement.
Although the SPPPDP program remains a competitive program
at current funding levels, S. 1248 includes a provision that
would trigger the program into a formula grant program once the
appropriation reaches $100 million, so that every State may
benefit from the program.
The committee does not intend to terminate the State
Improvement Grants that are currently in effect. Therefore, the
bill includes language that ensures that current grant
recipients under the SIG program are permitted to finish out
their grant cycle. However, nothing in this section would
prohibit these recipients from submitting a revised plan to
continue out their grant cycle in accordance with S. 1248.
Subpart 2, scientifically based research, technical assistance, model
demonstration projects and dissemination of information
Comprehensive plan
The bill includes minor modifications to the requirement
that the Department of Education develop a comprehensive plan
for the various activities under Subpart 2. One of those
modifications was the elimination of the requirement that
Secretary, in developing a plan, consult with a laundry list of
individuals. Rather, S. 1248 directs the Secretary to develop
and implement the plan after receiving input from interested
individuals with relevant experience. The committee intends
that at the very least, these individuals include individuals
with disabilities and experts in the education of students with
disabilities.
Technical assistance and demonstration projects
The bill includes a number of changes to the technical
assistance section of Part D. Notably, unlike current law, the
Secretary is now required to support activities that include:
positively addressing and changing the inappropriate behavior
of students; improving the alignment and development of valid
and reliable assessment methods, including alternative
assessments, for assessing adequate yearly progress as defined
under NCLB; providing information to both regular and special
education teachers to address the different learning styles of
children with disabilities; and providing information on
effective transition from school to post-school settings. The
bill also includes a heavy emphasis that technical assistance
and demonstration projects be rooted in scientifically based
research.
In light of the fact that the vast majority of children
with disabilities are served in a school environment and that
changes to instructional practice yield the greatest likelihood
in improving academic and functional outcomes of students with
disabilities, S. 1248 stipulates that as appropriate, priority
should be given to those applications that propose to serve
teachers and school personnel directly in the school
environment or that strengthen the capacity of States and
schools districts to improve instruction practices of personnel
serving children with disabilities.
Personnel development
Under S. 1248, Personnel Development to Improve Services
and Results for Children with Disabilities (section 664) has
been expanded. S. 1248 contains two new program authorities,
specifically a program for beginning special education teachers
and a program to assist general educators in meeting the needs
of children with disabilities. These improvements in the law
are made in acknowledgement of the pressing personnel needs
that States face in ensuring an adequate supply of highly
qualified special education teachers, as well as general
educators who are skilled in working with students with
disabilities and related services personnel.
The committee intends that the activities of grant
recipients under section 664 address the State and local
personnel needs identified in the State plan under Subpart 1.
The committee recognizes that one of the personnel
challenges faced by States is the retention of special
educators who are new to the profession. The turnover rate of
special education teachers in the first 3 years is
exceptionally high--much higher than for beginning general
education teachers. Annual attrition rates for special
education teachers are 6 percent for those who leave the field
entirely and an additional 7.4 percent who transfer to general
education, according to the National Clearinghouse for
Professions in Special Education. High turnover is costly both
for school districts, which must repeatedly fill the same
positions, and for students, who lose the advantage of being
taught by experienced special education teachers.
As a result of the recognition of the attrition problem
that challenges the special education profession, S. 1248
establishes the Beginning Special Educators Program in section
664(e) of the bill. The program supports adding a 5th year
clinical learning opportunity to existing programs and
professional development schools that provide high quality and
on-going mentoring to new special education teachers so that
they will remain in the field.
The second new program authority is designed to help ensure
that general educators (including principals and
administrators) have the skills, knowledge, and leadership
training to improve results for children with disabilities in
their schools and classrooms. Funding under the State Personnel
Preparation and Professional Development Grants as well as this
new program authority in section 664(f) will support general
educators in developing needed skills to work with students
with disabilities. However, the committee notes that funds
available under NCLB should be the primary source of support
for general educators in receiving training in working with
students with disabilities.
Another aspect of the shortage of special education
teachers is the shortage of special education faculty. The
number of special education doctorates produced annually has
decreased by 30 percent in the last 20 years. One third of
special education faculty openings remain unfilled every year.
Twenty percent of those positions have been eliminated, thus
diminishing the nation's training and research infrastructure
in specialeducation. As a result of this steady decline in
special education faculty, the bill retains the Leadership Preparation
program under section 664(d).
Studies and evaluations
With the passage of the Education Sciences Reform Act of
2002 (ESRA), Congress noted the importance of separating
research and evaluation functions from program implementation.
As a result, the Institute of Education Sciences was created.
All research and evaluations of federal education programs are
to be conducted by the Institute. Requiring that evaluations
and studies of federal programs are conducted by an entity
other than the program office helps to ensure the non-biased,
balanced evaluation of the effects of federal education
programs.
In keeping with this emphasis on moving all research
functions to the Institute, S. 1248 stipulates that the
Director of the Institute of Education Sciences is responsible
for carrying out the various studies and evaluations (including
the national assessment) on the various activities carried out
under IDEA. Although the bill grants authority over studies and
evaluations to the Director of the Institute for Education
Sciences, the committee expects the Director to engage in
ongoing and substantive collaboration with the Assistant
Secretary for Special Education and Rehabilitative Services in
proposing priorities for all studies and evaluations authorized
and conducted under this section.
Study on ensuring accountability for students with
significant disabilities
The 1997 law required States to develop and implement
alternate assessments for students unable to participate in
regular assessments. Since 1997, many States have developed
exemplary alternate assessment programs, while others continue
to struggle with assessing children with significant
disabilities. The committee believes the successful alignment
of alternate assessments with State academic content and
achievement standards (including as appropriate alternate
achievement standards) is a necessary component to ensuring
accountability for the performance of all children with
disabilities, including those with significant disabilities.
Therefore, S. 1248 includes a new comprehensive study, in
section 665(c), on the issue of alternate assessments. The
study should be designed to provide data on the types and
effectiveness of existing alternate assessment and to improve
the technical quality of these assessments. The committee
intends that the findings of the study serve as a resource to
States and local educational agencies in developing valid and
reliable alternate assessment instruments and procedures in
order to accurately measure student progress and outcomes
specific to individualized instructional needs and to ensure
accountability for such students.
Activities to address different learning styles
The committee is interested in professional development
programs that prepare school personnel to use a
neurodevelopment framework to recognize, understand, and manage
students who struggle to find school success because of
differences in learning. The committee is also interested in
educational evaluations that provide a more in-depth profile of
a student's neurodevelopmental strengths and weaknesses.
Finally, the committee supports research that could determine
the impact of such professional development and educational
evaluation programs on student outcomes; on economic benefits
to special education service delivery through more effective
pre-referral services, and finally, on teacher recruitment and
retention.
Subpart 3, supports to improve results for children with disabilities
Parent training and information centers
The committee recognizes the critical role that parent
training and information centers (PTIs) play in helping parents
and schools work together to ensure that children with
disabilities receive the educational and related services
necessary to improve educational performance. The committee has
made minor revisions to emphasize that PTIs should encourage
parents and schools to work in the most cooperative and
effective manner possible, to help children with disabilities
meet developmental and functional goals, as well as challenging
academic achievement goals that have been established for all
children. In particular, the committee hopes that PTIs will
encourage parents to explore and take advantage of alternative
methods of dispute resolution, as well as inform parents of
their rights and responsibilities under IDEA. The committee
also envisions the involvement of PTIs in helping parents
prepare for resolution sessions as now required under section
615(f)(1)(B) of the bill, in the hope that more disputes can be
resolved before the parties must resort to a due process
hearing.
Section 671(e) changes the 1997 law to ensure that the
Secretary makes an award to at least one PTI in each State. If
the Secretary makes multiple awards in a large State, those
awardees must demonstrate that they will coordinate services
and supports among themselves. In addition, the committee has
limited the definition of PTI to only groups whose mission is
to serve families of children and youth with a full range of
disabilities. The use of other organizations with a narrower
focus, operating with special governing committees, has proven
to be unworkable and ineffective.
The committee heard extensively from Community Parent
Resources Centers (CPRCs) that the Department of Education's
awards to CPRCs are for a considerably shorter length of time
than with PTIs. This has created an undue hardship for CPRCs,
as they are forced to spend more of their time reapplying for
grants, which takes time and resources away from their mission
of serving underserved parents of children with disabilities.
The committee encourages the Department to reexamine its
contract practices with CPRCs, and consider increasing the
length of its grants with these entities.
Section 673 limits technical assistance awards to parent
organizations, as the existing system has proven itself to be
an effective model for over 15 years. The national technical
assistance system in place has the capacity to identify new
research, best practices, and policies, and disseminate them to
the entire network of parent centers. Parent-led technical
assistant providers have credibility with PTIs, as they can
understand the challenges of providing parent-to-parent support
and have the personal expertise to address the needs and
problems of PTIs.
The bill also requires the national technical assistance
grantee to establish no fewer than 4 regional centers from PTIs
and CPRCs receiving assistance under IDEA.These regional
centers shall be selected on the basis of the center's willingness to
be a regional parent center; demonstrated expertise in delivering the
required services; demonstrated capacity to deliver the activities; and
a history of collaboration with other parent organizations. In
addition, the national grantee must also develop collaborative
agreements with geographically appropriate Regional Resource Centers.
Section 674. Technology development, demonstration, and utilization;
and media services
The committee believes that the internet can be an
important educational tool for students with cognitive
disabilities and that developing internet literacy can assist
students with cognitive disabilities in developing effective
communication skills and increasing academic and functional
skills.
The committee intends that the Secretary primarily support
educational media activities that are appropriate for use in
the classroom. It is critical that children with disabilities
have full access to the various educational media that are used
in school settings. Therefore, funds are available under this
section for grants to caption and/or video describe television
programs, videos, news, or other materials, as well as emerging
technologies such as CDs, DVDs, video streaming and other forms
of multimedia.
Congress has already addressed the broader need to expand
media access for deaf or hard of hearing and blind or visually
disabled persons in non-classroom settings. The Television
Decoder Circuitry Act of 1990, requires all new television sets
to contain a decoder chip that is capable of displaying closed
captioned television transmissions. The Telecommunications Act
of 1996 (along with a 1997 FCC rulemaking) also contains
extensive requirements for the provision of closed captioning,
mandating that most television programming be closed captioned
by 2006, and requiring captioning of gradually increasing
percentages of programming before that date. All program
distributors, providers, and owners must comply with this
Telecommunications Act closed captioning mandate. Under the
terms of this mandate, 100 percent of new programming must be
captioned by January 1, 2006, while 75 percent of non-exempt
programming produced or aired before January 1, 1998 must be
closed captioned by 2008. The FCC's limited exemptions under
this rule include advertisements under 5 minutes in length,
promotional and interstitial programming, limited late-night
programming, and programming by networks that have not existed
for at least 4 years. In addition, since 2000, 47 CFR section
79.2 has required all video programming distributors (including
broadcasters, cable operators, and satellite television
services) to make ``emergency information'' accessible to
persons with hearing and vision disabilities. Under this rule,
``emergency information'' is considered information that helps
to protect life, health, safety, or property--and can include
information about immediate weather situations or other
emergencies. In light of such steps that have already been
taken to expand media access generally, the committee believes
that the Department of Education should focus its resources
under the Educational Media Services program on the goal of
promoting full access for children with disabilities to
educational materials used in the classroom. The bill will
ensure that the Department focuses resources in this way by
requiring the Secretary to support video description, open
captioning, and closed captioning of television programs,
videos, or other materials that are appropriate for use in the
classroom setting, and by only allowing support for news until
September 30, 2006, when such services are not provided by the
producer or distributor of such materials, or when those
services have been fully funded by other sources.
Although open and closed captioning were developed
specifically for the use of individuals who are deaf or hard of
hearing, researchers studying means by which to increase
literacy are exploring the possibility that captioning can also
be used as an effective tool to assist children without
disabilities who are not proficient readers. Research being
conducted includes an examination of children for whom English
is a second language, as well as children who are learning
disabled. Various studies have indicated that captioning
assists in the development of reading vocabulary and
comprehension. These studies support a finding that captioning
instructional materials also assists students who are not deaf
and hard of hearing. The committee believes that captioning is
an effective tool that can be used to promote acquisition of
vocabulary and enhanced reading comprehension for all students
in the classroom.
Interim alternative educational settings, behavioral
supports, and whole school interventions
S. 1248 creates a new subpart (sections 681-85) which
authorizes the Secretary to award competitive grants to
establish or expand behavioral supports and whole school
behavioral interventions activities. The program is aimed at
improving services and ultimately, academic, social, and where
appropriate, functional outcomes for children with behavioral
and emotional disabilities, who represent 11 percent of
America's youth.
Children with disabilities who also have significant
social, emotional, and/or behavioral needs face the greatest
challenges for our educators. Without effective interventions,
these students are more likely to experience long-term negative
outcomes, including vocational and mental health problems,
throughout their lives. School personnel have identified a need
for ongoing training to recognize and/or address the problems
of these children.
According to the U.S. Department of Education, students
with emotional disabilities have the lowest grade point
average, fail more courses, are retained more, have the highest
rate of absenteeism, and are more likely to drop out of school
than any other group of students with disabilities.
Approximately two-thirds of these children also have Attention
Deficit/Hyperactivity Disorder. These students--and all others
with behavioral challenges--need and deserve effective,
research-based interventions to succeed in school and in life.
According to the Study of Personnel Needs in Special
Education, over half of beginning teachers who serve primarily
students with emotional disturbance are not fully certified for
their positions, and the vast majority of regular education
teachers receivelittle to no training in how to help special
needs students with behavioral and emotional problems.
This program authorizes $50 million to address the pressing
need for well-trained teachers, administrators and support
staff to help behaviorally-challenged students with
disabilities to succeed in school. These funds will go directly
to local educational agencies, who may partner with other LEAs,
community-based organizations with a proven record of helping
children with disabilities with behavioral problems, and/or
other mental health providers. The funds may be used for
providing effective, research-based training for teachers,
administrators, and support staff in positive behavioral
interventions and classroom and student management techniques;
providing early screening efforts for students at-risk for
emotional and behavioral difficulties; attracting and
retraining high-quality staff in interim alternative
educational settings; promoting better coordination between
schools, parents, juvenile courts, child welfare,
organizations, primary care providers and mental health
providers; reducing the staff-child ratio in interim
alternative educational settings; providing counseling service
in interim alternative educational settings; and allowing for
behavioral transition services to help students reintegrate
into their regular school settings; and more.
This provision also requires the Department of Education to
maintain a website that is accessible to parents, teachers, and
administrators that contains information on the best practices
and supports available to help address the needs of these
children. The committee hopes that this website will be user
friendly and contain valuable, practical information about
proven methods for helping children with disabilities who also
have behavior problems succeed in school and in life.
Each organization or consortium of organizations receiving
a grant under this subpart is required to submit an evaluation
of the effectiveness of the activities supported by the grant.
It is the committee's hope that the lessons learned from these
evaluations will be analyzed and posted on the website so that
all interested people can benefit from the reports.
TITLE II--AMENDMENTS TO THE REHABILITATION ACT OF 1973
With unemployment rates of adults with disabilities
approaching 70 percent, the need to improve the transition of
youth with disabilities from school to postsecondary education
and employment is significant. With an increased focus on
improved results in education, providing a successful
transition to post-school employment or education is an
essential measure of accountability for students with
disabilities.
A 2003 General Accounting Office report states that poor
linkages between schools and youth service providers and a lack
of community work experience impedes the successful transition
of youth. Without the involvement of agencies that support
youth with disabilities, the responsibility for transition is
left to special education teachers who may not have the
capacity or training to access the necessary community
resources.
The major Federal program that can assist youth with their
postsecondary transition is the Vocational Rehabilitation (VR)
program under the Rehabilitation Act of 1973, as administered
by the Department of Education. The involvement of the VR
program in transition provides students with disabilities and
special education teachers with assistance, training, and
access to community resources that can be critical to success.
However, many youth with disabilities who are eligible for VR
services while in high school do not access them because they
lack knowledge of the program or the program does not have the
capacity to serve all those who are eligible.
To improve and expand the provision of vocational
rehabilitation service to students with disabilities during
their transition years, Title II of S. 1248 makes certain
amendments to the Rehabilitation Act. The committee adds
definitions of the terms ``student with a disability'' and
``students with disabilities'' to clarify the meaning of the
terms in the Rehabilitation Act. For the purposes of that Act,
a student with a disability is an individual with a disability
attending an elementary or secondary school who is not younger
than 14 and not older than 21; who has been determined to be
eligible for assistance under section 102(a) of the
Rehabilitation Act; is eligible for, and is receiving, special
education under part B of the Individuals with Disabilities
Education Act or is an individual with a disability, for
purposes of section 504 of the Rehabilitation Act.
To improve planning and coordination, the section 203(a) of
the bill amends section 101(a)(15) of the Rehabilitation Act to
require States to address the needs of students with
disabilities as a part of the State's comprehensive Statewide
assessment of vocational rehabilitation needs and to describe
the methods to be used to expand and improve services to
students with disabilities, including the coordination of
services designed to facilitate the transition of such students
to post-secondary education or employment.
Section 203(b) of the bill adds a new paragraph to section
101(a) of the Rehabilitation Act to require each State to
assure that it has implemented the strategies developed as part
of its assessment and planning process for expanded transition
services. The bill establishes a trigger to target $50 million
for the expanded transition services beginning in the first
year that the appropriation under section 100(b) exceeds the
FY2004 appropriation by $100 million. States would be required
to use these targeted funds to carry out programs or activities
to improve and expand services that facilitate student
transition, improve the achievement of post-school goals,
support training and technical assistance to personnel, support
outreach activities, and to provide vocational guidance, career
exploration services, and job search skills to students with
disabilities.
The committee intends that students with disabilities
served with targeted funds provided under new section 110A of
the Rehabilitation Act be subject to the ``order of selection''
requirement in section 101(a)(5) as are other eligible
individuals served with funds under section 100(b). However,
the committee expects that States would implement a separate
order of selection based on the State agency's ability to serve
all eligible students with disabilities with the targeted funds
available under section 110A.
Under current law State VR agencies may provide
consultative and technical assistance services to assist
educational agencies in planning for the transition of students
with disabilities from school to post-school activities. In a
transition services expansion year, Section 204 would expand
the authorized activities under the services to groups
authority to also include the provision of training and
technical assistance of local educational agency personnel and
VR State agency personnel responsible for the planning and
provision of services to students with disabilities.
Section 204 also authorizes State VR agencies to provide
services to groups of IDEA and ``504 students'' to assist them
in their transition from school to post-school activities.
Although the committee believes that most of these students
would be eligible for VR services, the new provision would
allow the State agency to provide group services for these
students without having to determine their eligibility under
section 102(a). For example, the State agency could use its
Title I funds to provide a career exploration or job seeking
skills workshop for a group of IDEA and 504 students without
the burden of requiring that an eligibility determination be
made for each of the students who wishes to participate in the
group.
Section 205 of the bill amends the program's evaluation
standards and performance indicators in section 106 of the
Rehabilitation Act to require that they include measures of the
program's performance with respect to the transition of to the
post-school activities, and the achievement of the post-school
goal, of students with disabilities served under the program.
TITLE III--NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH
As previously mentioned, with the passage of the Education
Sciences Reform Act of 2002, Congress noted the importance of
separating research and evaluation functions from program
implementation. As a result, S. 1248 moves research authority
on special education issues from the Office of Special
Education Programs to the Institute of Education Sciences
(IES). As all other education research is to be conducted by
IES, the committee believes it is important that special
education research be conducted by IES as well.
The committee wishes to note that unlike most other
education research, which is conducted by the National Center
for Education Research, S. 1248 establishes a specific center
just for special education research, specifically the National
Center for Special Education Research. The bill further
stipulates that the Special Education Research Center be headed
by a Commissioner who has a high level of experience in the
fields of research, and the education of children with
disabilities. The bill also requires the Commissioner to
collaborate with the Assistant Secretary for Special Education
and Rehabilitative Services in developing a research plan. This
requirement is consistent with the committee's expectation that
special education and early intervention research will continue
to be closely linked with the functions of the Office of
Special Education and Rehabilitative Services. The committee
intends for the Secretary to ensure continued and substantive
collaboration between the Center and the Office of Special
Education and Rehabilitative Services.
The committee expects the Center's research plan to support
research that addresses the early intervention, special
education, and transition needs of children with disabilities
and their families so that State and local agencies may be
better equipped to serve these children and their families.
One of the reasons research is moved from the OSEP to IES
is to improve the overall quality and rigor of special
education research and to ensure that such research be held to
the same high standards of validity and reliability that govern
all other research at the Department of Education.
The committee intends that the Commissioner conduct
research regarding children with significant disabilities.
However, the committee acknowledges that conducting research on
the needs of students with significant disabilities often
requires the use of a broad range of research designs and
methodologies, including single subject designs and rigorous
qualitative research. The Commissioner is expected to examine
and take into account the methodological challenges of research
on students with significant disabilities in carrying out the
research responsibilities of the Center.
On the issue of disseminating research conduced by IES, the
committee expects the Department to disseminate the research
findings of the Center for Special Education Research through
the programs of technical assistance administered by the
Department, including through the systems of technical
assistance and dissemination, model demonstrations, parent
training and information centers, and community parent resource
centers established under Part D of the Act. The committee also
encourages linkages between the Center and other programs
conducting disability research, such as the National Institute
on Disability and Rehabilitation Research, and the University
Centers for Excellence in Developmental Disabilities Education,
Research, and Service established by P.L. 106-402, the
Developmental Disabilities Assistance and Bill of Rights Act of
2000.
Finally, the committee wishes to highlight that S. 1248
requires the Secretary of Education to take the appropriate
steps necessary to ensure an orderly transition of special
education research from OSEP to IES. Furthermore, the bill
stipulates that the Secretary continue research awards that
were made under OSEP, prior to the new law going into effect,
in order to ensure that existing research grants are not
adversely impacted by the transition. The committee expects the
Secretary to provide information to the committee regarding the
progress of the transition of research activities from OSEP to
IES.
TITLE IV--COMMISSION ON UNIVERSAL DESIGN AND THE ACCESSIBILITY OF
CURRICULUM AND INSTRUCTIONAL MATERIALS
Title IV of S. 1248 establishes a Commission to study,
evaluate, and make appropriate recommendations to the Congress
and the Secretary on universal design and accessibility of
curriculum and instructional materials and outlines the purpose
of the Commission.
VI. Cost Estimate
Due to time constraints the Congressional Budget Office
estimate was not included in the report. When received by the
committee, it will appear in the Congressional Record at a
later time.
VII. Regulatory Impact Statement
The committee has determined that there will be no increase
in the regulatory burden imposed by this bill.
VIII. Application of Law to the Legislative Branch
S. 1248 improves State grant programs and reauthorizes
related support programs that assist in providing a free
appropriate public education to children with disabilities;
amends the Rehabilitation Act of 1973 to improve and expand the
provision of vocational rehabilitation services to students
with disabilities during their transition years; moves research
authority on special education programs from the Office of
Special Education Programs to the Institute of Education
Sciences; and establishes a Commission to study, evaluate, and
make recommendations regarding universal design and the
accessibility of curriculum and instructional materials. As
such, S. 1248 has no application to the legislative branch.
IX. Section-by-Section Analysis
Section 1 of the bill provides that the title of the Act is
the ``Individuals with Disabilities Education Improvement Act
of 2003.''
Section 2 provides that the legislation is organized into
four titles: title I, Amendments to the Individuals with
Disabilities Education Act; title II, Amendments to the
Rehabilitation Act of 1973; title III the National Center for
Special Education Research; and title IV, the Commission on
Universal Design and the Accessibility of Curriculum and
Instructional Materials.
Section 101 of the bill amends the current provisions of
the Individuals with Disabilities Education Act as follows.
Part A
Section 601 contains the short title of the Act, the Table
of Contents, the findings, and the purposes.
Section 602 defines key terms used in this title,
including: Assistive Technology Device, Assistive Technology
Service, Child with a Disability, Core Academic Subject,
Educational Service Agency, Elementary School, Equipment,
Excess Costs, Free Appropriate Public Education, Highly
Qualified Special Education Teacher, Consultative Services,
Indian, Indian Tribe, Individualized Education Program,
Individualized Family Service Plan, Infant or Toddler with a
Disability, Institution of Higher Education, Limited English
Proficiency, Local Educational Agency, Native Language,
Nonprofit, Outlying Area, Parent, Parent Organization, Parent
Training and Information Center, Related Services, Secondary
School, Secretary, Special Education, Specific Learning
Disability, State, State Educational Agency, Supplementary Aids
and Services, and Transition Services.
Section 603 authorizes the Office of Special Education
Programs headed by a Director who is selected by the Secretary
and also authorizes the Secretary to accept the work of
volunteers in carrying out the Act.
Section 604 denies a State immunity under the Eleventh
Amendment to the Constitution of the United States for
violating this Act. This section also provides for remedies for
a violation and for an effective date for the provision with
respect to violations.
Section 605 authorizes the acquisition of equipment and
construction of necessary facilities, and provides that any
construction must meet specified accessibility standards.
Section 606 directs each recipient of funds under this act
to make positive efforts to employ individuals with
disabilities in programs assisted under this Act.
Section 607 includes requirements for prescribing
regulations, issuing policy letters by the Department of
Education, and the publication of correspondence from the
Department of Education describing interpretations of this Act.
Section 608 requires States receiving funds under this Act
to ensure that any State rules, regulations and policies
relating to this Act conform to the purposes of this Act and to
identify in writing to its local educational agencies and the
Secretary any rule, regulation, or policy as a State-imposed
requirement that is not required by this Act and Federal
regulations. State rules, regulations and policies under this
Act shall support reform designed to enable children with
disabilities to meet State student academic achievement
standards.
Section 609 requires the Comptroller General to conduct a
review of the Federal, State, and local requirements relating
to the education of children with disabilities to determine
which requirements result in excessive paperwork and to make
strategic proposals for reducing paperwork burdens on teachers.
Part B
Section 611(a) authorizes the Secretary to provide grants
to the States and outlying areas and funds to the Secretary of
the Interior to provide special education and related services
to children with disabilities and specifies the maximum amount
available for awarding grants.
Section 611(b) requires a reserve from funds appropriated
under subsection (i) to provide assistance to the outlying
areas and to provide each freely associated State that meets
relevant requirements a grant equal to the amount it received
under this part in FY2003.
Section 611(c) specifies the proportion of funds to be
provided to the Secretary of the Interior.
Section 611(d) includes the allotment formula for making
part B grants to States based on an initial allotment of the
State's FY1999 grant with 85 percent of remaining funds
distributed on population, 15 percent of remaining funds
distributed on poverty and certain limitations on how much
States' grants can increase from one year to the next.
Section 611(e) specifies the States' use of part B funds,
including the use of funds for State administration and other
State-level activities. State reserves for administration are
limited to the greater of the amount reserved for FY2003 or
$800,000 increased by inflation for subsequent years. State
reserves for other State-level activities are linked to
percentages of the overall grant for FY2004 and FY2005, with
reserves thereafter through FY2009 increased by inflation.
States must also reserve 2 percent of their State grant (less
the amount reserved for State administration) to establish a
risk pool, or fund an existing risk pool, to provide funds to
LEAs serving high-need children with disabilities.
Section 611(f) specifies the allotment formula for
subgrants to LEAs, which is similar to the State grants
formula.
Section 611(g) contains definitions of ``average per-pupil
expenditure'' and ``State'' applicable to this section.
Section 611(h) addresses the use of funds provided to the
Secretary of the Interior for the education of children with
disabilities living on reservations or enrolled in elementary
or secondary schools for Indian children operated or funded by
the Secretary of the Interior.
Section 611(i) authorizes the appropriation of such sums as
may be necessary for the purpose of carrying out part B, except
for section 619, which authorizes services for preschool
children with disabilities ages 3 to 5.
Section 612(a) describes the policies and procedures that a
State must have in effect to be eligible for receipt of funds
under part B of the Act, including policies and procedures
relating to: Free Appropriate Public Education; Child Find;
Individualized Education Program; Least Restrictive
Environment; Procedural Safeguards; Evaluation;
Confidentiality; Transition from part C to Preschool Programs;
Children in Private Schools; State Education Agency Responsible
for General Supervision; Obligations Relating to and Methods
for Ensuring Services, including designation of financial
responsibility; Procedural Requirement Relating to LEA
Eligibility; Personnel Standards; Performance Goals and
Indicators (including provisions to align IDEAwith the No Child
Left Behind Act (NCLBA)); Participation in Assessments (including
provisions to align IDEA with the NCLBA); Supplementation of State,
Local and other Federal Funds; Maintenance of State Financial Support;
Public Participation; State Advisory Panel; Supervision and Expulsion
Rates; and Accessibility Standards for Instructional Materials.
Section 612(b) lists the additional requirements under
section 613(a) that a State Education Agency must meet if it
provides a free appropriate public education or direct services
to children with disabilities.
Section 612(c) includes conditions under which States are
required to submit amended policies and procedures to the
Secretary, and the Secretary's responsibilities under this
section.
Section 612(d) describes what actions the Secretary must
take in approving a State's eligibility, and before making a
final determination that a State is not eligible.
Section 612(e) provides that nothing in the IDEA permits a
State to reduce medical and other assistance available, or to
alter eligibility, under Titles V and XIX of the Social
Security Act (Maternal and Child Health Services and Medicaid)
with respect to the provision of a free appropriate public
education for children with disabilities within the State.
Section 612(f) directs the Secretary to arrange for the
provision of special education to children with disabilities in
private schools if, in 1983, a State was prohibited by State
law from providing that education.
Section 613(a) sets out the local eligibility requirements
under part B. The section provides that to be eligible for any
fiscal year, an LEA must demonstrate to the satisfaction of the
SEA that its policies, procedures, and programs are consistent
with the State policies and procedures described under section
612; and that the LEA uses its part B funds in accordance with
the specified requirements of this section; meets the personnel
development requirements; and provides the SEA with information
to enable that agency to carry out its duties under this part.
The section permits LEAs to treat as local funds a portion of
their part B grant for the purposes of meeting non-supplanting
and maintenance of effort requirements. The section also
permits LEAs to use the part B funds for various specified
purposes, such as early intervention services and case
management and administration. The section addresses the
treatment of charter schools and the disabled children that
they serve under part B, including equitable provision of on-
site services and funding to such schools.
Section 613(b) includes conditions under which LEAs are
required to submit amended policies and procedures to the SEA,
and the SEA's responsibilities under this section.
Section 613(c) provides that if the SEA determines that an
LEA or a State agency is not eligible under this section, it
must notify that agency of its determination and provide the
agency with reasonable notice and an opportunity for a hearing.
Section 613(d) provides that if an eligible LEA or State
agency is failing to comply with any requirement under section
613(a), the SEA shall not make any further payments to that
agency until it comes into compliance.
Section 613(e) sets out conditions under which an SEA may
require an LEA to establish its eligibility jointly with
another LEA, and describes the conditions under which an
educational service agency and a charter school would be
exempted from this section.
Section 613(f) permits an LEA to use up to 15 percent of
its annual part B allotment for early intervening services for
children who have not been identified as needing special
education but who need additional academic and behavioral
support to succeed in school.
Section 613(g) requires the SEA to use the payments that
otherwise would have been available to an LEA or State agency
to provide special education and related services directly to
children with disabilities for whom the agency is responsible,
if the SEA determines the existence of one or more specified
situations.
Section 613(h) requires any State agency that desires to
receive a subgrant for any fiscal year under part B to
demonstrate to the satisfaction of the SEA that the agency
meets the conditions described in the section.
Section 613(i) permits States to require LEAs to include in
a disabled child's records information about disciplinary
action taken against the child to the same extent that such
information is included in the records of other children.
Section 613(j) permits States that pay at least 80 percent
of non-Federal special education costs to treat portions of
Federal funds as general funds to support educational purposes
described in the Elementary and Secondary Education Act of 1965
and for other education-related purposes.
Section 614(a) sets out requirements relating to initial
evaluations (as requested by the child's parents, the LEA, the
SEA, or another State agency), parental consent and refusal or
failure to consent (in which case the LEA is not considered in
violation of the requirement to provide FAPE), and
reevaluations (which shall occur not more frequently than once
a year but at least every 3 years, unless the parent and the
LEA agree that more frequent or less frequent reevaluations are
needed).
Section 614(b) includes requirements for procedures
relating to providing notice to parents about evaluations, and
conducting evaluations, including that an LEA shall not be
required to consider a severe discrepancy between achievement
and intellectual ability in determining whether a child has a
specific learning disability.
Section 614(c) includes additional requirements relating to
evaluating and reevaluating a child's eligibility under part B;
reviewing existing evaluation data, obtaining parental consent
for reevaluations, actions to take if additional data are not
needed, and evaluations before changing eligibility (except
that such evaluation is not required if eligibility is to be
changed because of graduation or the age of eligibility for
FAPE has been exceeded).
Section 614(d) includes definitions of ``individual
education program'' (IEP), which includes the child's current
levels of performance, measurable annual goals, the measurement
of progress on these goals, the special education and related
services to be provided, an explanation if the child is not to
be educated with nondisabled children, accommodations that will
be provided for assessments, and post-IDEA goals and transition
services when the child reaches the age of 14. The section
defines the ``IEP Team''; which develops and re-evaluates the
IEP and which includes the child's parent, at least one special
education teacher and one regular education teacher (if the
child participates in the regular classroom environment), LEA
representative, other individuals with special expertise, and
the child (if appropriate). Not all team members need to attend
all IEP meetings if there is agreement among the parent, the
LEA, and the team member in question. The section requires that
an IEP be in effect at the beginning of each school year for
each child with a disability and requires LEAs to ensure that
the IEP team reviews each IEP periodically, but not less than
annually, and revises the IEP, as appropriate. The section
permits the LEA to offer the option of a 3-year IEP when a
child with a disability reaches the age of 18. Finally, the
section includes provisions relating to children with
disabilities in adult prisons.
Section 614(e) requires that each SEA or LEA ensure that
the parents of each disabled child are members of any group
that makes decisions on the educational placement of their
child.
Section 614(f) permits alternative means of holding IEP
meetings, such as video conferencing and conference calls, if
the parent and the LEA agree.
Section 615(a) provides that any SEA, State agency, or LEA
that receives part B funds must establish and maintain
procedures to assure that children with disabilities and their
parents are guaranteed procedural safeguards with respect to
the provision of a free appropriate public education.
Section 615(b) requires that procedural safeguards include:
Parental opportunity to examine all records on their child, to
participate in meetings, and to obtain an independent
educational evaluation of the child; procedures to protect the
rights of the child whenever the parents are not known, cannot
be located after reasonable efforts, or the child is a State
ward, including appointing a surrogate parent for the child;
written prior notice to the parents, provided in their native
language, unless it is clearly not feasible to do so, whenever
the LEA proposes to initiate or change or refuses to initiate
or change the identification, evaluation, or educational
placement of the child or the provision of a free appropriate
public education to the child; an opportunity for mediation and
to present complaints; procedures that require either party, or
the attorney representing a party, to provide due process
complaint notice, including information about the child,
contact information in the case of homeless child, the problem,
and a proposed resolution known and available at the time; a
requirement that a party may not have a due process hearing
until the party or the attorney representing the party files
the required notice; a requirement that the LEA send a prior
written notice in response to a parent's due process complaint
notice if the LEA has not sent such a prior written notice to
the parent regarding the subject matter of the complaint; and
procedures that require the SEA to develop a model form to
assist parents in filing a complaint and due process complaint
notice.
Section 615(c) describes the content of the prior written
notice provided by the LEA and requirements regarding the due
process complaint notice.
Section 615(d) describes the content and timing of the
procedural safeguards notice given to the parents.
Section 615(e) requires SEAs or LEAs to make mediation
available to parties to a dispute, but provides that it is
voluntary for both parties, is not used to deny or delay a
parent's right to a due process hearing under section 615(f),
or to deny any other rights afforded under part B, and is
conducted by a qualified and impartial mediator who is trained
in effective mediation techniques. The section allows LEAs to
establish procedures to offer to parents and schools who choose
not to use the mediation process, an opportunity to meet with a
disinterested party under contract with a parent training and
information center, community parent resource center, or other
alternative dispute resolution entity to explain the benefits
of mediation and encourage its use. The subsection also
requires the State to maintain a list of qualified mediators,
requires the State to bear the cost of the mediation process,
requires that each session in the mediation process shall be
scheduled in a timely manner and shall be held in a convenient
location, requires that an agreement reached by the parties
shall be set forth in a written mediation agreement that is
enforceable in court, and requires that mediation discussions
shall be confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding. The parties
to a mediation may be required to sign a confidentiality
pledge.
Section 615(f) requires that whenever a complaint has been
received, the parents or LEA involved in the complaint must
have an opportunity for an impartial due process hearing
conducted by the SEA or LEA. The subsection requires that prior
to the opportunity for a due process hearing, the LEA shall
convene a meeting with the parents and the IEP team where the
parents shall discuss their complaint and the LEA is provided
the opportunity to resolve the complaint. The subsection
requires the disclosure of evaluations and recommendations
prior to a due process hearing. The subsection also requires
that the hearing officer conducting the hearing meet certain
requirements; the party requesting the due process hearing
shall not be allowed to raise issues at the hearing that were
not raised in the notice required by section 615(b)(7) unless
the other party agrees; nothing shall be construed to preclude
a parent from filing a separate due process complaint on an
issue separate from a due process complaint already filed; and
that the decision of the hearing officer be made on substantive
grounds based on a determination of whether the child received
a free appropriate public education, except that in certain
cases involving procedural violations, a hearing officer may
find that a child did not receive a free appropriate public
education. Nothing is to be construed to preclude a hearing
officer from ordering an LEA to comply with the procedural
requirements of section 615. The subsection contains a two-year
time limit on the request for a due process hearing with
certain exceptions.
Section 615(g) provides that any party aggrieved by a due
process hearing conducted by the LEA may appeal the decision to
the SEA.
Section 615(h) lists the procedural safeguards rights that
are available to any party to a due process hearing or an
appeal, including the right to a written, or, at the option of
the parents, electronic verbatim record of the hearing and
electronic findings of fact and decisions.
Section 615(i) provides that any party aggrieved by the
findings and decision in a hearing under section 615(f) or (k)
or in section 615(g) has the right to bring a civil action in a
State court or in a District Court of the United States without
regard to the amount in question. The party bringing the action
shall have 90 days from the date of the decision of the hearing
officer to bring the action or, if there is an explicit State
time limitation, such time as the State law allows. This
subsection permits the award of attorneys' fees with certain
exceptions, lists the considerations for reducing attorneys'
fees, and also provides that a parent of a child with a
disability may represent their own child in court.
Section 615(j) provides that, except as provided in
615(k)(4), the child must remain in the current educational
setting while any proceedings conducted under this section are
pending. However, if the child is applying for initial
admission to a public school, the child shall, with the consent
of the parents be placed in the public school program until
completion of the proceedings.
Section 615(k) provides for the authority of school
personnel to order a change in placement for a child with a
disability who violates a code of student conduct for ten
school days. If a change in placement exceeding ten school days
is sought and the behavior is not a manifestation of the
child's disability, the relevant disciplinary procedures
applicable to children without disabilities may be applied.
With certain exceptions, within ten school days of a decision
to change the placement of a child with a disability, the IEP
team shall determine if the behavior in question was a
manifestation of the child's disability. The subsection
provides that where a child with a disability carries or
possesses a weapon to or at a school, school premises, or a
school function, or knowingly possesses or uses illegal drugs
or sells or solicits the sale of a controlled substance while
at school, or at a school function, or has committed serious
bodily injury upon another person while at school or at a
school function, school personnel may remove the student to an
interim alternative educational setting for not more than 45
school days, regardless of whether the behavior is determined
to be a manifestation of the child's disability. The subsection
provides for notification of the parents, and the continuation
of services. The subsection provides that the alternative
educational setting shall be determined by the IEP team.
Appeals of decisions regarding disciplinary action, placement
or the manifestation determination are provided for the parent,
or LEA where the LEA believes that maintaining the current
placementof the child is substantially likely to result in
injury to the child or others. In addition, the hearing officer has the
authority to determine whether an action was appropriate and to order a
change in placement to an appropriate interim alternative educational
setting for not more than 45 school days if the hearing officer
determines that maintaining the child's current placement is
substantially likely to result in injury to the child or to others. The
subsection also includes provisions on the placement of a child with a
disability during appeals, protections for children not yet eligible
for special education and related services, referral to and action by
law enforcement and judicial authorities, and definitions. The terms
for which definitions are provided are ``controlled substance,''
``illegal drug,'' ``weapon,'' and ``serious bodily injury.''
Section 615(l) maintains the rights available under the
Constitution, the Americans with Disabilities Act, title V of
the Rehabilitation Act and other Federal laws protecting the
rights of children with disabilities and includes an exhaustion
provision.
Section 615(m) allows the State to provide for the transfer
of rights from the parent to the child with a disability when
the child reaches the age of majority under State law, unless
the child has been found to be incompetent under State law.
This subsection also contains a special rule allowing the State
to establish procedures for appointing the parents of a child
to represent the educational interests of the child when the
child is determined not to have the ability to provide informed
consent with respect to his or her educational program.
Section 615(n) allows the parent of a child with a
disability to elect to receive the notices required under
section 615 by electronic mail if the public agency makes the
option available.
Section 616(a) requires the Secretary to monitor
implementation of the Act through oversight and a system of
indicators, to enforce the Act, and to require States to
monitor implementation of the Act by LEAs and enforce the Act.
The subsection requires that the primary focus of Federal and
State monitoring activities shall be on improving educational
results and functional outcomes for all children with
disabilities, while ensuring compliance with program
requirements, with a particular emphasis on requirements
relating to improving educational results for children with
disabilities. In addition, monitoring priorities are provided
as well as permissive areas of review.
Section 616(b) requires the Secretary to implement and
administer a system of required indicators that measure the
progress of the States in improving their performance. This
system includes a review, using the performance indicators
established under section 612(a)(15), of the performance of
children with disabilities on assessments, dropout rates, and
graduation rates, and comparing their performance with the
performance and rates for all children. Based on this review
and a review of the State's compliance plan, the Secretary is
required to assess the State's progress in improving
educational results for children with disabilities. Not later
than one year after enactment, each State must have a
compliance plan in place that is developed in collaboration
with, and approved by, the Secretary and includes benchmarks to
measure progress, and strategies to achieve the benchmarks. In
addition, the subsection requires the Secretary to review the
data collection and analysis capacity of States and provide
technical assistance to improve the capacity of the State to
meet the data collection requirements.
Section 616(c) requires the Secretary to examine relevant
State information and data annually to determine whether the
State is making satisfactory progress toward improving
educational results and is in compliance with the Act. If the
Secretary determines that a State failed to make satisfactory
progress or failed to meet the benchmarks for two consecutive
years, the Secretary must notify the State and take action by
directing the use of State level funds for technical assistance
and/or withholding not less than 20 percent but not more than
50 percent of the State's funds for State administration and
activities. The Secretary is required by this subsection to
take additional action if at the end of the fifth year after
approval of the compliance plan the Secretary determined that a
State failed to meet the benchmarks in the State compliance
plan and make satisfactory progress in improving educational
results of children with disabilities in keeping with the
described indicators. This action shall be one or more of the
following: seeking to recover funds under section 452 of the
General Education Provisions Act (GEPA); withholding (after
notice and an opportunity for a hearing) payments to the State;
referral for appropriate enforcement action, including referral
to the Department of Justice; suspending payments to a
recipient, or suspending the authority of the recipient to
obligate Federal funds. In addition, the subsection provides
that if, at any time, the Secretary determines that a State is
not in substantial compliance, or there is a substantial
failure to comply with any conditions of the LEA's or SEA's
eligibility, the Secretary shall take one or more of the
following actions: request that the State prepare a corrective
action plan; impose special conditions on the State's grant;
require the State to enter into a compliance agreement under
section 457 of GEPA; recovery of funds under section 452 of
GEPA; withholding (after notice and an opportunity for a
hearing) any further payments to the State; referral for
appropriate enforcement action, including referral to the
Department of Justice; suspending payments to a recipient; or
suspending the authority of the recipient to obligate Federal
funds. If the Secretary determines that a State is in egregious
noncompliance or is willfully disregarding the provisions of
the Act, the Secretary may take one or more of the actions
described regarding substantial noncompliance and, in addition,
may institute a cease and desist action under section 456 of
GEPA and/or refer the case to the Office of the Inspector
General. The subsection requires the Secretary to report to
Congress within 30 days of taking enforcement action regarding
egregious noncompliance or substantial noncompliance. If the
Secretary withholds payments as an enforcement action, the
subsection provides that the Secretary may determine that the
withholding be limited to programs or projects affected by the
failure or that the SEA shall not make further payments to
certain LEAs or State agencies. The subsection provides for
judicial review with the appropriate U.S. court of appeals if a
State is dissatisfied with the Secretary's final action
regarding State eligibility and for review by the U.S. Supreme
Court. Finally, the subsection provides that the findings of
fact by the Secretary, if supported by substantial evidence,
shall be conclusive but the court may remand to the Secretary
for further evidence.
Section 616(d) provides rules regarding situations
involving children with disabilities who are incarcerated in
adult prisons where there is divided State agency
responsibility and the Secretary finds failure to substantially
comply with the Act.
Section 616(e) requires the SEA to monitor and enforce
implementation of the Act and implement a system of monitoring
the benchmarks in the State's compliance plan and requires LEAs
to monitor and enforce implementation. The subsection also
requires the SEA to prohibit the LEA from treating funds under
the Act as local funds under section 613(a)(2)(C) for any
fiscal year if the SEA determines that a LEA is not meeting the
requirements of the Act.
Section 617 describes the responsibilities of the Secretary
under part B, including: arranging for the provision of
technical assistance to the States; the issuance of rules and
regulations to the extent necessary to ensure compliance with
part B; confidentiality; the hiring of personnel to conduct
data collection and evaluation activities; and the publishing
and wide distribution of a model IEP form, a model IFSP form, a
model form of notice of procedural safeguards, and a model of
prior written notice.
Section 618 describes the program information that each
State receiving part B funds and the Secretary of the Interior
must provide to the Secretary each year, including the number
and percentages of children by gender, limited English
proficiency receiving FAPE, the number of disciplinary actions,
the number of due process complaints, the number of hearings
requested,and the number of mediations held. The section
permits the Secretary to provide technical assistance to States to
ensure compliance with data collection and reporting requirements. The
section also requires each State to collect and examine data each year
to determine if significant disproportionality based on race is
occurring in the identification and placement of children with
disabilities, and provides that if a situation is identified, the State
must review and revise, if necessary, its policies, practices, and
procedures.
Section 619(a) directs the Secretary to make grants to
assist States to provide special education and related
services, in accordance with part B, to children with
disabilities aged three through five and, at the State's
discretion, to 2-year-old children with disabilities who will
turn three during the school year.
Section 619(b) provides that a State is eligible for a
grant under section 619 if it has established its eligibility
under section 612 and it makes a free appropriate public
education available to all children with disabilities, aged 3
through 5, residing in its jurisdiction.
Section 619(c) includes the allotment formula for the
Preschool Grants program, which first provides States with
grant amounts received for FY1997 and then distributes 85
percent of remaining funds based on total population ages 3 to
5 and 15 percent of remaining funds based on children ages 3 to
5 living in poverty, with certain limitations on minimum and
maximum grants.
Section 619(d) describes the general amount of Preschool
Grant funds that may be retained by the State, which is 25
percent of a State's grant for FY1997, annually adjusted by the
rate of inflation or the rate of increase in the State's grant
(whichever is less).
Section 619(e) specifies the use of Preschool Grant funds
for State administration, including use of funds for
administering part C services for infants and toddlers with
disabilities, if the SEA is the lead agency for part C.
Section 619(f) specifies the use of Preschool Grant funds
for other State-level activities, including early intervention
services for children eligible under this section who
previously received services under part C.
Section 619(g) provides for subgrants to LEAs, which
involves initial grants based on 1997 amounts, with 85 percent
of remaining funds distributed based on public and private
school enrollment and 15 percent based on numbers of children
living in poverty.
Section 619(h) provides that part C of this Act does not
apply to any child with a disability receiving a free
appropriate public education in accordance with part B, with
Preschool Grant funds.
Section 619(i) includes a special definition of ``State''
for purposes of allocating funds under the Preschool Grants
program.
Section 619(j) authorizes such sums as may be necessary for
carrying out section 619.
Part C
Section 631(a) lists the Congressional findings relating to
part C.
Section 631(b) outlines the policy of the United States to
provide financial assistance to enhance the State's capacity to
provide quality early intervention services and expand and
improve existing early intervention services.
Section 632 defines the key terms used in this part,
including ``at-risk infant or toddler'', ``developmental
delay,'' ``early intervention services,'' and ``infant or
toddler with a disability'' (including, at State discretion,
children with disabilities eligible for services under section
619 who had previously received services under part C).
Section 633 authorizes the Secretary to make grants to the
States to assist them in implementing and maintaining a
statewide system of early intervention services for infants and
toddlers with disabilities and their families.
Section 634 establishes the criteria each State must meet
to be eligible for a grant under this part including: adoption
of a policy that appropriate early intervention services are
available to all infants and toddlers with disabilities and
their families in the State (including Indian infants and
toddlers with disabilities and their families living on an
Indian reservation within the State); and provision of a
statewide system of early intervention services which meets the
requirements of section 635.
Section 635(a) establishes the minimum components for a
statewide system of early intervention services including: a
definition of developmental delay (with specified minimum
percentage delays); a timely, comprehensive, multidisciplinary
evaluation of each infant or toddler; an Individualized Family
Service Plan (IFSP) in accordance with section 636; a
comprehensive child find system consistent with part B; a
public awareness program; a central director; a comprehensive
system of personnel development; policies and procedures
relating to personnel standards; a single line of
responsibility for the administration and supervision of the
statewide program; a policy pertaining to contracting with
service providers; a procedure for reimbursement of funds;
procedural safeguards; a system for compiling data; a State
interagency coordinating council that meets the requirements of
section 641; and a policy for ensuring that early intervention
services are provided in natural environments unless a specific
outcome for the infant or toddler cannot be satisfactorily met
in such an environment.
Section 635(b) permits the State to establish a policy
whereby parents of children with disabilities eligible under
section 619 may choose to continue early intervention services
through the Part C program. The policy is jointly developed and
implemented by the SEA and the part C lead agency (if other
than the SEA). The services must include an educational
component-provided in accordance with the IFSP-that promotes
school readiness and incorporates pre-literacy, language, and
numeracy skills. Parents must provide written consent for their
child to continue to receive services through the Part C
program. The policy must not affect the right of any child to
receive FAPE under part B of IDEA.
Section 636(a) requires the statewide system to provide for
each infant or toddler with a disability, and each family, to
receive: a multidisciplinary assessment; a family-directed
assessment; and a written IFSP developed by a multidisciplinary
team, including the parents.
Section 636(b) requires the IFSP be evaluated once a year
and requires that every six months the family receive a review
of the plan.
Section 636(c) requires the IFSP to be developed within a
reasonable time after the assessment, and provides that, with
parental consent, early intervention services may commence
prior to the completion of the assessment.
Section 636(d) directs that the individualized family
service plan be in writing and details what it must contain,
including the infant's or toddler's current state of
development, available family resources, measurable outcomes,
early interventions needed to meet the child's and the family's
needs, the environment in which services will be delivered,
frequency and duration of services, and transition to preschool
or other appropriate services.
Section 636(e) requires that parents receive a full
explanation of the IFSP and that informed written consent be
obtained from the parents before implementation of the IFSP,
and permits the delivery of only those services for which
consent has been given.
Section 637(a) requires that each State desiring to receive
a grant under this part submit an application to the Secretary
at the time and in the manner required by the Secretary, and
describes the information required to be in the application.
Section 637(b) lists the assurances that the State must
include in its application to the Secretary.
Section 637(c) provides that the Secretary may not
disapprove a State's application without first determining,
after notice and opportunity for a hearing, that the
application fails to comply with the requirements of this
section.
Section 637(d) provides that if a State already has on file
with the Secretary policies and procedures that demonstrate
that it meets any requirement of part C, the Secretary shall
treat the State as meeting that requirement for purposes of
receiving a grant under part C.
Section 637(e) provides that an application submitted by a
State in accordance with section 637 shall remain in effect
until the State submits to the Secretary such modifications it
determines necessary.
Section 637(f) provides that the Secretary may only require
a State to modify its application based on an amendment to the
Act, issuance of Federal regulations under the Act, new Federal
or the State's highest court interpretation of the Act, or an
official finding of State noncompliance with Federal law or
regulations.
Section 638 lists the allowable uses of funds under part C,
including providing direct services for infants and toddlers
with disabilities and the families of those children.
Section 639(a) details the minimum procedural safeguards a
State shall have in place.
Section 639(b) provides that during the pendency of any
proceeding or action involving a complaint by the parents, the
infant or toddler shall continue to receive the early
intervention services currently being delivered, or if applying
for initial services, shall receive the services not in
dispute.
Section 640(a) provides that funds under part C may not be
used to pay for services which would have been paid for by
another source, including any medical program administered by
the Department of Defense, but for the enactment of part C,
except to prevent a delay in the provision of early
intervention services pending reimbursement from the agency
which has ultimate responsibility for the payment.
Section 640(b) details obligations related to and methods
of ensuring services, including establishing financial
responsibility for services and requires consistency with the
designations of financial responsibility made under Part B.
Section 640(c) prohibits the State from reducing medical or
other assistance available or from altering eligibility under
title V of the Social Security Act (relating to maternal and
child health) or under title XIX of the Social Security Act
(relating to Medicaid for infants or toddlers with
disabilities) within the State.
Section 641(a) requires each State wishing to receive funds
under this part to establish an interagency coordinating
council with the membership outlined in this section appointed
by the Governor.
Section 641(b) prescribes the composition of the Council,
including: 20% parent members; 20% service provider members;
and at least one member representing the State legislature,
personnel preparation, each of the State agencies providing or
paying for early intervention services; and other members
selected by the Governor.
Section 641(c) requires the council to meet at least
quarterly, and to conduct meetings that have been publicly
announced and are open and accessible to the general public.
Section 641(d) allows the council, subject to the approval
of the Governor, to use funds under this part to conduct
hearings and forums, reimburse council members for necessary
expenses related to attending meetings, hire staff, and for
other purposes.
Section 641(e) describes the functions of the council.
Section 641(f) prohibits any member of the council from
voting on any matter that would give the appearance of a
conflict of interest.
Section 642 provides that sections 616, 617, and 618 shall,
to the extent not inconsistent with part C, apply to the
program authorized under this part.
Section 643(a) allows the Secretary to reserve up to one
percent of the funds from the appropriation for payment to the
outlying areas, and exempts those funds from the provisions of
P.L. 95-134.
Section 643(b) directs the Secretary to make payments of
1.25 percent of the amount available to the States to the
Secretary of the Interior for distribution to Indian tribes and
includes the methods of allocation, allowable uses of funds,
and reporting requirements.
Section 643(c) describes the manner in which the remaining
part C funds will be distributed to the States; namely, each
State shall receive a grant in proportion to the number of all
infants and toddlers in the State, except (if funds are
sufficient) no State shall receive a grant that is less than
the greater of \1/2\ percent of funds available for part C
State grants or $500,000.
Section 643(d) allows the Secretary to reallocate any funds
refused by a State to the remaining States.
Section 643(e) provides for State bonus grants.
Section 644 authorizes an appropriation of such sums as may
be necessary to carry out part C for each of the fiscal years
2004 through 2009.
Part D
Section 650 sets out congressional findings in support of
national activities to improve the education of children with
disabilities.
Part D--Subpart 1
Section 651(a) sets out the purpose of this subpart, which
is to assist SEAs to reform and improve their systems of
personnel preparation and professional development for staff
serving children with disabilities.
Section 651(b) provides a definition of ``personnel'' for
this subpart.
Section 651(c) requires that the Secretary make competitive
grants to SEAs to carry out activities described in the State
plan (as specified in section 653) when appropriations for this
subpart are less than $100 million. The Secretary may give
priority to States with the greatestpersonnel needs. Grants are
to be no greater than $4 million or less than $500,000 (or $80,000 for
outlying areas).
Section 651(d) requires the Secretary (if the appropriation
for this subpart is at least $100 million) to distribute funds
by formula to all States that qualify based on each State's
proportion of the total amount for States under the part B
grants-to-States program, except that no State grant shall be
less than the greater of \1/2\ percent of the total amount
available under this subsection or $500,000.
Section 651(e) requires the Secretary to make continuation
awards to any State that received a multi-year award under this
part, prior to the enactment of the Individuals with
Disabilities Education Improvement Act.
Section 652(a) limits an SEA's grant period to not less
than 1 year or more than 5 years.
Section 652(b) requires the SEA to form partnerships with
LEAs and other relevant State agencies or entity and lists
other permitted grant partners.
Section 653(a) requires SEAs seeking a grant under this
subpart to submit an application to the Secretary according to
the Secretary's requirements. The application is to include a
plan for assessing and addressing State and local personnel
preparation and development needs.
Section 653(b) contains required elements of the State
plan, including descriptions of partnership agreements,
coordination with other resources, alignment with State
applications and plans under sections 1111 and 2112 of the
Elementary and Secondary Education Act of 1965, strategies to
address professional development and personnel needs, and how
highly qualified personnel will be recruited and retained, and
how strategies will be assessed.
Section 653(c) requires the Secretary to use a panel of
experts to evaluate grant applications under this subpart.
Section 653(d) requires State grantees to submit annual
performance reports to the Secretary.
Section 654(a) requires SEAs receiving grants under this
subpart to support activities related to the State plan. These
activities must include one or more of the following: support
related to mentoring, team teaching, reduced class schedule and
case loads, intensive professional development; integration of
technology to improve special education and related services;
training to improve teacher knowledge about instructional
practices to meet the academic and developmental needs of
children with disabilities; training to improve working with
parents of children with disabilities; training related to
development and implementation of better IEPs; developing and
implementing strategies to recruit and retain highly qualified
teachers; strategies to provide innovative professional
development programs; and training to improve quality of early
intervention personnel.
Section 654(b) lists other permitted activities that grants
can support, such as reforming teacher certification, creating
alternative State certification, promoting professional growth,
reforming tenure systems, promoting cross-State certification
reciprocity, developing and delivering intensive professional
development programs, developing merit based performance
systems, supporting the use of challenging State academic
content standards, and coordinating with teacher recruitment,
placement, and retention centers established under section
2113(c)(18) of the Elementary and Secondary Education Act of
1965.
Section 654(c) requires SEAs to award contracts or
subcontracts for carrying out the State plan to LEAs,
institutions of higher education, parent training and
information centers, or community parent resource centers, as
appropriate. In addition, SEAs may award contracts and
subcontracts to other appropriate public and private entities,
such as the lead State agency for part C.
Section 654(d) requires SEAs to use at least 75 percent of
grant funds under this subpart for activities listed in section
654(a) and not more than 25 percent of grant funds for section
654(b) activities.
Section 654(e) determines that P.L. 95-134, permitting
grant consolidation to the outlying areas, shall not apply to
funds received under this subpart.
Section 655 authorizes to be appropriated such sums as may
be necessary to carry out this subpart for fiscal years 2004
through 2009.
Part D--Subpart 2
Section 660 states the purpose of this subpart regarding
the funding of scientifically based research, technical
assistance, model demonstration projects, and information
dissemination.
Section 661(a) requires the Secretary to develop and
implement a comprehensive plan of research carried out under
this subpart (except for research undertaken by the National
Center for Special Education Research--created by title III of
the bill).
Section 661(b) lists entities eligible to apply for grants,
contracts, or cooperative agreements under this subpart,
including SEAs, LEAs, and institutions of higher education.
Section 661(c) requires the Secretary to reserve at least 1
percent of funds made available for this subpart, subpart 3 and
under subpart 4 for outreach to Historically Black Colleges and
Universities and to institutions with minority enrollments of
25 percent or more.
Section 661(d) enumerates priorities for grants, contracts,
and cooperative agreements under this subpart, under subpart 3,
and under subpart 4.
Section 661(e) lists responsibilities for applicants for
and recipients of grants, contracts, and cooperative agreements
under this subpart, subpart 3 and under subpart 4.
Section 661(f) details requirements that the Secretary must
abide by when managing applications under this subpart,
including the use of a standing panel of experts to evaluate
applications for funding over $75,000.
Section 661(g) permits the Secretary to use funds made
available for this subpart, for subpart 3, and for subpart 4 to
evaluate activities carried out under this subpart.
Section 661(h) specifies minimal amounts that the Secretary
must provide each fiscal year to address the needs of children
with deaf-blindness ($12,832,000), to address post-high school
educational needs of individuals with deafness ($4 million),
and to address the needs of children with or at risk of
developing emotional disturbance ($4 million). These amount may
be ratably reduced if overall appropriations for sections, this
subpart, subpart 3, and Part E of the Education Sciences Reform
Act are less than $130 million.
Section 661(i) prohibits an SEA or LEA from receiving
support for research limited solely to children ages 3 to 5 if
the SEA or LEA is not eligible for a grant under section
619(b).
Section 662 requires the Secretary to coordinate research
supported under this subsection with research carried out by
the National Center for Special Education Research (created
under title III of the bill).
Section 663(a) requires the Secretary to award grants or
enter into contracts or cooperative agreements to provide
technical assistance, carry out model demonstration projects,
disseminate information, and implement scientifically based
research.
Section 663(b) lists required activities that the Secretary
must support, including those addressing inappropriate behavior
of children with disabilities, improving assessments and
evaluation methods, providing information on differing learning
styles, disseminating innovations, and applying scientifically
based research to facilitate systemic changes in services for
children with disabilities.
Section 663(c) lists additional activities that may be
carried out under this section.
Section 663(d) requires that the Secretary balance efforts
supported under this section across ages and disabilities.
Section 663(e) permits the Secretary to support projects
linking States to technical assistance resources.
Section 663(f) requires eligible entities to submit an
application according to the Secretary's specifications to
receive funding under this section.
Section 664(a) enumerates various purposes and objectives
for grants, contracts, and cooperative agreements related to
improving services and results for children with disabilities
through personnel development, such as ensuring that all
special education teachers are highly qualified and encouraging
increased focus on academic content in programs that prepare
special education teachers.
Section 664(b) requires the Secretary to support activities
for improving the preparation of personnel serving children
with high-incidence and low-incidence disabilities and lists
activities that may be carried out under this subsection, such
as support for collaborative personnel preparation; for
innovative programs for recruiting, retaining, and evaluating
highly qualified teachers; and for promoting transferability of
teacher and administrator licensure and certification across
jurisdictions.
Section 664(c) authorizes the Secretary to support
activities that benefit children with low-incidence
disabilities. ``Low-incidence disability'' is defined as
hearing or visual impairment, simultaneous hearing and visual
impairment, significant cognitive impairment, and other
impairments requiring a small number of highly specialized
personnel to ensure early intervention or FAPE.
Section 664(d) authorizes the Secretary to support
activities to improve special education leadership.
Section 664(e) authorizes the Secretary to support
activities to enhance the training of beginning special
education teachers.
Section 664(f) authorizes the Secretary to support
personnel preparation for general educators who work with
special education teachers in providing services for children
with disabilities.
Section 664(g) requires eligible entities seeking support
under this section to submit an application according to the
Secretary's specifications.
Section 664(h) requires the Secretary, in selecting
applicants under this section, to consider proposed projects'
impacts on personnel needs identified by the States; and to
give preference to institutions of higher education that are,
for example, educating general education personnel to meet the
needs of children with disabilities in integrated settings.
Section 664(i) requires that applicants must ensure that
individuals receiving assistance under proposed projects must
either serve children with disabilities for one year for every
year of assistance or repay some portion of that assistance.
Section 664(j) permits the Secretary to include
scholarships as part of projects supported under this section.
Section 664(k) authorizes to be appropriated such sums as
may be necessary to carry out this section for fiscal years
2004 through 2009.
Section 665(a) requires the Secretary to delegate the
responsibility for carrying out this section, except for
subsections (d) and (f), to the Director of the Institute for
Education Sciences. In addition, the Secretary is directed to
assess the implementation of this Act.
Section 665(b) requires the Secretary to carry out a
national assessment of activities carried out with Federal
funds under this Act and to provide an interim report 3 years
after the date of enactment of the bill and a final report 5
years after the date of enactment.
Section 665(c) requires the Secretary to conduct a national
study or studies of alternative assessments for children with
significant disabilities.
Section 665(d) requires the Secretary to provide an annual
report to Congress.
Section 665(e) outlines authorized topics for objective
studies, evaluations, and assessments under this section.
Section 665(f) requires the Secretary to study and report
to Congress on the extent to which States adopt seamless ``zero
to five'' option described in Sec. 635(c).
Section 665(g) authorizes the Secretary to reserve \1/2\
percent of amounts appropriated for parts B and C of the Act
(up to a maximum of $40 million--annually adjusted for
inflation) to carry out this section and stipulates that not
more than $3 million shall be available for the national study
of alternative assessments under subsection (c).
Part D--Subpart 3
Section 670 provides purposes for this subpart with respect
to improving results for children with disabilities through
parent training and technology and media research, development,
and demonstration.
Section 671(a) permits the Secretary to award grants and
enter into contracts and cooperative agreements with parent
organizations to support parent training and information
centers.
Section 671(b) lists required activities that centers must
carry out, such as providing training and information needed by
parents of children with disabilities, assisting parents to
better understand the nature of their children's disabilities
and their children's needs, assisting parents to resolve
disputes, and helping parents and children with disabilities
understand their rights and responsibilities under the Act.
Section 671(c) permits centers to provide information to
teachers and other professionals to improve results for
children with disabilities.
Section 671(d) lists application requirements for
assistance under this section.
Section 671(e) requires the Secretary to make at least 1
grant in each State for a statewide center and requires
multiple awards in large States, but only if centers coordinate
services.
Section 671(f) requires boards of directors of each center
to meet at least quarterly to review the center's activities
and requires a written review by the board of prior fiscal year
activities for any center requesting a continuation award.
Section 671(g) defines ``parental organization'' as used
under this section.
Section 672(a) permits the Secretary to award grants and
enter into contracts and cooperative agreements with local
parent organizations to support parent training and information
centers to provide training and information to under-served
parents, such as low-income parents, parents with limited
English proficiency, and parents with disabilities.
Section 672(b) lists required activities to be provided by
each community parent resource center.
Section 672(c) defines ``local parent organization'' as
used in this section.
Section 673(a) permits the Secretary to make an award to 1
parent organization receiving assistance under section 671 to
provide technical assistance for other parent training and
information centers receiving assistance under sections 671 and
672.
Section 673(b) authorizes technical assistance activities
that the Secretary may provide to the center receiving support
under this section, including effective national coordination
of training efforts, promoting the use of technology,
strategies for reaching under-served populations, and promoting
alternative dispute resolution methods.
Section 673(c) requires the award recipient to establish at
least 4 regional centers from among centers receiving
assistance under sections 671 and 672 for carrying out
activities authorized under subsection (b).
Section 673(d) requires collaboration with the regional
centers.
Section 674(a) requires the Secretary to award grants and
enter into contracts and cooperative agreements with eligible
entities to support technology development, demonstration,
utilization, and media services.
Section 674(b) authorizes technology development and
dissemination and utilization activities supported under this
section, including research on and promotion of innovative
technologies and research, development, and demonstration of
technology using universal design features.
Section 674(c) requires the Secretary to support
educational media activities designed to be of educational
value to children with disabilities and for classroom use; to
provide video description, open captioning, or news (only until
September 30, 2006); distribution of media-related materials;
and free educational materials for visually impaired and print
disabled elementary and secondary school students.
Section 674(d) requires eligible entities interested in
assistance under this section to submit an application based on
the Secretary's specifications.
Section 674(e) authorizes appropriations of such sums as
may be necessary to carry out this section for fiscal years
2004 through 2009.
Section 675(a) requires the Secretary, through the
rulemaking process, to promulgate an Instructional Materials
Accessibility Standard (no later than 180 days after enactment)
for publishers and for State adoption under section 612(a)(22)
related to instructional materials for blind persons and others
with print disabilities.
Section 675(b) requires the Secretary to establish (within
2 years of the date of enactment) a National Instructional
Materials Access Center to coordinate the acquisition and
distribution of instructional material prepared according to
the standard described in subsection (a). The section
authorizes the appropriation of such sums as may be necessary
to carry out the provisions of this subsection.
Section 676 authorizes the appropriation of such sums as
may be necessary to carry out sections 671, 672, 673, and 663
for fiscal years 2004 through 2009.
Part D--Subpart 4
Section 681 outlines the purpose of this subpart to improve
interim alternative settings, in-school behavioral supports,
and whole school interventions to foster safe learning
environments for all students.
Section 682 defines ``eligible entity'' in this subsection
to be an LEA or a consortium of an LEA with another LEA, a
community-based organization, an institution of higher
education, a mental health provider, or an educational service
agency.
Section 683 authorizes the Secretary to make competitive
grants to eligible entities to establish or expand behavioral
supports and whole school behavioral interventions based on
effective, research-based practices or improve interim
alternative educational settings.
Section 684 requires entities receiving assistance under
this subpart to submit annual outcome evaluations to the
Secretary and requires the Secretary to make available
information on best practices derived from these activities on
the Department's website.
Section 685 authorizes to be appropriated to carry out this
subpart $50 million for fiscal year 2004 and such sums as may
be necessary for the next 5 fiscal years.
TITLE II--AMENDMENTS TO THE REHABILITATION ACT OF 1973
Title II of the bill amends the Rehabilitation Act of 1973
as follows:
Section 201 amends section 2(a) of the Rehabilitation Act
of 1973 by adding a finding.
Section 202 amends section 7 of the Rehabilitation Act of
1973 by adding definitions of ``student with a disability,''
``students with disabilities,'' and the term ``transition
services expansion year.''
Section 203(a) modifies assessment requirements under State
plan provisions for annual goals and reports of progress by
adding students with disabilities to the groups for which needs
must be assessed and by adding a requirement that States
describe strategies to improve and expand vocational
rehabilitation services for students with disabilities.
Section 203(b) adds a requirement that the State plan
include an assurance that the strategies to meet the vocational
rehabilitation needs of students with disabilities are
developed and implemented and that designated funds will be
used to carry out programs or activities to improve and expand
these services. The section also describes the transition
services to be provided to students with disabilities.
Section 204 modifies the provisions for transition services
for students with disabilities and for consultation and
technical assistance to SEAs and LEAs regarding planning for
the transition of students with disabilities from school to
post-school activities.
Section 205 adds to requirements for standards and
indicators measures of performance regarding the transition to
post-school activities and achievement of post-school goals of
students with disabilities.
Section 206 requires each State, in a transition services
expansion year, to reserve from its allotment an amount
calculated by the Commissioner for expanded transition services
defined by the provisions added by section 203 and section 204
of this Act, specifies the formula for the Commissioner to
calculate each State's required reservation and provides the
total amount to be reserved by the States to be $50 million.
Section 207 makes a conforming amendment to the title of
the Rehabilitation Act.
TITLE III--NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH
Section 301(a) of Title III of the bill amends the
Education Sciences Reform Act of 2002 by redesignating part E
as part F and inserting as follows after part D:
Part E
Section 175(a) establishes the National Center for Special
Education Research.
Section 175(b) outlines the mission of the Center,
including to sponsor research to expand knowledge of the needs
of children with disabilities, to improve services supported by
IDEA, and to evaluate the implementation of IDEA.
Section 176 requires that the Center is to be headed by a
Commissioner for Special Education Research.
Section 177(a) enumerates research activities that the
Center may carry out.
Section 177(b) requires the Commissioner to ensure
activities conducted by the Center meet high standards.
Section 177(c) requires the Commissioner to propose to the
Director of the Institute of Education Sciences a research plan
developed in collaboration with the Assistant Secretary for
Special Education and Rehabilitative Services.
Section 177(d) permits the Director to award grants or
enter into contracts or cooperative agreements with eligible
entities.
Section 177(e) requires an eligible entity desiring to
receive support under this part to submit an application
according to the Director's specifications.
Section 177(f) requires the Center to synthesize and
disseminate findings and results from research it conducts or
supports and to assist the Director in preparing the
Institute's biennial report.
Section 177(f) authorizes appropriation of such sums as may
be necessary to carry out this part for fiscal years 2004
through 2009.
Section 301(b) of title III of the bill provides conforming
amendments to other statutes.
Section 301(c) of title III of the bill provides transition
provisions for the orderly transition and implementation of
this part and requires the Secretary to continue awards made
under section 672 of IDEA as were in effect the day before the
date of enactment.
Section 301(d) of title III of the bill provides an
effective date for subsections (a) and (b) of October 1, 2004
and provides that section 672 (as it was in effect on the day
prior to the day of enactment of the bill) shall remain in
effect until September 30, 2004.
TITLE IV--COMMISSION ON UNIVERSAL DESIGN AND THE ACCESSIBILITY OF
CURRICULUM AND INSTRUCTIONAL MATERIALS
Section 401(a) establishes a Commission to study, evaluate,
and make appropriate recommendations to the Congress and the
Secretary on universal design and accessibility of curriculum
and instructional materials and outlines the purpose of the
Commission.
Section 401(b) determines the number of members of the
Commission appointed by the Majority Leader and the Minority
Leader of the Senate, the Speaker of the House and the Minority
Leader of the House, the Secretary, and the Registrar of
Copyrights. The section requires that all members be appointed
based on their technical qualifications, expertise, and
knowledge and requires that members represent certain groups,
such as publishers of instructional materials, elementary and
secondary teachers, and advocates for children with
disabilities. Finally the section specifies certain
requirements for the Commission, such as when members are to be
appointed, period of service, when the initial meeting is to
occur, and the selection of a chairperson and vice chairperson.
Section 401(c) enumerates the duties of the Commission.
Section 401(d) requires the Commission to hold public
hearings.
Section 401(e) requires the Commission to provide the
Secretary and the Congress an interim and final report.
Section 401(f) enumerates the powers of the Commission.
Section 401(g) provides that the Commission is terminated
90 days after submitting its final report.
Section 401(h) authorizes to be appropriated $750,000 for
fiscal year 2004 and such sums as may be necessary for fiscal
year 2005 to carry out the provisions of this section. Any
funds appropriated under this authorization are to remain
available until expended without fiscal year limitation.
X. Changes in Existing Law
In compliance with rule XXVI paragraph 12 of the Standing
Rules of the Senate, the following provides a print of the
statute or the part or section thereof to be amended or
replaced (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italic, existing law
in which no change is proposed is shown in roman):
Individuals with Disabilities Education Act
* * * * * * *
[SEC. 601. SHORT 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.
[Sec. 618. Program information.
[Sec. 619. Preschool grants.
[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)--
[(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 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 30 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;
[(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 educationfor 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.
[(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 and
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 under-represented 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 private sector that impede their full
participation in the mainstream of society.
[(d) Purposes.--The purpose 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. 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.--
[(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 education 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-studentexpenditure 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--
[(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 item
``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 arerecognized 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.
[(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--
[(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
supportedemployment), 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 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 be the principal agency in such Department of
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 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 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 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 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 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, lease 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.--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.]
PART A--GENERAL PROVISIONS
SEC. 601. SHORT 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.
Sec. 608. State administration.
Sec. 609. Report to Congress.
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. Monitoring, technical assistance, and enforcement.
Sec. 617. Administration.
Sec. 618. Program information.
Sec. 619. Preschool grants.
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. Authorization of appropriations.
PART D--NATIONAL ACTIVITIES TO IMPROVE EDUCATION OF CHILDREN WITH
DISABILITIES
Sec. 650. Findings.
Subpart 1--State Personnel Preparation and Professional Development
Grants
Sec. 651. Purpose; definition; program authority.
Sec. 652. Eligibility and collaborative process.
Sec. 653. Applications.
Sec. 654. Use of funds.
Sec. 655. Authorization of appropriations.
Subpart 2--Scientifically Based Research, Technical Assistance,
Model Demonstration Projects, and Dissemination of
Information
Sec. 660. Purpose.
Sec. 661. Administrative provisions.
Sec. 662. Research to improve results for children with disabilities.
Sec. 663. Technical assistance, demonstration projects, dissemination of
information, and implementation of scientifically based
research.
Sec. 664. Personnel development to improve services and results for
children with disabilities.
Sec. 665. Studies and evaluations.
Subpart 3--Supports To Improve Results for Children With
Disabilities
Sec. 670. Purposes.
Sec. 671. Parent training and information centers.
Sec. 672. Community parent resource centers.
Sec. 673. Technical assistance for parent training and information
centers.
Sec. 674. Technology development, demonstration, and utilization; and
media services.
Sec. 675. Accessibility of instructional materials.
Sec. 676. Authorization of appropriations.
Subpart 4--Interim Alternative Educational Settings, Behavioral
Supports, and Whole School Interventions
Sec. 681. Purpose.
Sec. 682. Definition of eligible entity.
Sec. 683. Program authorized.
Sec. 684. Program evaluations.
Sec. 685. Authorization of appropriations.
(c) Findings.--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), the educational needs of millions of children
with disabilities were not being fully met because--
(A) the children did not receive appropriate
educational services;
(B) the children were excluded entirely from
the public school system and from being
educated with their peers;
(C) undiagnosed disabilities prevented the
children from having a successful educational
experience; or
(D) a lack of adequate resources within the
public school system forced families to find
services outside the public school system.
(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 25 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 to the
general education curriculum in the regular
classroom to the maximum extent possible in
order to--
(i) meet developmental goals and, to
the maximum extent possible, the
challenging expectations that have been
established for all children; and
(ii) be prepared to lead productive
and independent adult lives, to the
maximum extent possible;
(B) strengthening the role and responsibility
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, including
improvement efforts under the Elementary and
Secondary Education Act of 1965, 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
preservice preparation and professional
development for all personnel who work with
children with disabilities in order to ensure
that such personnel have the skills and
knowledge necessary to improve the academic
achievement and functional performance of
children with disabilities, including the use
of scientifically based instructional
practices, to the maximum extent possible;
(F) providing incentives for whole-school
approaches, scientifically based early reading
programs, positive behavioral interventions and
supports, and prereferral interventions to
reduce the need to label children as disabled
in order to address their learning and
behavioral needs;
(G) focusing resources on teaching and
learning while reducing paperwork and
requirements that do not assist in improving
educational results; and
(H) supporting the development and use of
technology, including assistive technology
devices and assistive technology services, to
maximize accessibility for children with
disabilities.
(6) While States, local educational agencies, and
educational service agencies are primarily responsible
for providing an education for all children with
disabilities, it is in the national interest that the
Federal Government have a supporting 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 more equitable allocation of resources is
essential for the Federal Government to meet its
responsibility to provide an equal educational
opportunity for all individuals.
(8) Parents and schools should be given expanded
opportunities to resolve their disagreements in
positive and constructive ways.
(9) Teachers, schools, local educational agencies,
and States should be relieved of irrelevant and
unnecessary paperwork burdens that do not lead to
improved educational outcomes.
(10)(A) The Federal Government must be responsive to
the growing needs of an increasingly more diverse
society.
(B) America's ethnic profile is rapidly changing. In
the year 2000, 1 of every 3 persons in the United
States was a member of a minority group or was limited
English proficient.
(C) Minority children comprise an increasing
percentage of public school students.
(D) With such changing demographics, recruitment
efforts for special education personnel should focus on
increasing the participation of minorities in the
teaching profession.
(11)(A) The limited English proficient population is
the fastest growing in our Nation, and the growth is
occurring in many parts of our Nation.
(B) Studies have documented apparent discrepancies in
the levels of referral and placement of limited English
proficient children in special education.
(C) This poses a special challenge for special
education in the referral of, assessment of, and
services for, our Nation's students from non-English
language backgrounds.
(12)(A) Greater efforts are needed to prevent the
intensification of problems connected with mislabeling
and high dropout rates among minority children with
disabilities.
(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) African-American children are identified as
having mental retardation and emotional disturbance at
rates greater than their white counterparts.
(D) In the 1998-1999 school year, African-American
children represented just 14.8 percent of the
population aged 6 through 21, but comprised 20.2
percent of all children with disabilities.
(E) Studies have found that schools with
predominately Caucasian students and teachers have
placed disproportionately high numbers of their
minority students into special education.
(13)(A) As the number of minority students in special
education increases, the number of minority teachers
and related services personnel produced in colleges and
universities continues to decrease.
(B) The opportunity for minority individuals,
organizations, and Historically Black Colleges and
Universities to participate fully in awards for grants
and contracts, boards of organizations receiving funds
under this Act, and peer review panels, and in the
training of professionals in the area of special
education is essential if we are to obtain greater
success in the education of minority children with
disabilities.
(14) As the graduation rates for children with
disabilities continue to climb, providing effective
transition services to promote successful post-school
employment or education is an important measure of
accountability for children with disabilities.
(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, further education, 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, 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. 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.
The term does not include a medical device that is
surgically implanted, or the post-surgical maintenance,
programming, or replacement of such device, or an
external device connected with the use of a surgically
implanted medical device (other than the costs of
performing routine maintenance and monitoring of such
external device at the same time the child is receiving
other services under this Act).
(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.--
(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 (or any subset of that age range, including
ages 3 through 5), 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 1 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) Core academic subject.--The term ``core academic
subject'' has the meaning given the term in section
9101(11) of the Elementary and Secondary Education Act
of 1965.
(5) 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
schools and secondary schools of the
State; and
(B) includes any other public institution or
agency having administrative control and
direction over a public elementary school or
secondary school.
(6) Elementary school.--The term ``elementary
school'' means a nonprofit institutional day or
residential school that provides elementary education,
as determined under State law.
(7) 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.
(8) 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
school or secondary school student, as may be
appropriate, and which shall be computed after
deducting--
(A) amounts received--
(i) under part B of this title;
(ii) under part A of title I of the
Elementary and Secondary Education Act
of 1965; and
(iii) under parts A and B of title
III of that Act; and
(B) any State or local funds expended for
programs that would qualify for assistance
under any of those parts.
(9) 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 school, or secondary school
education in the State involved; and
(D) are provided in conformity with the
individualized education program required under
section 614(d).
(10) Highly qualified.--The term ``highly qualified''
means the following:
(A) All special education teachers.--When
used with respect to any public elementary
school or secondary school special education
teacher teaching in a State, means that the
teacher holds at least a bachelor's degree and
that--
(i) the teacher has obtained full
State certification as a special
education teacher through a State-
approved special education teacher
preparation program (including
certification obtained through
alternative routes to certification) or
other comparably rigorous methods, or
passed the State teacher special
education licensing examination, and
holds a license to teach in the State
as a special education teacher, except
that when used with respect to any
teacher teaching in a public charter
school, the term means that the teacher
meets the requirements set forth in the
State's public charter school law;
(ii) the teacher has not had
certification or licensure requirements
waived on an emergency, temporary, or
provisional basis; and
(iii) the teacher demonstrates
knowledge of special education and the
teaching skills necessary to teach
children with disabilities.
(B) New elementary school special education
teachers.--When used with respect to a special
education elementary school teacher who is new
to the profession, means that the teacher
demonstrated, by passing a rigorous State test,
subject knowledge and teaching skills in
reading, writing, mathematics, and other areas
of the basic elementary school curriculum
(which may consist of passing a State-required
certification or licensing test or tests in
reading, writing, mathematics, and other areas
of the basic elementary school curriculum).
(C) New middle school and secondary school
special education teachers.--When used with
respect to a special education middle school or
secondary school teacher who is new to the
profession, means that the teacher has
demonstrated a high level of competency in each
of the academic subjects in which the teacher
teaches by--
(i) passing a rigorous State academic
subject test in each of the academic
subjects in which the teacher teaches
(which may consist of a passing level
of performance on a State-required
certification or licensing test or
tests in each of the academic subjects
in which the teacher teaches); or
(ii) successful completion, in each
of the academic subjects in which the
teacher teaches, of an academic major,
graduate degree, coursework equivalent
to an undergraduate academic major, or
advanced certification or
credentialing.
(D) Veteran special education teachers.--When
used with respect to an elementary school,
middle school, or secondary school special
education teacher who is not new to the
profession, means that the teacher has--
(i) met the applicable standard in
subparagraph (B) or (C), which includes
an option for a test; or
(ii) has demonstrated competence in
all the academic subjects in which the
teacher teaches based on a high
objective uniform State standard of
evaluation for special education
teachers that--
(I) is set by the State for
both grade-appropriate academic
subject matter knowledge and
special education teaching
skills;
(II) is aligned with
challenging State academic
content and student academic
achievement standards and
developed in consultation with
special education teachers,
core content specialists,
teachers, principals, and
school administrators;
(III) provides objective,
coherent information about the
teachers' attainment of
knowledge of core content
knowledge in the academic
subjects in which a teacher
teaches;
(IV) is applied uniformly to
all special education teachers
who teach in the same academic
subject and the same grade
level throughout the State;
(V) takes into consideration,
but is not based primarily on,
the time the teacher has been
teaching in the academic
subject;
(VI) is made available to the
public on request; and
(VII) may involve multiple
objective measures of teacher
competency.
(E) Teachers providing consultative
services.--
(i) In general.--Notwithstanding
subparagraphs (B) through (D), when
used with respect to a special
education teacher who provides only
consultative services to a highly
qualified regular education teacher (as
the term highly qualified is defined in
section 9101(23) of the Elementary and
Secondary Education Act of 1965), means
that the teacher meets the requirements
of subparagraph (A).
(ii) Consultative services.--As used
in clause (i), the term ``consultative
services'' means services that adjust
the learning environment, modify
instructional methods, adapt curricula,
use positive behavior supports and
interventions, and select and implement
appropriate accommodations to meet the
needs of individual children.
(F) Exception.--Notwithstanding subparagraphs
(B) through (D), when used with respect to a
special education teacher who teaches more than
1 subject, primarily to middle school and
secondary school-aged children with significant
cognitive disabilities, means that the teacher
has demonstrated subject knowledge and teaching
skills in reading, mathematics, and other areas
of the basic elementary school curriculum by--
(i) passing a rigorous State test
(which may consist of passing a State-
required certification or licensing
test or tests in those areas); or
(ii) demonstrating competency in all
the academic subjects in which the
teacher teaches, based on a high
objective uniform State standard as
described in subparagraph (D)(ii).
(11) Indian.--The term ``Indian'' means an individual
who is a member of an Indian tribe.
(12) 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).
(13) 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).
(14) Individualized family service plan.--The term
``individualized family service plan'' has the meaning
given such term in section 636.
(15) Infant or toddler with a disability.--The term
``infant or toddler with a disability'' has the meaning
given such term in section 632.
(16) Institution of higher education.--The term
``institution of higher education''--
(A) has the meaning given such term in
section 101 (a) and (b) 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 College
or University Assistance Act of 1978.
(17) Limited english proficient.--The term ``limited
English proficient'' has the meaning given the term in
section 9101(25) of the Elementary and Secondary
Education Act of 1965.
(18) 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 schools 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 schools or secondary schools.
(B) The term includes--
(i) an educational service agency, as
defined in paragraph (5); and
(ii) any other public institution or
agency having administrative control
and direction of a public elementary
school or secondary school.
(C) The term includes an elementary school 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.
(19) Native language.--The term ``native language'',
when used with respect 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.
(20) Nonprofit.--The term ``nonprofit'', as applied
to a school, agency, organization, or institution,
means a school, agency, organization, or institution
owned and operated by 1 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.
(21) Outlying area.--The term ``outlying area'' means
the United States Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern Mariana Islands.
(22) 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.
(23) Parent organization.--The term ``parent
organization'' has the meaning given such term in
section 671(g).
(24) Parent training and information center.--The
term ``parent training and information center'' means a
center assisted under section 671 or 672.
(25) Related services.--The term ``related services''
means transportation, and such developmental,
corrective, and other supportive services (including
speech-language pathology and audiology services,
interpreting services, psychological services, physical
and occupational therapy, recreation, including
therapeutic recreation, social work services, school
health services, counseling services, including
rehabilitation counseling, orientation and mobility
services, travel training instruction, 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. The term does not include a medical device
that is surgically implanted, or the post-surgical
maintenance, programming, or replacement of such
device, or an external device connected with the use of
a surgically implanted medical device (other than the
costs of performing routine maintenance and monitoring
of such external device at the same time the child is
receiving other services under this Act).
(26) 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.
(27) Secretary.--The term ``Secretary'' means the
Secretary of Education.
(28) 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--
(A) instruction conducted in the classroom,
in the home, in hospitals and institutions, and
in other settings; and
(B) instruction in physical education.
(29) Specific learning disability.--
(A) In general.--The term ``specific learning
disability'' means a disorder in 1 or more of
the basic psychological processes involved in
understanding or in using language, spoken or
written, which disorder may manifest itself in
the 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.
(30) 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.
(31) 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 schools and
secondary schools, or, if there is no such officer or
agency, an officer or agency designated by the Governor
or by State law.
(32) 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).
(33) Transition services.--The term ``transition
services'' means a coordinated set of activities for a
child with a disability (as defined in paragraph
(3)(A)) that--
(A) is designed to be within a results-
oriented process, that is focused on improving
the academic and functional achievement of the
child with a disability to facilitate the
child's 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 on the individual child's needs,
taking into account the child's strengths,
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 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 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 OF STATE SOVEREIGN IMMUNITY.
(a) In General.--A State shall not be immune under the 11th
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 enactment of the Education of the Handicapped Act
Amendments of 1990.
SEC. 605. ACQUISITION OF EQUIPMENT; CONSTRUCTION OR ALTERATION OF
FACILITIES.
(a) In General.--If the Secretary determines that a program
authorized under this Act will 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 subpart 101-19.6 of title 41, Code
of Federal Regulations (commonly known as the ``Uniform
Federal Accessibility Standards'').
SEC. 606. EMPLOYMENT 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 FOR PRESCRIBING REGULATIONS.
(a) In General.--In carrying out the provisions of this Act,
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.
(b) Protections Provided to Children.--The Secretary may not
implement, or publish in final form, any regulation prescribed
pursuant to this Act that--
(1) violates or contradicts any provision of this
Act; and
(2) procedurally or substantively lessens the
protections provided to children with disabilities
under this Act, as embodied in regulations in effect on
July 20, 1983 (particularly as such protections related
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) Public Comment Period.--The Secretary shall provide a
public comment period of not more than 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.
(d) Policy Letters and Statements.--The Secretary may not
issue policy letters or other statements (including letters or
statements regarding issues of national significance) that--
(1) violate or contradict any provision of this Act;
or
(2) establish a rule that is required for compliance
with, and eligibility under, this Act without following
the requirements of section 553 of title 5, United
States Code.
(e) Explanation and Assurances.--Any written response by the
Secretary under subsection (d) regarding a policy, question, or
interpretation under part B of this Act shall include an
explanation in the written response that--
(1) such response is provided as informal guidance
and is not legally binding;
(2) when required, such response is issued in
compliance with the requirements of section 553 of
title 5, United States Code; and
(3) such response represents the interpretation by
the Department of Education of the applicable statutory
or regulatory requirements in the context of the
specific facts presented.
(f) Correspondence From Department of Education Describing
Interpretations of This Act.--
(1) In general.--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--
(A) identify the topic addressed by the
correspondence and shall include such other
summary information as the Secretary determines
to be appropriate; and
(B) ensure that all such correspondence is
issued, where applicable, in compliance with
the requirements of section 553 of title 5,
United States Code.
SEC. 608. STATE ADMINISTRATION.
(a) Rulemaking.--Each State that receives funds under this
Act shall--
(1) ensure that any State rules, regulations, and
policies relating to this Act conform to the purposes
of this Act; and
(2) identify in writing to its local educational
agencies and the Secretary any such rule, regulation,
or policy as a State-imposed requirement that is not
required by this Act and Federal regulations.
(b) Support and Facilitation.--State rules, regulations, and
policies under this Act shall support and facilitate local
educational agency and school-level systemic reform designed to
enable children with disabilities to meet the challenging State
student academic achievement standards.
SEC. 609. REPORT TO CONGRESS.
The Comptroller General shall conduct a review of Federal,
State, and local requirements relating to the education of
children with disabilities to determine which requirements
result in excessive paperwork completion burdens for teachers,
related services providers, and school administrators, and
shall report to Congress not later than 18 months after the
date of enactment of the Individuals with Disabilities
Education Improvement Act of 2003 regarding such review along
with strategic proposals for reducing the paperwork burdens on
teachers.
[PART B--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES
[SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION OF
APPROPRIATIONS.
[(a) Grants to States.--
[(1) Purpose of grants.--The Secretary shall make
grants to States and the outlying areas, and provide
funds to the Secretary of the Interior, to assist them
to provide special education and related services to
children with disabilities in accordance with this
part.
[(2) Maximum amounts.--The maximum amount of the
grant a State may receive under this section for any
fiscal year is--
[(A) the number of children with disabilities
in the State who are receiving special
education and related services--
[(i) aged 3 through 5 if the State is
eligible for a grant under section 619;
and
[(ii) aged 6 through 21; multiplied
by
[(B) 40 percent of the average per-pupil
expenditure in public elementary and secondary
schools in the United States.
[(b) Outlying Areas and Freely Associated States.--
[(1) Funds reserved.--From the amount appropriated
for any fiscal year under subsection (j), the Secretary
shall reserve not more than one percent, which shall be
used--
[(A) to provide assistance to the outlying
areas in accordance with their respective
populations of individuals aged 3 through 21;
and
[(B) for fiscal years 1998 through 2001, to
carry out the competition described in
paragraph (2), except that the amount reserved
to carry out that competition shall not exceed
the amount reserved for fiscal year 1996 for
thecompetition under part B of this Act
described under the heading ``SPECIAL EDUCATION'' in Public Law 104-
134.
[(2) Limitation for freely associated states.--
[(A) Competitive grants.--The Secretary shall
use funds described in paragraph (1)(B) to
award grants, on a competitive basis, to Guam,
American Samoa, the Commonwealth of the
Northern Mariana Islands, and the freely
associated States to carry out the purposes of
this part.
[(B) Award basis.--The Secretary shall award
grants under subparagraph (A) on a competitive
basis, pursuant to the recommendations of the
Pacific Region Educational Laboratory in
Honolulu, Hawaii. Those recommendations shall
be made by experts in the field of special
education and related services.
[(C) Assistance requirements.--Any freely
associated State that wishes to receive funds
under this part shall include, in its
application for assistance--
[(i) information demonstrating that
it will meet all conditions that apply
to States under this part;
[(ii) an assurance that,
notwithstanding any other provision of
this part, it will use those funds only
for the direct provision of special
education and related services to
children with disabilities and to
enhance its capacity to make a free
appropriate public education available
to all children with disabilities;
[(iii) the identity of the source and
amount of funds, in addition to funds
under this part, that it will make
available to ensure that a free
appropriate public education is
available to all children with
disabilities within its jurisdiction;
and
[(iv) such other information and
assurances as the Secretary may
require.
[(D) Termination of eligibility.--
Notwithstanding any other provision of law, the
freely associated States shall not receive any
funds under this part for any program year that
begins after September 30, 2001.
[(E) Administrative costs.--The Secretary may
provide not more than five percent of the
amount reserved for grants under this paragraph
to pay the administrative costs of the Pacific
Region Educational Laboratory under
subparagraph (B).
[(3) Limitation.--An outlying area is not eligible
for a competitive award under paragraph (2) unless it
receives assistance under paragraph (1)(A).
[(4) Special rule.--The provisions of Public Law 95-
134, permitting the consolidation of grants by the
outlying areas, shall not apply to funds provided to
those areas or to the freely associated States under
this section.
[(5) Eligibility for discretionary programs.--The
freely associated States shall be eligible to receive
assistance under subpart 2 of part D of this Act until
September 30, 2001.
[(6) Definition.--As used in this subsection, the
term ``freely associated States'' means the Republic of
the MarshallIslands, the Federated States of
Micronesia, and the Republic of Palau.
[(c) Secretary of the Interior.--From the amount
appropriated for any fiscal year under subsection (j), the
Secretary shall reserve 1.226 percent to provide assistance to
the Secretary of the Interior in accordance with subsection
(i).
[(d) allocations to States.--
[(1) In general.--After reserving funds for studies
and evaluations under section 674(e), and for payments
to the outlying areas and the Secretary of the Interior
under subsections (b) and (c), the Secretary shall
allocate the remaining amount among the States in
accordance with paragraph (2) or subsection (e), as the
case may be.
[(2) Interim formula.--Except as provided in
subsection (e), the Secretary shall allocate the amount
described in paragraph (1) among the States in
accordance with section 611(a)(3), (4), and (5) and
(b)(1), (2), and (3) of this Act, as in effect prior to
the enactment of the Individuals with Disabilities
Education Act Amendments of 1997, except that the
determination of the number of children with
disabilities receiving special education and related
services under such section 611(a)(3) may, at the
State's discretion, be calculated as of the last Friday
in October or as of December 1 of the fiscal year for
which the funds are appropriated.
[(e) Permanent Formula.--
[(1) Establishment of base year.--The Secretary shall
allocate the amount described in subsection (d)(1)
among the States in accordance with this subsection for
each fiscal year beginning with the first fiscal year
for which the amount appropriated under subsection (j)
is more than $4,924,672,200.
[(2) Use of base year.--
[(A) Definition.--As used in this subsection,
the term ``base year'' means the fiscal year
preceding the first fiscal year in which this
subsection applies.
[(B) Special rule for use of base year
amount.--If a State received any funds under
this section for the base year on the basis of
children aged 3 through 5, but does not make a
free appropriate public education available to
all children with disabilities aged 3 through 5
in the State in any subsequent fiscal year, the
Secretary shall compute the State's base year
amount, solely for the purpose of calculating
the State's allocation in that subsequent year
under paragraph (3) or (4), by subtracting the
amount allocated to the State for the base year
on the basis of those children.
[(3) Increase in funds.--If the amount available for
allocations to States under paragraph (1) is equal to
or greater than the amount allocated to the States
under this paragraph for the preceding fiscal year,
those allocations shall be calculated as follows:
[(A)(i) Except as provided in subparagraph
(B), the Secretary shall--
[(I) allocate to each State the
amount it received for the base year;
[(II) allocate 85 percent of any
remaining funds to States on the basis
of their relative populations of
children aged 3 through 21 who are of
the same age as children with
disabilities for whom the State ensures
the availability of a free appropriate
public education under this part; and
[(III) allocate 15 percent of those
remaining funds to States on the basis
of their relative populations of
children described in subclause (II)
who are living in poverty.
[(ii) For the purpose of making grants under
this paragraph, the Secretary shall use the
most recent population data, including data on
children living in poverty, that are available
and satisfactory to the Secretary.
[(B) Notwithstanding subparagraph (A),
allocations under this paragraph shall be
subject to the following:
[(i) No State's allocation shall be
less than its allocation for the
preceding fiscal year.
[(ii) No State's allocation shall be
less than the greatest of--
[(I) the sum of--
[(aa) the amount it
received for the base
year; and
[(bb) one third of
one percent of the
amount by which the
amount appropriated
under subsection (j)
exceeds the amount
appropriated under this
section for the base
year;
[(II) the sum of--
[(aa) the amount it
received for the
preceding fiscal year;
and
[(bb) that amount
multiplied by the
percentage by which the
increase in the funds
appropriated from the
preceding fiscal year
exceeds 1.5 percent; or
[(III) the sum of--
[(aa) the amount it
received for the
preceding fiscal year;
and
[(bb) that amount
multiplied by 90
percent of the
percentage increase in
the amount appropriated
from the preceding
fiscal year.
[(iii) Notwithstanding clause (ii),
no State's allocation under this
paragraph shall exceed the sum of--
[(I) the amount it received
for the preceding fiscal year;
and
[(II) that amount multiplied
by the sum of 1.5 percent and
the percentage increase in the
amount appropriated.
[(C) If the amount available for allocations
under this paragraph is insufficient to pay
those allocations in full, those allocations
shall be ratably reduced, subject to sub-
paragraph (B)(i).
[(4) Decrease in funds.--If the amount available for
allocations to States under paragraph (1) is less than
the amountallocated to the States under this section
for the preceding fiscal year, those allocations shall be calculated as
follows:
[(A) If the amount available for allocations
is greater than the amount allocated to the
States for the base year, each State shall be
allocated the sum of--
[(i) the amount it received for the
base year; and
[(ii) an amount that bears the same
relation to any remaining funds as the
increase the State received for the
preceding fiscal year over the base
year bears to the total of all such
increases for all States.
[(B)(i) If the amount available for
allocations is equal to or less than the amount
allocated to the States for the base year, each
State shall be allocated the amount it received
for the base year.
[(ii) If the amount available is insufficient
to make the allocations described in clause
(i), those allocations shall be ratably
reduced.
[(f) State-Level Activities.--
[(1) General.--
[(A) Each State may retain not more than the
amount described in subparagraph (B) for
administration and other State-level activities
in accordance with paragraphs (2) and (3).
[(B) For each fiscal year, the Secretary
shall determine and report to the State
educational agency an amount that is 25 percent
of the amount the State received under this
section for fiscal year 1997, cumulatively
adjusted by the Secretary for each succeeding
fiscal year by the lesser of--
[(i) the percentage increase, if any,
from the preceding fiscal year in the
State's allocation under this section;
or
[(ii) the rate of inflation, as
measured by the percentage increase, if
any, from the preceding fiscal year in
the Consumer Price Index For All Urban
Consumers, published by the Bureau of
Labor Statistics of the Department of
Labor.
[(C) A State may use funds it retains under
subparagrph (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.
[(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
apropriate, 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 servicesand in making systemic change
to improve results for children with disabilities through one or more
of the following:
[(i) Direct services, including alternative
programming for children who have been expelled
from school, and services for children in
correctional facilities, children enrolled in
State-operated or State-supported schools, and
children in charter schools.
[(ii) Addressing needs or carrying out
improvement strategies identified in the
State's Improvement Plan under subpart 1 of
part D.
[(iii) Adopting promising practices,
materials, and technology, based on knowledge
derived from education research and other
sources.
[(iv) Establishing, expanding, or
implementing interagency agreements and
arrangements between local educational agencies
and other agencies or organizations concerning
the provision of services to children with
disabilities and their families.
[(v) Increasing cooperative problem-solving
between parents and school personnel and
promoting the use of alternative dispute
resolution.
[(B) Maximum subgrant.--For each fiscal year, the
amount referred to in subparagraph (A) is--
[(i) the maximum amount the State was allowed
to retain under paragraph (1)(A) for the prior
fiscal year, or for fiscal year 1998, 25
percent of the State's allocation for fiscal
year 1997 under this section; multiplied by
[(ii) the difference between the percentage
increase in the State's allocation under this
section and the rate of inflation, as measured
by the percentage increase, if any, from the
preceding fiscal year in the Consumer Price
Index For All Urban Consumers, published by the
Bureau of Labor Statistics of the Department of
Labor.
[(5) Report on use of funds.--As part of the
information required to be submitted to the Secretary
under section 612, each State shall annually describe--
[(A) how amounts retained under paragraph (1)
will be used to meet the requirements of this
part;
[(B) how those amounts will be allocated
among the activities described in paragraphs
(2) and (3) to meet State priorities based on
input from local educational agencies; and
[(C) the percentage of those amounts, if any,
that will be distributed to local educational
agencies by formula.
[(g) Subgrants to local educational agencies.--
[(1) Subgrants required.--East 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 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 3through 21 to whom the
agency was providing special education and related services on December
1 of the fiscal year for which the funds were appropriated, equal to
the per-child amount the agency received under that subpart for fiscal
year 1994.
[(B) The number of children counted under
subparagraph (A)(i)(I) shall not exceed the
number of children aged 3 through 21 for whom
the agency received fiscal year 1994 funds
under subpart 2 of part D of chapter 1 of title
I of the Elementary and Secondary Education Act
of 1965.
[(4) Reallocation of funds.--If a State educational
agency determines that a local educational agency is
adequately providing a free appropriate public
education to all children with disabilities residing in
the area served by that agency with State and local
funds, the State educational agency may reallocate any
portion of the funds under this part that are not
needed by that local agency to provide a free
appropriate public education to other local educational
agencies in the State that are not adequately providing
special education and related services to all children
with disabilities residing in the areas they serve.
[(h) Definitions.--For the purpose of this section--
[(1) the term ``average per-pupil expenditure in
public elementary and secondary schools in the United
States'' means--
[(A) without regard to the source of funds--
[(i) the aggregate current
expenditures, during the second fiscal
year preceding the fiscal year for
which the determination is made (or, if
satisfactory data for that year are not
available, during the most recent
preceding fiscal year for which
satisfactory data are available) of all
local educational agencies in the 50
States and the District of Columbia);
plus
[(ii) any direct expenditures by the
State for the operation of those
agencies; divided by
[(B) the aggregate number of children in
average daily attendance to whom those agencies
provided free public education during that
preceding year; and
[(2) the term ``State'' means each of the 50 States,
the District of Columbia, and the Commonwealth of
Puerto Rico.
[(i) Use of Amounts by Secretary of the Interior.--
[(1) Provision of amounts for assistance.--
[(A) In general.--The Secretary of Education
shall provide amounts to the Secretary of the
Interior to meet the need for assistance for
the education of children with disabilities on
reservations aged 5 to 21, inclusive, enrolled
in elementary and secondary schools for Indian
children operated or funded by the Secretary of
the Interior. The amount of such payment for
any fiscal year shall be equal to 80 percent of
the amount allotted under subsection (c) for
that fiscal year.
[(B) Calculation of number of children.--In
the case of Indian students aged 3 to 5,
inclusive, who are enrolled in programs
affiliated with the Bureau of Indian
Affairs(hereafter in this subsection referred to as ``BIA'') schools
and that are required by the States in which such schools are located
to attain or maintain State accreditation, and which schools have such
accreditation prior to the date of enactment of the Individuals with
Disabilities Education Act Amendments of 1991, the school shall be
allowed to count those children for the purpose of distribution of the
funds provided under this paragraph to the Secretary of the Interior.
The Secretary of the Interior shall be responsible for meeting all of
the requirements of this part for these children, in accordance with
paragraph (2).
[(C) Additional requirement.--With respect to
all other children aged 3 to 21, inclusive, on
reservations, the State educational agency
shall be responsible for ensuring that all of
the requirements of this part are implemented.
[(2) Submission of Information.--The Secretary of
Education may provide the Secretary of the Interior
amounts under paragraph (1) for a fiscal year only if
the Secretary of the Interior submits to the Secretary
of Education information that--
[(A) demonstrates that the Department of the
Interior meets the appropriate requirements, as
determined by the Secretary of Education, of
sections 612 (including monitoring and
evaluation activities) and 613;
[(B) includes a description of how the
Secretary of the Interior will coordinate the
provision of services under this part with
local educational agencies, tribes and tribal
organizations, and other private and Federal
service providers;
[(C) includes an assurance that there are
public hearings, adequate notice of such
hearings, and an opportunity for comment
afforded to members of tribes, tribal governing
bodies, and affected local school boards before
the adoption of the policies, programs, and
procedures described in subparagraph (A);
[(D) includes an assurance that the Secretary
of the Interior will provide such information
as the Secretary of Education may require to
comply with section 618;
[(E) includes an assurance that the Secretary
of the Interior and the Secretary of Health and
Human Services have entered into a memorandum
of agreement, to be provided to the Secretary
of Education, for the coordination of services,
resources, and personnel between their
respective Federal, State, and local offices
and with State and local educational agencies
and other entities to facilitate the provision
of services to Indian children with
disabilities residing on or near reservations
(such agreement shall provide for the
apportionment of responsibilities and costs
including, but not limited to, child find,
evaluation, diagnosis, remediation, or
therapeutic measures, and (where appropriate)
equipment and medical or personal supplies as
needed for a child to remain in school or a
program); and
[(F) includes an assurance that the
Department of the Interior will cooperate with
the Department of Educationin 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 teh 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 requried to
determine the amounts to be allocated under
subparagraph (B). This information shall be
compiled and submitted to the Secretary of
Education.
[(D) Use of funds.--The funds received by a
tribe or tribal organization shall be used to
assist in child find, screening, and other
procedures for the early identification of
children aged 3 through 5, parent training, and
the provision of direct services. These
activities may be carried out directly or
through contracts or cooperative agreements
with the BIA, local educational agencies, and
other public or private nonprofit
organizations. The tribe or tribal organization
is encouraged to involve Indian parents in the
development and implementation of these
activities. The above entities shall, as
appropriate, make referrals to local, State, or
Federal entities for the provision of services
or further diagnosis.
[(E) Biennial report.--To be eligible to
receive a grant pursuant to subparagraph (A),
the tribe or tribal organization shall provide
to the Secretary of the Interior a biennial
report of activities undertaken under this
paragraph, including the number of contracts
and cooperative agreements entered into, the
number of children contacted and receiving
services for each year, and the estimatednumber
of children needing services during the 2 years following the one in
which the report is made. The Secretary of the Interior shall include a
summary of this information on a biennial basis in the report to the
Secretary of Education required under this subsection. The Secretary of
Education may require any additional information from the Secretary of
the Interior.
[(F) Prohibitions.--None of the funds
allocated under this paragraph may be used by
the Secretary of the Interior for
administrative purposes, including child count
and the provision of technical assistance.
[(4) Plan for coordination of services.--The
Secretary of the Interior shall develop and implement a
plan for the coordination of services for all Indian
children with disabilities residing on reservations
covered under this Act. Such plan shall provide for the
coordination of services benefiting these children from
whatever source, including tribes, the Indian Health
Service, other BIA divisions, and other Federal
agencies. In developing the plan, the Secretary of the
Interior shall consult with all interested and involved
parties. It shall be based on the needs of the children
and the system best suited for meeting those needs, and
may involve the establishment of cooperative agreements
between the BIA, other Federal agencies, and other
entities. The plan shall also be distributed upon
request to States, state and local educational
agencies, and other agencies providing services to
infants, toddlers, and children with disabilities, to
tribes, and to other interested parties.
[(5) Establishment of advisory board.--To meet the
requirements of section 612(a)(21), the Secretary of
the Interior shall establish, not later than 6 months
after the date of the enactment of the Individuals with
Disabilities Education Act Amendments of 1997, under
the BIA, an advisory board composed of individuals
involved in or concerned with the education and
provision of services to Indian infants, toddlers,
children, and youth with disabilities, including
Indians with disabilities, Indian parents or guardians
of such children, teachers, service providers, State
and local educational officials, representatives of
tribes or tribal organizations, representatives from
State Interagency Coordinating Councils under section
641 in States having reservations, and other members
representing the various divisions and entities of the
BIA. The chairperson shall be selected by the Secretary
of the Interior. The advisory board shall--
[(A) assist in the coordination of services
within the BIA and with other local, State, and
Federal agencies in the provision of education
for infants, toddlers, and children with
disabilities;
[(B) advise and assist the Secretary of the
Interior in the performance of the Secretary's
responsibilities described in this subsection;
[(C) develop and recommend policies
concerning effective inter- and intra-agency
collaboration, including modifications to
regulations and the elimination of barriers to
inter- and intra-agency programs and
activities;
[(D) provide assistance and disseminate
information on best practices, effective
program coordination strategies, and
recommendations for improved educational
programming for Indian infants, toddlers, and
children with disabilities; and
[(E) provide assistance in the preparation of
information required under paragraph (2)(D).
[(6) Annual reports.--
[(A) In general.--The advisory board
established under paragraph (5) shall prepare
and submit to the Secretary of the Interior and
to the Congress an annual report containing a
description of the activities of the advisory
board for the preceding year.
[(B) Availability.--The Secretary of the
Interior shall make available to the Secretary
of Education the report described in
subparagraph (A).
[(j) Authorization of Appropriations.--For the purpose of
carrying out this part, other than section 619, there are
authorized to be appropriated such sums as may be necessary.
[SEC. 612. STATE ELIGIBILITY.
[(a) In General.--A State is eligible for assistance under
this part for a fiscal year if the State demonstrates to the
satisfaction of the Secretary that the State has in effect
policies and procedures to ensure that it meets each of the
following conditions:
[(1) Free appropriate public education.--
[(A) In general.--A free appropriate public
education is available to all children with
disabilities residing in the State between the
ages of 3 and 21, inclusive, including children
with disabilities who have been suspended or
expelled from school.
[(B) Limitation.--The obligation to make a
free appropriate public education available to
all children with disabilities does not apply
with respect to children:
[(i) aged 3 through 5 and 18 through
21 in a State to the extent that its
application to those children would be
inconsistent with State law or
practice, or the order of any court,
respecting the provision of public
education to children in those age
ranges; and
[(ii) aged 18 through 21 to the
extent that State law does not require
that special education and related
services under this part be provided to
children with disabilities who, in the
educational placement prior to their
incarceration in an adult correctional
facility:
[(I) were not actually
identified as being a child
with a disability under section
602(3) of this Act; or
[(II) did not have an
individualized education
program under this part.
[(2) Full educational opportunity goal.--The State
has established a goal of providing full education
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 or severity of the disability
of a child is such that education in regular
classes with the use of supplementary aids and
services cannot be achieved satisfactorily.
[(B) Additional requirement.--
[(i) In general.--If the State uses a
funding mechanism by which the State
distributes State funds on the basis of
the type of setting in which a child is
served, the funding mechanism does not
result in placements that violate the
requirements of subparagraph (A).
[(ii) Assurance.--If the state does
not have policies and procedures to
ensure compliance with clause (i), the
State shall provide the Secretary an
assurance that it will revise the
funding mechanism as soon as feasible
to ensure that such mechanism does not
result in such placements.
[(6) Procedural safeguards.--
[(A) In general.--Children with disabilities
and their parents are afforded the procedural
safeguards required by section 615.
[(B) Additional procedural safeguards.--
Procedures to ensure that testing and
evaluation materials and procedures utilized
for the purposes of evaluation and placement of
children with disabilities will be selected and
administered so as not to be racially or
culturally discriminatory. Such materials or
procedures shall be provided andadministered in
the child's native language or mode of communications, 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 671(c) (relating to the confidentiality of
records and information).
[(9) Transition from part c to preschool programs.--
Children participating in early-intervention programs
assisted under part C, and who will participate in
preschool programs assisted under this part, experience
a smooth and effective transition to those preschool
programs in a manner consistent with section 637(a)(8).
By the third birthday of such a child, an
individualized education program or, if consistent with
sections 614(d)(2)(B) and 636(d), an individualized
family service plan, has been developed and is being
implemented for the child. The local educational agency
will participate in transition planning conferences
arranged by the designated lead agency under section
637(a)(8).
[(10) Children in private schools.--
[(A) Children enrolled in private schools by
their parents.--
[(i) In general.--To the extent
consistent with the number and location
of children with disabilities in the
State who are enrolled by their parents
in private elementary and secondary
schools, provision is made for the
participation of those children in the
program assisted or carried out under
this part by providing for such
children special education and related
services in accordance with the
following requirements, unless the
Secretary has arranged for services to
those children under subsection (f):
[(I) Amounts expended for the
provision of those services by
a local educational agency
shall be equal to a
proportionate amount of Federal
funds made available under this
part.
[(II) Such services may be
provided to children with
disabilities on the premises of
private, including parochial,
schools, to the extent
consistent with law.
[(ii) Child-find requirement.--The
requirements of paragraph (3) of this
subsection (relating to child find)
shall apply with respect to children
with disabilities in the State who are
enrolled in private, including
parochial, elementary and secondary
schools.
[(B) Children placed in, or referred to,
private schools by public agencies.--
[(i) In general.--Children with
disabilities in private schools and
facilities are provided special
education and related services, in
accordance with an individualized
education program, at no cost to their
parents, if such children are placed
in, or referred to,such schools or
facilities by the State or appropriate local educational agency as the
means of carrying out the requirements of this part or any other
applicable law requiring the provision of special education and related
services to all children with disabilities within such State.
[(ii) Standards.--In all cases
described in clause (i), the State
educational agency shall determine
whether such schools and facilities
meet standards that apply to State and
local educational agencies and that
children so served have all the rights
they would have if served by such
agencies.
[(C) Payment for education of children
enrolled in private schools without consent of
or referral by the public agency.--
[(i) In general.--Subject to
subparagraph (A), this part does not
require a local educational agency to
pay for the cost of education,
including special education and related
services, of a child with a disability
at a private school or facility if that
agency made a free appropriate public
education available to the child and
the parents elected to place the child
in such private school or facility.
[(ii) Reimbursement for private
school placement.--If the parents of a
child with a disability, who previously
received special education and related
services under the authority of a
public agency, enroll the child in a
private elementary or secondary school
without the consent of or referral by
the public agency, a court or a hearing
officer may require the agency to
reimbuse the parents for the cost of
that enrollment if the court or hearing
officer finds that the agency had not
made a free appropriate public
education available to the child in a
timely manner prior to that enrollment.
[(iii) Limitation on reimbursement.--
The cost of reimbursement described in
clause (ii) may be reduced or denied--
[(I) if--
[(aa) at the most
recent IEP meeting that
the parents attended
prior to removal of the
child from the public
school, the parents did
not inform the IEP Team
that they were
rejecting the placement
proposed by the public
agency to provide a
free appropriate public
education to their
child, including
stating their concerns
and their intent to
enroll their child in a
private school at
public expense; or
[(bb) 10 business
days (including any
holidays that occur on
a business day) prior
to the removal of the
child from the public
school, the parents did
not give written notice
to the public agency of
the information
described in division
(aa);
[(II) if, prior to the
parents' removal of the child
from the public school, the
public agency informed the
parents, through the notice
requirements described in
section 615(b)(7), of its
intent to evaluate the child
(including a statement of the
purpose of the evaluation that
was appropriate and
reasonable), but the parents
did not make the child
available for such evaluation;
or
[(III) upon a judicial
finding of unreasonableness
with respect to actions taken
by the parents.
[(iv) Exception.--Notwithstanding the
notice requirement in clause (iii)(I),
the cost of reimbursement may not be
reduced or denied for failure to
provide such notice if--
[(I) the parent is illiterate
and cannot write in English;
[(II) compliance with clause
(iii)(I) would likely result in
physical or serious emotional
harm to the child;
[(III) the school prevented
the parent from providing such
notice; or
[(IV) the parents had not
received notice, pursuant to
section 615, of the notice
requirement in clause (iii)(I).
[(11) State educational agency responsible for
general supervision.--
[(A) In general.--The State educational
agency is responsible for ensuring that--
[(i) the requirements of this part
are met; and
[(ii) all educational programs for
children with disabilities in the
State, including all such programs
administered by any other State or
local agency--
[(I) are under the general
supervision of individuals in
the State who are responsible
for educational programs for
children with disabilities; and
[(II) meet the educational
standards of the State
educational agency.
[(B) Limitation.--Subparagraph (A) shall not
limit the responsibility of agencies in the
State other than the State educational agency
to provide, or pay for some or all of the costs
of, a free appropriate public education for any
child with a disability in the State.
[(C) Exception.--Notwithstanding
subparagraphs (A) and (B), the Governor (or
another individual pursuant to State law),
consistent with State law, may assign to any
public agency in the State the responsibility
of ensuring that the requirements of this part
are met with respect to children with
disabilities who are convicted as adults under
State law and incarcerated in adult prisons.
[(12) Obligations related to and methods of ensuring
services.--
[(A) Establishing responsibility for
services.--The Chief Executive Officer or
designee of the officer shall ensure that an
interagency agreement or other mechanism for
interagency coordination is in effect between
each public agency described in subparagraph
(B) and the State educational agency, in order
to ensure that all services described in
subparagraph (B)(i) that are needed to ensure a
free appropriate public education are provided,
including the provision of such services during
the pendency of any dispute under clause (iii).
Such agreement or mechanism shall include the
following:
[(i) Agency financial
responsibility.--An identification of,
or a method for defining, the financial
responsibility of each agency for
providing services described in
subparagraph (B)(i) to ensure a free
appropriate public education to
children with disabilities, provided
that the financial responsibility of
each public agency described in
subparagraph (B), including the State
Medicaid agency and other public
insurers of children with disabilities,
shall precede the financial
responsibility of the local educational
agency (or the State agency responsible
for developing the child's IEP).
[(ii) Conditions and terms of
reimbursement.--The conditions, terms,
and procedures under which a local
educational agency shall be reimbursed
by other agencies.
[(iii) Interagency disputes.--
Procedures for resolving interagency
disputes (including procedures under
which local educational agencies may
initiate proceedings) under the
agreement or other mechanism to secure
reimbursement from other agencies or
other-wise 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
withinthe State, such public agency
shall fulfill that obligation or responsibility, either directly or
through contract or other arrangement.
[(ii) Reimbursement for services by
public agency.--If a public agency
other than an educational agency fails
to provide or pay for the special
education and related services
described in clause (i), the local
educational agency (or State agency
responsible for developing the child's
IEP) shall provide or pay for such
services to the child. Such local
educational agency or State agency may
then claim reimbursement for the
services from the public agency that
failed to provide or pay for such
services and such public agency shall
reimburse the local educational agency
or State agency pursuant to the terms
of the interagency agreement or other
mechanism described in subparagraph
(A)(i) according to the procedures
established in such agreement pursuant
to subparagraph (A)(ii).
[(C) Special rule.--The requirements of
subparagraph (A) may be met through--
[(i) state statute or regulation;
[(ii) signed agreements between
respective agency officials that
clearly identify the responsibilities
of each agency relating to the
provision of services; or
[(iii) other appropriate written
methods as determined by the Chief
Executive Officer of the State or
designee of the officer.
[(13) Procedural requirements relating to local
educational agency eligibility.--The State educational
agency will not make a final determination that a local
educational agency is not eligible for assistance under
this part without first affording that agency
reasonable notice and an opportunity for a hearing.
[(14) Comprehensive system of personnel
development.--The State has in effect, consistent with
the purposes of this Act and with section 635(a)(8), a
comprehensive system of personnel development that is
designed to ensure an adequate supply of qualified
special education, regular education, and related
services personnel that meets the requirements for a
State improvement plan relating to personnel
development in subsections (b)(2)(B) and (c)(3)(D) of
section 653.
[(15) Personnel standards.--
[(A) In general.--The State educational
agency has established and maintains standards
to ensure that personnel necessary to carry out
this part are appropriately and adequately
prepared and trained.
[(B) Standards described.--Such standards
shall--
[(i) be consistent with any State-
approved or State-recognized
certification, licensing, registration,
or other comparable requirements that
apply to the professional discipline in
which those personnel are providing
special education or related services;
[(ii) to the extent the standards
described in subparagraph (A) are not
based on the highest requirements in
the State applicable to a specific
profession or discipline, the State is
taking steps to require re-training or
hiring of personnel that meet
appropriate professional requirements
in the State; and
[(iii) allow paraprofessionals and
assistants who are appropriately
trained and supervised, in accordance
with State law, regulations, or written
policy, in meeting the requirements of
this part to be used to assist in the
provision of special education and
related services to children with
disabilities under this part.
[(C) Policy.--In implementing this paragraph,
a state may adopt a policy that includes a
requirement that local educational agencies in
the State make an ongoing good-faith effort to
recruit and hire appropriately and adequately
trained personnel to provide special education
and related services to children with
disabilities, including, in a geographic area
of the State where there is a shortage of such
personnel, the most qualified individuals
available who are making satisfactory progress
toward completing applicable course work
necessary to meet the standards described in
subparagraph (B)(i), consistent with State law,
and the steps described in subparagraph (B)(ii)
within three years.
[(16) Performance goals and indicators.--The State--
[(A) has established goals for the
performance of children with disabilities in
the State that--
[(i) will promote the purposes of
this Act, as stated in section 601(d);
and
[(ii) are consistent, to the maximum
extent appropriate, with other goals
and standards for children established
by the State;
[(B) has established performance indicators
the State will use to assess progress toward
achieving those goals that, at a minimum,
address the performance of children with
disabilities on assessments, drop-out rates,
and graduation rates;
[(C) will, every two years, report to the
Secretary and the public on the progress of the
State, and of children with disabilities in the
State, toward meeting the goals established
under subparagraph (A); and
[(D) based on its assessment of that
progress, will revise its State improvement
plan under subpart 1 of part D as may be needed
to improve its performance, if the State
receives assistance under that subpart.
[(17) Participation in assessments.--
[(A) In general.--Children with disabilities
are included in general State and district-wide
assessment programs, with appropriate
accommodations, where necessary. As
appropriate, the State or local educational
agency--
[(i) develops guidelines for the
participation of children with
disabilities in alternate assessments
forthose children who cannot
participate in State and district-wide assessment programs; and
[(ii) develops and, beginning not
later than July 1, 2000, conducts those
alternate assessments.
[(B) Reports.--The State educational agency
makes available to the public, and reports to
the public with the same frequency and in the
same detail as it reports on the assessment of
nondisabled children, the following:
[(i) The number of children with
disabilities participating in regular
assessments.
[(ii) The number of those children
participating in alternate assessments.
[(iii)(I) The performance of those
children on regular assessments
(beginning not later than July 1, 1998)
and on alternate assessments (not later
than July 1, 2000), if doing so would
be statistically sound and would not
result in the disclosure of performance
results identifiable to individual
children.
[(II) Data relating to the
performance of children described under
subclause (I) shall be disaggregated--
[(aa) for assessments
conducted after July 1, 1998;
and
[(bb) for assessments
conducted before July 1, 1998,
if the State is required to
disaggregate such data prior to
July 1, 1998.
[(18) Supplementation of state, local and other
federal funds.--
[(A) Expenditures.--Funds paid to a State
under this part will be expended in accordance
with all the provisions of this part.
[(B) Prohibition against commingling.--Funds
paid to a State under this part will not be
commingled with State funds.
[(C) Prohibition against supplantation and
conditions for waiver by secretary.-- Except as
provided in section 613, funds paid to a State
under this part will be used to supplement the
level of Federal, State, and local funds
(including funds that are not under the direct
control of State or local educational agencies)
expended for special education and related
services provided to children with disabilities
under this part and in no case to supplant such
Federal, State, and local funds, except that,
where the State provides clear and convincing
evidence that all children with disabilities
have available to them a free appropriate
public education, the Secretary may waive, in
whole or in part, the requirements of this
subparagraph if the Secretary concurs with the
evidence provided by the State.
[(19) Maintenance of state financial support.--
[(A) In general.--The State does not reduce
the amount of State financial support for
special education and related services for
children with disabilities, or otherwise made
available because of the excess costs of
educatingthose 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 requirements of subparagraph (A)
for a State, for one fiscal year at a time, if
the Secretary determines that--
[(i) granting a waiver would be
equitable due to exceptional or
uncontrollable circumstances such as a
natural disaster or a precipitous and
unforeseen decline in the financial
resources of the State; or
[(ii) the State meets the standard in
paragraph (18)(C) of this section for a
waiver of the requirement to
supplement, and not to supplant, funds
received under this part.
[(D) Subsequent years.--If, for any year, a
State fails to meet the requirement of
subparagraph (A), including any year for which
the State is granted a waiver under
subparagraph (C), the financial support
required of the State in future years under
subparagraph (A) shall be the amount that would
have been required in the absence of that
failure and not the reduced level of the
State's support.
[(E) Regulations.--
[(i) The Secretary shall, by
regulation, establish procedures
(including objective criteria and
consideration of the results of
compliance reviews of the State
conducted by the Secretary) for
determining whether to grant a waiver
under subparagraph (C)(ii).
[(ii) The Secretary shall publish
proposed regulations under clause (i)
not later than 6 months after the date
of the enactment of the Individuals
with Disabilities Education Act
Amendments of 1997, and shall issue
final regulations under clause (i) not
later than 1 year after such date of
enactment.
[(20) Public participation.--Prior to the adoption of
any policies and procedures needed to comply with this
section (including any amendments to such policies and
procedures), the State ensures that there are public
hearings, adequate notice of the hearings, and an
opportunity for comment available to the general
public, including individuals with disabilities and
parents of children with disabilities.
[(21) State advisory panel.--
[(A) In general.--The State 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 officialauthorized under State law
to make such appointments, that is representative of the State
population and that is composed of individuals involved in, or
concerned with, the education of children with disabilities,
including--
[(i) parents of children with
disabilities;
[(ii) individuals with disabilities;
[(iii) teachers;
[(iv) representatives of institutions
of higher education that prepare
special education and related services
personnel;
[(v) State and local education
officials;
[(vi) administrators of programs for
children with disabilities;
[(vii) representatives of other State
agencies involved in the financing or
delivery of related services to
children with disabilities;
[(viii) representatives of private
schools and public charter schools;
[(ix) at least one representative of
a vocational, community or business
organization concerned with the
provision of transition services to
children with disabilities; and
[(x) representatives from the State
juvenile and adult corrections
agencies.
[(C) Special rule.--A majority of the members
of the panel shall be individuals with
disabilities or parents of children with
disabilities.
[(D) Duties.--The advisory panel shall--
[(i) advise the State educational
agency of unmet needs within the State
in the education of children with
disabilities;
[(ii) comment publicly on any rules
or regulations proposed by the State
regarding the education of children
with disabilities;
[(iii) advise the State educational
agency in developing evaluations and
reporting on data to the Secretary
under section 618;
[(iv) advise the State educational
agency in developing corrective action
plans to address findings identified in
Federal monitoring reports under this
part; and
[(v) advise the State educational
agency in developing and implementing
policies relating to the coordination
of services for children with
disabilities.
[(22) Suspension and expulsion rates.--
[(A) In general.--The State educational
agency examines data to determine if
significant discrepancies are occurring in the
rate of long-term suspensions and expulsions of
children with disabilities--
[(i) among local educational agencies
in the State; or
[(ii) compared to such rates for
nondisabled children within such
agencies.
[(B) Review and revision of policies.--If
such discrepancies are occurring, the State
educational agency reviews and, if appropriate,
revises (or requires the affected State or
local educational agency to revise) its
policies, procedures, and practices relating to
the development and implementation of IEPs, the
use of behavioral interventions, and procedural
safeguards, to ensure that such policies,
procedures, and practices comply with this Act.
[(b) State Educational Agency as provider of Free
Appropriate Public Education or Direct Services.--If the State
educational agency provides free appropriate public education
to children with disabilities, or provides direct services to
such children, such agency--
[(1) shall comply with any additional requirements of
section 613(a), as if such agency were a local
educational agency; and
[(2) may use amounts that are otherwise available to
such agency under this part to serve those children
without regard to section 613(a)(2)(A)(i) (relating to
excess costs).
[(c) Exception for Prior State Plans.--
[(1) In general.--If a State has on file with the
Secretary policies and procedures that demonstrate that
such State meets any requirement of subsection (a),
including any policies and procedures filed under this
part as in effect before the effective date of the
Individuals with Disabilities Education Act Amendments
of 1997, the Secretary shall consider such State to
have met such requirement for purposes of receiving a
grant under this part.
[(2) Modifications made by state.--Subject to
paragraph (3), an application submitted by a State in
accordance with this section shall remain in effect
until the State submits to the Secretary such
modifications as the State deems necessary. This
section shall apply to a modification to an application
to the same extent and in the same manner as this
section applies to the original plan.
[(3) Modifications required by the secretary.--If,
after the effective date of the Individuals with
Disabilities Education Act Amendments of 1997, the
provisions of this Act are amended (or the regulations
developed to carry out this Act are amended), or there
is a new interpretation of this Act by a Federal court
or a State's highest court, or there is an official
finding of noncompliance with Federal law or
regulations, the Secretary may requrie 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 eligiblity, 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 chlid that does not exceed the
amount determined by dividing--
[(i) the total amount received by the
State under this part for such fiscal
year; by
[(ii) the number of children with
disabilities served in the prior year,
as reported to the Secretary by the
State under section 618.
[(B) Withholding of certain amounts.--Pending
final resolution of any investigation or
complaint that could result in a determination
under this subsection, the Secretary may
withhold from the allocation of the affected
State educational agency the amount the
Secretary estimates would be necessary to pay
the cost of services described in subparagraph
(A).
[(C) Period of payments.--The period under
which payments are made under subparagraph (A)
shall continue until the Secretary determines
that there will no longer be any failure or
inability on the part of the State educational
agency to meet the requirements of subsection
(a)(10)(A).
[(3) Notice and hearing.--
[(A) In general.--The Secretary shall not
take any final action under this subsection
until the State educational agency affected by
such action has had an opportunity, for at
least 45 days after receiving written notice
thereof, to submit written objections and to
appear before the Secretary or the Secretary's
designee to show cause why such action should
not be taken.
[(B) Review of action.--If a State
educational agency is dissatisfied with the
Secretary's final action after a proceeding
under subparagraph (A), such agency may, not
later than 60 days after notice of such action,
file with the United States court of appeals
for the circuit in which such State is located
a petition for review of that action. A copy of
the petition shall be forthwith transmitted by
the clerkof the court to the Secretary. The
Secretary thereupon shall file in the court the record of the
proceedings on which the Secretary based the Secretary's action, as
provided in section 2112 of title 28, United States Code.
[(C) Review of findings of fact.--The
findings of fact by the Secretary, if supported
by substantial evidence shall be conclusive,
but the court, for good cause shown, may remand
the case to the Secretary to take further
evidence, and the Secretary may thereupon make
new or modified findings of fact and may modify
the Secretary's previous action, and shall file
in the court the record of the further
proceedings. Such new or modified findings of
fact shall likewise be conclusive if supported
by substantial evidence.
[(D) Jurisdiction of court of appeals; review
by united states supreme court.--Upon the
filing of a petition under subparagraph (B),
the United States court of appeals shall have
jurisdiction to affirm the action of the
Secretary or to set it aside, in whole or in
part. The judgment of the court shall be
subject to review by the Supreme Court of the
United States upon certiorari or certification
as provided in section 1254 of title 28, United
States Code.
[SEC. 613. LOCAL EDUCATIONAL AGENCY ELIGIBILITY.
[(a) In General.--A local educational agency is eligible
for assistance under this part for a fiscal year if such agency
demonstrates to the satisfaction of the State educational
agency that it meets each of the following conditions:
[(1) Consistency with state policies.--The local
educational agency, in providing for the education of
children with disabilities within its jurisdiction, has
in effect policies, procedures, and programs that are
consistent with the State policies and procedures
established under section 612.
[(2) Use of amounts.--
[(A) In general.--Amounts provided to the
local educational agency under this part shall
be expended in accordance with the applicable
provisions of this part and--
[(i) shall be used only to pay the
excess costs of providing special
education and related services to
children with disabilities;
[(ii) shall be used to supplement
State, local, and other Federal funds
and not to supplant such funds; and
[(iii) shall not be used, except as
provided in subparagraphs (B) and (C),
to reduce the level of expenditures for
the education of children with
disabilities made by the local
educational agency from local funds
below the level of those expenditures
for the preceding fiscal year.
[(B) Exception.--Notwithstanding the
restriction in subparagraph (A)(iii), a local
educational agency may reduce the level of
expenditures where such reduction is
attributable to--
[(i) the voluntary departure, by
retirement or otherwise, or departure
for just cause, of special education
personnel;
[(ii) a decrease in the enrollment of
children with disabilities;
[(iii) the termination of the
obligation of the agency, consistent
with this part, to provide a program of
special education to a particular child
with a disability that is an
exceptionally costly program, as
determined by the State educational
agency, because the child--
[(I) has left the
jurisdiction of the agency;
[(II) has reached the age at
which the obligation of the
agency to provide a free
appropriate public education to
the child has terminated; or
[(III) no longer needs such
program of special education;
or
[(iv) the termination of costly
expenditures for long-term purchases,
such as the acquisition of equipment or
the construction of school facilities.
[(C) Treatment of federal funds in certain
fiscal years.--
[(i) Notwithstanding clauses (ii) and
(iii) of subparagraph (A), for any
fiscal year for which amounts
appropriated to carry out section 611
exceeds $4,100,000,000, a local
educational agency may treat as local
funds, for the purpose of such clauses,
up to 20 percent of the amount of funds
it receives under this part that
exceeds the amount it received under
this part for the previous fiscal year.
[(ii) Notwithstanding clause (i), if
a State educational agency determines
that a local educational agency is not
meeting the requirements of this part
the State educational agency may
prohibit the local educational agency
from treating funds received under this
part as local funds under clause (i)
for any fiscal year, only if it is
authorized to do so by the State
constitution or a State statute.
[(D) Schoolwide programs under title i of the
esea.--Notwithstanding subparagraph (A) or any
other provision of this part a local
educational agency may use funds received under
this part for any fiscal year to carry out a
schoolwide program, under section 1114 of the
Elementary and Secondary Education Act of 1965,
except that the amount so used in any such
program shall not exceed--
[(i) the number of children with
disabilities participating in the
school wide 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 non-
disabled children.--For the costs of special
education and related services and
supplementary aids and services provided in a
regular class or other education-related
setting to a child with a disability in
accordance with the individualized education
program of the child, even if one or more
nondisabled children benefit from such
services.
[(B) Integrated and coordinated services
system.--To develop and implement a fully
integrated and coordinated services system in
accordance with subsection (f).
[(5) Treatment of charter schools and their
students.--In carrying out this part with respect to
charter schools that are public schools of the local
educational agency, the local educational agency--
[(A) serves children with disabilities
attending those schools in the same manner as
it serves children with disabilities in its
other schools; and
[(B) provides funds under this part to those
schools in the same manner as it provides those
funds to its other schools.
[(6) Information for state educational agency.--The
local educational agency shall provide the State
educational agency with information necessary to enable
the State educational agency to carry out its duties
under this part, including, with respect to paragraphs
(16) and (17) of section 612(a), information relating
to the performance of children with disabilities
participating in programs carried out under this part.
[(7) Public information.--The local educational
agency shall make available to parents of children with
disabilities and to the general public all documents
relating to the eligibility of such agency under this
part.
[(b) Exception for Prior Local Plans.--
[(1) In General.--If a local educational agency or
State agency has on file with the State educational
agency policies and procedures that demonstrate that
such local educational agency, or such State agency, as
the case may be, meets any requirement of subsection
(a), including any policies and procedures filed under
this part as in effect before the effective date of the
Individuals with Disabilities Education Act Amendments
of 1997, the State educational agency shall consider
such local educational agency or State agency, as the
case may be, tohave 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 non-compliance with Federal or State law or
regulations, the State education agency may require a
local educational agency to modify its application only
to the extent necessary to ensure the local educational
agency's compliance with this part or State law.
[(c) Notification of Local Educational Agency or State
Agency in Case of Ineligibility.--If the State educational
agency determines that a local educational agency or State
agency is not eligible under this section, the State
educational agency shall notify the local educational agency or
State agency, as the case may be, of that determination and
shall provide such local educational agency or State agency
with reasonable notice and an opportunity for a hearing.
[(d) Local Educational Agency Compliance.--
[(1) In general.--If the State educational agency,
after reasonable notice and an opportunity for a
hearing, finds that a local educational agency or State
agency that has been determined to be eligible under
this section is failing to comply with any requirement
described in subsection (a), the State educational
agency shall reduce or shall not provide any further
payments to the local educational agency or State
agency until the State educational agency is satisfied
that the local educational agency or State agency, as
the case may be, is complying with that requirement.
[(2) Additional requirement.--Any State agency or
local educational agency in receipt of a notice
described in paragraph (1) shall, by means of public
notice, take such measures as may be necessary to bring
the pendency of an action pursuant to this subsection
to the attention of the public within the jurisdiction
of such agency.
[(3) Consideration.--In carrying out its
responsibilities under paragraph (1), the State
educational agency shall consider any decision made in
a hearing held under section 615 that is adverse to the
local educational agency or State agency involved in
that decision.
[(e) Joint Establishment of Eligibility.--
[(1) Joint establishment.--
[(A) In general.--A State educational agency
may require a local educational agency to
establish its eligibility jointly with another
local educational agency if the
Stateeducational agency determines that the local educational agency
would be ineligible under this section because the local educational
agency would not be able to establish and maintain programs of
sufficient size and scope to effectively meet the needs of children
with disabilities.
[(B) Charter school exception.--A State
educational agency may not require a charter
school that is a local educational agency to
jointly establish its eligibility under
subparagraph (A) unless it is explicitly
permitted to do so under the State's charter
school statute.
[(2) Amount of payments.--If a State educational
agency requires the joint establishment of eligibility
under paragraph (1), the total amount of funds made
available to the affected local educational agencies
shall be equal to the sum of the payments that each
such local educational agency would have received under
section 611(g) if such agencies were eligible for such
payments.
[(3) Requirements.--Local educational agencies that
establish joint eligibility under this subsection
shall--
[(A) adopt policies and procedures that are
consistent with the State's policies and
procedures under section 612(a); and
[(B) be jointly responsible for implementing
programs that receive assistance under this
part.
[(4) Requirements for educational service agencies.--
[(A) In general.--If an educational service
agency is required by State law to carry out
programs under this part, the joint
responsibilities given to local educational
agencies under this subsection shall--
[(i) not apply to the administration
and disbursement of any payments
received by that educational service
agency; and
[(ii) be carried out only by that
educational service agency.
[(B) Additional requirement.--Notwithstanding
any other provision of this subsection, an
educational service agency shall provide for
the education of children with disabilities in
the least restrictive environment, as required
by section 612(a)(5).
[(f) Coordinated Services System.--
[(1) In general.--A local educational agency may not
use more than 5 percent of the amount such agency
receives under this part for any fiscal year, in
combination with other amounts (which shall include
amounts other than education funds), to develop and
implement a coordinated services system designed to
improve results for children and families, including
children with disabilities and their families.
[(2) Activities.--In implementing a coordinated
services system under this subsection, a local
educational agency may carry out activities that
include--
[(A) improving the effectiveness and
efficiency of service delivery, including
developing strategies that promote
accountability for results;
[(B) service coordination and case management
that facilitates the linkage of individualized
education programs under this part and
individualized family service plans under part
C with individualized service plans under
multiple Federal and State programs, such as
title I of the Rehabilitation Act of 1973
(vocational rehabilitation), title XIX of the
Social Security Act (Medicaid), and title XVI
of the Social Security Act (supplemental
security income);
[(C) developing and implementing interagency
financing strategies for the provision of
education, health, mental health, and social
services, including transition services and
related services under this Act; and
[(D) interagency personal development for
individuals working on coordinated services.
[(g) School-Based Improvement Plan.--
[(1) In general.--Each local educational agency may,
in accordance with paragraph (2), use funds made
available under this part to permit a public school
within the jurisdiction of the local educational agency
to design, implement, and evaluate a school-based
improvement plan that is consistent with the purposes
described in section 651(b) and that is designed to
improve educational and transitional results for all
children with disabilities and, as appropriate, for
other children consistent with subparagraphs (A) and
(B) of subsection (a)(4) in that public school.
[(2) Authority.--
[(A) In general.--A State educational agency
may grant authority to a local educational
agency to permit a public school described in
paragraph (1) (through a school-based standing
panel established under paragraph (4)(B)) to
design, implement, and evaluate a school-based
improvement plan described in paragraph 1 for a
period not to exceed 3 years.
[(B) Responsibility of local educational
agency.--If a State educational agency grants
the authority described in subparagraph (A), a
local educational agency that is granted such
authority shall have the sole responsibility of
oversight of all activities relating to the
design, implementation, and evaluation of any
school-based improvement plan that a public
school is permitted to design under this
subsection.
[(3) Plan requirements.--A school-based improvement
plan described in paragraph (1) shall--
[(A) be designed to be consistent with the
purposes described in section 651(b) and to
improve educational and transitional results
for all children with disabilities and, as
appropriate, for other children consistent with
subparagraphs (A) and (B) of subsection (a)(4),
who attend the school for which the plan is
designed and implemented;
[(B) be designed, evaluated, and, as
appropriate, implemented by a school-based
standing panel established in accordance with
paragraph (4)(B);
[(C) include goals and measurable indicators
to assess the progress of the public school in
meeting such goals; and
[(D) ensure that all children with
disabilities receive the services described in
the individualized education programs of such
children.
[(4) Responsibilities of the local educational
agency.--A local educational agency that is granted
authority under paragraph (2) to permit a public school
to design, implement, and evaluate a school-based
improvement plan shall--
[(A) select each school under the
jurisdiction of such agency that is eligible to
design, implement, and evaluate such a plan;
[(B) require each school selected under
subparagraph (A), in accordance with criteria
established by such local educational agency
under subparagraph (C), to establish a school-
based standing panel to carry out the duties
described in paragraph (3)(B);
[(C) establish--
[(i) criteria that shall be used by
such local educational agency in the
selection of an eligible school under
subparagraph (A);
[(ii) criteria that shall be used by
a public school selected under
subparagraph (A) in the establishment
of a school-based standing panel to
carry out the duties described in
paragraph (3)(B) and that shall ensure
that the membership of such panel
reflects the diversity of the community
in which the public school is located
and includes, at a minimum--
[(I) parents of children with
disabilities who attend such
public school, including
parents of children with
disabilities from unserved and
underserved populations, as
appropriate;
[(II) special education and
general education teachers of
such public school;
[(III) special education and
general education
administrators, or the designee
of such administrators, of such
public school; and
[(IV) related services
providers who are responsible
for providing services to the
children with disabilities who
attend such public school; and
[(iii) criteria that shall be used by
such local educational agency with
respect to the distribution of funds
under this part to carry out this
subsection;
[(D) disseminate the criteria established
under subparagraph (C) to local school district
personnel and local parent organizations within
the jurisdiction of such local educational
agency;
[(E) require a public school that desires to
design, implement, and evaluate a school-based
improvement plan to submit an application at
such time, in such manner, and accompanied by
such information as such local educational
agency shall reasonably require; and
[(F) establish procedures for approval by
such local educational agency of a school-based
improvement plan designed under this
subsection.
[(5) Limitation.--A school-based improvement plan
described in paragraph (1) may be submitted to a local
educational agency for approval only if a consensus
with respect to any matter relating to the design,
implementation, or evaluation of the goals of such plan
is reached by the school-based standing panel that
designed such plan.
[(6) Additional requirements.--
[(A) Parental involvement.--In carrying out
the requirements of this subsection, a local
educational agency shall ensure that the
parents of children with disabilities are
involved in the design, evaluation, and, where
appropriate, implementation of school-based
improvement plans in accordance with this
subsection.
[(B) Plan approval.--A local educational
agency may approve a school-based improvement
plan of a public school within the jurisdiction
of such agency for a period of 3 years, if--
[(i) the approval is consistent with
the policies, procedures, and practices
established by such local educational
agency and in accordance with this sub-
section; and
[(ii) a majority of parents of
children who are members of the school-
based standing panel, and a majority of
other members of the school-based
standing panel, that designed such plan
agree in writing to such plan.
[(7) Extension of plan.--If a public school within
the jurisdiction of a local educational agency meets
the applicable requirements and criteria described in
paragraphs (3) and (4) at the expiration of the 3-year
approval period described in paragraph (6)(B), such
agency may approve a school-based improvement plan of
such school for an additional 3-year period.
[(h) Direct Services by the State Educational Agency.--
[(1) In general.--A State educational agency shall
use the payments that would otherwise have been
available to a local educational agency or to a State
agency to provide special education and related
services directly to children with disabilities
residing in the area served by that local agency, or
for whom that State agency is responsible, if the State
educational agency determines that the local education
agency or State agency, as the case may be--
[(A) has not provided the information needed
to establish the eligibility of such agency
under this section;
[(B) is unable to establish and maintain
programs of free appropriate public education
that meet the requirements of subsection (a);
[(C) is unable or unwilling to be
consolidated with one or more local educational
agencies in order to establish and maintain
such programs; or
[(D) has one or more children with
disabilities who can best be served by a
regional or State program or service-delivery
system designed to meet the needs of such
children.
[(2) Manner and location of education and services.--
The State educational agency may provide special
education and related services under paragraph (1) in
such manner and at such locations (including regional
or State centers) as the State agency considers
appropriate. Such education and services shall be
provide in accordance with this part.
[(i) State Agency Eligibility.--Any state agency that
desires to receive a subgrant for any fiscal year under section
611(g) shall demonstrate to the satisfaction of the State
educational agency that--
[(1) all children with disabilities who are
participating in programs and projects funded under
this part receive a free appropriate public education,
and that those children and their parents are provided
all the rights and procedural safeguards described in
this part; and
[(2) the agency meets such other conditions of this
section as the Secretary determines to be appropriate.
[(j) Disciplinary Information.--The State may require that
a local educational agency include in the records of a child
with a disability a statement of any current or previous
disciplinary action that has been taken against the child and
transmit such statement to the same extent that such
disciplinary information is included in, and transmitted with,
the student records of nondisabled children. The statement may
include a description of any behavior engaged in by the child
that required disciplinary action, a description of the
disciplinary action taken, and any other information that is
relevant to the safety of the child and other individuals
involved with the child. If the State adopts such a policy, and
the child transfers from one school to another, the
transmission of any of the child's records must include both
the child's current individualized education program and any
such statement of current or previous disciplinary action that
has been taken against the child.
[SEC. 614 EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED
EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.
[(a) Evaluations and Reevaluations.--
[(1) Initial evaluations.--
[(A) In general.--A State educational agency,
other State agency, or local educational agency
shall conduct a full and individual initial
evaluation, in accordance with this paragraph
and subsection (b), before the initial
provision of special education and related
services to a child with a disability under
this part.
[(B) Procedures.--Such initial evaluation
shall consist of procedures--
[(i) to determine whether a child is
a child with a disability (as defined
in section 602(3)); and
[(ii) to determine the educational
needs of such child.
[(C) Parental consent.--
[(i) In general.--The agency
proposing to conduct an initial
evaluation to determine if the child
qualifies as a child with a disability
as defined in section 602(3)(A) or
602(3)(B) shall obtain an informed
consent from the parent of such child
before the evaluation is conducted.
Parental consent for evaluation shall
not be construed as consent for
placement for receipt of special
education and related services.
[(ii) Refusal.--If the parents of
such child refuse consent for the
evaluation, the agency may continue to
pursue an evaluation by utilizing the
mediation and due process procedures
under section 615, except to the extent
inconsistent with State law relating to
parental consent.
[(2) Reevaluations.--A local educational agency shall
ensure that a reevaluation of each child with a
disability is conducted--
[(A) if conditions warrant a reevaluation or
if the child's parent or teacher requests a
reevaluation, but at least once every 3 years;
and
[(B) in accordance with subsections (b) and
(c).
[(b) Evaluation Procedures.--
[(1) Notice.--The local educational agency shall
provide notice to the parents of a child with a
disability, in accordance with subsections (b)(3),
(b)(4), and (c) of section 615, that describes any
evaluation procedures such agency proposes to conduct.
[(2) Conduct of evaluation.--In conducting the
evaluation, the local educational agency shall--
[(A) use a variety of assessment tools and
strategies to gather relevant functional and
developmental information, including
information provided by the parent, that may
assist in determining whether the child is a
child with a disability and the content of the
child's individualized education program,
including information related to enabling the
child to be involved in and progress in the
general curriculum or, for preschool children,
to participate in appropriate activities;
[(B) not use any single procedure as the sole
criterion for determining whether a child is a
child with a disability or determining an
appropriate educational program for the child;
and
[(C) use technically sound instruments that
may assess the relative contribution of
cognitive and behavioral factors, in addition
to physical or developmental factors.
[(3) Additional requirements.--Each local educational
agency shall ensure that--
[(A) tests and other evaluation materials
used to assess a child under this section--
[(i) are selected and administered so
as not to be discriminatory on a racial
or cultural basis; and
[(ii) are provided and administered
in the child's native language or other
mode of communication, unless it is
clearly not feasible to do so; and
[(B) any standardized tests that are given to
the child--
[(i) have been validated for the
specific purpose for which they are
used;
[(ii) are administered by trained and
knowledgeable personnel; and
[(iii) are administered in accordance
with any instructions provided by the
producer of such tests;
[(C) the child is assessed in all areas of
suspected disability; and
[(D) assessment tools and strategies that
provide relevant information that directly
assists persons in determining the educational
needs of the child are provided.
[(4) Determination of eligibility.--Upon completion
of administration of tests and other evaluation
materials--
[(A) the determination of whether the child
is a child with a disability as defined in
section 602(3) shall be made by a team of
qualified professionals and the parent of the
child in accordance with paragraph (5); and
[(B) a copy of the evaluation report and the
documentation of determination of eligibility
will be given to the parent.
[(5) Special rule for eligibility determination.--In
making a determination of eligibility under paragraph
(4)(A), a child shall not be determined to be a child
with a disability if the determinant factor for such
determination is lack of instruction in reading or math
or limited English proficiency.
[(c) Additional Requirements for Evaluation and
Reevaluations.--
[(1) Review of existing evaluation data.--As part of
an initial evaluation (if appropriate) and as part of
any reevaluation under this section, the IEP Team
described in subsection (d)(1)(B) and other qualified
professionals, as appropriate, shall--
[(A) review existing evaluation data on the
child, including evaluations and information
provided by the parents of the child, current
classroom-based assessments and observations,
and teacher and related services providers
observation; and
[(B) on the basis of that review, and input
from the child's parents, identify what
additional data, if any, are needed to
determine--
[(i) whether the child has a
particular category of disability, as
described in section 602(3), or, in
case of a reevaluation of a child,
whether the child continues to have
such a disability;
[(ii) the present levels of
performance and educational needs of
the child;
[(iii) whether the child needs
special education and related services,
or in the case of a reevaluation of a
child, whether the child continues to
need special education and related
services; and
[(iv) whether any additions or
modifications to the special education
and related services are needed
toenable 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 education agency shall evaluate a child with a
disability in accordance with this section before
determining that the child is no longer a child with a
disability.
[(d) Individualized Education Programs.--
[(1) Definitions.--As used in this title:
[(A) Individualized education program.--The
term ``individualized education program'' or
``IEP'' means a written statement for each
child with a disability that is developed,
reviewed, and revised in accordance with this
section and that includes--
[(i) a statement of the child's
present levels of educational
performance, including--
[(I) how the child's
disability affects the child's
involvement and progress in the
general curriculum; or
[(II) for preschool children,
as appropriate, how the
disability affects the child's
participation in appropriate
activities;
[(ii) a statement of measurable
annual goals, including benchmarks or
short-term objectives, related to--
[(I) meeting the child's
needs that result from the
child's disability to enable
the child to be involved in and
progress in the general
curriculum; and
[(II) meeting each of the
child's other educational needs
that result from the child's
disability;
[(iii) a statement of the special
education and related services and
supplementary aids and services to be
provided to the child, or on behalf of
the child, and a statement of the
program modifications or supports for
school personnel that will be provided
for the child--
[(I) to advance appropriately
toward attaining the annual
goals;
[(II) to be involved and
progress in the general
curriculum in accordance with
clause (i) and to participate
in extracurricular and other
nonacademic activities; and
[(III) to be educated and
participate with other children
with disabilities and
nondisabled children in the
activities described in this
paragraph;
[(iv) an explanation of the extent,
if any, to which the child will not
participate with nondisabled children
in the regular class and in the
activities described in clause (iii);
[(v)(I) a statement of any individual
modifications in the administration of
State or districtwide assessments of
student achievement that are needed in
order for the child to participate in
such assessment; and
[(II) if the IEP Team determines that
the child will not participate in a
particular State or districtwide
assessment of student achievement (or
part of such an assessment), a
statement of--
[(aa) why that assessment is
not appropriate for the child;
and
[(bb) how the child will be
assessed;
[(vi) the projected date for the
beginning of the services and
modifications described in clause
(iii), and the anticipated frequency,
location, and duration of those
services and modifications;
[(vii)(I) beginning at age 14, and
updated annually, a statement of the
transition service needs of the child
under the applicable components of the
child's IEP that focuses on the child's
courses of study (such as participation
in advanced-placement courses or a
vocational education program);
[(II) beginning at age 16 (or
younger, if determined appropriate by
the IEP Team), a statement of needed
transition services for the child,
including, when appropriate, a
statement of the interagency
responsibilities or any needed
linkages; and
[(III) beginning at least one year
before the child reaches the age of
majority under State law, a statement
that the child has been informed of his
or her rights under this title, if any,
that will transfer to thechild on
reaching the age of majority under section 615(m); and
[(viii) a statement of--
[(1) how the child's progress
toward the annual goals
described in clause (ii) will
be measured; and
[(II) how the child's parents
will be regularly informed (by
such means as periodic report
cards), at least as often as
parents are informed of their
nondisabled children's
progress, of--
[(aa) their child's
progress toward the
annual goals described
in clause (ii); and
[(bb) the extent to
which that progress is
sufficient to enable
the child to achieve
the goals by the end of
the year.
[(B) Individualized education program team.--
The term ``individualized education program
team'' or ``IEP Team'' means a group of
individuals composed of--
[(i) the parents of a child with a
disability;
[(ii) at least one regular education
teacher of such child (if the child is,
or may be, participating in the regular
education environment);
[(iii) at least one special education
teacher, or where appropriate, at least
one special education provider of such
child;
[(iv) a representative of the local
educational agency who--
[(I) is qualified to provide,
or supervise the provision of,
specially designed instruction
to meet the unique needs of
children with disabilities;
[(II) is knowledgeable about
the general curriculum; and
[(III) is knowledgeable about
the availability of resources
of the local educational
agency;
[(v) an individual who can interpret
the instructional implications of
evaluation results, who may be a member
of the team described in clauses (ii)
through (vi);
[(vi) at the discretion of the parent
or the agency, other individuals who
have knowledge or special expertise
regarding the child, including related
services personnel as appropriate; and
[(vii) whenever appropriate, the
child with a disability.
[(2) Requirement that program be in effect.--
[(A) In general.--At the beginning of each
school year, each local educational agency,
State educational agency, or other State
agency, as the case may be, shall have in
effect, for each child with a disability in its
jurisdiction, an individualized education
program, as defined in paragraph (1)(A).
[(B) Program for child aged 3 through 5.--In
the case of a child with a disability aged 3
through 5 (or, at the discretion of the State
educational agency, a 2year-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 IEP Team,
shall, to the extent appropriate, participate
in the development of the IEP of the child,
including the determination of appropriate
positive behavioral interventions and
strategies and the determinationof
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 education agency shall reconvene
the IEP Team to identify alternative strategies to meet
the transition objectives for the child set out in that
program.
[(6) Children with disabilities in adult prisons.--
[(A) In general.--The following requirements
do not apply to children with disabilities who
are convicted as adults under State law and
incarcerated in adult prisons:
[(i) The requirements contained in
section 612(a)(17) and paragraph
(1)(A)(v) of this subsection (relating
to participation of children with
disabilities in general assessments).
[(ii) The requirements of subclauses
(I) and (II) of paragraph (1)(A)(vii)
of this subsection (relating to
transition planning and transition
services), do not apply with respect to
such children whose eligibility under
this part will end, because of their
age, before they will be released from
prison.
[(B) Additional requirement.--If a child with
a disability is convicted as an adult under
State law and incarcerated in an adult prison,
the child's IEP Team may modify the child's IEP
or placement notwithstanding the requirements
of sections 612(a)(5)(A) and 614(d)(1)(A) if
the State has demonstrated a bona fide security
or compelling penological interest that cannot
otherwise be accommodated.
[(e) Construction.--Nothing in this section shall be
construed to require the IEP Team to include information under
one component of a child's IEP that is already contained under
another component of such IEP.
[(f) Educational Placements.--Each local educational agency
or State educational agency shall ensure that the parents of
each child with a disability are members of any group that
makes decisions on the educational placement of their child.
[SEC. 615. PROCEDURAL SAFEGUARDS.
[(a) Establishment of Procedures.--Any State educational
agency, State agency, or local educational agency that receives
assistance under this part shall establish and maintain
procedures in accordance with this section to ensure that
children with disabilities and their parents are guaranteed
procedural safeguards with respect to the provision of free
appropriate public education by such agencies.
[(b) Types of Procedures.--The procedures required by this
section shall include--
[(1) an opportunity for the parents of a child with a
disability to examine all records relating to such
child and to participate in meetings with respect to
the identification, evaluation, and educational
placement of the child, and the provision of a free,
appropriate public education to such child, and to
obtain an independent educational evaluation of the
child;
[(2) procedures to protect the rights of the child
whenever the parents of the child are not known, the
agency cannot, after reasonable efforts, locate the
parents, or the child is a ward of the State, including
the assignment of an individual (who shall not be an
employee of the State educational agency, the local
educational agency, or any other agency that is
involved in the education or care of the child) to act
as a surrogate for the parents;
[(3) written prior notice to the parents of the child
whenever such agency--
[(A) proposes to initiate or change; or
[(B) refuses to initiate or change;
the identification, evaluation, or educational
placement of the child, in accordance with subsection
(c), or the provision of a free, appropriate public
education to the child;
[(4) procedures designed to ensure that the notice
required by paragraph (3) is in the native language of
the parents, unless it clearly is not feasible to do
so;
[(5) an opportunity for mediation in accordance with
subsection (e);
[(6) an opportunity to present complaints with
respect to any matter relating to the identification,
evaluation, or educational placement of the child, or
the provision of a free appropriate public education to
such child;
[(7) procedures that require the parent of a child
with a disability, or the attorney representing the
child, to provide notice (which shall remain
confidential)--
[(A) to the State educational agency or local
educational agency, as the case may be, in the
complaint filed under paragraph (6); and
[(B) that shall include--
[(i) the name of the child, the
address of the residence of the child,
and the name of the school the child is
attending;
[(ii) a description of the nature of
the problem of the child relating to
such proposed initiation or change,
including facts relating to such
problem; and
[(iii) a proposed resolution of the
problem to the extent known and
available to the parents at the time;
and
[(8) procedures that require the State educational
agency to develop a model form to assist parents in
filing a complaint in accordance with paragraph (7).
[(c) Content of Prior Written Notice.--The notice required
by subsection (b)(3) shall include--
[(1) a description of the action proposed or refused
by the agency;
[(2) an explanation of why the agency proposes or
refuses to take the action;
[(3) a description of any other options that the
agency considered and the reasons why those options
were rejected;
[(4) a description of each evaluation procedure,
test, record, or report the agency used as a basis for
the proposed or refused action;
[(5) a description of any other factors that are
relevant to the agency's proposal or refusal;
[(6) a statement that the parents of a child with a
disability have protection under the procedural
safeguards of this part and, if this notice is not an
initial referral for evaluation, the means by which a
copy of a description of the procedural safeguards can
be obtained; and
[(7) sources for parents to contact to obtain
assistance in understanding the provisions of this
part.
[(d) Procedural Safeguards Notice.--
[(1) In general.--A copy of the procedural safeguards
available to the parents of a child with a disability
shall be given to the parents, at a minimum--
[(A) upon initial referral for evaluation;
[(B) upon each notification of an
individualized education program meeting and
upon reevaluation of the child; and
[(C) upon registration of a complaint under
subsection (b)(6).
[(2) Contents.--The procedural safeguards notice
shall include a full explanation of the procedural
safeguards, written in the native language of the
parents, unless it clearly is not feasible to do so,
and written in an easily understandable manner,
available under this section and under regulations
promulgated by the Secretary relating to--
[(A) independent educational evaluation;
[(B) prior written notice;
[(C) parental consent;
[(D) access to educational records;
[(E) opportunity to present complaints;
[(F) the child's placement during pendency of
due process proceedings;
[(G) procedures for students who are subject
to placement in an interim alternative
educational setting;
[(H) requirements for unilateral placement by
parents of children in private schools at
public expenses;
[(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
meeting 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 written mediation agreement.
[(G) Discussions that occur during the
mediation process shall be confidential and may
not be used as evidence in any subsequent due
process hearings or civil proceedings and the
parties to the mediation process may be
required to sign a confidentiality pledge prior
to the commencement of such process.
[(f) Impartial Due Process Hearing.--
[(1) In general.--Whenever a complaint has been
received under subsection (b)(6) or (k) of this
section, the parents involved in such complaint shall
have an opportunity for an impartial due process
hearing, which shall be conducted by the State
educational agency or by the local educational agency,
as determined by State law or by the State educational
agency.
[(2) Disclosure or 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 decisionsshall be made available to
the public consistent with the requirements of section 617(c) (relating
to the confidentiality of data, information, and records) and shall
also be transmitted to the advisory panel established pursuant to
section 612(a)(21)).
[(i) Administrative Procedures.--
[(1) In general.--
[(A) Decision made in hearing.--A decision
made in a hearing conducted pursuant to
subsection (f) or (k) shall be final, except
that any party involved in such hearing may
appeal such decision under the provisions of
subsection (g) and paragraph (2) of this
subsection.
[(B) Decision made at appeal.--A decision
made under subsection (g) shall be final,
except that any party may bring an action under
paragraph (2) of this subsection.
[(2) Right to bring civil action.--
[(A) In general.--Any party aggrieved by the
findings and decision made under subsection (f)
or (k) who does not have the right to an appeal
under subsection (g), and any party aggrieved
by the findings and decision under this
subsection, shall have the right to bring a
civil action with respect to the complaint
presented pursuant to this section, which
action may be brought in any State court of
competent jurisdiction or in a district court
of the United States without regard to the
amount in controversy.
[(B) Additional requirements.--In any action
brought under this paragraph, the court--
[(i) shall receive the records of the
administrative proceedings;
[(ii) shall hear additional evidence
at the request of a party; and
[(iii) basing its decision on the
preponderance of the evidence, shall
grant such relief as the court
determines is appropriate.
[(3) Jurisdiction of district courts; attorneys'
fees.--
[(A) In general.--The district courts of the
United States shall have jurisdiction of
actions brought under this section without
regard to the amount in controversy.
[(B) Award of attorneys' fees.--In any action
or proceeding brought under this section, the
court, in its discretion, may award reasonable
attorneys' fees as part of the costs to the
parents of a child with a disability who is the
prevailing party.
[(C) Determination of amount of attorneys'
fees.--Fees awarded under this paragraph shall
be based on rates prevailing in the community
in which the action or proceeding arose for the
kind and quality of services furnished. No
bonus or multiplier may be used in calculating
the fees awarded under this subsection.
[(D) Prohibition of attorneys' fees and
related costs for certain services.--
[(i) Attorneys' fees may not be
awarded and related costs may not be
reimbursed in any action or
proceedingunder this section for services performed subsequent to the
time of a written offer of settlement to a parent if--
[(I) the offer is made within
the time prescribed by Rule 68
of the Federal Rules of Civil
Procedure or, in the case of an
administrative proceeding, at
any time more than 10 days
before the proceeding begins;
[(II) the offer is not
accepted within 10 days; and
[(III) the court or
administrative hearing officer
finds that the relief finally
obtained by the parents is not
more favorable to the parents
than the offer of settlement.
[(ii) Attorneys' fees may not be
awarded relating to any meeting of the
IEP Team unless such meeting is
convened as a result of an
administrative proceeding or judicial
action, or, at the discretion of the
State, for a mediation described in
subsection (e) that is conducted prior
to the filing of a complaint under
subsection (b)(6) or (k) of this
section.
[(E) Exception to Prohibition on Attorneys'
Fees and Related Costs.--Notwithstanding
subparagraph (D), an award of attorneys' fees
and related costs may be made to a parent who
is the prevailing party and who was
substantially justified in rejecting the
settlement offer.
[(F) Reduction in amount of attorneys'
fees.--Except as provided in subparagraph (G),
whenever the court finds that--
[(i) the parent, during the course of
the action or proceeding, unreasonably
protracted the final resolution of the
controversy;
[(ii) the amount of the attorneys'
fees otherwise authorized to be awarded
unreasonably exceeds the hourly rate
prevailing in the community for similar
services by attorneys of reasonably
comparable skill, reputation, and
experience;
[(iii) the time spent and legal
services furnished were excessive
considering the nature of the action or
proceeding; or
[(iv) the attorney representing the
parent did not provide to the school
district the appropriate information in
the due process complaint in accordance
with subsection (b)(7);
the court shall reduce, accordingly, the amount
of the attorneys' fees awarded under this
section.
[(G) Exception to reduction in amount of
attorneys' fees.--The provisions of
subparagraph (F) shall not apply in any action
or proceeding if the court finds that the State
or local educational agency unreasonably
protracted the final resolution of the action
or proceeding or there was a violation of this
section.
[(i) Maintenance of Current Educational Placement.--Except
as provided in subsection (k)(7), during the pendency of
anyproceedings conducted pursuant to this section, unless the State or
local educational agency and the parents otherwise agree, the child
shall remain in the then-current educational placement of such child,
or, if applying for initial admission to a public school, shall, with
the consent of the parents, be placed in the public school program
until all such proceedings have been completed.
[(k) Placement in Alternative Educational Setting.--
[(1) Authority of school personnel.--
[(A) School personnel under this section may
order a change in the placement of a child with
a disability--
[(i) to an appropriate interim
alternative educational setting,
another setting, or suspension, for not
more than 10 school days (to the extent
such alternatives would be applied to
children without disabilities); and
[(ii) to an appropriate interim
alternative educational setting for the
same amount of time that a child
without a disability would be subject
to discipline, but for not more than 45
days if--
[(I) the child carries or
possesses a weapon to or at
school, on school premises, or
to or at 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'scurrent placement, including
the use of supplementary aids and services; and
[(D) determines that the interim alternative
educational setting meets the requirements of
paragraph (3)(B).
[(3) Determination of setting.--
[(A) In general.--The alternative educational
setting described in paragraph (1)(A)(ii) shall
be determined by the IEP Team.
[(B) Additional requirements.--Any interim
alternative educational setting in which a
child is placed under paragraph (1) or (2)
shall--
[(i) be selected so as to enable the
child to continue to participate in the
general curriculum, although in another
setting, and to continue to receive
those services and modifications,
including those described in the
child's current IEP, that will enable
the child to meet the goals set out in
that IEP; and
[(ii) include services and
modifications designed to address the
behavior described in paragraph (1) or
paragraph (2) so that it does not
recur.
[(4) Manifestation determination review.--
[(A) In general.--If a disciplinary action is
contemplated as described in paragraph (1) or
paragraph (2) for a behavior of a child with a
disability described in either of those
paragraphs, or if a disciplinary action
involving a change of placement for more than
10 days is contemplated for a child with a
disability who has engaged in other behavior
that violated any rule or code of conduct of
the local educational agency that applies to
all children--
[(i) not later than the date on which
the decision to take that action is
made, the parents shall be notified of
that decision and of all procedural
safeguards accorded under this section;
and
[(ii) immediately, if possible, but
in no case later than 10 school days
after the date on which the decision to
take that action is made, a review
shall be conducted of the relationship
between the child's disability and the
behavior subject to the disciplinary
action.
[(B) Individuals to carry out review.--A
review described in subparagraph (A) shall be
conducted by the IEP Team and other qualified
personnel.
[(C) Conduct of review.--In carrying out a
review described in subparagraph (A), the IEP
Team may determine that the behavior of the
child was not a manifestation of such child's
disability only if the IEP Team--
[(i) first considers, in terms of the
behavior subject to disciplinary
action, all relevant information,
including--
[(I) evaluation and
diagnostic results, including
such results or other relevant
information supplied by the
parents of the child;
[(II) observations of the
child; and
[(III) the child's IEP and
placement; and
[(ii) then determines that--
[(I) in relationship to the
behavior subject to
disciplinary action, the
child's IEP and placement were
appropriate and the special
education services,
supplementary aids and
services, and behavior
intervention strategies were
provided consistent with the
child's IEP and placement;
[(II) the child's disability
did not impair the ability of
the child to understand the
impact and consequences of the
behavior subject to
disciplinary action; and
[(III) the child's disability
did not impair the ability of
the child to control the
behavior subject to
disciplinary action.
[(5) Determination that behavior was not
manifestation of disability.--
[(A) In general.--If the result of the review
described in paragraph (4) is a determination,
consistent with paragraph (4)(C), that the
behavior of the child with a disability was not
a manifestation of the child's disability, the
relevant disciplinary procedures applicable to
children without disabilities may be applied to
the child in the same manner in which they
would be applied to children without
disabilities, except as provided in section
612(a)(1).
[(B) Additional requirement.--If the public
agency initiates disciplinary procedures
applicable to all children, the agency shall
ensure that the special education and
disciplinary records of the child with a
disability are transmitted for consideration by
the person or persons making the final
determination regarding the disciplinary
action.
[(6) Parent appeal.
[(A) In general.--
[(i) If the child's parent disagrees
with a determination that the child's
behavior was not a manifestation of the
child's disability or with any decision
regarding placement, the parent may
request a hearing.
[(ii) The State or local educational
agency shall arrange for an expedited
hearing in any case described in this
subsection when requested by a parent.
[(B) Review of decision.--
[(i) In reviewing a decision with
respect to the manifestation
determination, the hearing officer
shall determine whether the public
agency has demonstrated that the
child's behavior was not a
manifestation of such child's
disability consistent with the
requirements of paragraph (4)(C).
[(ii) In reviewing a decision under
paragraph (1)(A)(ii) to place the child
in an interim alternative educational
setting, the hearing officer shall
apply the standards set out in
paragraph (2).
[(7) Placement during appeals.----
[(A) In general.--When a parent requests a
hearing regarding a disciplinary action
described in paragraph (1)(A)(ii) or paragraph
(2) to challenge the interim alternative
educational setting or the manifestation
determination, the child shall remain in the
interim alternative educational setting pending
the decision of the hearing officer or until
the expiration of the time period provided for
in paragraph (1)(A)(ii) or paragraph (2),
whichever occurs first, unless the parent and
the State or local educational agency agree
otherwise.
[(B) Current placement.--If a child is placed
in an interim alternative educational setting
pursuant to paragraph (1)(A)(ii) or paragraph
(2) and school personnel propose to change the
child's placement after expiration of the
interim alternative placement, during the
pendency of any proceeding to challenge the
proposed change in placement, the child shall
remain in the current placement (the child's
placement prior to the interim alternative
educational setting), except as provided in
subparagraph (C).
[(C) Expedited hearing.--
[(i) If school personnel maintain
that it is dangerous for the child to
be in the current placement (placement
prior to removal to the interim
alternative education setting) during
the pendency of the due process
proceedings, the local educational
agency may request an expedited
hearing.
[(ii) In determining whether the
child may be placed in the alternative
educational setting or in another
appropriate placement ordered by the
hearing officer, the hearing officer
shall apply the standards set out in
paragraph (2).
[(8) Protections for children not yet eligible for
special education and related services.--
[(A) In general.--A child who has not been
determined to be eligible for special education
and related services under this part and who
has engaged in behavior that violated any rule
or code of conduct of the local educational
agency, including any behavior described in
paragraph (1), may assert any of the
protections provided for in this part if the
local educational agency had knowledge (as
determined in accordance with this paragraph)
that the child was a child with a disability
before the behavior that precipitated the
disciplinary action occurred.
[(B) Basis of knowledge.--A local educational
agency shall be deemed to have knowledge that a
child is a child with a disability if--
[(i) the parent of the child has
expressed concern in writing (unless
the parent is illiterate or has a
disability that prevents compliance
with the requirements contained in this
clause) to personnel of the appropriate
educational agency that the child is in
need of special education and related
services;
[(ii) the behavior or performance of
the child demonstrates the need for
such services;
[(iii) the parent of the child has
requested an evaluation of the child
pursuant to section 614; or
[(iv) the teacher of the child, or
other personnel of the local
educational agency, has expressed
concern about the behavior or
performance of the child to the
director of special education of such
agency or to other personnel of the
agency.
[(C) Conditions that apply if no basis of
knowledge.--
[(i) In general.--If a local
educational agency does not have
knowledge that a child is a child with
a disability (in accordance with
subparagraph (B)) prior to taking
disciplinary measures against the
child, the child may be subjected to
the same disciplinary measures as
measures applied to children without
disabilities who engaged in comparable
behaviors consistent with clause (ii).
[(ii) Limitations.--If a request is
made for an evaluation of a child
during the time period in which the
child is subjected to disciplinary
measures under paragraph (1) or (2),
the evaluation shall be conducted in an
expedited manner. If the child is
determined to be a child with a
disability, taking into consideration
information from the evaluation
conducted by the agency and information
provided by the parents, the agency
shall provide special education and
related services in accordance with the
provisions of this part, except that,
pending the results of the evaluation,
the child shall remain in the
educational placement determined by
school authorities.
[(9) Referral to and action by law enforcement and
judicial authorities.--
[(A) Nothing in this part shall be construed
to prohibit an agency from reporting a crime
committed by a child with a disability to
appropriate authorities or to prevent State law
enforcement and judicial authorities from
exercising their responsibilities with regard
to the application of Federal and State law to
crimes committed by a child with a disability.
[(B) An agency reporting a crime committed by
a child with a disability shall ensure that
copies of the special education and
disciplinary records of the child are
transmitted for consideration by the
appropriate authorities to whom it reports the
crime.
[(10) Definitions.--For purposes of this subsection,
the following definitions apply:
[(A) Controlled substance.--The term
``controlled substance'' means a drug or other
substance identified under schedules I, II,
III, IV, or V in section 202(c) of the
Controlled Substances Act (21 U.S.C. 812(c)).
[(B) Illegal drug.--The term ``illegal
drug''--
[(i) means a controlled substance;
but
[(ii) does not include such a
substance that is legally possessed or
used under the supervision of a
licensedhealth-care professional or
that is legally possessed or used under any other authority under that
Act or under any other provision of Federal law.
[(C) Substantial evidence.--The term
``substantial evidence'' means beyond a
preponderance of the evidence.
[(D) Weapon.--The term ``weapon'' has the
meaning given the term ``dangerous weapon''
under paragraph (2) of the first subsection (g)
of section 930 of title 18, United States Code.
[(l) Rule of Construction.--Nothing in this title shall be
construed to restrict or limit the rights, procedures, and
remedies available under the Constitution, the Americans with
Disabilities Act of 1990, title V of the Rehabilitation Act of
1973, or other Federal laws protecting the rights of children
with disabilities, except that before the filing of a civil
action under such laws seeking relief that is also available
under this part, the procedures under subsections (f) and (g)
shall be exhausted to the same extent as would be required had
the action been brought under this part.
[(m) Transfer of Parental Rights at Age of Majority.--
[(1) In general.--A State that receives amounts from
a grant under this part may provide that, when a child
with a disability reaches the age of majority under
State law (except for a child with a disability who has
been determined to be incompetent under State law)--
[(A) the public agency shall provide any
notice required by this section to both the
individual and the parents;
[(B) all other rights accorded to parents
under this part transfer to the child;
[(C) the agency shall notify the individual
and the parents of the transfer of rights; and
[(D) all rights accorded to parents under
this part transfer to children who are
incarcerated in an adult or juvenile Federal,
State, or local correctional institution.
[(2) Special rule.--If, under State law, a child with
a disability who has reached the age of majority under
State law, who has not been determined to be
incompetent, but who is determined not to have the
ability to provide informed consent with respect to the
educational program of the child, the State shall
establish procedures for appointing the parent of the
child, or if the parent is not available, another
appropriate individual, to represent the educational
interests of the child throughout the period of
eligibility of the child under this part.
[SEC. 616. WITHHOLDING AND JUDICIAL REVIEW.
[(a) Withholding of Payments.--
[(1) In general.--Whenever the Secretary, after
reasonable notice and opportunity for hearing to the
State educational agency involved (and to any local
educational agency or State agency affected by any
failure described in subparagraph (B)), finds--
[(A) that there has been a failure by the
State to comply substantially with any
provision of this part; or
[(B) that there is a failure to comply with
any condition of a local educational agency's
or State agency's eligibilityunder this part,
including the terms of any agreement to achieve compliance with this
part within the timelines specified in the agreement;
the Secretary shall, after notifying the State
educational agency, withhold, in whole or in part, any
further payments to the State under this part, or refer
the matter for appropriate enforcement action, which
may include referral to the Department of Justice.
[(2) Nature of withholding.-- If the Secretary
withholds further payments under paragraph (1), the
Secretary may determine that such withholding will be
limited to programs or projects, or portions thereof,
affected by the failure, or that the State educational
agency shall not make further payments under this part
to specified local educational agencies or State
agencies affected by the failure. Until the Secretary
is satisfied that there is no longer any failure to
comply with the provisions of this part, as specified
in subparagraph (A) or (B) of paragraph (1), payments
to the State under this part shall be withheld in whole
or in part, or payments by the State educational agency
under this part shall be limited to local educational
agencies and State agencies whose actions did not cause
or were not involved in the failure, as the case may
be. Any State educational agency, State agency, or
local educational agency that has received notice under
paragraph (1) shall, by means of a public notice, take
such measures as may be necessary to bring the pendency
of an action pursuant to this subsection to the
attention of the public within the jurisdiction of such
agency.
[(b) Judicial Review.--
[(1) In general.--If any State is dissatisfied with
the Secretary's final action with respect to the
eligibility of the State under section 612, such State
may, not later than 60 days after notice of such
action, file with the United States court of appeals
for the circuit in which such State is located a
petition for review of that action. A copy of the
petition shall be forth-with transmitted by the clerk
of the court to the Secretary. The Secretary thereupon
shall file in the court the record of the proceedings
upon which the Secretary's action was based, as
provided in section 2112 of title 28, United States
Code.
[(2) Jurisdiction; review by united states supreme
court.--Upon the filing of such petition, the court
shall have jurisdiction to affirm the action of the
Secretary or to set it aside, in whole or in part. The
judgment of the court shall be subject to review by the
Supreme Court of the United States upon certiorari or
certification as provided in section 1254 of title 28,
United States Code.
[(3) Standard of review.--The findings of fact by the
Secretary, if supported by substantial evidence, shall
be conclusive, but the court, for good cause shown, may
remand the case to the Secretary to take further
evidence, and the Secretary may thereupon make new or
modified findings of fact and may modify the
Secretary's previous action, and shall file in the
court the record of the further proceedings. Such new
or modifiedfindings of fact shall likewise be
conclusive if supported by substantial evidence.
[(c) Divided State Agency Responsibility.--For purposes of
this section, where responsibility for ensuring that the
requirements of this part are met with respect to children with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons is assigned to a public agency
other than the State educational agency pursuant to section
612(a)(11)(C), the Secretary, in instances where the Secretary
finds that the failure to comply substantially with the
provisions of this part are related to a failure by the public
agency, shall take appropriate corrective action to ensure
compliance with this part, except--
[(1) any reduction or withholding of payments to the
State is proportionate to the total funds allotted
under section 611 to the State as the number of
eligible children with disabilities in adult prisons
under the supervision of the other public agency is
proportionate to the number of eligible individuals
with disabilities in the State under the supervision of
the State educational agency; and
[(2) any withholding of funds under paragraph (1)
shall be limited to the specific agency responsible for
the failure to comply with this part.
[SEC. 617. ADMINISTRATION.
[(a) Responsibilities of Secretary.--In carrying out this
part, the Secretary shall--
[(1) cooperate with, and (directly or by grant or
contract) furnish technical assistance necessary to,
the State in matters relating to--
[(A) the education of children with
disabilities; and
[(B) carrying out this part; and
[(2) provide short-term training programs and
institutes.
[(b) Rules and Regulations.--In carrying out the provisions
of this part, the Secretary shall issue regulations under this
Act only to the extent that such regulations are necessary to
ensure that there is compliance with the specific requirements
of this Act.
[(c) Confidentiality.--The Secretary shall take appropriate
action, in accordance with the provisions of section 444 of the
General Education Provisions Act (20 U.S.C. 1232g), to assure
the protection of the confidentiality of any personally
identifiable data, information, and records collected or
maintained by the Secretary and by State and local educational
agencies pursuant to the provisions of this part.
[(d) Personnel.--The Secretary is authorized to hire
qualified personnel necessary to carry out the Secretary's
duties under subsection (a) and under sections 618, 661, and
673 (or their predecessor authorities through October 1, 1997)
without regard to the provisions of title 5, United States
Code, relating to appointments in the competitive service and
without regard to chapter 51 and subchapter III of chapter 53
of such title relating to classification and general schedule
pay rates, except that no more than twenty such personnel shall
be employed at any time.
[SEC. 618. PROGRAM INFORMATION.
[(a) In General.--Each State that receives assistance under
this part, and the Secretary of the Interior, shall provide
data each year to the Secretary--
[(1)(A) on--
[(i) the number of children with
disabilities, by race, ethnicity, and
disability category, who are receiving a free
appropriate public education;
[(ii) the number of children with
disabilities, by race and ethnicity, who are
receiving early intervention services;
[(iii) the number of children with
disabilities, by race, ethnicity, and
disability category, who are participating in
regular education;
[(iv) the number of children with
disabilities, by race, ethnicity, and
disability category, who are in separate
classes, separate schools or facilities, or
public or private residential facilities;
[(v) the number of children with
disabilities, by race, ethnicity, and
disability category, who, for each year of age
from age 14 to 21, stopped receiving special
education and related services because of
program completion or other reasons and the
reasons why those children stopped receiving
special education and related services;
[(vi) the number of children with
disabilities, by race and ethnicity, who, from
birth through age 2, stopped receiving early
intervention services because of program
completion or for other reasons; and
[(vii)(I) the number of children with
disabilities, by race, ethnicity, and
disability category, who under subparagraphs
(A)(ii) and (B) of section 615(k)(1), are
removed to an interim alternative educational
setting;
[(II) the acts or items precipitating those
removals; and
[(III) the number of children with
disabilities who are subject to long-term
suspensions or expulsions; and
[(B) on the number of infants and toddlers, by race
and ethnicity, who are at risk of having substantial
developmental delays (as described in section 632), and
who are receiving early intervention services under
part C; and
[(2) on any other information that may be required by
the Secretary.
[(b) Sampling.--The Secretary may permit States and the
Secretary of the Interior to obtain the data described in
subsection (a) through sampling.
[(c) Disproportionality.--
[(1) In general.--Each State that receives assistance
under this part, and the Secretary of the Interior,
shall provide for the collection and examination of
data to determine if significant disproportionality
based on race is occurring in the State with respect
to--
[(A) the identification of children as
children with disabilities, including the
identification of children as children with
disabilities in accordance with a particular
impairment described in section 602(3); and
[(B) the placement in particular educational
settings of such children.
[(2) Review and revision of policies, practices, and
procedures.--In the case of a determination of
significant disproportionality with respect to the
identification of children as children with
disabilities, or the placement in particular
educational settings of such children, in accordance
with paragraph (1), the State or the Secretary of the
Interior, as the case may be, shall provide for the
review and, if appropriate, revision of the policies,
procedures, and practices used in such identification
or placement to ensure that such policies, procedures,
and practices comply with the requirements of this Act.
[SEC. 619. PRESCHOOL GRANTS.
[(a) In General.--The Secretary shall provide grants under
this section to assist States to provide special education and
related services, in accordance with this part--
[(1) to children with disabilities aged 3 through 5,
inclusive; and
[(2) at the State's discretion, to 2-year-old
children with disabilities who will turn 3 during the
school year.
[(b) Eligibility.--A State shall be eligible for a grant
under this section if such State--
[(1) is eligible under section 612 to receive a grant
under this part; and
[(2) makes a free appropriate public education
available to all children with disabilities, aged 3
through 5, residing in the State.
[(c) Allocations to States.--
[(1) In general.--After reserving funds for studies
and evaluations under section 674(e), the Secretary
shall allocate the remaining amount among the States in
accordance with paragraph (2) or (3), as the case may
be.
[(2) Increase in funds.--If the amount available for
allocations to States under paragraph (1) is equal to
or greater than the amount allocated to the States
under this section for the preceding fiscal year, those
allocations shall be calculated as follows:
[(A)(i) Except as provided in subparagraph
(B), the Secretary shall--
[(I) allocate to each State the
amount it received for fiscal year
1997;
[(II) allocate 85 percent of any
remaining funds to States on the basis
of their relative populations of
children aged 3 through 5; and
[(III) allocate 15 percent of those
remaining funds to State 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' allocation under this
paragraph shall exceed the sum of--
[(I) the amount it received
for the preceding fiscal year;
and
[(II) that amount multiplied
by the sum of 1.5 percent and
the percentage increase in the
amount appropriated.
[(C) If the amount available for allocations
under this paragraph is insufficient to pay
those allocations in full, those allocations
shall be ratably reduced, subject to
subparagraph (B)(i).
[(3) Decrease in funds.--If the amount available for
allocations to States under paragraph (1) is less than
the amount allocated to the States under this section
for the preceding fiscal year, those allocations shall
be calculated as follows:
[(A) If the amount available for allocations
is greater than the amount allocated to the
States for fiscal year 1997, each State shall
be allocated the sum of--
[(i) the amount if 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.
[(1) In general.--For the purpose of administering
this section (including the coordination of activities
under this part with, and providing technical
assistance to, other programs that provide services to
children with disabilities) a State may use not more
than 20 percent of the maximum amount it may retain
under subsection (d) for any fiscal year.
[(2) Administration of part C.--Funds described in
paragraph (1) may also be used for the administration
of part C of this Act, if the State educational agency
is the lead agency for the State under that part.
[(f) Other State-Level Activities.--Each State shall use
any funds it retains under subsection (d) and does not use for
administration under subsection (e)--
[(1) for support services (including establishing and
implementing the mediation process required by section
615(e)), which may benefit children with disabilities
younger than 3 or older than 5 as long as those
services also benefit children with disabilities aged 3
through 5.
[(2) for direct services for children eligible for
services under this section;
[(3) to develop a State improvement plan under
subpart 1 of part D;
[(4) for activities at the State and local levels to
meet the performance goals established by the State
under section 612(a)(16) 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 withdisabilities 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 proverty, 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 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--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES
SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION OF
APPROPRIATIONS.
(a) Grants to States.--
(1) Purpose of grants.--The Secretary shall make
grants to States and the outlying areas, and provide
funds to the Secretary of the Interior, to assist them
to provide special education and related services to
children with disabilities in accordance with this
part.
(2) Maximum amount.--The maximum amount available for
awarding grants under this section for any fiscal year
is--
(A) the total number of children with
disabilities in the 2002-2003 school year in
the States who received special education and
related services and who were--
(i) aged 3 through 5, if the State
was 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 schools and
secondary schools in the United States;
adjusted by;
(C) the rate of change in the sum of--
(i) 85 percent of the change in the
nationwide total of the population
described in subsection
(d)(3)(A)(i)(II); and
(ii) 15 percent of the change in the
nationwide total of the population
described in subsection
(d)(3)(A)(i)(III).
(b) Outlying Areas and Freely Associated States.--
(1) Funds reserved.--From the amount appropriated for
any fiscal year under subsection (i), the Secretary
shall reserve not more than 1 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) to provide each freely associated State a
grant in the amount that such freely associated
State received for fiscal year 2003 under this
part, but only if the freely associated State
meets the applicable requirements of this part,
as well as the requirements of section
611(b)(2)(C) as such section was in effect on
the day before the date of enactment of the
Individuals with Disabilities Education
Improvement Act of 2003.
(2) 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
the outlying areas or the freely associated States
under this section.
(3) 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 (i), 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 665, and for payments to
the outlying areas, the freely associated States, and
the Secretary of the Interior under subsections (b) and
(c) for a fiscal year, the Secretary shall allocate the
remaining amount among the States in accordance with
this subsection.
(2) Special rule for use of fiscal year 1999
amount.--If a State received any funds under this
section for fiscal year 1999 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 amount for fiscal year 1999, 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
fiscal year 1999 on the basis of those children.
(3) Increase in funds.--If the amount available for
allocations to States under paragraph (1) for a fiscal
year 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) Allocation of increase.--
(i) In general.--Except as provided
in subparagraph (B), the Secretary
shall allocate for the fiscal year--
(I) to each State the amount
the State received under this
section for fiscal year 1999;
(II) 85 percent of any
remaining funds to States on
the basis of the States'
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) 15 percent of those
remaining funds to States on
the basis of the States'
relative populations of
children described in subclause
(II) who are living in poverty.
(ii) Data.--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) Limitations.--Notwithstanding
subparagraph (A), allocations under this
paragraph shall be subject to the following:
(i) Preceding year allocation.--No
State's allocation shall be less than
its allocation under this section for
the preceding fiscal year.
(ii) Minimum.--No State's allocation
shall be less than the greatest of--
(I) the sum of--
(aa) the amount the
State received under
this section for fiscal
year 1999; and
(bb) \1/3\ of 1
percent of the amount
by which the amount
appropriated under
subsection (i) for the
fiscal year exceeds the
amount appropriated for
this section for fiscal
year 1999;
(II) the sum of--
(aa) the amount the
State received under
this section for the
preceding fiscal year;
and
(bb) that amount
multiplied by the
percentage by which the
increase in the funds
appropriated for this
section from the
preceding fiscal year
exceeds 1.5 percent; or
(III) the sum of--
(aa) the amount the
State received under
this section for the
preceding fiscal year;
and
(bb) that amount
multiplied by 90
percent of the
percentage increase in
the amount appropriated
for this section from
the preceding fiscal
year.
(iii) Maximum.--Notwithstanding
clause (ii), no State's allocation
under this paragraph shall exceed the
sum of--
(I) the amount the State
received under this section 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 under this
section from the preceding
fiscal year.
(C) Ratable reduction.--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) for a fiscal
year 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) Amounts greater than fiscal year 1999
allocations.--If the amount available for
allocations is greater than the amount
allocated to the States for fiscal year 1999,
each State shall be allocated the sum of--
(i) the amount the State received
under this section for fiscal year
1999; and
(ii) an amount that bears the same
relation to any remaining funds as the
increase the State received under this
section for the preceding fiscal year
over fiscal year 1999 bears to the
total of all such increases for all
States.
(B) Amounts equal to or less than fiscal year
1999 allocations.--
(i) In general.--If the amount
available for allocations under this
paragraph is equal to or less than the
amount allocated to the States for
fiscal year 1999, each State shall be
allocated the amount the State received
for fiscal year 1999.
(ii) Ratable reduction.--If the
amount available for allocations under
this paragraph is insufficient to make
the allocations described in clause
(i), those allocations shall be ratably
reduced.
(e) State-Level Activities.--
(1) State administration.--
(A) In general.--For the purpose of
administering this part, including paragraph
(3), section 619, and 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 reserve not more
than the maximum amount the State was
eligible to reserve for State
administration for fiscal year 2003 or
$800,000 (adjusted by the cumulative
rate of inflation since fiscal year
2003 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 reserve
not more than 5 percent of the amount
the outlying area receives under
subsection (b) for any fiscal year or
$35,000, whichever is greater.
(B) Part c.--Funds reserved under
subparagraph (A) may be used for the
administration of part C, if the State
educational agency is the lead agency for the
State under that part.
(C) Certification.--Prior to expenditure of
funds under this paragraph, the State shall
certify to the Secretary that the arrangements
to establish responsibility for services
pursuant to section 612(a)(12)(A) are current
as of the date of submission of the
certification.
(2) Other state-level activities.--
(A) State-level activities.--
(i) In general.--For the purpose of
carrying out State-level activities,
each State may reserve for each of the
fiscal years 2004 and 2005, not more
than 10 percent of the amount that
remains after subtracting the amount
reserved under paragraph (1) from the
amount of the State's allocation under
subsection (d) for fiscal years 2004
and 2005, respectively. For fiscal
years 2006, 2007, 2008, and 2009, the
State may reserve the maximum amount
the State was eligible to reserve under
the preceding sentence for fiscal year
2005 (adjusted by the cumulative rate
of inflation since fiscal year 2005 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).
(ii) Small State adjustment.--
Notwithstanding clause (i), in the case
of a State for which the maximum amount
reserved for State administration under
paragraph (1) is not greater than
$800,000 (as adjusted pursuant to
paragraph (1)(A)(i)), the State may
reserve for the purpose of carrying out
State-level activities for each of the
fiscal years 2004 and 2005, not more
than 12 percent of the amount that
remains after subtracting the amount
reserved under paragraph (1) from the
amount of the State's allocation under
subsection (d) for fiscal years 2004
and 2005, respectively. For each of the
fiscal years 2006, 2007, 2008, and
2009, each such State may reserve for
such purpose the maximum amount the
State was eligible to reserve under the
preceding sentence for fiscal year 2005
(adjusted by the cumulative rate of
inflation since fiscal year 2005 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).
(B) Required activities.--Funds reserved
under subparagraph (A) shall be used to carry
out the following activities:
(i) For monitoring, enforcement and
complaint investigation.
(ii) To establish and implement the
mediation, processes required by
section 615(e)(1), including providing
for the costs of mediators and support
personnel;
(iii) To support the State protection
and advocacy system to advise and
assist parents in the areas of--
(I) dispute resolution and
due process;
(II) voluntary mediation; and
(III) the opportunity to
resolve complaints.
(C) Authorized activities.--Funds reserved
under subparagraph (A) may be used to carry out
the following activities:
(i) For support and direct services,
including technical assistance,
personnel preparation, and professional
development and training.
(ii) To support paperwork reduction
activities, including expanding the use
of technology in the IEP process.
(iii) To assist local educational
agencies in providing positive
behavioral interventions and supports
and mental health services for children
with disabilities.
(iv) To improve the use of technology
in the classroom by children with
disabilities to enhance learning.
(v) To support the development and
use of technology, including
universally designed technologies and
assistive technology devices, to
maximize accessibility to the general
curriculum for children with
disabilities.
(vi) Development and implementation
of transition programs, including
coordination of services with agencies
involved in supporting the transition
of students with disabilities to post-
secondary activities.
(vii) To assist local educational
agencies in meeting personnel
shortages.
(viii) To support capacity-building
activities and improve the delivery of
services by local educational agencies
to improve results for children with
disabilities.
(ix) 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.
(x) To support the development and
provision of appropriate accommodations
for children with disabilities, or the
development and provision of alternate
assessments that are valid and reliable
for assessing the performance of
children with disabilities, in
accordance with sections 1111(b) and
6111 of the Elementary and Secondary
Education Act of 1965.
(3) Local educational agency risk pool.--
(A) In general.--For the purpose of assisting
local educational agencies (and charter schools
that are local educational agencies) in
addressing the needs of high-need children and
the unanticipated enrollment of other children
eligible for services under this part, each
State shall reserve for each of the fiscal
years 2004 through 2009, 2 percent of the
amount that remains after subtracting the
amount reserved under paragraph (1) from the
amount of the State's allocation under
subsection (d) for each of the fiscal years
2004 through 2009, respectively, to--
(i) establish a high-cost fund; and
(ii) make disbursements from the
high-cost fund to local educational
agencies in accordance with this
paragraph.
(B) Required disbursements from the fund.--
(i) In general.--Each State
educational agency shall make
disbursements from the fund established
under subparagraph (A) to local
educational agencies to pay the
percentage, described in subparagraph
(D), of the costs of providing a free
appropriate public education to high-
need children.
(ii) Special rule.--If funds reserved
for a fiscal year under subparagraph
(A) are insufficient to pay the
percentage described in subparagraph
(D) to assist all the local educational
agencies having applications approved
under subparagraph (C), then the State
educational agency shall ratably reduce
the amount paid to each local
educational agency that receives a
disbursement for that fiscal year.
(C) Application.--A local educational agency
that desires a disbursement under this
subsection shall submit an application to the
State educational agency at such time, in such
manner, and containing such information as the
State educational agency may require. Such
application shall include assurances that funds
provided under this paragraph shall not be used
to pay costs that otherwise would be
reimbursable as medical assistance for a child
with a disability under the State medicaid
program under title XIX of the Social Security
Act.
(D) Disbursements.--
(i) In general.--A State educational
agency shall make a disbursement to a
local educational agency that submits
an application under subparagraph (C)
in an amount that is equal to 75
percent of the costs that are in excess
of 4 times the average per-pupil
expenditure in the United States or in
the State where the child resides
(whichever average per-pupil
expenditure is lower) associated with
educating each high need child served
by such local educational agency in a
fiscal year for whom such agency
desires a disbursement.
(ii) Appropriate costs.--The costs
associated with educating a high need
child under clause (i) are only those
costs associated with providing direct
special education and related services
to such child that are identified in
such child's appropriately developed
IEP.
(E) Legal fees.--The disbursements under
subparagraph (D) shall not support legal fees,
court costs, or other costs associated with a
cause of action brought on behalf of such child
to ensure a free appropriate public education
for such child.
(F) Permissible disbursements from remaining
funds.--A State educational agency may make
disbursements to local educational agencies
from any funds that are remaining in the high
cost fund after making the required
disbursements under subparagraph (D) for a
fiscal year for the following purposes:
(i) To pay the costs associated with
serving children with disabilities who
moved into the areas served by such
local agencies after the budget for the
following school year had been
finalized to assist the local
educational agencies in providing a
free appropriate public education for
such children in such year.
(ii) To compensate local educational
agencies for extraordinary costs, as
determined by the State, of any
children eligible for services under
this part due to--
(I) unexpected enrollment or
placement of children eligible
for services under this part;
or
(II) a significant
underestimate of the average
cost of providing services to
children eligible for services
under this part.
(G) Remaining funds.--Funds reserved under
subparagraph (A) in any fiscal year but not
expended in that fiscal year pursuant to
subparagraph (D) or subparagraph (F) shall--
(i) be allocated to local educational
agencies pursuant to subparagraphs (D)
or (F) for the next fiscal year; or
(ii) be allocated to local
educational agencies in the same manner
as funds are allocated to local
educational agencies under subsection
(f).
(H) Assurance of a free appropriate public
education.--Nothing in this section shall be
construed--
(i) to limit or condition the right
of a child with a disability who is
assisted under this part to receive a
free appropriate public education
pursuant to section 612(a)(1) in a
least restrictive environment pursuant
to section 612(a)(5); or
(ii) to authorize a State educational
agency or local educational agency to
indicate a limit on what is expected to
be spent on the education of a child
with a disability.
(I) Medicaid services not affected.--
Disbursements provided under this subsection
shall not be used to pay costs that otherwise
would be reimbursable as medical assistance for
a child with a disability under the State
medicaid program under title XIX of the Social
Security Act.
(J) Definitions.--In this paragraph:
(i) Average per-pupil expenditure.--
The term ``average per-pupil
expenditure'' has the meaning given the
term in section 9101 of the Elementary
and Secondary Education Act of 1965.
(ii) High-need child.--The term
``high-need'', when used with respect
to a child with a disability, means a
child with a disability for whom a free
appropriate public education in a
fiscal year costs more than 4 times the
average per-pupil expenditure for such
fiscal year.
(K) Special rule for risk pool and high-need
assistance programs in effect as of january 1,
2003.--Notwithstanding the provisions of
subparagraphs (A) through (J), a State may use
funds reserved pursuant to this paragraph for
administering and implementing a placement-
neutral cost-sharing and reimbursement program
of high-need, low-incidence, emergency,
catastrophic, or extraordinary aid to local
educational agencies that provides services to
students eligible under this part based on
eligibility criteria for such programs that
were operative on January 1, 2003.
(4) Inapplicability of certain prohibitions.--A State
may use funds the State reserves under paragraphs (1),
(2), and (3) without regard to--
(A) the prohibition on commingling of funds
in section 612(a)(17)(B); and
(B) the prohibition on supplanting other
funds in section 612(a)(17)(C).
(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
how amounts under this section--
(A) will be used to meet the requirements of
this Act; and
(B) will be allocated among the activities
described in this section to meet State
priorities based on input from local
educational agencies.
(6) Flexibility in using funds for part c.--Any State
eligible to receive a grant under section 619 may use
funds made available under paragraph (1)(A), subsection
(f)(3), or section 619(f)(5) to develop and implement a
State policy jointly with the lead agency under part C
and the State educational agency to provide early
intervention services (which shall include an
educational component that promotes school readiness
and incorporates pre-literacy, language, and numeracy
skills) in accordance with part C to children with
disabilities who are eligible for services under
section 619 and who previously received services under
part C until such children enter, or are eligible under
State law to enter, kindergarten.
(f) 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 the State does not reserve under
subsection (e) to local educational agencies (including
public charter schools that operate as local
educational agencies) in the State that have
established their eligibility under section 613 for use
in accordance with this part.
(2) Procedure for allocations to local educational
agencies.--
(A) Procedure.--For each fiscal year for
which funds are allocated to States under
subsection (d), each State shall allocate funds
under paragraph (1) as follows:
(i) Base payments.--The State shall
first award each local educational
agency described in paragraph (1) the
amount the local educational agency
would have received under this section
for fiscal year 1999, if the State had
distributed 75 percent of its grant for
that year under section 611(d) as
section 611(d) was 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
local educational agencies on
the basis of the relative
numbers of children enrolled in
public and private elementary
schools and secondary schools
within the local educational
agency's jurisdiction; and
(II) allocate 15 percent of
those remaining funds to those
local educational agencies in
accordance with their relative
numbers of children living in
poverty, as determined by the
State educational agency.
(3) 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 local educational 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 educational 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 served by those other local educational
agencies.
(g) Definitions.--For the purpose of this section--
(1) the term ``average per-pupil expenditure in
public elementary schools 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 local
educational agencies; divided by
(B) the aggregate number of children in
average daily attendance to whom those local
educational agencies provided free public
education during that preceding year; and
(2) the term ``State'' means each of the 50 States,
the District of Columbia, and the Commonwealth of
Puerto Rico.
(h) 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 through 21 who are enrolled
in elementary schools 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 through 5
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 had 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 through 21 on
reservations, the State educational agency
shall be responsible for ensuring that all of
the requirements of this part are implemented.
(2) Submission of information.--The Secretary of
Education may provide the Secretary of the Interior
amounts under paragraph (1) for a fiscal year only if
the Secretary of the Interior submits to the Secretary
of Education information that--
(A) demonstrates that the Department of the
Interior meets the appropriate requirements, as
determined by the Secretary of Education, of
sections 612 (including monitoring and
evaluation activities) and 613;
(B) includes a description of how the
Secretary of the Interior will coordinate the
provision of services under this part with
local educational agencies, tribes and tribal
organizations, and other private and Federal
service providers;
(C) includes an assurance that there are
public hearings, adequate notice of such
hearings, and an opportunity for comment
afforded to members of tribes, tribal governing
bodies, and affected local school boards before
the adoption of the policies, programs, and
procedures described in subparagraph (A);
(D) includes an assurance that the Secretary
of the Interior will provide such information
as the Secretary of Education may require to
comply with section 618;
(E) includes an assurance that the Secretary
of the Interior and the Secretary of Health and
Human Services have entered into a memorandum
of agreement, to be provided to the Secretary
of Education, for the coordination of services,
resources, and personnel between their
respective Federal, State, and local offices
and with State and local educational agencies
and other entities to facilitate the provision
of services to Indian children with
disabilities residing on or near reservations
(such agreement shall provide for the
apportionment of responsibilities and costs
including, but not limited to, child find,
evaluation, diagnosis, remediation or
therapeutic measures, and (where appropriate)
equipment and medical or personal supplies as
needed for a child to remain in school or a
program); and
(F) includes an assurance that the Department
of the Interior will cooperate with the
Department of Education in its exercise of
monitoring and oversight of this application,
and any agreements entered into between the
Secretary of the Interior and other entities
under this part, and will fulfill its duties
under this part.
(3) Applicability.--Section 616(a) shall apply to the
information described in this paragraph.
(4) Payments for education and services for indian
children with disabilities aged 3 through 5.--
(A) In general.--With funds appropriated
under subsection (i), 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 theIndian 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 schools and secondary schools for Indian children
operated or funded by the Department of the Interior. The amount of
such payments under subparagraph (B) for any fiscal year shall be equal
to 20 percent of the amount allotted under subsection (c).
(B) Distribution of funds.--The Secretary of
the Interior shall distribute the total amount
of the payment under subparagraph (A) by
allocating to each tribe or tribal organization
an amount based on the number of children with
disabilities ages 3 through 5 residing on
reservations as reported annually, divided by
the total of those children served by all
tribes or tribal organizations.
(C) Submission of information.--To receive a
payment under this paragraph, the tribe or
tribal organization shall submit such figures
to the Secretary of the Interior as required to
determine the amounts to be allocated under
subparagraph (B). This information shall be
compiled and submitted to the Secretary of
Education.
(D) Use of funds.--The funds received by a
tribe or tribal organization shall be used to
assist in child find, screening, and other
procedures for the early identification of
children aged 3 through 5, parent training, and
the provision of direct services. These
activities may be carried out directly or
through contracts or cooperative agreements
with the BIA, local educational agencies, and
other public or private nonprofit
organizations. The tribe or tribal organization
is encouraged to involve Indian parents in the
development and implementation of these
activities. The above entities shall, as
appropriate, make referrals to local, State, or
Federal entities for the provision of services
or further diagnosis.
(E) Biennial report.--To be eligible to
receive a grant pursuant to subparagraph (A),
the tribe or tribal organization shall provide
to the Secretary of the Interior a biennial
report of activities undertaken under this
paragraph, including the number of contracts
and cooperative agreements entered into, the
number of children contacted and receiving
services for each year, and the estimated
number of children needing services during the
2 years following the year 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.
(5) 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. The plan 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.
(6) Establishment of advisory board.--To meet the
requirements of section 612(a)(20), the Secretary of
the Interior shall establish, under the BIA, an
advisory board composed of individuals involved in or
concerned with the education and provision of services
to Indian infants, toddlers, children, and youth with
disabilities, including Indians with disabilities,
Indian parents or guardians of such children, teachers,
service providers, State and local educational
officials, representatives of tribes or tribal
organizations, representatives from State Interagency
Coordinating Councils under section 641 in States
having reservations, and other members representing the
various divisions and entities of the BIA. The
chairperson shall be selected by the Secretary of the
Interior. The advisory board shall--
(A) assist in the coordination of services
within the BIA and with other local, State, and
Federal agencies in the provision of education
for infants, toddlers, and children with
disabilities;
(B) advise and assist the Secretary of the
Interior in the performance of the Secretary's
responsibilities described in this subsection;
(C) develop and recommend policies concerning
effective inter- and intra-agency
collaboration, including modifications to
regulations, and the elimination of barriers to
inter- and intra-agency programs and
activities;
(D) provide assistance and disseminate
information on best practices, effective
program coordination strategies, and
recommendations for improved educational
programming for Indian infants, toddlers, and
children with disabilities; and
(E) provide assistance in the preparation of
information required under paragraph (2)(D).
(7) Annual reports.--
(A) In general.--The advisory board
established under paragraph (6) shall prepare
and submit to the Secretary of the Interior and
to 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).
(i) Authorization of Appropriations.--For the purpose of
carrying out this part, other than section 619, there are
authorized to be appropriated such sums as may be necessary.
SEC. 612. STATE ELIGIBILITY.
(a) In General.--A State is eligible for assistance under
this part for a fiscal year if the State submits a plan that
provides assurances to the Secretary that the State has in
effect policies and procedures to ensure that the State meets
each of the following conditions:
(1) Free appropriate public education.--
(A) In general.--A free appropriate public
education is available to all children with
disabilities residing in the State between the
ages of 3 and 21, inclusive, including children
with disabilities who have been suspended or
expelled from school.
(B) Limitation.--The obligation to make a
free appropriate public education available to
all children with disabilities does not apply
with respect to children--
(i) aged 3 through 5 and 18 through
21 in a State to the extent that its
application to those children would be
inconsistent with State law or
practice, or the order of any court,
respecting the provision of public
education to children in those age
ranges; and
(ii) aged 18 through 21 to the extent
that State law does not require that
special education and related services
under this part be provided to children
with disabilities who, in the
educational placement prior to their
incarceration in an adult correctional
facility--
(I) were not actually
identified as being a child
with a disability under section
602(3); or
(II) did not have an
individualized education
program under this part.
(C) State flexibility.--A State that provides
early intervention services in accordance with
part C to a child who is eligible for services
under section 619, is not required to provide
such child with a free appropriate public
education.
(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.--A State funding
mechanism shall not result in
placements that violate the
requirements of subparagraph (A), and a
State shall not use a funding mechanism
by which the State distributes funds on
the basis of the type of setting in
which a child is served that will
result in the failure to provide a
child with a disability a free
appropriate public education according
to the unique needs of the child as
described in the child's IEP.
(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 the State will revise
the funding mechanism as soon as
feasible to ensure that such mechanism
does not result in such placements.
(6) Procedural safeguards.--
(A) In general.--Children with disabilities
and their parents are afforded the procedural
safeguards required by section 615.
(B) Additional procedural safeguards.--
Procedures to ensure that testing and
evaluation materials and procedures utilized
for the purposes of evaluation and placement of
children with disabilities will be selected and
administered so as not to be racially or
culturally discriminatory. Such materials or
procedures shall be provided and administered
in the child's native language or mode of
communication, unless it clearly is not
feasible to do so, and no single procedure
shall be the sole criterion for determining an
appropriate educational program for a child.
(7) Evaluation.--Children with disabilities are
evaluated in accordance with subsections (a) and (b) 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
635(a)(10).
(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 schools and
secondary schools in the school
district served by a local educational
agency, 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 to be expended
for the provision of those
services (including direct
services to parentally placed
children) by the 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 religious,
schools, to the extent
consistent with law.
(III) Each local educational
agency shall maintain in its
records and provide to the
State educational agency the
number of children evaluated
under this paragraph, the
number of children determined
to be children with
disabilities, and the number of
children served under this
subsection.
(ii) Child-find requirement.--
(I) In general.--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 religious, elementary
schools and secondary schools.
Such child find process shall
be conducted in a comparable
time period as for other
students attending public
schools in the local
educational agency.
(II) Equitable
participation.--The child find
process shall be designed to
ensure the equitable
participation of parentally
placed private school children
and an accurate count of such
children.
(III) Activities.--In
carrying out this clause, the
local educational agency, or
where applicable, the State
educational agency, shall
undertake activities similar to
those activities undertaken for
its public school children.
(IV) Cost.--The cost of
carrying out this clause,
including individual
evaluations, may not be
considered in determining
whether a local education
agency has met its obligations
under clause (i).
(iii) Consultation.--To ensure timely
and meaningful consultation, a local
educational agency, or where
appropriate, a State educational
agency, shall consult, with
representatives of children with
disabilities who are parentally placed
in private schools, during the design
and development of special education
and related services for these
children, including consultation
regarding--
(I) the child find process
and how parentally placed
private school children
suspected of having a
disability can participate
equitably, including how
parents, teachers, and private
school officials will be
informed of the process;
(II) the determination of the
proportionate share of Federal
funds available to serve
parentally placed private
school children with
disabilities under this
paragraph, including the
determination of how the
proportionate share of those
funds were calculated;
(III) the consultation
process among the school
district, private school
officials, and parents of
parentally placed private
school children with
disabilities, including how
such process will operate
throughout the school year to
ensure that parentally placed
children with disabilities
identified through the child
find process can meaningfully
participate in special
education and related services;
(IV) how, where, and by whom
special education and related
services will be provided for
parentally placed private
school children, including a
discussion of alternate service
delivery mechanisms, how such
services will be apportioned if
funds are insufficient to serve
all children, and how and when
these decisions will be made;
and
(V) how, if the local
educational agency disagrees
with the views of the private
school officials on the
provision of services through a
contract, the local educational
agency shall provide to the
private school officials a
written explanation of the
reasons why the local
educational agency chose not to
provide services through a
contract.
(iv) Written affirmation.--When
timely and meaningful consultation as
required by this section has occurred,
the local educational agency shall
obtain a written affirmation signed by
the representatives of participating
private schools, and if such officials
do not provide such affirmations within
a reasonable period of time, the local
educational agency shall forward the
documentation of the consultation
process to the State educational
agency.
(v) Compliance.--
(I) In general.--A private
school official shall have the
right to complain to the State
educational agency that the
local educational agency did
not engage in consultation that
was meaningful and timely, or
did not give due consideration
to the views of the private
school official.
(II) Procedure.--If the
private school official wishes
to complain, the official shall
provide the basis of the
noncompliance with this section
by the local educational agency
to the State educational
agency, and the local
educational agency shall
forward the appropriate
documentation to the State
educational agency. If the
private school official is
dissatisfied with the decision
of the State educational
agency, such official may
complain to the Secretary by
providing the basis of the
noncompliance with this section
by the local educational agency
to the Secretary, and the State
educational agency shall
forward the appropriate
documentation to the Secretary.
(vi) Provision of equitable
services.--
(I) Direct services.--To the
extent practicable, the local
educational agency shall
provide direct services to
children with disabilities
parentally placed in private
schools.
(II) Directly or through
contracts.--A public agency may
provide special education and
related services directly or
through contracts with public
and private agencies,
organizations, and
institutions.
(III) Secular, neutral,
nonideological.--Special
education and related services
provided to children with
disabilities attending private
schools, including materials
and equipment, shall be
secular, neutral, and
nonideological.
(vii) Public control of funds.--The
control of funds used to provide
special education and related services
under this section, and title to
materials, equipment, and property
purchased with those funds, shall be in
a public agency for the uses and
purposes provided in this Act, and a
public agency shall administer the
funds and property.
(B) Children placed in, or referred to,
private schools by public agencies.--
(i) In general.--Children with
disabilities in private schools and
facilities are provided special
education and related services, in
accordance with an individualized
education program, at no cost to their
parents, if such children are placed
in, or referred to, such schools or
facilities by the State or appropriate
local educational agency as the means
of carrying out the requirements of
this part or any other applicable law
requiring the provision of special
education and related services to all
children with disabilities within such
State.
(ii) Standards.--In all cases
described in clause (i), the State
educational agency shall determine
whether such schools and facilities
meet standards that apply to State and
local educational agencies and that
children so served have all the rights
the children 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 school or secondary
school without the consent of or
referral by the public agency, a court
or a hearing officer may require the
agency to reimburse the parents for the
cost of that enrollment if the court or
hearing officer finds that the agency
had not made a free appropriate public
education available to the child in a
timely manner prior to that enrollment.
(iii) Limitation on reimbursement.--
The cost of reimbursement described in
clause (ii) may be reduced or denied--
(I) if--
(aa) at the most
recent IEP meeting that
the parents attended
prior to removal of the
child from the public
school, the parents did
not inform the IEP Team
that they were
rejecting the placement
proposed by the public
agency to provide a
free appropriate public
education to their
child, including
stating their concerns
and their intent to
enroll their child in a
private school at
public expense; or
(bb) 10 business days
(including any holidays
that occur on a
business day) prior to
the removal of the
child from the public
school, the parents did
not give written notice
to the public agency of
the information
described in division
(aa);
(II) if, prior to the
parents' removal of the child
from the public school, the
public agency informed the
parents, through the notice
requirements described in
section 615(b)(3), 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--
(I) shall not be reduced or
denied for failure to provide
such notice if--
(aa) the school
prevented the parent
from providing such
notice; or
(bb) the parents had
not received notice,
pursuant to section
615, of the notice
requirement in clause
(iii)(I); and
(II) may, in the discretion
of a court or a hearing
officer, not be reduced or
denied for failure to provide
such notice if--
(aa) the parent is
illiterate and cannot
write in English; or
(bb) compliance with
clause (iii)(I) would
likely have resulted in
physical or serious
emotional harm to the
child.
(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 of a
State or designee of the officer shall ensure
that an interagency agreement or other
mechanism for interagency coordination is in
effect between each public agency described in
subparagraph (B) and the State educational
agency, in order to ensure that all services
described in subparagraph (B)(i) that are
needed to ensure a free appropriate public
education are provided, including the provision
of such services during the pendency of any
dispute under clause (iii). Such agreement or
mechanism shall include the following:
(i) Agency financial
responsibility.--An identification of,
or a method for defining, the financial
responsibility of each agency for
providing services described in
subparagraph (B)(i) to ensure a free
appropriate public education to
children with disabilities, provided
that the financial responsibility of
each public agency described in
subparagraph (B), including the State
Medicaid agency and other public
insurers of children with disabilities,
shall precede the financial
responsibility of the local educational
agency (or the State agency responsible
for developing the child's IEP).
(ii) Conditions and terms of
reimbursement.--The conditions, terms,
and procedures under which a local
educational agency shall be reimbursed
by other agencies.
(iii) Interagency disputes.--
Procedures for resolving interagency
disputes (including procedures under
which local educational agencies may
initiate proceedings) under the
agreement or other mechanism to secure
reimbursement from other agencies or
otherwise implement the provisions of
the agreement or mechanism.
(iv) Coordination of services
procedures.--Policies and procedures
for agencies to determine and identify
the interagency coordination
responsibilities of each agency to
promote the coordination and timely and
appropriate delivery of services
described in subparagraph (B)(i).
(B) Obligation of public agency.--
(i) In general.--If any public agency
other than an educational agency is
otherwise obligated under Federal or
State law, or assigned responsibility
under State policy 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 section 602(1) relating to
assistive technology devices, 602(2)
relating to assistive technology
services, 602(25) relating to related
services, 602(32) relating to
supplementary aids and services, and
602(33) 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
pursuant to subparagraph (A) or an
agreement pursuant to subparagraph (C).
(ii) Reimbursement for services by
public agency.--If a public agency
other than an educational agency fails
to provide or pay for the special
education and related services
described in clause (i), the local
educational agency (or State agency
responsible for developing the child's
IEP) shall provide or pay for such
services to the child. Such local
educational agency or State agency is
authorized to 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 and approved by
the Secretary.
(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) 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, including that those
personnel have the content knowledge and skills
to serve children with disabilities.
(B) Related services personnel and
paraprofessionals.--The standards under
subparagraph (A) include standards for related
services personnel and paraprofessionals that--
(i) are 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) ensure that related services
personnel who deliver services in their
discipline or profession meet the
requirements of clause (i) and have not
had certification or licensure
requirements waived on an emergency,
temporary, or provisional basis; and
(iii) allow paraprofessionals and
assistants who are appropriately
trained and supervised, in accordance
with State law, regulation, or written
policy, in meeting the requirements of
this part to be used to assist in the
provision of special education and
related services under this part to
children with disabilities.
(C) Standards for special education
teachers.--
(i) In general.--The standards
described in subparagraph (A) shall
ensure that each person employed as a
special education teacher in the State
who teaches in an elementary, middle,
or secondary school is highly qualified
not later than the end of the 2006-2007
school year.
(ii) Compliance.--Notwithstanding
paragraphs (2) and (3) of section
1119(a) of the Elementary and Secondary
Education Act of 1965, for purposes of
determining compliance with such
paragraphs--
(I) the Secretary, the State
educational agency, and local
educational agencies shall
apply the definition of highly
qualified in section 602(10) to
special education teachers; and
(II) the State shall ensure
that all special education
teachers teaching in core
academic subjects within the
State are highly qualified (as
defined in section 602(10)) not
later than the end of the 2006-
2007 school year.
(iii) Parents' right to know.--In
carrying out section 1111(h)(6) of the
Elementary and Secondary Education Act
of 1965 with respect to special
education teachers, a local educational
agency shall--
(I) include in a response to
a request under such section
any additional information
needed to demonstrate that the
teacher meets the applicable
requirements of section 602(10)
relating to certification or
licensure as a special
education teacher; and
(II) apply the definition of
highly qualified in section
602(10) in carrying out section
1111(h)(6)(B)(ii).
(D) Policy.--In implementing this section, a
State shall adopt a policy that includes a
requirement that local educational agencies in
the State take measurable steps to recruit,
hire, train, and retain highly qualified
personnel to provide special education and
related services under this part to children
with disabilities.
(E) Rule of construction.--Notwithstanding
any other individual right of action that a
parent or student may maintain under this part,
nothing in this subsection shall be construed
to create a right of action on behalf of an
individual student for the failure of a
particular State educational agency or local
educational agency staff person to be highly
qualified, or to prevent a parent from filing a
complaint about staff qualifications with the
State educational agency as provided for under
this part.
(15) Performance goals and indicators.--The State--
(A) has established goals for the performance
of children with disabilities in the State
that--
(i) promote the purposes of this Act,
as stated in section 601(d);
(ii) are the same as the State's
definition of adequate yearly progress,
including the State's objectives for
progress by children with disabilities,
under section 1111(b)(2)(C) of the
Elementary and Secondary Education Act
of 1965;
(iii) address graduation rates and
drop out rates, as well as such other
factors as the State may determine; and
(iv) are consistent, to the extent
appropriate, with any other goals and
standards for children established by
the State;
(B) has established performance indicators
the State will use to assess progress toward
achieving the goals described in subparagraph
(A), including measurable annual objectives for
progress by children with disabilities under
section 1111(b)(2)(C)(v)(II)(cc) of the
Elementary and Secondary Education Act of 1965;
and
(C) will annually 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).
(16) Participation in assessments.--
(A) In general.--All children with
disabilities are included in all general State
and districtwide assessment programs and
accountability systems, including assessments
and accountability systems described under
section 1111 of the Elementary and Secondary
Education Act of 1965, with appropriate
accommodations, alternate assessments where
necessary, and as indicated in their respective
individualized education programs.
(B) Accommodation guidelines.--The State (or,
in the case of a districtwide assessment, the
local educational agency) has developed
guidelines for the provision of appropriate
accommodations.
(C) Alternate assessments.--
(i) In general.--The State (or, in
the case of a districtwide assessment,
the local educational agency) has
developed and implemented guidelines
for the participation of children with
disabilities in alternate assessments
for those children who cannot
participate in regular assessments
under subparagraph (B) as indicated in
their respective individualized
education programs.
(ii) Requirements for alternate
assessments.--The guidelines under
clause (i) shall provide for alternate
assessments that--
(I) are aligned with the
State's challenging academic
content and academic
achievement standards; and
(II) if the State has adopted
alternate academic achievement
standards permitted under
section 1111(b)(1) of the
Elementary and Secondary
Education Act of 1965, measure
the achievement of children
with disabilities against those
standards.
(iii) Conduct of alternative
assessments.--The State conducts the
alternate assessments described in this
subparagraph.
(D) Reports.--The State educational agency
(or, in the case of a districtwide assessment,
the local 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, and the number of those
children who were provided
accommodations in order to participate
in those assessments.
(ii) The number of children with
disabilities participating in alternate
assessments described in subparagraph
(C)(ii)(I).
(iii) The number of children with
disabilities participating in alternate
assessments described in subparagraph
(C)(ii)(II).
(iv) The performance of children with
disabilities on regular assessments and
on alternate assessments (if the number
of children with disabilities
participating in those assessments is
sufficient to yield statistically
reliable information and reporting that
information will not reveal personally
identifiable information about an
individual student), compared with the
achievement of all children, including
children with disabilities, on those
assessments.
(E) Universal design.--The State educational
agency (or, in the case of a districtwide
assessment, the local educational agency)
shall, to the extent feasible, use universal
design principles in developing and
administering any assessments under this
paragraph.
(17) 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.
(18) 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
whichthe 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 1 fiscal year at a time, if the Secretary
determines that--
(i) granting a waiver would be
equitable due to exceptional or
uncontrollable circumstances such as a
natural disaster or a precipitous and
unforeseen decline in the financial
resources of the State; or
(ii) the State meets the standard in
paragraph (17)(C) 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.
(19) 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.
(20) 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 ages birth through 26;
(ii) individuals with disabilities;
(iii) teachers;
(iv) representatives of institutions
of higher education that prepare
special education and related services
personnel;
(v) State and local education
officials;
(vi) administrators of programs for
children with disabilities;
(vii) representatives of other State
agencies involved in the financing or
delivery of related services to
children with disabilities;
(viii) representatives of private
schools and public charter schools;
(ix) at least 1 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 ages birth through 26 or parents
of such individuals.
(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.
(21) 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.
(22) Access to instructional materials.--
(A) In general.--The State adopts the
national Instructional Materials Accessibility
Standard described in section 675(a) for the
purposes of providing instructional materials
to blind persons or other persons with print
disabilities in a timely manner after the
publication of the standard in the Federal
Register.
(B) Preparation and delivery of files.--Not
later than 2 years after the date of enactment
of the Individuals with Disabilities Education
Improvement Act of 2003, a State educational
agency, as part of any print instructional
materials adoption process, procurement
contract, or other practice or instrument used
for purchase of print instructional materials,
enters into a written contract with the
publisher of the print instructional materials
to--
(i) prepare, and on or before
delivery of the print instructional
materials, provide to the National
Instructional Materials Access Center,
established pursuant to section 675(b),
electronic files containing the
contents of the print instructional
materials using the Instructional
Materials Accessibility Standard; or
(ii) purchase instructional materials
from a publisher that are produced in
or may be rendered in the specialized
formats described in section
675(a)(4)(C).
(C) Assistive technology.--In carrying out
subparagraph (B), the State educational agency,
to the maximum extent possible, shall work
collaboratively with the State agency
responsible for assistive technology programs.
(b) State Educational Agency as Provider of Free Appropriate
Public Education or Direct Services.--If the State educational
agency provides free appropriate public education to children
with disabilities, or provides direct services to such
children, such agency--
(1) shall comply with any additional requirements of
section 613(a), as if such agency were a local
educational agency; and
(2) may use amounts that are otherwise available to
such agency under this part to serve those children
without regard to section 613(a)(2)(A)(i) (relating to
excess costs).
(c) Exception for Prior State Plans.--
(1) In general.--If a State has on file with the
Secretary policies and procedures that demonstrate that
such State meets any requirement of subsection (a),
including any policies and procedures filed under this
part as in effect before the effective date of the
Individuals with Disabilities Education Improvement Act
of 2003, the Secretary shall consider such State to
have met such requirement for purposes of receiving a
grant under this part.
(2) Modifications made by state.--Subject to
paragraph (3), an application submitted by a State in
accordance with this section shall remain in effect
until the State submits to the Secretary such
modifications as the State determines 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 Improvement Act of 2003, the
provisions of this Act are amended (or the regulations
developed to carry out this Act are amended), 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, then 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 was prohibited by law from
providing for the equitable participation in special
programs of children with disabilities enrolled in
private elementary schools and secondary schools as
required by subsection (a)(10)(A), or if the Secretary
determines that a State educational agency, local
educational agency, or other entity has substantially
failed or is unwilling to provide for such equitable
participation, then the Secretary shall,
notwithstanding such provision of law, arrange for the
provision of services to such children through
arrangements which shall be subject to the requirements
of such subsection.
(2) Payments.--
(A) Determination of amounts.--If the
Secretary arranges for services pursuant to
this subsection, the Secretary, after
consultation with the appropriate public and
private school officials, shall pay to the
provider of such services for a fiscal year an
amount per child that does not exceed the
amount determined by dividing--
(i) the total amount received by the
State under this part for such fiscal
year; by
(ii) the number of children with
disabilities served in the prior year,
as reported to the Secretary by the
State under section 618.
(B) Withholding of certain amounts.--Pending
final resolution of any investigation or
complaint that may 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 will be necessary to pay
the cost of services described in subparagraph
(A).
(C) Period of payments.--The period under
which payments are made under subparagraph (A)
shall continue until the Secretary determines
that there will no longer be any failure or
inability on the part of the State educational
agency to meet the requirements of subsection
(a)(10)(A).
(3) Notice and hearing.--
(A) In general.--The Secretary shall not take
any final action under this subsection until
the State educational agency affected by such
action has had an opportunity, for at least 45
days after receiving written notice thereof, to
submit written objections and to appear before
the Secretary or the Secretary's designee to
show cause why such action should not be taken.
(B) Review of action.--If a State educational
agency is dissatisfied with the Secretary's
final action after a proceeding under
subparagraph (A), such agency may, not later
than 60 days after notice of such action, file
with the United States court of appeals for the
circuit in which such State is located a
petition for review of that action. A copy of
the petition shall be forthwith transmitted by
the clerk of the court to the Secretary. The
Secretary thereupon shall file in the court the
record of the proceedings on which the
Secretary based the Secretary's action, as
provided in section 2112 of title 28, United
States Code.
(C) Review of findings of fact.--The findings
of fact by the Secretary, if supported by
substantial evidence, shall be conclusive, but
the court, for good cause shown, may remand the
case to the Secretary to take further evidence,
and the Secretary may thereupon make new or
modified findings of fact and may modify the
Secretary's previous action, and shall file in
the court the record of the further
proceedings. Such new or modified findings of
fact shall likewise be conclusive if supported
by substantial evidence.
(D) Jurisdiction of court of appeals; review
by united states supreme court.--Upon the
filing of a petition under subparagraph (B),
the United States court of appeals shall have
jurisdiction to affirm the action of the
Secretary or to set it aside, in whole or in
part. The judgment of the court shall be
subject to review by the Supreme Court of the
United States upon certiorari or certification
as provided in section 1254 of title 28, United
States Code.
SEC. 613. LOCAL EDUCATIONAL AGENCY ELIGIBILITY.
(a) In General.--A local educational agency is eligible for
assistance under this part for a fiscal year if such agency
submits a plan that provides assurances to the State
educational agency that the local educational agency 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) 8 percent rule.--Notwithstanding
clauses (ii) and (iii) of subparagraph
(A), a local educational agency may
treat as local funds, for the purposes
of such clauses, not more than 8
percent of the amount of funds the
local educational agency receives under
this part.
(ii) 40 percent rule.--
Notwithstanding clauses (ii) and (iii)
of subparagraph (A), for any fiscal
year for which States are allocated the
maximum amount of grants pursuant to
section 611(a)(2), a local educational
agency may treat as local funds, for
the purposes of such clauses, not more
than 40 percent of the amount of funds
the local educational agency receives
under this part, subject to clause
(iv).
(iii) Early intervening services.--
(I) 8 percent rule.--If a
local educational agency
exercises authority pursuant to
clause (i), the 8 percent funds
shall be counted toward the
percentage and amount of funds
that may be used to provide
early intervening educational
services pursuant to subsection
(f).
(II) 40 percent rule.--If a
local educational agency
exercises authority pursuant to
clause (ii), the local
educational agency shall use an
amount of the 40 percent funds
from clause (ii) that
represents 15 percent of the
total amount of funds the local
educational agency receives
under this part, to provide
early intervening educational
services pursuant to subsection
(f).
(iv) Special rule.--Funds treated as
local funds pursuant to clause (i) or
(ii) may be considered non-Federal or
local funds for the purposes of--
(I) clauses (ii) and (iii) of
subparagraph (A); and
(II) the provision of the
local share of costs for title
XIX of the Social Security Act.
(v) Report.--For each fiscal year in
which a local educational agency
exercises its authority pursuant to
this subparagraph and treats Federal
funds as local funds, the local
educational agency shall report to the
State educational agency the amount of
funds so treated and the activities
that were funded with such funds.
(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 shall ensure that all personnel necessary to
carry out this part are appropriately and adequately
prepared, consistent with the requirements of section
612(a)(14) of this Act and section 2122 of the
Elementary and Secondary Education Act of 1965.
(4) Permissive use of funds.--
(A) Uses.--Notwithstanding paragraph (2)(A)
or section 612(a)(17)(B) (relating to
commingled funds), funds provided to the local
educational agency under this part may be used
for the following activities:
(i) 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 1 or more
nondisabled children benefit from such
services.
(ii) Early intervening services.--To
develop and implement coordinated,
early intervening educational services
in accordance with subsection (f).
(B) Administrative case management.--A local
educational agency may use funds received under
this part to purchase appropriate technology
for recordkeeping, data collection, and related
case management activities of teachers and
related services personnel providing services
described in the individualized education
program of children with disabilities, that is
needed for the implementation of such case
management activities.
(5) Treatment of charter schools and their
students.--In carrying out this part with respect to
charter schools that are public schools of the local
educational agency, the local educational agency--
(A) serves children with disabilities
attending those charter schools in the same
manner as the local educational agency serves
children with disabilities in its other
schools, including providing supplementary and
related services on site at the charter school
to the same extent to which the local
educational agency has a policy or practice of
providing such services on the site to its
other public schools; and
(B) provides funds under this part to those
charter schools on the same basis, including
proportional distribution based on relative
enrollment of children with disabilities, and
at the same time, as the local educational
agency distributes State, local, or a
combination of State and local, funds to those
charter schools under the State's charter
school law.
(6) Purchase of instructional materials.--Not later
than 2 years after the date of enactment of the
Individuals with Disabilities Education Improvement Act
of 2003, a local educational agency, when purchasing
print instructional materials, acquires these
instructional materials in the same manner as a State
educational agency described in section 612(a)(22).
(7) 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
(15) and (16) of section 612(a), information relating
to the performance of children with disabilities
participating in programs carried out under this part.
(8) 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.
(9) Records regarding migratory children with
disabilities.--The local educational agency shall
cooperate in the Secretary's efforts under section 1308
of the Elementary and Secondary Education Act of 1965
(20 U.S.C. 6398) to ensure the linkage of records
pertaining to migratory children with a disability for
the purpose of electronically exchanging, among the
States, health and educational information regarding
such children.
(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 Improvement Act
of 2003, 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 the local
educational agency submits to the State educational
agency such modifications as the local educational
agency determines necessary.
(3) Modifications required by state educational
agency.--If, after the effective date of the
Individuals with Disabilities Education Improvement Act
of 2003, the provisions of this Act are amended (or the
regulations developed to carry out this Act are
amended), 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, then 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, then the State educational
agency shall notify the local educational agency or State
agency, as the case may be, of that determination and shall
provide such local educational agency or State agency with
reasonable notice and an opportunity for a hearing.
(d) Local Educational Agency Compliance.--
(1) In general.--If the State educational agency,
after reasonable notice and an opportunity for a
hearing, finds that a local educational agency or State
agency that has been determined to be eligible under
this section is failing to comply with any requirement
described in subsection (a), the State educational
agency shall reduce or shall not provide any further
payments to the local educational agency or State
agency until the State educational agency is satisfied
that the local educational agency or State agency, as
the case may be, is complying with that requirement.
(2) Additional requirement.--Any State agency or
local educational agency in receipt of a notice
described in paragraph (1) shall, by means of public
notice, take such measures as may be necessary to bring
the pendency of an action pursuant to this subsection
to the attention of the public within the jurisdiction
of such agency.
(3) Consideration.--In carrying out its
responsibilities under paragraph (1), the State
educational agency shall consider any decision made in
a hearing held under section 615 that is adverse to the
local educational agency or State agency involved in
that decision.
(e) Joint Establishment of Eligibility.--
(1) Joint establishment.--
(A) In general.--A State educational agency
may require a local educational agency to
establish its eligibility jointly with another
local educational agency if the State
educational agency determines that the local
educational agency will be ineligible under
this section because the local educational
agency will 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 the charter school is
explicitly permitted to do so under the State's
charter school law.
(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 havereceived under
section 611(f) if such agencies were eligible for such payments.
(3) Requirements.--Local educational agencies that
establish joint eligibility under this subsection
shall--
(A) adopt policies and procedures that are
consistent with the State's policies and
procedures under section 612(a); and
(B) be jointly responsible for implementing
programs that receive assistance under this
part.
(4) Requirements for educational service agencies.--
(A) In general.--If an educational service
agency is required by State law to carry out
programs under this part, the joint
responsibilities given to local educational
agencies under this subsection shall--
(i) not apply to the administration
and disbursement of any payments
received by that educational service
agency; and
(ii) be carried out only by that
educational service agency.
(B) Additional requirement.--Notwithstanding
any other provision of this subsection, an
educational service agency shall provide for
the education of children with disabilities in
the least restrictive environment, as required
by section 612(a)(5).
(f) Early Intervening Services.--
(1) In general.--A local educational agency may not
use more than 15 percent of the amount such agency
receives under this part for any fiscal year, less any
amount treated as local funds pursuant to subsection
(a)(2)(C), if any, in combination with other amounts
(which may include amounts other than education funds),
to develop and implement coordinated, early intervening
educational services, which may include interagency
financing structures, for students in kindergarten
through grade 12 (with a particular emphasis on
students in kindergarten through grade 3) who do not
meet the definition of a child with a disability under
section 602(3) but who need additional academic and
behavioral support to succeed in a general education
environment.
(2) Activities.--In implementing coordinated, early
intervening educational services under this subsection,
a local educational agency may carry out activities
that include--
(A) professional development (which may be
provided by entities other than local
educational agencies) for teachers and other
school staff to enable such personnel to
deliver scientifically based academic and
behavioral interventions, including
scientifically based literacy instruction, and,
where appropriate, instruction on the use of
adaptive and instructional software;
(B) providing educational and behavioral
evaluations, services, and supports, including
scientifically based literacy instruction; and
(C) developing and implementing interagency
financing structures for the provision of such
services and supports.
(3) Construction.--Nothing in this subsection shall
be construed to either limit or create a right to a
free appropriate public education under this part.
(4) Reporting.--Each local educational agency that
develops and maintains coordinated, early intervening
educational services with funds made available for this
subsection, shall annually report to the State
educational agency on--
(A) the number of children served under this
subsection; and
(B) the number of children served under this
subsection who are subsequently referred to
special education.
(5) Coordination with certain projects under
elementary and secondary education act of 1965.--Funds
made available to carry out this subsection may be used
to carry out coordinated, early intervening educational
services aligned with activities funded by, and carried
out under, the Elementary and Secondary Education Act
of 1965 if such funds are used to supplement, and not
supplant, funds made available under the Elementary and
Secondary Education Act of 1965 for the activities and
services assisted under this subsection.
(6) Report to congress.--Not later than 1 year after
the date of enactment of the Individuals with
Disabilities Education Improvement Act of 2003, the
Comptroller General shall conduct a study on the types
of services provided to children served under this
subsection, and shall submit a report to Congress
regarding the study.
(g) 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 educational agency, or for whom
that State agency is responsible, if the State
educational agency determines that the local
educational 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 1 or more local educational agencies in
order to establish and maintain such programs;
or
(D) has 1 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.
(h) State Agency Eligibility.--Any State agency that desires
to receive a subgrant for any fiscal year under section 611(f)
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.
(i) 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 1 school to another, the transmission
of any of the child's records shall 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.
(j) State Agency Flexibility.--
(1) Treatment of federal funds in certain fiscal
years.--If a State educational agency pays or
reimburses local educational agencies within the State
for not less than 80 percent of the non-Federal share
of the costs of special education and related services,
or the State is the sole provider of free appropriate
public education or direct services pursuant to section
612(b), then the State educational agency,
notwithstanding sections 612(a) (17) and (18) and
612(b), may treat funds allocated pursuant to section
611 as general funds available to support the
educational purposes described in paragraph (2) (A) and
(B).
(2) Conditions.--A State educational agency may use
funds in accordance with paragraph (1) subject to the
following conditions:
(A) 8 percent rule.--A State educational
agency may treat not more than 8 percent of the
funds the State educational agency receives
under this part as general funds to support any
educational purpose described in the Elementary
and Secondary Education Act of 1965, needs-
based student or teacher higher education
programs, or the non-Federal share of costs of
title XIX of the Social Security Act.
(B) 40 percent rule.--For any fiscal year for
which States are allocated the maximum amount
of grants pursuant to section 611(a)(2), a
State educational agency may treat not more
than 40 percent of the amount of funds the
State educational agency receives under this
part as general funds to support any
educational purpose described in the Elementary
and Secondary Education Act of 1965, needs-
based student or teacher higher education
programs, or the non-Federal share of costs of
title XIX of the Social Security Act, subject
to subparagraph (C).
(C) Requirement.--A State educational agency
may exercise its authority pursuant to
subparagraph (B) only if the State educational
agency uses an amount of the 40 percent funds
from subparagraph (B) that represents 15
percent of the total amount of funds the State
educational agency receives under this part, to
provide, or to pay or reimburse local
educational agencies for providing, early
intervening prereferral services pursuant to
subsection (f).
(2) Prohibition.--Notwithstanding subsection (a), if
the Secretary determines that a State educational
agency is unable to establish, maintain, or oversee
programs of free appropriate public education that meet
the requirements of this part, then the Secretary shall
prohibit the State educational agency from treating
funds allocated under this part as general funds
pursuant to paragraph (1).
(3) Report.--For each fiscal year for which a State
educational agency exercises its authority pursuant to
paragraph (1) and treats Federal funds as general
funds, the State educational agency shall report to the
Secretary the amount of funds so treated and the
activities that were funded with such funds.
* * * * * * *
SEC. 614. EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED
EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.
(a) Evaluations and Reevaluations.--
(1) Initial evaluations.--
(A) In general.--A State educational agency,
other State agency, or local educational agency
shall conduct a full and individual initial
evaluation in accordance with this paragraph
and subsection (b), before the initial
provision of special education and related
services to a child with a disability under
this part.
(B) Request for initial evaluation.--
Consistent with subparagraph (D), either a
parent of a child, or a State educational
agency, other State agency, or local
educational agency may initiate a request for
an initial evaluation to determine if the child
is a child with a disability.
(C) 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)) within 60 days of
receiving parental consent for the
evaluation, or, if the State has
established a timeframe within which
the evaluation must be conducted,
within such timeframe; and
(ii) to determine the educational
needs of such child.
(D) 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 (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.
(iii) Refusal or failure to
consent.--If the parent of a child does
not provide informed consent to the
receipt of special education and
related services, or the parent fails
to respond to a request to provide the
consent, the local educational agency
shall not be considered to be in
violation of the requirement to make
available a free appropriate public
education to the child for the failure
to provide the special education and
related services for which the local
educational agency requests such
informed consent.
(2) Reevaluations.--
(A) In general.--A local educational agency
shall ensure that a reevaluation of each child
with a disability is conducted in accordance
with subsections (b) and (c)--
(i) if the local educational agency
determines that the educational or
related services needs, including
improved academic achievement and
functional performance, of the child
warrant a reevaluation; or
(ii) if the child's parents or
teacher requests a reevaluation.
(B) Limitation.--A reevaluation conducted
under subparagraph (A) shall occur--
(i) not more than once a year, unless
the parent and the local educational
agency agree otherwise; and
(ii) at least once every 3 years,
unless the parent and the local
educational agency agree that a
reevaluation is unnecessary.
(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,
developmental, and academic information,
including information provided by the parent,
that may assist in determining--
(i) whether the child is a child with
a disability; and
(ii) the content of the child's
individualized education program,
including information related to
enabling the child to be involved in
and progress in the general curriculum,
or for preschool children, to
participate in appropriate activities;
(B) not use any single procedure, measure, or
assessment 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;
(ii) are provided and administered,
to the extent practicable, in the
language and form most likely to yield
accurate information on what the child
knows and can do academically,
developmentally, and functionally;
(iii) are used for purposes for which
the assessments or measures are valid
and reliable;
(iv) are administered by trained and
knowledgeable personnel; and
(v) are administered in accordance
with any instructions provided by the
producer of such tests;
(B) the child is assessed in all areas of
suspected disability; and
(C) 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
shall 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--
(A) lack of scientifically based instruction
in reading;
(B) lack of instruction in mathematics; or
(C) limited English proficiency.
(6) Specific learning disabilities.--
(A) In general.--Notwithstanding section
607(b), when determining whether a child has a
specific learning disability as defined in
section 602(29), a local educational agency
shall not be required to take into
consideration whether a child has a severe
discrepancy between achievement and
intellectual ability in oral expression,
listening comprehension, written expression,
basic reading skill, reading comprehension,
mathematical calculation, or mathematical
reasoning.
(B) Additional authority.--In determining
whether a child has a specific learning
disability, a local educational agency may use
a process that determines if the child responds
to scientific, research-based intervention as a
part of the evaluation procedures described in
paragraphs (2) and (3).
(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
observations; and
(B) on the basis of that review, and input
from the child's parents, identify what
additional data, if any, are needed to
determine--
(i) whether the child has a
particular category of disability, as
described in section 602(3), or, in
case of a reevaluation of a child,
whether the child continues to have
such a disability;
(ii) the present levels of
performance and educational needs of
the child;
(iii) whether the child needs special
education and related services, or in
the case of a reevaluation of a child,
whether the child continues to need
special education and related services;
and
(iv) whether any additions or
modifications to the special education
and related services are needed to
enable the child to meet the measurable
annual goals set out in the
individualized education program of the
child and to participate, as
appropriate, in the general curriculum.
(2) Source of data.--The local educational agency
shall administer such tests and other evaluation
materials and procedures 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)(D), prior to conducting any
reevaluation of a child with a disability, except that
such informed parental consent need not be obtained if
the local educational agency can demonstrate that the
local educational agency 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 is or 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 the determination; and
(ii) the right of such parents to
request an assessment to determine
whether the child is or continues to be
a child with a disability; and
(B) shall not be required to conduct such an
assessment unless requested by the child's
parents.
(5) Evaluations before change in eligibility.--
(A) In general.--Except as provided in
subparagraph (B), 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.
(B) Exception.--
(i) In general.--The evaluation
described in subparagraph (A) shall not
be required before the termination of a
child's eligibility under this part due
to graduation from secondary school
with a regular diploma, or to exceeding
the age eligibility for a free
appropriate public education under
State law.
(ii) Summary of performance.--For a
child whose eligibility under this part
terminates under circumstances
described in clause (i), a local
educational agency shall provide the
child with a summary of the child's
academic achievement and functional
performance, which shall include
recommendations on how to assist the
child in meeting the child's
postsecondary goals.
(d) Individualized Education Programs.--
(1) Definitions.--As used in this title:
(A) Individualized education program.--
(i) In general.--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
academic achievement and
functional performance,
including--
(aa) how the child's
disability affects the
child's involvement and
progress in the general
curriculum; or
(bb) for preschool
children, as
appropriate, how the
disability affects the
child's participation
in appropriate
activities;
(II) a statement of
measurable annual goals,
including academic and
functional goals, designed to--
(aa) meet the child's
needs that result from
the child's disability
to enable the child to
be involved in and make
progress in the general
curriculum; and
(bb) meet each of the
child's other
educational needs that
result from the child's
disability;
(III) a description of how
the child's progress toward
meeting the annual goals
described in subclause (II)
will be measured and when
periodic reports on the
progress the child is making
toward meeting the annual goals
(such as through the use of
quarterly or other periodic
reports, concurrent with the
issuance of report cards) will
be provided;
(IV) 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--
(aa) to advance
appropriately toward
attaining the annual
goals;
(bb) to be involved
in and make progress in
the general curriculum
in accordance with
subclause (I) and to
participate in
extracurricular and
other nonacademic
activities; and
(cc) to be educated
and participate with
other children with
disabilities and
nondisabled children in
the activities
described in this
paragraph;
(V) 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
subclause (IV)(cc);
(VI)(aa) a statement of any
individual appropriate
accommodations that are
necessary to measure the
academic achievement and
functional performance of the
child on State and districtwide
assessments consistent with
section 612(a)(16)(A); and
(bb) if the IEP Team
determines that the child shall
take an alternate assessment on
a particular State or
districtwide assessment of
student achievement, a
statement of why--
(AA) the child cannot
participate in the
regular assessment; and
(BB) the particular
alternate assessment
selected is appropriate
for the child;
(VII) the projected date for
the beginning of the services
and modifications described in
subclause (IV), and the
anticipated frequency,
location, and duration of those
services and modifications; and
(VIII) beginning not later
than the first IEP to be in
effect when the child is 14,
and updated annually
thereafter--
(aa) appropriate
measurable
postsecondary goals
based upon age
appropriate transition
assessments related to
training, education,
employment, and, where
appropriate,
independent living
skills;
(bb) the transition
services (including
courses of study)
needed by the child to
reach those goals,
including services to
be provided by other
agencies when needed;
and
(cc) beginning at
least 1 year before the
child reaches the age
of majority under State
law, a statement that
the child has been
informed of the child's
rights under this
title, if any, that
will transfer to the
child on reaching the
age of majority under
section 615(m).
(ii) Rule of construction.--Nothing
in this section shall be construed to
require--
(I) that additional
information be included in a
child's IEP beyond what is
explicitly required in this
section; and
(II) the IEP Team to include
information under 1 component
of a child's IEP that is
already contained under another
component of such IEP.
(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 1 regular education
teacher of such child (if the child is,
or may be, participating in the regular
education environment);
(iii) at least 1 special education
teacher, or where appropriate, at least
1 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.
(C) IEP team attendance.--
(i) Attendance not necessary.--A
member of the IEP Team shall not be
required to attend an IEP meeting, in
whole or in part, if that member, the
parent of a child with a disability,
and the local educational agency agree
that the attendance of such member is
not necessary because no modification
to the member's area of the curriculum
or related services is being modified
or discussed in the meeting.
(ii) Excusal.--A member of the IEP
Team may be excused from attending an
IEP meeting, in whole or in part, when
the meeting involves a modification to
or discussion of the member's area of
the curriculum or related services,
if--
(I) that member, the parent,
and the local educational
agency consent to the excusal;
and
(II) the member submits input
into the development of the IEP
prior to the meeting.
(iii) Written agreement and consent
required.--A parent's agreement under
clause (i) and consent under clause
(ii) shall be in writing.
(2) Requirement that program be in effect.--
(A) In general.--At the beginning of each
school year, each local educational agency,
State educational agency, or other State
agency, as the case may be, shall have in
effect, for each child with a disability in its
jurisdiction, an individualized education
program, as defined in paragraph (1)(A).
(B) Program for child aged 3 through 5.--In
the case of a child with a disability aged 3
through 5 (or, at the discretion of the State
educational agency, a 2-year-old child with a
disability who will turn age 3 during the
school year), an individualized family service
plan that contains the material described in
section 636, and that is developed in
accordance with this section, may serve as the
IEP of the child if using that plan as the IEP
is--
(i) consistent with State policy; and
(ii) agreed to by the agency and the
child's parents.
(3) Development of iep.--
(A) In general.--In developing each child's
IEP, the IEP Team, subject to subparagraph (C),
shall consider--
(i) the strengths of the child;
(ii) the concerns of the parents for
enhancing the education of their child;
(iii) the results of the initial
evaluation or most recent evaluation of
the child; and
(iv) the academic, developmental, and
functional needs of the child.
(B) Consideration of special factors.--The
IEP Team shall--
(i) in the case of a child whose
behavior impedes the child's learning
or that of others, provide for positive
behavioral interventions and supports,
and other strategies 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--
(I) 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; and
(II) consider, when
appropriate, instructional
services related to functional
performance skills, orientation
and mobility, and skills in the
use of assistive technology
devices, including low vision
devices;
(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.--A regular education teacher
of the child, as a member of the IEP Team
shall, to the extent appropriate, participate
in the development of the IEP of the child,
including the determination of appropriate
positive behavioral interventions and supports,
and other strategies, and the determination of
supplementary aids and services, program
modifications, and support for school personnel
consistent with paragraph (1)(A)(i)(IV).
(D) Agreement.--In making changes to a
child's IEP after the annual IEP meeting for a
school year, the parent of a child with a
disability and the local educational agency may
agree not to convene an IEP meeting for the
purposes of making such changes, and instead
may develop a written document to amend or
modify the child's current IEP.
(E) Consolidation of iep team meetings.--To
the extent possible, the local educational
agency shall encourage the consolidation of
reevaluations of a child with IEP Team meetings
for the child.
(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) revise 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.--A regular education teacher
of the child, as a member of the IEP Team,
shall, consistent with paragraph (1)(C),
participate in the review and revision of the
IEP of the child.
(5) Three-year iep.--
(A) Development of 3-year iep.--The local
educational agency may offer a child with a
disability who has reached the age of 18, the
option of developing a comprehensive 3-year
IEP. With the consent of the parent, when
appropriate, the IEP Team shall develop an IEP,
as described in paragraphs (1) and (3), that is
designed to serve the child for the final 3-
year transition period, which includes a
statement of--
(i) measurable goals that will enable
the child to be involved in and make
progress in the general education
curriculum and that will meet the
child's transitional and postsecondary
needs that result from the child's
disability; and
(ii) measurable annual goals for
measuring progress toward meeting the
postsecondary goals described in clause
(i).
(B) Review and revision of 3-year iep.--
(i) Requirement.--Each year the local
educational agency shall ensure that
the IEP Team--
(I) provides an annual review
of the child's IEP to determine
the child's current levels of
progress and determine whether
the annual goals for the child
are being achieved; and
(II) revises the IEP, as
appropriate, to enable the
child to continue to meet the
measurable transition goals set
out in the IEP.
(ii) Comprehensive review.--If the
review under clause (i) determines that
the child is not making sufficient
progress toward the goals described in
subparagraph (A), the local educational
agency shall ensure that the IEP Team
provides a review, within 30 calendar
days, of the IEP under paragraph (4).
(iii) Preference.--At the request of
the child, or when appropriate, the
parent, the IEP Team shall conduct a
review of the child's 3-year IEP under
paragraph (4) rather than an annual
review under subparagraph (B)(i).
(6) 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)(i)(VIII), 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.
(7) Children with disabilities in adult prisons.--
(A) In general.--The following requirements
shall 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)(16) and paragraph
(1)(A)(i)(V) (relating to participation
of children with disabilities in
general assessments).
(ii) The requirements of items (aa)
and (bb) of paragraph (1)(A)(i)(VIII)
(relating to transition planning and
transition services), do not apply with
respect to such children whose
eligibility under this part will end,
because of their age, before they will
be released from prison.
(B) Additional requirement.--If a child with
a disability is convicted as an adult under
State law and incarcerated in an adult prison,
the child's IEP Team may modify the child's IEP
or placement notwithstanding the requirements
of sections 612(a)(5)(A) and 614(d)(1)(A) if
the State has demonstrated a bona fide security
or compelling penological interest that cannot
otherwise be accommodated.
(e) 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.
(f) Alternative Means of Meeting Participation.--When
conducting IEP Team meetings and placement meetings pursuant to
this section, the parent of a child with a disability and a
local educational agency may agree to use alternative means of
meeting participation, such as video conferences and conference
calls.
SEC. 615. PROCEDURAL SAFEGUARDS.
(a) Establishment of Procedures.--Any State educational
agency, State agency, or local educational agency that receives
assistance under this part shall establish and maintain
procedures in accordance with this section to ensure that
children with disabilities and their parents are guaranteed
procedural safeguards with respect to the provision of free
appropriate public education by such agencies.
(b) Types of Procedures.--The procedures required by this
section shall include--
(1) an opportunity for the parents of a child with a
disability to examine all records relating to such
child and to participate in meetings with respect to
the identification, evaluation, and educational
placement of the child, and the provision of a free
appropriate public education to such child, and to
obtain an independent educational evaluation of the
child;
(2) procedures to protect the rights of the child
whenever the parents of the child are not known, the
agency cannot, after reasonable efforts, locate the
parents, or the child is a ward of the State, including
the assignment of an individual (who shall not be an
employee of the State educational agency, the local
educational agency, or any other agency that is
involved in the education or care of the child) to act
as a surrogate for the parents;
(3) written prior notice to the parents of the child,
in accordance with subsection (c)(1), whenever the
local educational agency--
(A) proposes to initiate or change; or
(B) refuses to initiate or change,
the identification, evaluation, or educational
placement of the child, 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 for either party 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)(A) procedures that require either party, or the
attorney representing a party, to provide due process
complaint notice in accordance with subsection (c)(2)
(which shall remain confidential)--
(i) to the other party, in the complaint
filed under paragraph (6), and forward a copy
of such notice to the State educational agency;
and
(ii) that shall include--
(I) the name of the child, the
address of the residence of the child,
and the name of the school the child is
attending;
(II) in the case of a homeless child
or youth (within the meaning of section
725(2) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(2)),
available contact information for the
child and the name of the school the
child is attending;
(III) 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
(IV) a proposed resolution of the
problem to the extent known and
available to the party at the time; and
(B) a requirement that a party may not have a due
process hearing until the party, or the attorney
representing the party, files a notice that meets the
requirements of subparagraph (A)(ii);
(8) a requirement that the local educational agency
shall send a prior written notice pursuant to
subsection (c)(1) in response to a parent's due process
complaint notice under paragraph (7) if the local
educational agency has not sent such a prior written
notice to the parent regarding the subject matter
contained in the parent's due process complaint notice;
and
(9) procedures that require the State educational
agency to develop a model form to assist parents in
filing a complaint and due process complaint notice in
accordance with paragraphs (6) and (7), respectively.
(c) Notification Requirements.--
(1) Content of prior written notice.--The prior
written notice of the local educational agency required
by subsection (b)(3) shall include--
(A) a description of the action proposed or
refused by the agency;
(B) an explanation of why the agency proposes
or refuses to take the action;
(C) a description of any other options that
the agency considered and the reasons why those
options were rejected;
(D) a description of each evaluation
procedure, test, record, or report the agency
used as a basis for the proposed or refused
action;
(E) a description of any other factors that
are relevant to the agency's proposal or
refusal;
(F) 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
(G) sources for parents to contact to obtain
assistance in understanding the provisions of
this part.
(2) Due process complaint notice.--
(A) In general.--The due process complaint
notice required under subsection (b)(7)(A)
shall be deemed to be sufficient unless the
party receiving the notice notifies the hearing
officer and the other party in writing that the
receiving party believes the notice has not met
the requirements of that subsection.
(B) Timing.--The party sending a hearing
officer notification under subparagraph (A)
shall send the notification within 20 days of
receiving the complaint.
(C) Determination.--Within 5 days of receipt
of the notification provided under subparagraph
(B), the hearing officer shall make a
determination on the face of the notice of
whether the notification meets the requirements
of subsection (b)(7)(A), and shall immediately
notify both parties in writing of such
determination.
(D) Parent's amended notice of complaint.--
(i) In general.--A parent may amend
the parent's due process complaint
notice only if--
(I) the public agency
consents in writing to such
amendment and is given the
opportunity to resolve the
complaint through a meeting
held pursuant to subsection
(f)(1)(B); or
(II) the hearing officer
grants permission, but may do
so only before a due process
hearing occurs.
(ii) Applicable timeline.--The
applicable timeline for a due process
hearing under this part shall
recommence at the time the party files
an amended notice.
(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 only 1 time a year,
except that a copy also shall be given to the parents--
(A) upon initial referral or parental request
for evaluation;
(B) upon registration of a complaint under
subsection (b)(6); and
(C) upon request by a parent.
(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) the opportunity to present and resolve
complaints, including--
(i) the time period in which to make
a complaint;
(ii) the opportunity for the agency
to resolve the complaint; and
(iii) the availability of mediation;
(F) the child's placement during pendency of
due process proceedings;
(G) procedures for students who are subject
to placement in an interim alternative
educational setting;
(H) requirements for unilateral placement by
parents of children in private schools at
public expense;
(I) due process hearings, including
requirements for disclosure of evaluation
results and recommendations;
(J) State-level appeals (if applicable in
that State);
(K) civil actions, including the time period
in which to file such actions; and
(L) attorney's 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, including matters arising prior to the
filing of a complaint pursuant to subsection (b)(6), to
resolve such disputes through a mediation process.
(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) Opportunity to meet with a disinterested
party.--A local educational agency or a State
agency may establish procedures to offer to
parents and schools who choose not to use the
mediation process, an opportunity 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 671 or 672; or
(ii) an appropriate alternative
dispute resolution entity,
to encourage the use, and explain the benefits,
of the mediation process to the parents.
(C) List of qualified mediators.--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) Costs.--The State shall bear the cost of
the mediation process, including the costs of
meetings described in subparagraph (B).
(E) Scheduling and location.--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) Written mediation agreement.--An
agreement reached by the parties to the dispute
in the mediation process shall be set forth in
a written mediation agreement that is
enforceable in any State court of competent
jurisdiction or in a district court of the
United States.
(G) Mediation discussions.--Discussions that
occur during the mediation process shall be
confidential and may not be used as evidence in
any subsequent due process hearings or civil
proceedings, and the parties to the mediation
process may be required to sign a
confidentiality pledge prior to the
commencement of such process.
(f) Impartial Due Process Hearing.--
(1) In general.--
(A) Hearing.--Whenever a complaint has been
received under subsection (b)(6) or (k), the
parents or the local educational agency
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.
(B) Opportunity to resolve complaint.--
(i) Preliminary meeting.--Prior to
the opportunity for an impartial due
process hearing under subparagraph (A),
the local educational agency shall
convene a meeting with the parents and
the IEP Team--
(I) within 15 days of
receiving notice of the
parents' complaint;
(II) which shall include a
representative of the public
agency who has decisionmaking
authority on behalf of such
agency;
(III) which may not include
an attorney of the local
educational agency unless the
parent is accompanied by an
attorney; and
(IV) where the parents of the
child discuss their complaint,
and the specific issues that
form the basis of the
complaint, and the local
educational agency is provided
the opportunity to resolve the
complaint,
unless the parents and the local
educational agency agree in writing to
waive such meeting, or agree to use the
mediation process described in
subsection (e).
(ii) Hearing.--If the local
educational agency has not resolved the
complaint to the satisfaction of the
parents within 15 days of the receipt
of the complaint, the due process
hearing may occur, and all of the
applicable timelines for a due process
hearing under this part shall commence.
(iii) Written settlement agreement.--
In the case that an agreement is
reached to resolve the complaint at
such meeting, the agreement shall be
set forth in a written settlement
agreement that is--
(I) signed by both the parent
and a representative of the
public agency who has
decisionmaking authority on
behalf of such agency; and
(II) enforceable in any State
court of competent jurisdiction
or in a district court of the
United States.
(2) Disclosure of evaluations and recommendations.--
(A) In general.--Not less than 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) Limitations on hearing.--
(A) Person conducting hearing.--A hearing
officer conducting a hearing pursuant to
paragraph (1)(A) shall, at a minimum--
(i) not be--
(I) an employee of the State
educational agency or the local
educational agency involved in
the education or care of the
child; or
(II) a person having a
personal or professional
interest that conflicts with
the person's objectivity in the
hearing;
(ii) possess a fundamental
understanding of this Act, Federal and
State regulations pertaining to this
Act, and interpretations of this Act by
State and Federal courts;
(iii) possess the knowledge and
ability to conduct hearings in
accordance with appropriate, standard
legal practice; and
(iv) possess the knowledge and
ability to render and write decisions
in accordance with appropriate,
standard legal practice.
(B) Subject matter of hearing.--The party
requesting the due process hearing shall not be
allowed to raise issues at the due process
hearing that were not raised in the notice
filed under subsection (b)(7), unless the other
party agrees otherwise.
(C) Rule of construction.--Nothing in this
section shall be construed to preclude a parent
from filing a separate due process complaint on
an issue separate from a due process complaint
already filed.
(D) Timeline for requesting hearing.--A
parent or public agency shall request an
impartial due process hearing within 2 years of
the date the parent or public agency knew or
should have known about the alleged action that
forms the basis of the complaint, or, if the
State has an explicit time limitation for
requesting such a hearing under this part, in
such time as the State law allows.
(E) Exception to the statute of
limitations.--The statute of limitations
described in subparagraph (D) shall not apply
if the parent was prevented from requesting the
hearing due to--
(i) failure of the local educational
agency to provide prior written or
procedural safeguards notices;
(ii) false representations that the
local educational agency was attempting
to resolve the problem forming the
basis of the complaint; or
(iii) the local educational agency's
withholding of information from
parents.
(F) Decision of hearing officer.--
(i) In general.--Subject to clause
(ii), a decision made by a hearing
officer shall be made on substantive
grounds based on a determination of
whether the child received a free
appropriate public education.
(ii) Procedural issues.--In matters
alleging a procedural violation, a
hearing officer may find that a child
did not receive a free appropriate
public education only if the procedural
inadequacies--
(I) compromised the child's
right to an appropriate public
education;
(II) seriously hampered the
parents' opportunity to
participate in the process; or
(III) caused a deprivation of
educational benefits.
(iii) Rule of construction.--Nothing
in this paragraph shall be construed to
preclude a hearing officer from
ordering a local educational agency to
comply with procedural requirements
under this section.
(G) Rule of construction.--Nothing in this
section shall be construed to affect the right
of a parent to file a complaint with the State
educational agency.
(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 State educational 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 a written, or, at the option of the
parents, electronic findings of fact and decisions,
which findings and decisions--
(A) shall be made available to the public
consistent with the requirements of section
617(b) (relating to the confidentiality of
data, information, and records); and
(B) shall be transmitted to the advisory
panel established pursuant to section
612(a)(20).
(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).
(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).
(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) Limitation.--The party bringing the
action shall have 90 days from the date of the
decision of the hearing officer to bring such
an action, or, if the State has an explicit
time limitation for bringing such action under
this part, in such time as the State law
allows.
(C) 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) In general.--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) IEP team meetings.--Attorneys'
fees may not be awarded relating to any
meeting of the IEP Team unless such
meeting is convened as a result of an
administrative proceeding or judicial
action, or, at the discretion of the
State, for a mediation described in
subsection (e).
(iii) Opportunity to resolve
complaints.--A meeting conducted
pursuant to subsection (f)(1)(B)(i)
shall not be considered--
(I) a meeting convened as a
result of an administrative
hearing or judicial action; or
(II) an administrative
hearing or judicial action for
purposes of this paragraph.
(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, or the parent's
attorney, 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 local
educational agency the appropriate
information in the notice of the
complaint described in subsection
(b)(7)(A),
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.
(4) Parents representing their children in court.--
Subject to subsection (m), and notwithstanding any
other provision of Federal law regarding attorney
representation (including the Federal Rules of Civil
Procedure), a parent of a child with a disability may
represent the child in any action under this part in
Federal or State court, without the assistance of an
attorney.
(j) Maintenance of Current Educational Placement.--Except as
provided in subsection (k)(4), 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) In general.--School personnel under this
section may order a change in the placement of
a child with a disability who violates a code
of student conduct to an appropriate interim
alternative educational setting, another
setting, or suspension, for not more than 10
school days (to the extent such alternatives
are applied to children without disabilities).
(B) Additional authority.--If school
personnel seek to order a change in placement
that would exceed 10 school days and the
behavior that gave rise to the violation of the
school code is determined not to be a
manifestation of the child's disability
pursuant to subparagraph (C), the relevant
disciplinary procedures applicable to children
without disabilities may be applied to the
child in the same manner in which the
procedures would be applied to children without
disabilities, except as provided in section
612(a)(1).
(C) Manifestation determination.--
(i) In general.--Except as provided
in subparagraphs (A) and (D), within 10
school days of any decision to change
the placement of a child with a
disability because of a violation of a
code of student conduct, the IEP Team
shall review all relevant information
in the student's file, any information
provided by the parents, and teacher
observations, to determine--
(I) if the conduct in
question was the result of the
child's disability; or
(II) if the conduct in
question resulted from the
failure to implement the IEP or
to implement behavioral
interventions as required by
section 614(d)(3)(B)(i).
(ii) Manifestation.--If the IEP Team
determines that either subclause (I) or
(II) of clause (i) is applicable for
the child, the conduct shall be
determined to be a manifestation of the
child's disability.
(D) Special circumstances.--In cases where a
child--
(i) carries or possesses a weapon to
or at school, on school premises, or to
or at a school function under the
jurisdiction of a State or local
educational agency; or
(ii) 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; or
(iii) has committed serious bodily
injury upon another person while at
school or at a school function under
the jurisdiction of a State or local
educational agency,
school personnel may remove a student to an
interim alternative educational setting for not
more than 45 school days, without regard to
whether the behavior is determined to be a
manifestation of the child's disability.
(E) Notification.--Not later than the date on
which the decision to take disciplinary action
is made, the local educational agency shall
notify the parents of that decision, and of all
procedural safeguards accorded under this
section.
(F) Services.--A child with a disability who
is removed from the child's current placement
under subparagraph (B) or (D) shall--
(i) continue to receive educational
services pursuant to section 612(a)(1),
so as to enable the child to continue
to participate in the general education
curriculum, although in another
setting, and to progress toward meeting
the goals set out in the child's IEP;
and
(ii) receive behavioral intervention
services as described in section
614(d)(3)(B)(i), and a functional
behavioral assessment (but only if the
local educational agency did not
conduct such an assessment before the
violation occurred), designed to
address the behavior violation so that
the violation does not recur.
(2) Determination of setting.--The alternative
educational setting shall be determined by the IEP
Team.
(3) Appeal.--
(A) In general.--The parent of a child with a
disability who disagrees with any decision
regarding disciplinary action, placement, or
the manifestation determination under this
subsection, or a local educational agency that
believes that maintaining the current placement
of the child is substantially likely to result
in injury to the child or to others, may
request a hearing.
(B) Authority of hearing officer.--
(i) In general.--If a parent of a
child with a disability disagrees with
a decision as described in subparagraph
(A), the hearing officer may determine
whether the decision regarding such
action was appropriate.
(ii) Change of placement order.--A
hearing officer under this section may
order a change in placement of a child
with a disability to an appropriate
interim alternative educational setting
for not more than 45 school days if the
hearing officer determines that
maintaining the current placement of
such child is substantially likely to
result in injury to the child or to
others.
(4) Placement during appeals.--When a parent requests
a hearing regarding a disciplinary procedure described
in paragraph (1)(B) or challenges the interim
alternative educational setting or manifestation
determination--
(A) 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)(B), whichever occurs first,
unless the parent and the State or local
educational agency agree otherwise; and
(B) the State or local educational agency
shall arrange for an expedited hearing, which
shall occur within 20 school days of the date
the hearing is requested.
(5) 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 violates a code of
student conduct, 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, before
the behavior that precipitated the disciplinary
action occurred--
(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 parent of the child has
requested an evaluation of the child
pursuant to section 614;
(iii) the teacher of the child, or
other personnel of the local
educational agency, has expressed
concern about a pattern of behavior
demonstrated by the child, to the
director of special education of such
agency or to other administrative
personnel of the agency; or
(iv) the child has engaged in a
pattern of behavior that should have
alerted personnel of the local
educational agency that the child may
be in need of special education and
related services.
(C) Exception.--A local educational agency
shall not be deemed to have knowledge that the
child has a disability if the parent of the
child has not agreed to allow an evaluation of
the child pursuant to section 614.
(D) 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) or (C)) prior to
taking disciplinary measures against
the child, the child may be subjected
to disciplinary 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), 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
this part, except that, pending the
results of the evaluation, the child
shall remain in the educational
placement determined by school
authorities.
(6) Referral to and action by law enforcement and
judicial authorities.--
(A) Construction.--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) Transmittal of records.--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 the agency
reports the crime.
(7) 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 schedule 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''
means a controlled substance but does not
include a controlled 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) Weapon.--The term ``weapon'' has the
meaning given the term ``dangerous weapon''
under section 930(g)(2) of title 18, United
States Code.
(D) Serious bodily injury.--The term
``serious bodily injury'' has the meaning given
the term ``serious bodily injury'' under
paragraph (3) of subsection (h) of section 1365
of title 18, United States Code.
(l) Rule of Construction.--Nothing in this title shall be
construed to restrict or limit the rights, procedures, and
remedies available under the Constitution, the Americans with
Disabilities Act of 1990, title V of the Rehabilitation Act of
1973, or other Federal laws protecting the rights of children
with disabilities, except that before the filing of a civil
action under such laws seeking relief that is also available
under this part, the procedures under subsections (f) and (g)
shall be exhausted to the same extent as would be required had
the action been brought under this part.
(m) Transfer of Parental Rights at Age of Majority.--
(1) In general.--A State that receives amounts from a
grant under this part may provide that, when a child
with a disability reaches the age of majority under
State law (except for a child with a disability who has
been determined to be incompetent under State law)--
(A) the public agency shall provide any
notice required by this section to both the
individual and the parents;
(B) all other rights accorded to parents
under this part transfer to the child;
(C) the agency shall notify the individual
and the parents of the transfer of rights; and
(D) all rights accorded to parents under this
part transfer to children who are incarcerated
in an adult or juvenile Federal, State, or
local correctional institution.
(2) Special rule.--If, under State law, a child with
a disability who has reached the age of majority under
State law, who has not been determined to be
incompetent, but who is determined not to have the
ability to provide informed consent with respect to the
educational program of the child, the State shall
establish procedures for appointing the parent of the
child, or if the parent is not available, another
appropriate individual, to represent the educational
interests of the child throughout the period of
eligibility of the child under this part.
(n) E-Mail.--A parent of a child with a disability may elect
to receive notices required under this section by e-mail
communication, if the public agency makes such option
available.
SEC. 616. MONITORING, TECHNICAL ASSISTANCE, AND ENFORCEMENT.
(a) Federal and State Monitoring.--
(1) In general.--The Secretary shall--
(A) monitor implementation of this Act
through--
(i) oversight of the States' exercise
of general supervision, as required in
section 612(a)(11); and
(ii) the system of indicators,
described in subsection (b)(2); and
(B) enforce this Act in accordance with
subsection (c); and
(C) require States to monitor implementation
of this Act by local educational agencies and
enforce this Act in accordance with paragraph
(3) of this subsection and subsection (c).
(2) Focused monitoring.--The primary focus of Federal
and State monitoring activities described in paragraph
(1) shall be on improving educational results and
functional outcomes for all children with disabilities,
while ensuring compliance with program requirements,
with a particular emphasis on those requirements that
are most closely related to improving educational
results for children with disabilities.
(3) Monitoring priorities.--The Secretary shall
monitor, and shall require States to monitor, the
following priority areas:
(A) Provision of a free appropriate public
education in the least restrictive environment.
(B) Provision of transition services, as
defined in section 602(33).
(C) State exercise of general supervisory
authority, including the effective use of
complaint resolution and mediation.
(D) Overrepresentation of racial and ethnic
groups in special education and related
services, to the extent the overrepresentation
is the result of inappropriate policies,
procedures, and practices.
(4) Permissive areas of review.--The Secretary may
examine other relevant information and data, including
data provided by States under section 618, and data
from the State's compliance plan under subsection
(b)(2)(C).
(b) Indicators.--
(1) System.--The Secretary shall implement and
administer a system of required indicators as described
in paragraph (2) that measures the progress of States
in improving their performance under this Act.
(2) Indicators.--
(A) In general.--Using the performance
indicators established by States under section
612(a)(15), the Secretary shall review--
(i) the performance of children with
disabilities in the State on
assessments, including alternate
assessments, dropout rates, and
graduation rates, which for purposes of
this paragraph means the number and
percentage of students with
disabilities who graduate with a
regular diploma within the number of
years specified in a student's IEP; and
(ii) the performance of children with
disabilities in the State on
assessments, including alternate
assessments, dropout rates, and
graduation rates, as compared to the
performance and rates for all children.
(B) Secretary's assessment.--Based on that
review and a review of the State's compliance
plan under subparagraph (C), the Secretary
shall assess the State's progress in improving
educational results for children with
disabilities.
(C) State compliance plan.--Not later than 1
year after the date of the enactment of the
Individuals with Disabilities Education
Improvement Act of 2003, each State shall have
in place a compliance plan developed in
collaboration with the Secretary. Each State's
compliance plan shall--
(i) include benchmarks to measure
continuous progress on the priority
areas described in subsection (a)(3);
(ii) describe strategies the State
will use to achieve the benchmarks; and
(iii) be approved by the Secretary.
(D) Public reporting and privacy.--
(i) In general.--After the Secretary
approves a State's compliance plan
under subparagraph (C), the State shall
use the benchmarks in the plan and the
indicators described in this subsection
to analyze the progress of each local
educational agency in the State on
those benchmarks and indicators.
(ii) Report.--The State shall report
annually to the public on each local
educational agency's progress under
clause (i), except where doing so would
result in the disclosure of personally
identifiable information about
individual children or where the
available data is insufficient to yield
statistically reliable information.
(3) Data collection and analysis.--The Secretary
shall--
(A) review the data collection and analysis
capacity of States to ensure that data and
information determined necessary for
implementation of this subsection is collected,
analyzed, and accurately reported to the
Secretary; and
(B) provide technical assistance to improve
the capacity of States to meet these data
collection requirements.
(c) Compliance and Enforcement.--
(1) In general.--The Secretary shall examine relevant
State information and data annually, to determine
whether the State is making satisfactory progress
toward improving educational results for children with
disabilities using the indicators described in
subsection (b)(2)(A) and the benchmarks established in
the State compliance plan under subsection (b)(2)(C),
and is in compliance with the provisions of this Act.
(2) Lack of satisfactory progress by a state.--
(A) In general.--If after examining data, as
provided in subsection (b)(2) (A) and (C), the
Secretary determines that a State failed to
make satisfactory progress in meeting the
indicators described in subsection (b)(2)(A) or
has failed to meet the benchmarks described in
subsection (b)(2)(C) for 2 consecutive years
after the State has developed its compliance
plan, the Secretary shall notify the State that
the State has failed to make satisfactory
progress, and shall take 1 or more of the
following actions:
(i) Direct the use of State level
funds for technical assistance,
services, or other expenditures to
ensure that the State resolves the area
or areas of unsatisfactory progress.
(ii) Withhold not less than 20, but
not more than 50, percent of the
State's funds for State administration
and activities for the fiscal year
under section 611(e), after providing
the State the opportunity to show cause
why the withholding should not occur,
until the Secretary determines that
sufficient progress has been made in
improving educational results for
children with disabilities.
(B) Additional secretarial action.--If, at
the end of the 5th year after the Secretary has
approved the compliance plan that the State has
developed under subsection (b)(2)(C), the
Secretary determines that a State failed to
meet the benchmarks in the State compliance
plan and make satisfactory progress in
improving educational results for children with
disabilities pursuant to the indicators
described in subsection (b)(2)(A), the
Secretary shall take 1 or more of the following
actions:
(i) Seek to recover funds under
section 452 of the General Education
Provisions Act.
(ii) After providing reasonable
notice and an opportunity for a hearing
to the State educational agency
involved, withhold, in whole or in
part, any further payments to the State
under this part pursuant to subsection
(c)(5).
(iii) After providing reasonable
notice and an opportunity for a hearing
to the State educational agency
involved, refer the matter for
appropriate enforcement action, which
may include referral to the Department
of Justice.
(iv) Pending the outcome of any
hearing to withhold payments under
clause (ii), the Secretary may suspend
payments to a recipient, suspend the
authority of the recipient to obligate
Federal funds, or both, after such
recipient has been given reasonable
notice and an opportunity to show cause
why future payments or authority to
obligate Federal funds should not be
suspended.
(C) Substantial noncompliance.--
Notwithstanding subparagraph (B), at any time
that the Secretary determines that a State is
not in substantial compliance with any
provision of this part or that there is a
substantial failure to comply with any
condition of a local agency's or State agency's
eligibility under this part, the Secretary
shall take 1 or more of the following actions:
(i) Request that the State prepare a
corrective action plan or improvement
plan if the Secretary determines that
the State should be able to correct the
problem within 1 year.
(ii) Identify the State as a high-
risk grantee and impose special
conditions on the State's grant under
this part.
(iii) Require the State to enter into
a compliance agreement under section
457 of the General Education Provisions
Act, if the Secretary has reason to
believe that the State cannot correct
the problem within 1 year.
(iv) Recovery of funds under section
452 of the General Education Provisions
Act.
(v) After providing reasonable notice
and an opportunity for a hearing to the
State educational agency involved,
withhold, in whole or in part, any
further payments to the State under
this part.
(vi) After providing reasonable
notice and an opportunity for a hearing
to the State educational agency
involved, refer the matter for
appropriate enforcement action, which
may include referral to the Department
of Justice.
(vii) Pending the outcome of any
hearing to withhold payments under
clause (v), the Secretary may suspend
payments to a recipient, suspend the
authority of the recipient to obligate
Federal funds, or both, after such
recipient has been given reasonable
notice and an opportunity to show cause
why future payments or authority to
obligate Federal funds should not be
suspended.
(3) Egregious noncompliance.--At any time that the
Secretary determines that a State is in egregious
noncompliance or is willfully disregarding the
provisions of this Act, the Secretary shall take such
additional enforcement actions as the Secretary
determines to be appropriate from among those actions
specified in paragraph (2)(C), and, additionally, may
impose 1 or more of the following sanctions upon that
State:
(A) Institute a cease and desist action under
section 456 of the General Education Provisions
Act.
(B) Refer the case to the Office of the
Inspector General.
(4) Report to congress.--The Secretary shall report
to Congress within 30 days of taking enforcement action
pursuant to paragraph (2) (B) or (C), or (3), on the
specific action taken and the reasons why enforcement
action was taken.
(5) Nature of withholding.--If the Secretary
withholds further payments under paragraphs (2)(B)(ii)
and (2)(C)(v), 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 make satisfactory progress as
specified in paragraph (2)(B), or to comply with the
provisions of this part, as specified in paragraph
(2)(C), 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 (2)(B) or (2)(C)
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.
(6) Judicial review.--
(A) In general.--If any State is dissatisfied
with the Secretary's final action with respect
to the eligibility of the State under section
612, such State may, not later than 60 days
after notice of such action, file with the
United States court of appeals for the circuit
in which such State is located a petition for
review of that action. A copy of the petition
shall be forthwith transmitted by the clerk of
the court to the Secretary. The Secretary
thereupon shall file in the court the record of
the proceedings upon which the Secretary's
action was based, as provided in section 2112
of title 28, United States Code.
(B) 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.
(C) 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.
(d) 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 that--
(1) any reduction or withholding of payments to the
State shall be 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.
(e) State and Local Monitoring.--
(1) In general.--The State educational agency shall
monitor and enforce implementation of this Act,
implement a system of monitoring the benchmarks in the
State's compliance plan under subsection (b)(2)(C), and
require local educational agencies to monitor and
enforce implementation of this Act.
(2) Additional enforcement options.--If a State
educational agency determines that a local educational
agency is not meeting the requirements of this part,
including the benchmarks in the State's compliance
plan, the State educational agency shall prohibit the
local educational agency from treating funds received
under this part as local funds under section
613(a)(2)(C) for any fiscal year.
SEC. 617. ADMINISTRATION.
(a) Responsibilities of Secretary.--The Secretary shall--
(1) cooperate with, and (directly or by grant or
contract) furnish technical assistance necessary to, a
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) Confidentiality.--The Secretary shall take appropriate
action, in accordance with 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 this part.
(c) 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 664, 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 not more than 20 such personnel shall be
employed at any 1 time.
(d) Model Forms.--Not later than the date that the Secretary
publishes final regulations under this Act, to implement
amendments made by the Individuals with Disabilities Education
Improvement Act of 2003, the Secretary shall publish and
disseminate widely to States, local educational agencies, and
parent and community training and information centers--
(1) a model IEP form;
(2) a model individualized family service plan (IFSP)
form;
(3) a model form of the notice of procedural
safeguards described in section 615(d); and
(4) a model form of the prior written notice
described in section 615 (b)(3) and (c)(1) that is
consistent with the requirements of this part and is
sufficient to meet such requirements.
SEC. 618. PROGRAM INFORMATION.
(a) In General.--Each State that receives assistance under
this part, and the Secretary of the Interior, shall provide
data each year to the Secretary of Education and the public
on--
(1)(A) the number and percentage of children with
disabilities, by race, ethnicity, limited English
proficiency status, gender, and disability category,
who are receiving a free appropriate public education;
(B) the number and percentage of children with
disabilities, by race, gender, and ethnicity, who are
receiving early intervention services;
(C) the number and percentage of children with
disabilities, by race, ethnicity, limited English
proficiency status, gender, and disability category,
who are participating in regular education;
(D) the number and percentage of children with
disabilities, by race, ethnicity, limited English
proficiency status, gender, and disability category,
who are in separate classes, separate schools or
facilities, or public or private residential
facilities;
(E) the number and percentage of children with
disabilities, by race, ethnicity, limited English
proficiency status, gender, and disability category,
who, for each year of age from age 14 through 21,
stopped receiving special education and related
services because of program completion (including
graduation with a regular secondary school diploma), or
other reasons, and the reasons why those children
stopped receiving special education and related
services;
(F) the number and percentage of children with
disabilities, by race, gender, and ethnicity, who, from
birth through age 2, stopped receiving early
intervention services because of program completion or
for other reasons;
(G)(i) the number and percentage of children with
disabilities, by race, ethnicity, limited English
proficiency status, gender, and disability category,
who are removed to an interim alternative educational
setting under section 615(k)(1);
(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;
(H) the incidence and duration of disciplinary
actions by race, ethnicity, limited English proficiency
status, gender, and disability category, of children
with disabilities, including suspensions of 1 day or
more;
(I) the number and percentage of children with
disabilities who are removed to alternative educational
settings or expelled as compared to children without
disabilities who are removed to alternative educational
settings or expelled;
(J) the number of due process complaints filed under
section 615 and the number of hearings conducted;
(K) the number of hearings requested under section
615(k) and the number of changes in placements ordered
as a result of those hearings;
(L) the number of hearings requested under section
615(k)(3)(B)(ii) and the number of changes in
placements ordered as a result of those hearings; and
(M) the number of mediations held and the number of
settlement agreements reached through such mediations;
(2) the number and percentage of infants and
toddlers, by race, and ethnicity, who are at risk of
having substantial developmental delays (as defined in
section 632), and who are receiving early intervention
services under part C; and
(3) any other information that may be required by the
Secretary.
(b) Data Reporting.--The data described in subsection (a)
shall be reported by each State at the school district and
State level in a manner that does not result in the disclosure
of data identifiable to individual children.
(c) Technical Assistance.--The Secretary may provide
technical assistance to States to ensure compliance with the
data collection and reporting requirements under this Act.
(d) 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);
(B) the placement in particular educational
settings of such children; and
(C) the incidence, duration, and type of
disciplinary actions, including suspensions and
expulsions.
(2) Review and revision of policies, practices, and
procedures.--In the case of a determination of
significant disproportionality with respect to the
identification of children as children with
disabilities, or the placement in particular
educational settings of such children, in accordance
with paragraph (1), the State or the Secretary of the
Interior, as the case may be, shall provide for the
review and, if appropriate, revision of the policies,
procedures, and practices used in such identification
or placement to ensure that such policies, procedures,
and practices comply with the requirements of this Act.
SEC. 619. PRESCHOOL GRANTS.
(a) In General.--The Secretary shall provide grants under
this section to assist States to provide special education and
related services, in accordance with this part--
(1) to children with disabilities aged 3 through 5,
inclusive; and
(2) at the State's discretion, to 2-year-old children
with disabilities who will turn 3 during the school
year.
(b) Eligibility.--A State shall be eligible for a grant under
this section if such State--
(1) is eligible under section 612 to receive a grant
under this part; and
(2) makes a free appropriate public education
available to all children with disabilities, aged 3
through 5, residing in the State.
(c) Allocations to States.--
(1) In general.--The Secretary shall allocate the
amount made available to carry out this section for a
fiscal year 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) Allocation.--
(i) In general.--Except as provided
in subparagraph (B), the Secretary
shall--
(I) allocate to each State
the amount the State received
under this section for fiscal
year 1997;
(II) allocate 85 percent of
any remaining funds to States
on the basis of the States'
relative populations of
children aged 3 through 5; and
(III) allocate 15 percent of
those remaining funds to States
on the basis of the States'
relative populations of all
children aged 3 through 5 who
are living in poverty.
(ii) Data.--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) Limitations.--Notwithstanding
subparagraph (A), allocations under this
paragraph shall be subject to the following:
(i) Preceding years.--No State's
allocation shall be less than its
allocation under this section for the
preceding fiscal year.
(ii) Minimum.--No State's allocation
shall be less than the greatest of--
(I) the sum of--
(aa) the amount the
State received under
this section for fiscal
year 1997; and
(bb) \1/3\ of 1
percent of the amount
by which the amount
appropriated under
subsection (j) for the
fiscal year exceeds the
amount appropriated for
this section for fiscal
year 1997;
(II) the sum of--
(aa) the amount the
State received under
this section for the
preceding fiscal year;
and
(bb) that amount
multiplied by the
percentage by which the
increase in the funds
appropriated under this
section from the
preceding fiscal year
exceeds 1.5 percent; or
(III) the sum of--
(aa) the amount the
State received under
this section for the
preceding fiscal year;
and
(bb) that amount
multiplied by 90
percent of the
percentage increase in
the amount appropriated
under this section from
the preceding fiscal
year.
(iii) Maximum.--Notwithstanding
clause (ii), no State's allocation
under this paragraph shall exceed the
sum of--
(I) the amount the State
received under this section 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 under this
section from the preceding
fiscal year.
(C) Ratable reductions.--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) Allocations.--If the amount available for
allocations is greater than the amount
allocated to the States for fiscal year 1997,
each State shall be allocated the sum of--
(i) the amount the State received
under this section for fiscal year
1997; and
(ii) an amount that bears the same
relation to any remaining funds as the
increase the State received under this
section 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
under this paragraph is equal to or less than
the amount allocated under this section to the
States for fiscal year 1997, each State shall
be allocated the amount the State received for
that year, ratably reduced, if necessary.
(d) Reservation for State Activities.--
(1) In general.--Each State may reserve 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 the State may
reserve 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 the State reserves 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) for activities at the State and local levels to
meet the performance goals established by the State
under section 612(a)(15);
(4) 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 more than 1 percent of the amount
received by the State under this section for a fiscal
year; or
(5) to provide early intervention services (which
shall include an educational component that promotes
school readiness and incorporates pre-literacy,
language, and numeracy skills) in accordance with part
C to children with disabilities who are eligible for
services under this section and who previously received
services under part C until such children enter, or are
eligible under State law to enter, kindergarten.
(g) Subgrants to Local Educational Agencies.--
(1) Subgrants required.--Each State that receives a
grant under this section for any fiscal year shall
distribute all of the grant funds that the State 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 local educational 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 such section was 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 local
educational agencies on the basis of
the relative numbers of children
enrolled in public and private
elementary schools and secondary
schools within the local educational
agency's jurisdiction; and
(ii) allocate 15 percent of those
remaining funds to those local
educational 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
educational 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 the
other local educational agencies 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 such sums as may be necessary.
* * * * * * *
[PART C--INFANTS AND TODDLERS WITH DISABILITIES
[SEC. 631. FINDINGS AND POLICY.
[(a) Findings.--The Congress finds that there is an urgent
and substantial need--
[(1) to enhance the development of infants and
toddlers with disabilities and to minimize their
potential for developmental delay;
[(2) to reduce the educational costs to our society,
including our Nation's schools, by minimizing the need
for special education and related services after
infants and toddlers with disabilities reach school
age;
[(3) to minimize the likelihood of
institutionalization of individuals with disabilities
and maximize the potential for their independently
living in society;
[(4) to enhance the capacity of families to meet the
special needs of their infants and toddlers with
disabilities; and
[(5) to enhance the capacity of State and local
agencies and service providers to identify, evaluate,
and meet the needs of historically underrepresented
populations, particularly minority, low-income, inner-
city, and rural populations.
[(b) Policy.--It is therefore the policy of the United
States to provide financial assistance to States--
[(1) to develop and implement a statewide,
comprehensive, coordinated, multidisciplinary,
interagency system that provides early intervention
services for infants and toddlers with disabilities and
their families.
[(2) to facilitate the coordination of payment for
early intervention services from Federal, State, local,
and private sources (including public and private
insurance coverage);
[(3) to enhance their capacity to provide quality
early intervention services and expand and improve
existing early intervention services being provided to
infants and toddlers with disabilities and their
families; and
[(4) to encourage States to expand opportunities for
children under 3 years of age who would be at risk of
having substantial developmental delay if they did not
receive early intervention services.
[SEC. 632. DEFINITIONS.
[As used in this part:
[(1) At-risk infant or toddler.--The term ``at-risk
infant or toddler'' means an individual under 3 years
of age who would be at risk of experiencing a
substantial developmental delay if early intervention
services were not provided to the individual.
[(2) Council.--The term ``council'' means a State
interagency coordinating council established under
section 641.
[(3) Developmental delay.--The term ``developmental
delay'', when used with respect to an individual
residing in a State, has the meaning given such term by
the State under section 635(a)(1).
[(4) Early intervention services.--The term ``early
intervention services'' means developmental services
that--
[(A) are provided under public supervision;
[(B) are provided at no cost except where
Federal or State law provides for a system of
payments by families, including a schedule of
sliding fees;
[(C) are designed to meet the developmental
needs of an infant or toddler with a disability
in any one or more of the following areas--
[(i) physical development;
[(ii) cognitive development;
[(iii) communication development;
[(iv) social or emotional
development; or
[(v) adaptive development;
[(D) meet the standards of the State in which
they are provided, including the requirements
of this part;
[(E) include--
[(i) family training, counseling, and
home visits;
[(ii) special instruction;
[(iii) speech-language pathology and
audiology services;
[(iv) occupational therapy;
[(v) physical therapy;
[(vi) psychological services;
[(vii) service coordination services;
[(viii) medical services only for
diagnostic or evaluation purposes;
[(ix) early identification,
screening, and assessment services;
[(x) health services necessary to
enable the infant or toddler to benefit
from the other early intervention
services;
[(xi) social work services;
[(xii) vision services;
[(xiii) assistive technology devices
and assistive technology services; and
[(xiv) transportation and related
costs that are necessary to enable an
infant or toddler and the infant's or
toddler's family to receive another
service described in this paragraph;
[(F) are provided by qualified personnel,
including--
[(i) special educators;
[(ii) speech-language pathologists
and audiologists;
[(iii) occupational therapists;
[(iv) physical therapists;
[(v) psychologists;
[(vi) social workers;
[(vii) nurses;
[(viii) nutritionists;
[(ix) family therapists;
[(x) orientation and mobility
specialists; and
[(xi) pediatricians and other
physicians;
[(G) to the maximum extent appropriate, are
provided in natural environments, including the
home, and communitysettings in which children
without disabilities participate; and
[(H) are provided in conformity with an
individualized family service plan adopted in
accordance with section 636.
[(5) Infant or toddler with a disability.--The term
``infant or toddler with a disability''--
[(A) means an individual under 3 years of age
who needs early intervention services because
the individual--
[(i) is experiencing developmental
delays, as measured by appropriate
diagnostic instruments and procedures
in one or more of the areas of
cognitive development, physical
development, communication development,
social or emotional development, and
adaptive development; or
[(ii) has a diagnosed physical or
mental condition which has a high
probability of resulting in
developmental delay; and
[(B) may also include, at a State's
discretion, at-risk infants and toddlers.
[SEC. 633. GENERAL AUTHORITY.
[The Secretary shall, in accordance with this part, make
grants to States (from their allotments under section 643) to
assist each State to maintain and implement a statewide,
comprehensive, coordinated, multidisciplinary, interagency
system to provide early intervention services for infants and
toddlers with disabilities and their families.
[SEC. 634. ELIGIBILITY.
[In order to be eligible for a grant under section 633, a
State shall demonstrate to the Secretary that the State--
[(1) has adopted a policy that appropriate early
intervention services are available to all infants and
toddlers with disabilities in the State and their
families, including Indian infants and toddlers with
disabilities and their families residing on a
reservation geographically located in the State; and
[(2) has in effect a statewide system that meets the
requirements of section 635.
[SEC. 635. REQUIREMENTS FOR STATEWIDE SYSTEM.
[(a) In General.--A statewide system described in section
633 shall include, at a minimum, the following components:
[(1) A definition of the term ``developmental delay''
that will be used by the State in carrying out programs
under this part.
[(2) A State policy that is in effect and that
ensures that appropriate early intervention services
are available to all infants and toddlers with
disabilities and their families, including Indian
infants and toddlers and their families residing on a
reservation geographically located in the State.
[(3) A timely, comprehensive, multidisciplinary
evaluation of the functioning of each infant or toddler
with a disability in the State, and a family-directed
identification of the needs of each family of such an
infant or toddler, to appropriately assist in the
development of the infant or toddler.
[(4) For each infant or toddler with a disability in
the State, an individualized family service plan in
accordance with section 636, including service
coordination services in accordance with such service
plan.
[(5) A comprehensive child find system, consistent
with part B, including a system for making referrals to
service providers that includes timelines and provides
for participation by primary referral sources.
[(6) A public awareness program focusing on early
identification of infants and toddlers with
disabilities, including the preparation and
dissemination by the lead agency designated or
established under paragraph (10) to all primary
referral sources, especially hospitals and physicians,
of information for parents on the availability of early
intervention services, and procedures for determining
the extent to which such sources disseminate such
information to parents of infants and toddlers.
[(7) A central directory which includes information
on early intervention services, resources, and experts
available in the State and research and demonstration
projects being conducted in the State.
[(8) A comprehensive system of personnel development,
including the training of paraprofessionals and the
training of primary referral sources respecting the
basic components of early intervention services
available in the State, that is consistent with the
comprehensive system of personnel development described
in section 612(a)(14) and may include--
[(A) implementing innovative strategies and
activities for the recruitment and retention of
early education service providers;
[(B) promoting the preparation of early
intervention providers who are fully and
appropriately qualified to provide early
intervention services under this part;
[(C) training personnel to work in rural and
inner-city areas; and
[(D) training personnel to coordinate
transition services for infants and toddlers
served under this part from an early
intervention program under this part to
preschool or other appropriate services.
[(9) Subject to subsection (b), policies and
procedures relating to the establishment and
maintenance of standards to ensure that personnel
necessary to carry out this part are appropriately and
adequately prepared and trained, including--
[(A) the establishment and maintenance of
standards which are consistent with any State-
approved or recognized certification,
licensing, registration, or other comparable
requirements which apply to the area in which
such personnel are providing early intervention
services; and
[(B) to the extent such standards are not
based on the highest requirements in the State
applicable to a specific profession or
discipline, the steps the State is taking to
require the retraining or hiring of personnel
that meet appropriate professional requirements
in the State;except that nothing in this part,
including this paragraph, prohibits the use of paraprofessionals and
assistants who are appropriately trained and supervised, in accordance
with State law, regulations, or written policy, to assist in the
provision of early intervention services to infants and toddlers with
disabilities under this part.
[(10) A single line of responsibility in a lead
agency designated or established by the Governor for
carrying out--
[(A) the general administration and
supervision of programs and activities
receiving assistance under section 633, and the
monitoring of programs and activities used by
the State to carry out this part, whether or
not such programs or activities are receiving
assistance made available under section 633, to
ensure that the State complies with this part;
[(B) the identification and coordination of
all available resources within the State from
Federal, State, local, and private sources;
[(C) the assignment of financial
responsibility in accordance with section
637(a)(2) to the appropriate agencies;
[(D) the development of procedures to ensure
that services are provided to infants and
toddlers with disabilities and their families
under this part in a timely manner pending the
resolution of any disputes among public
agencies or service providers;
[(E) the resolution of intra- and interagency
disputes; and
[(F) the entry into formal interagency
agreements that define the financial
responsibility of each agency for paying for
early intervention services (consistent with
State law) and procedures for resolving
disputes and that include all additional
components necessary to ensure meaningful
cooperation and coordination.
[(11) A policy pertaining to the contracting or
making of other arrangements with service providers to
provide early intervention services in the State,
consistent with the provisions of this part, including
the contents of the application under and the
conditions of the contract or other arrangements.
[(12) A procedure of securing timely reimbursements
of funds used under this part in accordance with
section 640(a).
[(13) Procedural safeguards with respect to programs
under this part, as required by section 639.
[(14) A system for compiling data requested by the
Secretary under section 618 that relates to this part.
[(15) A State interagency coordinating council that
meets the requirements of section 641.
[(16) Policies and procedures to ensure that,
consistent with section 636(d)(5)--
[(A) to the maximum extent appropriate, early
intervention services are provided in natural
environments; and
[(B) the provision of early intervention
services for any infant or toddler occurs in a
setting other than a natural environmental only
when early intervention cannot beachieved
satisfactorily for the infant or toddler in a natural environment.
[(b) Policy.--In implementing subsection (a)(9), a State
may adopt a policy that includes making ongoing good-faith
efforts to recruit and hire appropriately and adequately
trained personnel to provide early intervention services to
infants and toddlers 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
subsection (a)(9), consistent with State law within 3 years.
[SEC 636. INDIVIDUALIZED FAMILY SERVICE PLAN.
[(a) Assessment and Program Development.--A statewide
system described in section 633 shall provide, at a minimum,
for each infant or toddler with a disability, and the infant's
or toddler's family, to receive--
[(1) a multidisciplinary assessment of the unique
strengths and needs of the infant or toddler and the
identification of services appropriate to meet such
needs;
[(2) a family-directed assessment of the resources,
priorities, and concerns of the family and the
identification of the supports and services necessary
to enhance the family's capacity to meet the
developmental needs of the infant or toddler; and
[(3) a written individualized family service plan
developed by a multidisciplinary team, including the
parents, as required by subsection (e).
[(b) Periodic Review.--The individualized family service
plan shall be evaluated once a year and the family shall be
provided a review of the plan at 6-month intervals (or more
often where appropriate based on infant or toddler and family
needs).
[(c) Promptness After Assessment.--The individualized
family service plan shall be developed within a reasonable time
after the assessment required by subsection (a)(1) is
completed. With the parents' consent, early intervention
services may commerce prior to the completion of the
assessment.
[(d) Content of Plan.--The individualized family service
plan shall be in writing and contain--
[(1) a statement of the infant's or toddler's present
levels of physical development, cognitive development,
communication development, social or emotional
development, and adaptive development, based on
objective criteria;
[(2) a statement of the family's resources,
priorities, and concerns relating to enhancing the
development of the family's infant or toddler with a
disability;
[(3) a statement of the major outcomes expected to be
achieved for the infant or toddler and the family, and
the criteria, procedures, and timelines used to
determine the degree to which progress toward achieving
the outcomes is being made and whether modifications or
revisions of the outcomes or services are necessary;
[(4) a statement of specific early intervention
services necessary to meet the unique needs of the
infant or toddler andthe family, including the
frequency, intensity, and method of delivering services;
[(5) a statement of the natural environments in which
early intervention services shall appropriately be
provided, including a justification of the extent, if
any, to which the services will not be provided in a
natural environment;
[(6) the projected dates for initiation of services
and the anticipated duration of the services;
[(7) the identification of the service coordinator
from the profession most immediately relevant to the
infant's or toddler's or family's needs (or who is
otherwise qualified to carry out all applicable
responsibilities under this part) who will be
responsible for the implementation of the plan and
coordination with other agencies and persons; and
[(8) the steps to be taken to support the transition
of the toddler with a disability to preschool or other
appropriate services.
[(e) Parental Consent.--The contents of the individualized
family service plan shall be fully explained to the parents and
informed written consent from the parents shall be obtained
prior to the provision of early intervention services described
in such plan. If the parents do no provide consent with respect
to a particular early intervention service, then the early
intervention services to which consent is obtained shall be
provided.
[SEC. 637 STATE APPLICATION AND ASSURANCES.
[(a) Application.--A State desiring to receive a grant
under section 633 shall submit an application to the Secretary
at such time and such manner as the Secretary may reasonably
require. The application shall contain--
[(1) a designation of the lead agency in the State
that will be responsible for the administration of
funds provided under section 633;
[(2) a designation of an individual or entity
responsible for assigning financial responsibility
among appropriate agencies;
[(3) information demonstrating eligibility of the
State under section 634, including--
[(A) information demonstrating to the
Secretary's satisfaction that the State has in
effect the statewide system required by section
633; and
[(B) a description of services to be provided
to infants and toddlers with disabilities and
their families through the system;
[(4) if the State provides services to at-risk
infants and toddlers through the system, a description
of such services;
[(5) a description of the uses for which funds will
be expended in accordance with this part;
[(6) a description of the procedure used to ensure
that resources are made available under this part for
all geographic areas within the State;
[(7) a description of State policies and procedures
that ensure that, prior to the adoption by the State of
any other policy or procedure necessary to meet the
requirements of this part, 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 infants and toddlers with disabilities;
[(8) a description of the policies and procedures to
be used--
[(A) to ensure a smooth transition for
toddlers receiving early intervention services
under this part to preschool or other
appropriate services, including a description
of how--
[(i) the families of such toddlers
will be included in the transition
plans required by subparagraph (C); and
[(ii) the lead agency designated or
established under section 635(a)(10)
will--
[(I) notify the local
educational agency for the area
in which such a child resides
that the child will shortly
reach the age of eligibility
for preschool services under
part B, as determined in
accordance with State law;
[(II) in the case of a child
who may be eligible for such
preschool services, with the
approval of the family of the
child, convene a conference
among the lead agency, the
family, and the local
educational agency at least 90
days (and at the discretion of
all such parties, up to 6
months) before the child is
eligible for the preschool
services, to discuss any such
services that the child may
receive; and
[(III) in the case of a child
who may not be eligible for
such preschool services, with
the approval of the family,
make reasonable efforts to
convene a conference among the
lead agency, the family, and
providers of other appropriate
services for children who are
not eligible for preschool
services under part B, to
discuss the appropriate
services that the child may
receive;
[(B) to review the child's program options
for the period from the child's third birthday
through the remainder of the school year; and
[(C) to establish a transition plan; and
[(9) such other information and assurances as the
Secretary may reasonably require.
[(b) Assurances.--The application described in subsection
(a)--
[(1) shall provide satisfactory assurance that
Federal funds made available under section 643 to the
State will be expanded in accordance with this part;
[(2) shall contain an assurance that the State will
comply with the requirements of section 640;
[(3) shall provide satisfactory assurance that the
control of funds provided under section 643, and title
to property derived from those funds, will be in a
public agency for the uses and purposes provided in
this part and that a public agency will administer such
funds and property;
[(4) shall provide for--
[(A) making such reports in such form and
containing such information as the Secretary
may require to carry out the Secretary's
functions under this part; and
[(B) keeping such records and affording such
access to correctness and verification of those
reports and proper disbursement of Federal
funds under this part;
[(5) provide satisfactory assurance that Federal
funds made available under section 643 to the State--
[(A) will not be commingled with State funds;
and
[(B) will be used so as to supplement the
level of State and local funds expended for
infants and toddlers with disabilities and
their families and in no case to supplant those
State and local funds;
[(6) shall provide satisfactory assurance that such
fiscal control and fund accounting procedures will be
adopted as may be necessary to ensure proper
disbursement of, and accounting for, Federal funds paid
under section 643 to the State;
[(7) shall provide satisfactory assurance that
policies and procedures have been adopted to ensure
meaningful involvement of underserved groups, including
minority, low-income, and rural families, in the
planning and implementation of all the requirements of
this part; and
[(8) shall contain such other information and
assurances as the Secretary may reasonably require by
regulation.
[(c) Standard for Disapproval of Application.--The
Secretary may not disapprove such an application unless the
Secretary determines, after notice and opportunity for a
hearing, that the application fails to comply with the
requirements of this section.
[(d) Subsequent State Application.--If a State has on file
with the Secretary a policy, procedure, or assurance that
demonstrates that the State meets a requirement of this
section, including any policy or procedure filed under part H
(as in effect before July 1, 1998), the Secretary shall
consider the State to have met the requirement for purposes of
receiving a grant under this part.
[(e) Modification of Application.--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 determines necessary. This section
shall apply to a modification of an application to the same
extent and in the same manner as this section applies to the
original application.
[(f) Modifications Required by the Secretary.--The
Secretary may require a State to modify its application under
this section, but only to the extent necessary to ensure that
State's compliance with this part, if--
[(1) an amendment is made to this Act, or a Federal
regulation issued under this Act;
[(2) a new interpretation of this Act is made by a
Federal court or the State's highest court; or
[(3) an official finding of noncompliance with
Federal law or regulations is made with respect to the
State.
[SEC. 638. USES OF FUNDS.
[In addition to using funds provided under section 633 to
maintain and implement the statewide system required by such
section, a State may use such funds--
[(1) for direct early intervention services for
infants and toddlers with disabilities, and their
families, under this part that are not otherwise funded
through other public or private sources;
[(2) to expand and improve on services for infants
and toddlers and their families under this part are
otherwise available;
[(3) to provide a free appropriate public education,
in accordance with part B, to children with
disabilities from their third birthday to the beginning
of the following school year; and
[(4) in any State that does not provide services for
at-risk infants and toddlers under section 637(a)(4),
to strengthen the statewide system by initiating,
expanding, or improving collaborative efforts related
to at-risk infants and toddlers, including establishing
linkages with appropriate public or private community-
based organizations, services, and personnel for the
purposes of--
[(A) identifying and evaluating at-risk
infants and toddlers;
[(B) making referrals of the infants and
toddlers identified and evaluated under
subparagraph (A); and
[(C) conducting periodic follow-up on each
such referral to determine if the status of the
infant or toddler involved has changed with
respect to the eligibility of the infant or
toddler for service under this part.
SEC. 639. PROCEDURAL SAFEGUARDS.
[(a) Minimum Procedures.--The procedural safeguards
required to be included in a statewide system under section
635(a)(13) shall provide, at a minimum, the following:
[(1) The timely administrative resolution of
complaints by parents. Any party aggrieved by the
findings and decision regarding an administrative
complaint shall have the right to bring a civil action
with respect to the complaint in any State court of
competent jurisdiction or in a district court of the
United States without regard to the amount in
controversy. In any action brought under this
paragraph, the court shall receive the records of the
administrative proceedings, shall hear additional
evidence at the request of a party, and, basing its
decision on the preponderance of the evidence, shall
grant such relief as the court determines is
appropriate.
[(2) The right to confidentiality of personally
identifiable information, including the right of
parents to written notice of and written consent to the
exchange of such information among agencies consistent
with Federal and State law.
[(3) The right of the parents to determine whether
they, their infant or toddler, or other family members
will accept or decline any early intervention service
under this part in accordance with State law without
jeopardizing other early intervention services under
this part.
[(4) The opportunity for parents to examine records
relating to assessment, screening, eligibility
determinations, and the development and implementation
of the individualized family service plan.
[(5) Procedures to protect the rights of the infant
or toddler whenever the parents of the infant or
toddler are not known or cannot be found or the infant
or toddler is a ward of the State, including the
assignment of an individual (who shall not be an
employee of the State lead agency, or other State
agency, and who shall not be any person, or any
employee of a person, providing early intervention
services to the infant or toddler or any family member
of the infant or toddler) to act as a surrogate for the
parents.
[(6) Written prior notice to the parents of the
infant or toddler with a disability whenever the State
agency or service provider proposed to initiate or
change or refuses to initiate or change the
identification, evaluation, or placement of the infant
or toddler with a disability, or the provision of
appropriate early intervention services to the infant
or toddler.
[(7) Procedures designed to ensure that the notice
required by paragraph (6) fully informs the parents, in
the parents' native language, unless it clearly is not
feasible to do so, of all procedures available pursuant
to this section.
[(8) The right of parents to use mediation in
accordance with section 615(e), except that--
[(A) any reference in the section to a State
educational agency shall be considered to be a
reference to a State's lead agency established
or designated under section 635(a)(10);
[(B) any reference in the section to a local
educational agency shall be considered to be a
reference to a local service provider or the
State's lead agency under this part, as the
case may be; and
[(C) any reference in the section to the
provision of free appropriate public education
to children with disabilities shall be
considered to be a reference to the provision
of appropriate early intervention services to
infants and toddler with disabilities.
[(b) Services During Pendency of Proceedings.--During the
pendency of any proceeding or action involving a complaint by
the parents of an infant or toddler with a disability, unless
the State agency and the parents otherwise agree, the infant or
toddler shall continue to receive the appropriate early
intervention service currently being provided or, if applying
for initial services, shall receive the services not in
dispute.
SEC. 640. PAYOR OF LAST RESORT.
[(a) Nonsubstitution.--Funds provided under section 643 may
not be used to satisfy a financial commitment for services that
would have been paid for from another public or private source,
including any medical program administered by the Secretary of
Defense, but for the enactment of this part, except that
whenever considered necessary to prevent a delay in the receipt
of appropriate early intervention services by an infant,
toddler, or family in atimely fashion, funds provided under
section 643 may be used to pay the provider of services pending
reimbursement from the agency that has ultimate responsibility for the
payment.
[ Reduction of Other Benefits.--Nothing in this part shall
be construed to permit the State to reduce medical or other
assistance available or to alter eligibility under title V of
the Social Security Act (relating to maternal and child health)
or title XIX of the Social Security Act (relating to Medicaid
for infants or toddlers with disabilities) within the State.
[SEC. 641. STATE INTERAGENCY COORDINATING COUNCIL.
[(a) Establishment.--
[(1) In general.--A State that desires to receive
financial assistance under this part shall establish a
State interagency coordinating council.
[(2) Appointment.--The council shall be appointed by
the Governor. In making appointments to the council,
the Governor shall ensure that the membership of the
council reasonably represents the population of the
State.
[(3) Chairperson.--The Governor shall designate a
member of the council to serve as the chairperson of
the council, or shall require the council to so
designate such a member. Any member of the council who
is a representative of the lead agency designated under
section 635(a)(10) may not serve as the chairperson of
the council.
[(b) Composition.--
[(1) In general.--The council shall be composed as
follows:
[(A) Parents.--At least 20 percent of the
members shall be parents of infants or toddlers
with disabilities or children with disabilities
aged 12 or younger, with knowledge of, or
experience with, programs for infants and
toddlers with disabilities. At least one such
member shall be a parent of an infant or
toddler with a disability or a child with a
disability aged 6 or younger.
[(B) Service providers.--At least 20 percent
of the members shall be public or private
providers of early intervention services.
[(C) State legislature.--At least one member
shall be from the State legislature.
[(D) Personnel preparation.--At least one
member shall be involved in personnel
preparation.
[(E) Agency for early intervention
services.--At least one member shall be from
each of the State agencies involved in the
provision of, or payment for, early
intervention services to infants and toddlers
with disabilities and their families and shall
have sufficient authority to engage in policy
planning and implementation on behalf of such
agencies.
[(F) Agency for preschool services.--At least
one member shall be from the State educational
agency responsible for preschool services to
children with disabilities and shall have
sufficient authority to engage in policy
planning and implementation on behalf of such
agency.
[(G) Agency for health insurance.--At least
one member shall be from the agency responsible
for the State governance of health insurance.
[(H) Head start agency.--At least one
representative from a Head Start agency or
program in the State.
[(I) Child care agency.--At least one
representative from a State agency responsible
for child care.
[(2) Other members.--The council may include other
members selected by the Governor, including a
representative from the Bureau of Indian Affairs, or
where there is no BIA-operated or BIA-funded school,
from the Indian Health Service or the tribe or tribal
council.
[(c) Meetings.--The council shall meet at least quarterly
and in such places as it deems necessary. The meetings shall be
publicly announced, and, to the extent appropriate, open and
accessible to the general public.
[(d) Management Authority.--Subject to the approval of the
Governor, the council may prepare and approve a budget using
funds under this part to conduct hearings and forums, to
reimburse members of the council for reasonable and necessary
expenses for attending council meetings and performing council
duties (including child care for parent representatives), to
pay compensation to a member of the council if the member is
not employed or must forfeit wages from other employment when
performing official council business, to hire staff, and to
obtain the services of such professional, technical, and
clerical personnel as may be necessary to carry out its
functions under this part.
[(e) Functions of Council.--
[(1) Duties.--The council shall--
[(A) advise and assist the lead agency
designated or established under section
635(a)(10) in the performance of the
responsibilities set forth in such section,
particularly the identification of the sources
of fiscal and other support for services for
early intervention programs, assignment of
financial responsibility to the appropriate
agency, and the promotion of the interagency
agreements;
[(B) advise and assist the lead agency in the
preparation of applications and amendments
thereto;
[(C) advise and assist the State educational
agency regarding the transition of toddlers
with disabilities to pre-school and other
appropriate services; and
[(D) prepare and submit an annual report to
the Governor and to the Secretary on the status
of early intervention programs for infants and
toddlers with disabilities and their families
operated within the State.
[(2) Authorized activity.--The council may advise and
assist the lead agency and the State educational agency
regarding the provision of appropriate services for
children from birth through age 5. The council may
advise appropriate agencies in the State with respect
to the integration of services for infants and toddlers
with disabilities and at-risk infants and toddlers and
their families, regardless of whether at-risk infants
and toddlers are eligible for early intervention
services in the State.
[(f) Conflict of Interest.--No member of the council shall
cast a vote on any matter that would provide direct financial
benefit to that member or otherwise give the appearance of a
conflict of interest under State law.
[SEC. 642. FEDERAL ADMINISTRATION.
[Sections 616, 617, and 618 shall, to the extent not
inconsistent with this part, apply to the program authorized by
this part, except that--
[(1) any reference in such sections to a State
educational agency shall be considered to be a
reference to a State's lead agency established or
designated under section 635(a)(10);
[(2) any reference in such sections to a local
educational agency, educational service agency, or a
State agency shall be considered to be a reference to
an early intervention service provider under this part;
and
[(3) any reference to the education of children with
disabilities or the education of all children with
disabilities shall be considered to be a reference to
the provision of appropriate early intervention
services to infants and toddlers with disabilities.
[SEC. 643. ALLOCATIONS OF FUNDS.
[(a) Reservation of Funds for Outlying Areas.--
[(1) In general.--From the sums appropriated to carry
out this part for any fiscal year, the Secretary may
reserve up to one percent for payments to Guam,
American Samoa, the Virgin Islands, and the
Commonwealth of the Northern Mariana Islands in
accordance with their respective needs.
[(2) Consolidation of funds.--The provisions of
Public Law 95-134, permitting the consolidation of
grants to the outlying areas, shall not apply to funds
those areas receive under this part.
[(b) Payments to Indians.--
[(1) In general.--The Secretary shall, subject to
this subsection, make payments to the Secretary of the
Interior to be distributed to tribes, tribal
organizations (as defined under section 4 of the Indian
Self-Determination and Education Assistance Act), or
consortia of the above entities for the coordination of
assistance in the provision of early intervention
services by the States to infants and toddlers with
disabilities and their families on reservations served
by elementary and secondary schools for Indian children
operated or funded by the Department of the Interior.
The amount of such payment for any fiscal year shall be
1.25 percent of the aggregate of the amount available
to all States under this part for such fiscal year.
[(2) Allocation.--For each fiscal year, the Secretary
of the Interior shall distribute the entire payment
received under paragraph (1) by providing to each
tribe, tribal organization, or consortium an amount
based on the number of infants and toddlers residing on
the reservation, as determined annually, divided by the
total of such children served by all tribes, tribal
organizations, or consortia.
[(3) Information.--To receive a payment under this
subsection, the tribe, tribal organization, or
consortium shall submitsuch information to the
Secretary of the Interior as is needed to determine the amounts to be
distributed under paragraph (2).
[(4) Use of funds.--The funds received by a tribe,
tribal organization, or consortium shall be used to
assist States in child find, screening, and other
procedures for the early identification of Indian
children under 3 years of age and for parent training.
Such funds may also be used to provide early
intervention services in accordance with this part.
Such activities may be carried out directly or through
contracts or cooperative agreements with the BIA, local
educational agencies, and other public or private
nonprofit organizations. The tribe, tribal
organization, or consortium 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.
[(5) Reports.--To be eligible to receive a grant
under paragraph (2), a tribe, tribal organization, or
consortium shall make a biennial report to the
Secretary of the Interior of activities undertaken
under this subsection, 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 year in which
the report is made. The Secretary of the Interior shall
include a summary of this information on a biennial
basis to the Secretary of Education along with such
other information as required under section
611(i)(3)(E). The Secretary of Education may require
any additional information from the Secretary of the
Interior.
[(6) Prohibited uses of funds.--None of the funds
under this subsection may be used by the Secretary of
the Interior for administrative purposes, including
child count, and the provision of technical assistance.
[(c) State Allotments.--
[(1) In general.--Except as provided in paragraphs
(2), (3), and (4), from the funds remaining for each
fiscal year after the reservation and payments under
subsections (a) and (b), the Secretary shall first
allot to each State an amount that bears the same ratio
to the amount of such remainder as the number of
infants and toddlers in the State bears to the number
of infants and toddlers in all States.
[(2) Minimum allotments.--Except as provided in
paragraphs (3) and (4), no State shall receive an
amount under this section for any fiscal year that is
less than the greatest of--
[(A) one-half of one percent of the remaining
amount described in paragraph (1); or
[(B) $500,000.
[(3) Special rule for 1998 and 1999.--
[(A) In general.--Except as provided in
paragraph (4), no State may receive an amount
under this section for either fiscal year 1998
or 1999 that is less than the sum of the
amounts such State received for fiscal year
1994 under--
[(i) part H (as in effect for such
fiscal year); and
[(ii) subpart 2 of part D of chapter
1 of title I of the Elementary and
Secondary Education Act of 1965 (as in
effect on the day before the date of
the enactment of the Improving
America's Schools Act of 1994) for
children with disabilities under 3
years of age.
[(B) Exception.--If, for fiscal year 1998 or
1999, the number of infants and toddlers in a
State, as determined under paragraph (1), is
less than the number of infants and toddlers so
determined for fiscal year 1994, the amount
determined under subparagraph (A) for the State
shall be reduced by the same percentage by
which the number of such infants and toddlers
so declined.
[(4) Ratable reduction.--
[(A) In general.--If the sums made available
under this part for any fiscal year are
insufficient to pay the full amounts that all
States are eligible to receive under this
subsection for such year, the Secretary shall
ratably reduce the allotments to such States
for such year.
[(B) Additional funds.--If additional funds
become available for making payments under this
subsection for a fiscal year, allotments that
were reduced under subparagraph (A) shall be
increased on the same basis they were reduced.
[(5) Definitions.--For the purpose of this
subsection--
[(A) the terms ``infants'' and ``toddlers''
mean children under 3 years of age; and
[(B) the term ``State'' means each of the 50
States, the District of Columbia, and the
Commonwealth of Puerto Rico.
[(d) Reallotment of Funds.--If a State elects not to
receive its allotment under subsection (c), the Secretary shall
reallot, among the remaining States, amounts from such State in
accordance with such subsection.
[SEC. 644. FEDERAL INTERAGENCY COORDINATING COUNCIL.
[(a) Establishment and Purpose.--
[(1) In general.--The Secretary shall establish a
Federal Interagency Coordinating Council in order to--
[(A) minimize duplication of programs and
activities across Federal, State, and local
agencies, relating to--
[(i) early intervention services for
infants and toddlers with disabilities
(including at-risk infants and
toddlers) and their families; and
[(ii) preschool or other appropriate
services for children with
disabilities;
[(B) ensure the effective coordination of
Federal early intervention and preschool
programs and policies across Federal agencies;
[(C) coordinate the provision of Federal
technical assistance and support activities to
States;
[(D) identify gaps in Federal agency programs
and services; and
[(E) identify barriers to Federal interagency
cooperation.
[(2) Appointments.--The council established under
paragraph (1) (hereafter in this section referred to as
the ``Council'') and the chairperson of the Council
shall be appointed by the Secretary in consultation
with other appropriate Federal agencies. In making the
appointments, the Secretary shall ensure that each
member has sufficient authority to engage in policy
planning and implementation on behalf of the
department, agency, or program that the member
represents.
[(b) Composition.--The Council shall be composed of--
[(1) a representative of the Office of Special
Education Programs;
[(2) a representative of the National Institute on
Disability and Rehabilitation Research and a
representative of the Office of Educational Research
and Improvement;
[(3) a representative of the Maternal and Child
Health Services Block Grant Program;
[(4) a representative of programs administered under
the Developmental Disabilities Assistance and Bill of
Rights Act of 2000;
[(5) a representative of the Health Care Financing
Administration;
[(6) a representative of the Division of Birth
Defects and Developmental Disabilities of the Centers
for Disease Control;
[(7) a representative of the Social Security
Administration;
[(8) a representative of the special supplemental
nutrition program for women, infants, and children of
the Department of Agriculture;
[(9) a representative of the National Institute of
Mental Health;
[(10) a representative of the National Institute of
Child Health and Human Development;
[(11) a representative of the Bureau of Indian
Affairs of the Department of the Interior;
[(12) a representative of the Indian Health Service;
[(13) a representative of the Surgeon General;
[(14) a representative of the Department of Defense;
[(15) a representative of the Children's Bureau, and
a representative of the Head Start Bureau, of the
Administration for Children and Families;
[(16) a representative of the Substance Abuse and
Mental Health Services Administration;
[(17) a representative of the Pediatric AIDS Health
Care Demonstration Program in the Public Health
Service;
[(18) parents of children with disabilities age 12 or
under (who shall constitute at least 20 percent of the
members of the Council) of whom at least one must have
a child with a disability under the age of 6;
[(19) at least two representatives of State lead
agencies for early intervention services to infants and
toddlers, one of whom must be a representative of a
State educational agency and the other a
representatives of a non-educational agency;
[(20) other members representing appropriate agencies
involved in the provision of, or payment for, early
intervention services and special education and related
services to infants and toddlers with disabilities and
their families and preschool children with
disabilities; and
[(21) other persons appointed by the Secretary.
[(c) Meetings.--The Council shall meet at least quarterly
and in such places as the Council deems necessary. The meetings
shall be publicly announced, and, to the extent appropriate,
open and accessible in the general public.
[(d) Functions of the Council.--The Council shall--
[(1) advise and assist the Secretary of Education,
the Secretary of Health and Human Services, the
Secretary of Defense, the Secretary of the Interior,
the Secretary of Agriculture, and the commissioner of
Social Security in the performance of their
responsibilities related to serving children from birth
through age 5 who are eligible for services under this
part or under part B;
[(2) conduct policy analyses of Federal programs
related to the provision of early intervention services
and special educational and related services to infants
and toddlers with disabilities and their families, and
preschool children with disabilities, in order to
determine areas of conflict, overlap, duplication, or
inappropriate omission;
[(3) identify strategies to address issues described
in paragraph (2);
[(4) develop and recommend joint policy memoranda
concerning effective interagency collaboration,
including modifications to regulations, and the
elimination of barriers to interagency programs and
activities;
[(5) coordinate technical assistance and disseminate
information on best practices, effective program
coordination strategies, and recommendations for
improved early intervention programming for infants and
toddlers with disabilities and their families and
preschool children with disabilities; and
[(6) facilitate activities in support of States'
interagency coordination efforts.
[(e) Conflict of Interest.--No member of the Council shall
cast a vote on any matter that would provide direct financial
benefit to that member or otherwise give the appearance of a
conflict of interest under Federal law.
[(f) Federal Advisory Committee Act.--The Federal Advisory
Committee Act (5 U.S.C. App.) shall not apply to the
establishment or operation of the Council.]
PART C--INFANTS AND TODDLERS WITH DISABILITIES
SEC. 631. FINDINGS AND POLICY.
(a) Findings.--Congress finds that there is an urgent and
substantial need--
(1) to enhance the development of infants and
toddlers with disabilities, to minimize their potential
for developmental delay, and to recognize the
significant brain development which occurs during a
child's first 3 years of life;
(2) to reduce the educational costs to our society,
including our Nation's schools, by minimizing the need
for special education and related services after
infants and toddlers with disabilities reach school
age;
(3) to maximize the potential for individuals with
disabilities to live independently in society;
(4) to enhance the capacity of families to meet the
special needs of their infants and toddlers with
disabilities; and
(5) to enhance the capacity of State and local
agencies and service providers to identify, evaluate,
and meet the needs of all children, particularly
minority, low-income, inner city, and rural children.
(b) Policy.--It is the policy of the United States to provide
financial assistance to States--
(1) to develop and implement a statewide,
comprehensive, coordinated, multidisciplinary,
interagency system that provides early intervention
services for infants and toddlers with disabilities and
their families;
(2) to facilitate the coordination of payment for
early intervention services from Federal, State, local,
and private sources (including public and private
insurance coverage);
(3) to enhance State capacity to provide high quality
early intervention services and expand and improve
existing early intervention services being provided to
infants and toddlers with disabilities and their
families; and
(4) to encourage States to expand opportunities for
children under 3 years of age who would be at risk of
having substantial developmental delay if they did not
receive early intervention services.
SEC. 632. DEFINITIONS.
As used in this part:
(1) At-risk infant or toddler.--The term ``at-risk
infant or toddler'' means an individual under 3 years
of age who would be at risk of experiencing a
substantial developmental delay if early intervention
services were not provided to the individual.
(2) Council.--The term ``council'' means a State
interagency coordinating council established under
section 641.
(3) Developmental delay.--The term ``developmental
delay'', when used with respect to an individual
residing in a State, has the meaning given such term by
the State under section 635(a)(1).
(4) Early intervention services.--The term ``early
intervention services'' means developmental services
that--
(A) are provided under public supervision;
(B) are provided at no cost except where
Federal or State law provides for a system of
payments by families, including a schedule of
sliding fees;
(C) are designed to meet the developmental
needs of an infant or toddler with a disability
in any 1 or more of the following areas:
(i) physical development;
(ii) cognitive development;
(iii) communication development;
(iv) social or emotional development;
or
(v) adaptive development;
(D) meet the standards of the State in which
the services are provided, including the
requirements of this part;
(E) include--
(i) family training, counseling, and
home visits;
(ii) special instruction;
(iii) speech-language pathology and
audiology services, and sign language
and cued language services;
(iv) occupational therapy;
(v) physical therapy;
(vi) psychological services;
(vii) service coordination services;
(viii) medical services only for
diagnostic or evaluation purposes;
(ix) early identification, screening,
and assessment services;
(x) health services necessary to
enable the infant or toddler to benefit
from the other early intervention
services;
(xi) social work services;
(xii) vision services;
(xiii) assistive technology devices
and assistive technology services; and
(xiv) transportation and related
costs that are necessary to enable an
infant or toddler and the infant's or
toddler's family to receive another
service described in this paragraph;
(F) are provided by qualified personnel,
including--
(i) special educators;
(ii) speech-language pathologists and
audiologists;
(iii) teachers of the deaf;
(iv) occupational therapists;
(v) physical therapists;
(vi) psychologists;
(vii) social workers;
(viii) nurses;
(ix) nutritionists;
(x) family therapists;
(xi) orientation and mobility
specialists;
(xii) vision specialists, including
opthamologists and optometrists; and
(xiii) pediatricians and other
physicians;
(G) to the maximum extent appropriate, are
provided in natural environments, including the
home, and community settings in which children
without disabilities participate; and
(H) are provided in conformity with an
individualized family service plan adopted in
accordance with section 636.
(5) Infant or toddler with a disability.--The term
``infant or toddler with a disability''--
(A) means an individual under 3 years of age
who needs early intervention services because
the individual--
(i) is experiencing developmental
delays, as measured by appropriate
diagnostic instruments and procedures
in 1 or more of the areas of cognitive
development, physical development,
communication development, social or
emotional development, and adaptive
development; or
(ii) has a diagnosed physical or
mental condition which has a high
probability of resulting in
developmental delay; and
(B) may also include, at a State's
discretion--
(i) at-risk infants and toddlers; and
(ii) children with disabilities who
are eligible for services under section
619 and who previously received
services under this part until such
children enter, or are eligible under
State law to enter, kindergarten.
SEC. 633. GENERAL AUTHORITY.
The Secretary shall, in accordance with this part, make
grants to States (from their allotments under section 643) to
assist each State to maintain and implement a statewide,
comprehensive, coordinated, multidisciplinary, interagency
system to provide early intervention services for infants and
toddlers with disabilities and their families.
SEC. 634. ELIGIBILITY.
In order to be eligible for a grant under section 633, a
State shall demonstrate to the Secretary that the State--
(1) has adopted a policy that appropriate early
intervention services are available to all infants and
toddlers with disabilities in the State and their
families, including Indian infants and toddlers with
disabilities and their families residing on a
reservation geographically located in the State; and
(2) has in effect a statewide system that meets the
requirements of section 635.
SEC. 635. REQUIREMENTS FOR STATEWIDE SYSTEM.
(a) In General.--A statewide system described in section 633
shall include, at a minimum, the following components:
(1) A definition of the term `developmental delay'
that--
(A) will be used by the State in carrying out
programs under this part; and
(B) covers, at a minimum, all infants and
toddlers with--
(i) a developmental delay of 35
percent or more in 1 of the
developmental areas described in
section 632(5)(A)(i); or
(ii) a developmental delay of 25
percent or more in 2 or more of the
developmental areas described in
section 632(5)(A)(i).
(2) A State policy that is in effect and that ensures
that appropriate early intervention services are
available to all infants and toddlers with disabilities
and their families, including Indian infants and
toddlers and their families residing on a reservation
geographically located in the State.
(3) A timely, comprehensive, multidisciplinary
evaluation of the functioning of each infant or toddler
with a disability in the State, and a family-directed
identification of the needs of each family of such an
infant or toddler, to appropriately assist in the
development of the infant or toddler.
(4) For each infant or toddler with a disability in
the State, an individualized family service plan in
accordance with section 636, including service
coordination services in accordance with such service
plan.
(5) A comprehensive child find system, consistent
with part B, including a system for making referrals to
service providers that includes timelines and provides
for participation by primary referral sources.
(6) A public awareness program focusing on early
identification of infants and toddlers with
disabilities, including the preparation and
dissemination by the lead agency designated or
established under paragraph (10) to all primary
referral sources, especially hospitals and physicians,
of information for parents on the availability of early
intervention services, and procedures for determining
the extent to which such sources disseminate such
information to parents of infants and toddlers.
(7) A central directory that includes information on
early intervention services, resources, and experts
available in the State and research and demonstration
projects being conducted in the State.
(8) A comprehensive system of personnel development,
including the training of paraprofessionals and the
training of primary referral sources with respect to
the basic components of early intervention services
available in the State, which comprehensive system may
include--
(A) implementing innovative strategies and
activities for the recruitment and retention of
early education service providers;
(B) promoting the preparation of early
intervention providers who are fully and
appropriately qualified to provide early
intervention services under this part;
(C) training personnel to work in rural and
inner-city areas; and
(D) training personnel to coordinate
transition services for infants and toddlers
served under this part from an early
intervention program under this part to
preschool or other appropriate services.
(9) Policies and procedures relating to the
establishment and maintenance of standards to ensure
that personnel necessary to carry out this part are
appropriately and adequately prepared and trained,
including the establishment and maintenance of
standards which are consistent with any State-approved
or recognized certification, licensing, registration,
or other comparable requirements which apply to the
area in which such personnel are providing early
intervention services, except that nothing in this part
(including this paragraph) shall be construed to
prohibit the use of paraprofessionals and assistants
who are appropriately trained in accordance with State
law, regulation, or written policy, to assist in the
provision of early intervention services under this
part to infants and toddlers with disabilities.
(10) A single line of responsibility in a lead agency
designated or established by the Governor for carrying
out--
(A) the general administration and
supervision of programs and activities
receiving assistance under section 633, and the
monitoring of programs and activities used by
the State to carry out this part, whether or
not such programs or activities are receiving
assistance made available under section 633, to
ensure that the State complies with this part;
(B) the identification and coordination of
all available resources within the State from
Federal, State, local, and private sources;
(C) the assignment of financial
responsibility in accordance with section
637(a)(2) to the appropriate agencies;
(D) the development of procedures to ensure
that services are provided to infants and
toddlers with disabilities and their families
under this part in a timely manner pending the
resolution of any disputes among public
agencies or service providers;
(E) the resolution of intra- and interagency
disputes; and
(F) the entry into formal interagency
agreements that define the financial
responsibility of each agency for paying for
early intervention services (consistent with
State law) and procedures for resolving
disputes and that include all additional
components necessary to ensure meaningful
cooperation and coordination.
(11) A policy pertaining to the contracting or making
of other arrangements with service providers to provide
early intervention services in the State, consistent
with the provisions of this part, including the
contents of the application used and the conditions of
the contract or other arrangements.
(12) A procedure for securing timely reimbursements
of funds used under this part in accordance with
section 640(a).
(13) Procedural safeguards with respect to programs
under this part, as required by section 639.
(14) A system for compiling data requested by the
Secretary under section 618 that relates to this part.
(15) A State interagency coordinating council that
meets the requirements of section 641.
(16) Policies and procedures to ensure that,
consistent with section 636(d)(5) to the maximum extent
appropriate, early intervention services are provided
in natural environments unless a specific outcome
cannot be met satisfactorily for the infant or toddler
in a natural environment.
(b) Flexibility To Serve Children 3 Years of Age to Under 6
Years of Age.--
(1) In general.--A statewide system described in
section 633 may include a State policy, developed and
implemented jointly by the lead agency and the State
educational agency, under which parents of children
with disabilities who are eligible for services under
section 619 and previously received services under this
part, may choose the continuation of early intervention
services (which shall include an educational component
that promotes school readiness and incorporates
preliteracy, language, and numeracy skills) for such
children under this part until such children enter, or
are eligible under State law to enter, kindergarten.
(2) Requirements.--If a statewide system includes a
State policy described in paragraph (1), the statewide
system shall ensure--
(A) that parents of infants or toddlers with
disabilities (as defined in section 632(5)(A))
provide informed written consent to the State,
before such infants and toddlers reach 3 years
of age, as to whether such parents intend to
choose the continuation of early intervention
services pursuant to this subsection for such
infants or toddlers;
(B) that the State policy will not affect the
right of any child served pursuant to this
subsection to instead receive a free
appropriate public education under part B;
(C) that parents of children served pursuant
to this subsection are provided with annual
notice--
(i) of such parents' right to elect
services pursuant to this subsection or
under part B; and
(ii) fully explaining the differences
between receiving services pursuant to
this subsection and receiving services
under part B, including--
(I) the types of services
available under both
provisions;
(II) applicable procedural
safeguards under both
provisions, including due-
process protections and
mediation or other dispute
resolution options; and
(III) the possible costs, if
any (including any fees to be
charged to families as
described in section 632(4)(B))
to parents under both
provisions;
(D) that the conference under section
637(a)(9)(A)(ii)(II), the review under section
637(a)(9)(B), and the establishment of a
transition plan under section 637(a)(9)(C)
occur not less than 90 days (and at the
discretion of the parties to the conference,
not more than 9 months) before each of the
following:
(i) the time the child will first be
eligible for services under part B,
including under section 619; and
(ii) if the child is receiving
services in accordance with this
subsection, the time the child will no
longer receive those services;
(E) the continuance of all early intervention
services outlined in the child's individualized
family service plan under section 636 while any
eligibility determination is being made for
services under this subsection;
(F) that services provided pursuant to this
subsection include an educational component
that promotes school readiness and incorporates
preliteracy, language, and numeracy skills and
are provided in accordance with an
individualized family service plan under
section 636; and
(G) the referral for evaluation for early
intervention services of a child below the age
of 3 who experiences a substantiated case of
exposure to violence or trauma.
(3) Reporting requirement.--If a statewide system
includes a State policy described in paragraph (1), the
State shall submit to the Secretary, in the State's
report under section 637(b)(4)(A), a report on--
(A) the percentage of children with
disabilities who are eligible for services
under section 619 but whose parents choose for
such children to continue to receive early
intervention services under this part; and
(B) the number of children who are eligible
for services under section 619 who instead
continue to receive early intervention services
under this part.
(4) Rule of construction.--Nothing in this subsection
shall be construed to require a provider of services
under this part to provide a child served under this
part with a free appropriate public education.
(5) Available funds.--If a statewide system includes
a State policy described in paragraph (1), the policy
shall describe the funds (including an identification
as Federal, State, or local funds) that will be used to
ensure that the option described in paragraph (1) is
available to eligible children and families who provide
the consent described in paragraph (2)(A), including
fees to be charged to families as described in section
632(4)(B).
SEC. 636. INDIVIDUALIZED FAMILY SERVICE PLAN.
(a) Assessment and Program Development.--A statewide system
described in section 633 shall provide, at a minimum, for each
infant or toddler with a disability, and the infant's or
toddler's family, to receive--
(1) a multidisciplinary assessment of the unique
strengths and needs of the infant or toddler and the
identification of services appropriate to meet such
needs;
(2) a family-directed assessment of the resources,
priorities, and concerns of the family and the
identification of the supports and services necessary
to enhance the family's capacity to meet the
developmental needs of the infant or toddler; and
(3) a written individualized family service plan
developed by a multidisciplinary team, including the
parents, as required by subsection (e), including a
description of the appropriate transition services for
the child.
(b) Periodic Review.--The individualized family service plan
shall be evaluated once a year and the family shall be provided
a review of the plan at 6-month intervals (or more often where
appropriate based on infant or toddler and family needs).
(c) Promptness After Assessment.--The individualized family
service plan shall be developed within a reasonable time after
the assessment required by subsection (a)(1) is completed. With
the parents' consent, early intervention services may commence
prior to the completion of the assessment.
(d) Content of Plan.--The individualized family service plan
shall be in writing and contain--
(1) a statement of the infant's or toddler's present
levels of physical development, cognitive development,
communication development, social or emotional
development, and adaptive development, based on
objective criteria;
(2) a statement of the family's resources,
priorities, and concerns relating to enhancing the
development of the family's infant or toddler with a
disability;
(3) a statement of the measurable outcomes expected
to be achieved for the infant or toddler and the
family, including, as appropriate, preliteracy and
language skills, and the criteria, procedures, and
timelines used to determine the degree to which
progress toward achieving the outcomes is being made
and whether modifications or revisions of the outcomes
or services are necessary;
(4) a statement of specific early intervention
services necessary to meet the unique needs of the
infant or toddler and the family, including the
frequency, intensity, and method of delivering
services;
(5) a statement of the natural environments in which
early intervention services will appropriately be
provided, including a justification of the extent, if
any, to which the services will not be provided in a
natural environment;
(6) the projected dates for initiation of services
and the anticipated length, duration, and frequency of
the services;
(7) the identification of the service coordinator
from the profession most immediately relevant to the
infant's or toddler's or family's needs (or who is
otherwise qualified to carry out all applicable
responsibilities under this part) who will be
responsible for the implementation of the plan and
coordination with other agencies and persons, including
transition services; and
(8) the steps to be taken to support the transition
of the toddler with a disability to preschool or other
appropriate services.
(e) Parental Consent.--The contents of the individualized
family service plan shall be fully explained to the parents and
informed written consent from the parents shall be obtained
prior to the provision of early intervention services described
in such plan. If the parents do not provide consent with
respect to a particular early intervention service, then only
the early intervention services to which consent is obtained
shall be provided.
SEC. 637. STATE APPLICATION AND ASSURANCES.
(a) Application.--A State desiring to receive a grant under
section 633 shall submit an application to the Secretary at
such time and in such manner as the Secretary may reasonably
require. The application shall contain--
(1) a designation of the lead agency in the State
that will be responsible for the administration of
funds provided under section 633;
(2) a certification to the Secretary that the
arrangements to establish financial responsibility for
services provided under this part pursuant to section
640(b) are current as of the date of submission of the
certification;
(3) information demonstrating eligibility of the
State under section 634, including--
(A) information demonstrating to the
Secretary's satisfaction that the State has in
effect the statewide system required by section
633; and
(B) a description of services to be provided
to infants and toddlers with disabilities and
their families through the system;
(4) if the State provides services to at-risk infants
and toddlers through the system, a description of such
services;
(5) a description of the uses for which funds will be
expended in accordance with this part;
(6) a description of the State policies and
procedures that require the referral for evaluation for
early intervention services of a child under the age of
3 who--
(A) is involved in a substantiated case of
child abuse or neglect; or
(B) is identified as affected by illegal
substance abuse, or withdrawal symptoms
resulting from prenatal drug exposure;
(7) a description of the procedure used to ensure
that resources are made available under this part for
all geographic areas within the State;
(8) a description of State policies and procedures
that ensure that, prior to the adoption by the State of
any other policy or procedure necessary to meet the
requirements of this part, 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 infants
and toddlers with disabilities;
(9) a description of the policies and procedures to
be used--
(A) to ensure a smooth transition for
toddlers receiving early intervention services
under this part (and children receiving those
services under section 635(b)) to preschool,
other appropriate services, or exiting the
program, including a description of how--
(i) the families of such toddlers and
children will be included in the
transition plans required by
subparagraph (C); and
(ii) the lead agency designated or
established under section 635(a)(10)
will--
(I) notify the local
educational agency for the area
in which such a child resides
that the child will shortly
reach the age of eligibility
for preschool services under
part B, as determined in
accordance with State law;
(II) in the case of a child
who may be eligible for such
preschool services, with the
approval of the family of the
child, convene a conference
among the lead agency, the
family, and the local
educational agency at least 90
days (and at the discretion of
all such parties, not more than
9 months) before the child is
eligible for the preschool
services, to discuss any such
services that the child may
receive; and
(III) in the case of a child
who may not be eligible for
such preschool services, with
the approval of the family,
make reasonable efforts to
convene a conference among the
lead agency, the family, and
providers of other appropriate
services for children who are
not eligible for preschool
services under part B, to
discuss the appropriate
services that the child may
receive;
(B) to review the child's program options for
the period from the child's third birthday
through the remainder of the school year; and
(C) to establish a transition plan,
including, as appropriate, steps to exit from
the program; and
(10) such other information and assurances as the
Secretary may reasonably require.
(b) Assurances.--The application described in subsection
(a)--
(1) shall provide satisfactory assurance that Federal
funds made available under section 643 to the State
will be expended in accordance with this part;
(2) shall contain an assurance that the State will
comply with the requirements of section 640;
(3) shall provide satisfactory assurance that the
control of funds provided under section 643, and title
to property derived from those funds, will be in a
public agency for the uses and purposes provided in
this part and that a public agency will administer such
funds and property;
(4) shall provide for--
(A) making such reports in such form and
containing such information as the Secretary
may require to carry out the Secretary's
functions under this part; and
(B) keeping such reports and affording such
access to the reports as the Secretary may find
necessary to ensure the correctness and
verification of the reports and proper
disbursement of Federal funds under this part;
(5) provide satisfactory assurance that Federal funds
made available under section 643 to the State--
(A) will not be commingled with State funds;
and
(B) will be used so as to supplement the
level of State and local funds expended for
infants and toddlers with disabilities and
their families and in no case to supplant those
State and local funds;
(6) shall provide satisfactory assurance that such
fiscal control and fund accounting procedures will be
adopted as may be necessary to ensure proper
disbursement of, and accounting for, Federal funds paid
under section 643 to the State;
(7) shall provide satisfactory assurance that
policies and procedures have been adopted to ensure
meaningful involvement of underserved groups, including
minority, low-income, and rural families, in the
planning and implementation of all the requirements of
this part; and
(8) shall contain such other information and
assurances as the Secretary may reasonably require by
regulation.
(c) Standard for Disapproval of Application.--The Secretary
may not disapprove such an application unless the Secretary
determines, after notice and opportunity for a hearing, that
the application fails to comply with the requirements of this
section.
(d) Subsequent State Application.--If a State has on file
with the Secretary a policy, procedure, or assurance that
demonstrates that the State meets a requirement of this
section, including any policy or procedure filed under part C,
as in effect before the date of enactment of the Individuals
with Disabilities Education Improvement Act of 2003, the
Secretary shall consider the State to have met the requirement
for purposes of receiving a grant under this part.
(e) Modification of Application.--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 determines necessary. This section shall apply to a
modification of an application to the same extent and in the
same manner as this section applies to the original
application.
(f) Modifications Required by the Secretary.--The Secretary
may require a State to modify its application under this
section, but only to the extent necessary to ensure the State's
compliance with this part, if--
(1) an amendment is made to this Act, or a Federal
regulation issued under this Act;
(2) a new interpretation of this Act is made by a
Federal court or the State's highest court; or
(3) an official finding of noncompliance with Federal
law or regulations is made with respect to the State.
SEC. 638. USES OF FUNDS.
In addition to using funds provided under section 633 to
maintain and implement the statewide system required by such
section, a State may use such funds--
(1) for direct early intervention services for
infants and toddlers with disabilities, and their
families, under this part that are not otherwise funded
through other public or private sources;
(2) to expand and improve on services for infants and
toddlers and their families under this part that are
otherwise available;
(3) to provide a free appropriate public education,
in accordance with part B, to children with
disabilities from their third birthday to the beginning
of the following school year;
(4) with the written consent of the parents, to
continue to provide early intervention services under
this part to children with disabilities from their 3rd
birthday to the beginning of the following school year,
in lieu of a free appropriate public education provided
in accordance with part B; and
(5) in any State that does not provide services for
at-risk infants and toddlers under section 637(a)(4),
to strengthen the statewide system by initiating,
expanding, or improving collaborative efforts related
to at-risk infants and toddlers, including establishing
linkages with appropriate public or private community-
based organizations, services, and personnel for the
purposes of--
(A) identifying and evaluating at-risk
infants and toddlers;
(B) making referrals of the infants and
toddlers identified and evaluated under
subparagraph (A); and
(C) conducting periodic follow-up on each
such referral to determine if the status of the
infant or toddler involved has changed with
respect to the eligibility of the infant or
toddler for services under this part.
SEC. 639. PROCEDURAL SAFEGUARDS.
(a) Minimum Procedures.--The procedural safeguards required
to be included in a statewide system under section 635(a)(13)
shall provide, at a minimum, the following:
(1) The timely administrative resolution of
complaints by parents. Any party aggrieved by the
findings and decision regarding an administrative
complaint shall have the right to bring a civil action
with respect to the complaint in any State court of
competent jurisdiction or in a district court of the
United States without regard to the amount in
controversy. In any action brought under this
paragraph, the court shall receive the records of the
administrative proceedings, shall hear additional
evidence at the request of a party, and, basing its
decision on the preponderance of the evidence, shall
grant such relief as the court determines is
appropriate.
(2) The right to confidentiality of personally
identifiable information, including the right of
parents to written notice of and written consent to the
exchange of such information among agencies consistent
with Federal and State law.
(3) The right of the parents to determine whether
they, their infant or toddler, or other family members
will accept or decline any early intervention service
under this part in accordance with State law without
jeopardizing other early intervention services under
this part.
(4) The opportunity for parents to examine records
relating to assessment, screening, eligibility
determinations, and the development and implementation
of the individualized family service plan.
(5) Procedures to protect the rights of the infant or
toddler whenever the parents of the infant or toddler
are not known or cannot be found or the infant or
toddler is a ward of the State, including the
assignment of an individual (who shall not be an
employee of the State lead agency, or other State
agency, and who shall not be any person, or any
employee of a person, providing early intervention
services to the infant or toddler or any family member
of the infant or toddler) to act as a surrogate for the
parents.
(6) Written prior notice to the parents of the infant
or toddler with a disability whenever the State agency
or service provider proposes to initiate or change, or
refuses to initiate or change, the identification,
evaluation, or placement of the infant or toddler with
a disability, or the provision of appropriate early
intervention services to the infant or toddler.
(7) Procedures designed to ensure that the notice
required by paragraph (6) fully informs the parents, in
the parents' native language, unless it clearly is not
feasible to do so, of all procedures available pursuant
to this section.
(8) The right of parents to use mediation in
accordance with section 615, except that--
(A) any reference in the section to a State
educational agency shall be considered to be a
reference to a State's lead agency established
or designated under section 635(a)(10);
(B) any reference in the section to a local
educational agency shall be considered to be a
reference to a local service provider or the
State's lead agency under this part, as the
case may be; and
(C) any reference in the section to the
provision of free appropriate public education
to children with disabilities shall be
considered to be a reference to the provision
of appropriate early intervention services to
infants and toddlers with disabilities.
(b) Services During Pendency of Proceedings.--During the
pendency of any proceeding or action involving a complaint by
the parents of an infant or toddler with a disability, unless
the State agency and the parents otherwise agree, the infant or
toddler shall continue to receive the appropriate early
intervention services currently being provided or, if applying
for initial services, shall receive the services not in
dispute.
SEC. 640. PAYOR OF LAST RESORT.
(a) Nonsubstitution.--Funds provided under section 643 may
not be used to satisfy a financial commitment for services that
would have been paid for from another public or private source,
including any medical program administered by the Secretary of
Defense, but for the enactment of this part, except that
whenever considered necessary to prevent a delay in the receipt
of appropriate early intervention services by an infant,
toddler, or family in a timely fashion, funds provided under
section 643 may be used to pay the provider of services pending
reimbursement from the agency that has ultimate responsibility
for the payment.
(b) Obligations Related to and Methods of Ensuring
Services.--
(1) Establishing financial responsibility for
services.--
(A) In general.--The Chief Executive Officer
of a State or designee of the officer shall
ensure that an interagency agreement or other
mechanism for interagency coordination is in
effect between each public agency and the State
educational agency, in order to ensure--
(i) the provision of, and financial
responsibility for, services provided
under this part; and
(ii) such services are consistent
with the requirements of section 635
and the State's application pursuant to
section 637, including the provision of
such services during the pendency of
any dispute.
(B) Consistency between agreements or
mechanisms under parts b and d.--The Chief
Executive Officer of a State or designee of the
officer shall ensure that the terms and
conditions of such agreement or mechanism are
consistent with the terms and conditions of the
State's agreement or mechanism under section
612(a)(12).
(2) Reimbursement for services by public agency.--
(A) In general.--If a public agency other
than an educational agency fails to provide or
pay for the services pursuant to an agreement
required under paragraph (1) the local
educational agency or State agency (as
determined by the Chief Executive Officer or
designee) shall provide or pay for the
provision of such services to the child.
(B) Reimbursement.--Such local educational
agency or State agency is authorized to 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 required under
paragraph (1).
(3) Special rule.--The requirements of paragraph (1)
may be met through--
(A) State statute or regulation;
(B) signed agreements between respective
agency officials that clearly identify the
responsibilities of each agency relating to the
provision of services; or
(C) other appropriate written methods as
determined by the Chief Executive Officer of
the State or designee of the officer and
approved by the Secretary through the review
and approval of the State's application
pursuant to section 637.
(c) Reduction of Other Benefits.--Nothing in this part shall
be construed to permit the State to reduce medical or other
assistance available or to alter eligibility under title V of
the Social Security Act (relating to maternal and child health)
or title XIX of the Social Security Act (relating to Medicaid
for infants or toddlers with disabilities) within the State.
SEC. 641. STATE INTERAGENCY COORDINATING COUNCIL.
(a) Establishment.--
(1) In general.--A State that desires to receive
financial assistance under this part shall establish a
State interagency coordinating council.
(2) Appointment.--The council shall be appointed by
the Governor. In making appointments to the council,
the Governor shall ensure that the membership of the
council reasonably represents the population of the
State.
(3) Chairperson.--The Governor shall designate a
member of the council to serve as the chairperson of
the council, or shall require the council to so
designate such a member. Any member of the council who
is a representative of the lead agency designated under
section 635(a)(10) may not serve as the chairperson of
the council.
(b) Composition.--
(1) In general.--The council shall be composed as
follows:
(A) Parents.--At least 20 percent of the
members shall be parents of infants or toddlers
with disabilities or children with disabilities
aged 12 or younger, with knowledge of, or
experience with, programs for infants and
toddlers with disabilities. At least 1 such
member shall be a parent of an infant or
toddler with a disability or a child with a
disability aged 6 or younger.
(B) Service providers.--At least 20 percent
of the members shall be public or private
providers of early intervention services.
(C) State legislature.--At least 1 member
shall be from the State legislature.
(D) Personnel preparation.--At least 1 member
shall be involved in personnel preparation.
(E) Agency for early intervention services.--
At least 1 member shall be from each of the
State agencies involved in the provision of, or
payment for, early intervention services to
infants and toddlers with disabilities and
their families and shall have sufficient
authority to engage in policy planning and
implementation on behalf of such agencies.
(F) Agency for preschool services.--At least
1 member shall be from the State educational
agency responsible for preschool services to
children with disabilities and shall have
sufficient authority to engage in policy
planning and implementation on behalf of such
agency.
(G) State medicaid agency.--At least 1 member
shall be from the agency responsible for the
State medicaid program.
(H) Head start agency.--At least 1
representative from a Head Start agency or
program in the State.
(I) Child care agency.--At least 1
representative from a State agency responsible
for child care.
(J) Agency for health insurance.--At least 1
member shall be from the agency responsible for
the State regulation of health insurance.
(2) Other members.--The council may include other
members selected by the Governor, including a
representative from the Bureau of Indian Affairs, or
where there is no BIA-operated or BIA-funded school,
from the Indian Health Service or the tribe or tribal
council.
(c) Meetings.--The council shall meet at least quarterly and
in such places as the council determines necessary. The
meetings shall be publicly announced, and, to the extent
appropriate, open and accessible to the general public.
(d) Management Authority.--Subject to the approval of the
Governor, the council may prepare and approve a budget using
funds under this part to conduct hearings and forums, to
reimburse members of the council for reasonable and necessary
expenses for attending council meetings and performing council
duties (including child care for parent representatives), to
pay compensation to a member of the council if the member is
not employed or must forfeit wages from other employment when
performing official council business, to hire staff, and to
obtain the services of such professional, technical, and
clerical personnel as may be necessary to carry out its
functions under this part.
(e) Functions of Council.--
(1) Duties.--The council shall--
(A) advise and assist the lead agency
designated or established under section
635(a)(10) in the performance of the
responsibilities set forth in such section,
particularly the identification of the sources
of fiscal and other support for services for
early intervention programs, assignment of
financial responsibility to the appropriate
agency, and the promotion of the interagency
agreements;
(B) advise and assist the lead agency in the
preparation of applications and amendments
thereto;
(C) advise and assist the State educational
agency regarding the transition of toddlers
with disabilities to preschool and other
appropriate services; and
(D) prepare and submit an annual report to
the Governor and to the Secretary on the status
of early intervention programs for infants and
toddlers with disabilities and their families
operated within the State.
(2) Authorized activity.--The council may advise and
assist the lead agency and the State educational agency
regarding the provision of appropriate services for
children from birth through age 5. The council may
advise appropriate agencies in the State with respect
to the integration of services for infants and toddlers
with disabilities and at-risk infants and toddlers and
their families, regardless of whether at-risk infants
and toddlers are eligible for early intervention
services in the State.
(f) Conflict of Interest.--No member of the council shall
cast a vote on any matter that is likely to provide a direct
financial benefit to that member or otherwise give the
appearance of a conflict of interest under State law.
SEC. 642. FEDERAL ADMINISTRATION.
Sections 616, 617, and 618 shall, to the extent not
inconsistent with this part, apply to the program authorized by
this part, except that--
(1) any reference in such sections to a State
educational agency shall be considered to be a
reference to a State's lead agency established or
designated under section 635(a)(10);
(2) any reference in such sections to a local
educational agency, educational service agency, or a
State agency shall be considered to be a reference to
an early intervention service provider under this part;
and
(3) any reference to the education of children with
disabilities or the education of all children with
disabilities shall be considered to be a reference to
the provision of appropriate early intervention
services to infants and toddlers with disabilities.
SEC. 643. ALLOCATION OF FUNDS.
(a) Reservation of Funds for Outlying Areas.--
(1) In general.--From the sums appropriated to carry
out this part for any fiscal year, the Secretary may
reserve not more than 1 percent for payments to Guam,
American Samoa, the United States Virgin Islands, and
the Commonwealth of the Northern Mariana Islands in
accordance with their respective needs.
(2) Consolidation of funds.--The provisions of Public
Law 95-134, permitting the consolidation of grants to
the outlying areas, shall not apply to funds those
areas receive under this part.
(b) Payments to Indians.--
(1) In general.--The Secretary shall, subject to this
subsection, make payments to the Secretary of the
Interior to be distributed to tribes, tribal
organizations (as defined under section 4 of the Indian
Self-Determination and Education Assistance Act), or
consortia of the above entities for the coordination of
assistance in the provision of early intervention
services by the States to infants and toddlers with
disabilities and their families on reservations served
by elementary schools and secondary schools for Indian
children operated or funded by the Department of the
Interior. The amount of such payment for any fiscal
year shall be 1.25 percent of the aggregate of the
amount available to all States under this part for such
fiscal year.
(2) Allocation.--For each fiscal year, the Secretary
of the Interior shall distribute the entire payment
received under paragraph (1) by providing to each
tribe, tribal organization, or consortium an amount
based on the number of infants and toddlers residing on
the reservation, as determined annually, divided by the
total of such children served by all tribes, tribal
organizations, or consortia.
(3) Information.--To receive a payment under this
subsection, the tribe, tribal organization, or
consortium shall submit such information to the
Secretary of the Interior as is needed to determine the
amounts to be distributed under paragraph (2).
(4) Use of funds.--The funds received by a tribe,
tribal organization, or consortium shall be used to
assist States in child find, screening, and other
procedures for the early identification of Indian
children under 3 years of age and for parent training.
Such funds may also be used to provide early
intervention services in accordance with this part.
Such activities may be carried out directly or through
contracts or cooperative agreements with the BIA, local
educational agencies, and other public or private
nonprofit organizations. The tribe, tribal
organization, or consortium 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.
(5) Reports.--To be eligible to receive a grant under
paragraph (2), a tribe, tribal organization, or
consortium shall make a biennial report to the
Secretary of the Interior of activities undertaken
under this subsection, 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 year in which
the report is made. The Secretary of the Interior shall
include a summary of this information on a biennial
basis to the Secretary of Education along with such
other information as required under section
611(h)(3)(E). The Secretary of Education may require
any additional information from the Secretary of the
Interior.
(6) Prohibited uses of funds.--None of the funds
under this subsection may be used by the Secretary of
the Interior for administrative purposes, including
child count, and the provision of technical assistance.
(c) State Allotments.--
(1) In general.--Except as provided in paragraphs (2)
and (3), from the funds remaining for each fiscal year
after the reservation and payments under subsections
(a), (b), and (e), the Secretary shall first allot to
each State an amount that bears the same ratio to the
amount of such remainder as the number of infants and
toddlers in the State bears to the number of infants
and toddlers in all States.
(2) Minimum allotments.--Except as provided in
paragraph (3), no State shall receive an amount under
this section for any fiscal year that is less than the
greater of--
(A) \1/2\ of 1 percent of the remaining
amount described in paragraph (1); or
(B) $500,000.
(3) Ratable reduction.--
(A) In general.--If the sums made available
under this part for any fiscal year are
insufficient to pay the full amounts that all
States are eligible to receive under this
subsection for such year, the Secretary shall
ratably reduce the allotments to such States
for such year.
(B) Additional funds.--If additional funds
become available for making payments under this
subsection for a fiscal year, allotments that
were reduced under subparagraph (A) shall be
increased on the same basis the allotments were
reduced.
(4) Definitions.--For the purpose of this
subsection--
(A) the terms ``infants'' and ``toddlers''
mean children under 3 years of age; and
(B) the term ``State'' means each of the 50
States, the District of Columbia, and the
Commonwealth of Puerto Rico.
(d) Reallotment of Funds.--If a State elects not to receive
its allotment under subsection (c), the Secretary shall
reallot, among the remaining States, amounts from such State in
accordance with such subsection.
(e) Reservation for State Bonus Grants.--The Secretary shall
reserve 10 percent of the amount by which the amount
appropriated under section 644 for any fiscal year exceeds
$434,159,000 to make allotments to States that are carrying out
the policy described in section 635(b), in accordance with the
formula described in subsection (c)(1) without regard to
subsections (c) (2) and (3).
SEC. 644. AUTHORIZATION OF APPROPRIATIONS.
For the purpose of carrying out this part, there are
authorized to be appropriated such sums as may be necessary for
each of the fiscal years 2004 through 2009.
* * * * * * *
[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.
[(a) Findings.--The Congress finds the following:
[(1) States are responding with some success to
multiple pressures to improve educational and
transitional services and results for children with
disabilities in response to growing demands imposed by
ever-changing factors, such as demographics, social
policies, and labor and economic markets.
[(2) In order for States to address such demands and
to facilitate lasting systemic change that is of
benefit to all students, including children with
disabilities, States must involve local educational
agencies, parents, individuals with disabilities and
their families, teachers and other service providers,
and other interested individuals and organizations in
carrying out comprehensive strategies to improve
educational results for children with disabilities.
[(3) Targeted Federal financial resources are needed
to assist States, working in partnership with others,
to identify and make needed changes to address the
needs of children with disabilities into the next
century.
[(4) State educational agencies, in partnership with
local educational agencies and other individuals and
organizations, are in the best position to identify and
design ways to meet emerging and expanding demands to
improve education for children with disabilities and to
address their special needs.
[(5) Research, demonstration, and practice over the
past 20 years in special education and related
disciplines have built a foundation of knowledge on
which State and local systemic-change activities can
now be based.
[(6) Such research, demonstration, and practice in
special education and related disciplines have
demonstrated that an effective educational system now
and in the future must--
[(A) maintain high academic standards and
clear performance goals for children with
disabilities, consistent with the standards and
expectations for all students in the
educational system, and provide for appropriate
and effective strategies and methods to ensure
that students who are children with
disabilities have maximum opportunities to
achieve those standards and goals;
[(B) create a system that fully addresses the
needs of all students, including children with
disabilities, by addressing the needs of
children with disabilities in carrying out
educational reform activities;
[(C) clearly define, in measurable terms, the
school and post-school results that children
with disabilities are expected to achieve;
[(D) promote service integration, and the
coordination of State and local education,
social, health, mental health,and other
services, in addressing the full range of student needs, particularly
the needs of children with disabilities who require significant levels
of support to maximize their participation and learning in school and
the community;
[(E) ensure that children with disabilities
are provided assistance and support in making
transitions as described in section
675(b)(3)(C);
[(F) promote comprehensive programs of
professional development to ensure that the
persons responsible for the education or a
transition of children with disabilities
possess the skills and knowledge necessary to
address the educational and related needs of
those children;
[(G) disseminate to teachers and other
personnel serving children with disabilities
research-based knowledge about successful
teaching practices and models and provide
technical assistance to local educational
agencies and schools on how to improve results
for children with disabilities;
[(H) create school-based disciplinary
strategies that will be used to reduce or
eliminate the need to use suspension and
expulsion as disciplinary options for children
with disabilities;
[(I) establish placement-neutral funding
formulas and cost-effective strategies for
meeting the needs of children with
disabilities; and
[(J) involve individuals with disabilities
and parents of children with disabilities in
planning, implementing, and evaluating
systemic-change activities and educational
reforms.
[(b) Purpose.--The purpose of this subpart is to assist
State educational agencies, and their partners referred to in
section 652(b), in reforming and improving their systems for
providing educational, early intervention, and transitional
services, including their systems for professional development,
technical assistance, and dissemination of knowledge about best
practices, to improve results for children with disabilities.
[SEC. 652 ELIGIBILITY AND COLLABORATIVE PROCESS.
[(a) Eligibile Applicants.--A State educational agency may
apply for a grant under this subpart for a grant period of not
less than 1 year and not more than 5 years.
[(b) Partners.--
[(1) Required partners.--
[(A) Contractual partners.--In order to be
considered for a grant under this subpart, a
State educational agency shall establish a
partnership with local educational agencies and
other State agencies involved in, or concerned
with, the education of children with
disabilities.
[(B) Other partners.--In order to be
considered for a grant under this subpart, a
State educational agency shall work in
partnership with other persons and
organizations involved in, and concerned with,
the education of children with disabilities,
including--
[(i) the Governor;
[(ii) parents of children with
disabilities;
[(iii) parents of nondisabled
children;
[(iv) individuals with disabilities;
[(v) organizations representing
individuals with disabilities and their
parents, such as parent training and
information centers;
[(vi) community-based and other
nonprofit organizations involved in the
education and employment of individuals
with disabilities;
[(vii) the lead State agency for part
C;
[(viii) general and special education
teachers, and early intervention
personnel;
[(ix) the State advisory panel
established under part C;
[(x) the State interagency
coordinating council established under
part C; and
[(xi) institutions of higher
education within the State.
[(2) Optional partners.--A partnership under
subparagraph (A) or (B) of paragraph (1) may also
include--
[(A) individuals knowledgeable about
vocational education;
[(B) the State agency for higher education;
[(C) the State vocational rehabilitation
agency;
[(D) public agencies with jurisdiction in the
areas of health, mental health, social
services, and juvenile justice; and
[(E) other individuals.
[SEC. 653. APPLICATIONS.
[(a) In General.--
[(1) Submission.--A State educational agency that
desires to receive a grant under this subpart shall
submit to the Secretary an application at such time, in
such manner, and including such information as the
Secretary may require.
[(2) State improvement plan.--The application shall
include a State improvement plan that--
[(A) is integrated, to the maximum extent
possible, with State plans under the Elementary
and Secondary Education Act of 1965 and the
Rehabilitation Act of 1973, as appropriate; and
[(B) meets the requirements of this section.
[(b) Determining Child and Program Needs.--
[(1) In general.--Each State improvement plan shall
identify those critical aspects of early intervention,
general education, and special education programs
(including professional development, based on an
assessment of State and local needs) that must be
improved to enable children with disabilities to meet
the goals established by the State under section
612(a)(16).
[(2) Required analyses.--To meet the requirement of
paragraph (1), the State improvement plan shall include
at least--
[(A) an analysis of all information,
reasonably available to the State educational
agency, on the performance of children with
disabilities in the State, including--
[(i) their performance on State
assessments and other performance
indicators established for all
children, including drop-out rates and
graduation rates;
[(ii) their participation in
postsecondary education and employment;
and
[(iii) how their performance on the
assessments and indicators described in
clause (i) compares to that of non-
disabled children;
[(B) an analysis of State and local needs for
professional development for personnel to serve
children with disabilities that includes, at a
minimum--
[(i) the number of personnel
providing special education and related
services; and
[(ii) relevant information on current
and anticipated personnel vacancies and
shortages (including the number of
individuals described in clause (i)
with temporary certification), and on
the extent of certification or
retraining necessary to eliminate such
shortages, that is based, to the
maximum extent possible, on existing
assessments of personnel needs;
[(C) an analysis of the major findings of the
Secretary's most recent reviews of State
compliance, as they relate to improving results
for children with disabilities; and
[(D) an analysis of other information,
reasonably available to the State, on the
effectiveness of the State's systems of early
intervention, special education, and general
education in meeting the needs of children with
disabilities.
[(c) Improvement Strategies.--Each State improvement plan
shall--
[(1) describe a partnership agreement that--
[(A) specifies--
[(i) the nature and extent of the
partnership among the State educational
agency, local educational agencies, and
other State agencies involved in, or
concerned with, the education of
children with disabilities, and the
respective roles of each member of the
partnership; and
[(ii) how such agencies will work in
partnership with other persons and
organizations involved in, and
concerned with, the education of
children with disabilities, including
the respective roles of each of these
persons and organizations; and
[(B) is in effect for the period of the
grant;
[(2) describe how grant funds will be used in
undertaking the systemic-change activities, and the
amount and nature of funds from any other sources,
including part B funds retained for use at the State
level under sections 611(f) and 619(d), that will be
committed to the systemic-change activities;
[(3) describe the strategies the State will use to
address the needs identified under subsection (b),
including--
[(A) how the State will change State policies
and procedures to address systemic barriers to
improving results for children with
disabilities;
[(B) how the State will hold local
educational agencies and schools accountable
for educational progress of children with
disabilities;
[(C) how the State will provide technical
assistance to local educational agencies and
schools to improve results for children with
disabilities;
[(D) how the State will address the
identified needs for in-service and pre-service
preparation to ensure that all personnel who
work with children with disabilities (including
both professional and paraprofessional
personnel who provide special education,
general education, related services, or early
intervention services) have the skills and
knowledge necessary to meet the needs of
children with disabilities, including a
description of how--
[(i) the State will prepare general
and special education personnel with
the content knowledge and collaborative
skills needed to meet the needs of
children with disabilities, including
how the State will work with other
States on common certification
criteria;
[(ii) the State will prepare
professionals and paraprofessionals in
the area of early intervention with the
content knowledge and collaborative
skills needed to meet the needs of
infants and toddlers with disabilities;
[(iii) the State will work with
institutions of higher education and
other entities that (on both a pre-
service and an in-service basis)
prepare personnel who work with
children with disabilities to ensure
that those institutions and entities
develop the capacity to support quality
professional development programs that
meet State and local needs;
[(iv) the State will work to develop
collaborative agreements with other
States for the joint support and
development of programs to prepare
personnel for which there is not
sufficient demand within a single State
to justify support or development of
such a program of preparation;
[(v) the State will work in
collaboration with other States,
particularly neighboring States, to
address the lack of uniformity and
reciprocity in the credentialing of
teachers and other personnel;
[(vi) the State will enhance the
ability of teachers and others to use
strategies, such as behavioral
interventions, to address the conduct
of children with disabilities that
impedes the learning of children with
disabilities and others;
[(vii) the State will acquire and
disseminate, to teachers,
administrators, school board members,
and related services personnel,
significant knowledge derived from
educational research and other
sources,and how the State will, when appropriate adopt promising
practices, materials, and technology;
[(viii) the State will recruit,
prepare, and retain qualified
personnel, including personnel with
disabilities and personnel from groups
that are underrepresented in the fields
of regular education, special
education, and related services;
[(ix) the plan is integrated, to the
maximum extent possible, with other
professional development plans and
activities, including plans and
activities developed and carried out
under other Federal and State laws that
address personnel recruitment and
training; and
[(x) the State will provide for the
joint training of parents and special
education, related services, and
general education personnel;
[(E) strategies that will address systemic
problems identified in Federal compliance
reviews, including shortages of qualified
personnel;
[(F) how the State will disseminate results
of the local capacity-building and improvement
projects funded under section 611(f)(4);
[(G) how the State will address improving
results for children with disabilities in the
geographic areas of greatest need; and
[(H) how the State will assess, on a regular
basis, the extent to which the strategies
implemented under this subpart have been
effective; and
[(4) describe how the improvement strategies
described in paragraph (3) will be coordinated with
public and private sector resources.
[(d) Competitive Awards.--
[(1) In general.--The Secretary shall make grants
under this subpart on a competitive basis.
[(2) Priority.--The Secretary may give priority to
applications on the basis of need, as indicated by such
information as the findings of Federal compliance
reviews.
[(e) Peer Review.--
[(1) In general.--The Secretary shall use a panel of
experts who are competent, by virtue of their training,
expertise, or experience, to evaluate applications
under this subpart.
[(2) Composition of panel.--A majority of a panel
described in paragraph (1) shall be composed of
individuals who are not employees of the Federal
Government.
[(3) Payment of fees and expenses of certain
members.--The Secretary may use available funds
appropriated to carry out this subpart to pay the
expenses and fees of panel members who are not
employees of the Federal Government.
[(f) Reportng Procedures.--Each State educational agency
that receives a grant under this subpart shall submit
performance reports to the Secretary pursuant to a schedule to
be determined by the Secretary, but not more frequently than
annually. The reports shall describe the progress of the State
in meeting the performance goals established under section
612(a)(16), analyze the effectiveness of the State's strategies
in meeting those goals, andidentify any changes in the
strategies needed to improve its performance.
[SEC. 654. USE OF FUNDS.
[(a) In General.--
[(1) Activities.--A State educational agency that
receives a grant under this subpart may use the grant
to carry out any activities that are described in the
State's application and that are consistent with the
purpose of this subpart.
[(2) Contracts and subgrants.--Each such State
educational agency--
[(A) shall, consistent with its partnership
agreement under section 652(b), award contracts
or subgrants to local educational agencies,
institutions of higher education, and parent
training and information centers, as
appropriate, to carry out its State improvement
plan under this subpart; and
[(B) may award contracts and subgrants to
other public and private entities, including
the lead agency under part C, to carry out such
plan.
[(b) Use of Funds for Professional Development.--A State
educational agency that receives a grant under this subpart--
[(1) shall use not less than 75 percent of the funds
it receives under the grant for any fiscal year--
[(A) to ensure that there are sufficient
regular education, special education, and
related services personnel who have the skills
and knowledge necessary to meet the needs of
children with disabilities and developmental
goals of young children; or
[(B) to work with other States on common
certification criteria; or
[(2) shall use not less than 50 percent of such funds
for such purposes, if the State demonstrates to the
Secretary's satisfaction that it has the personnel
described in paragraph (1)(A).
[(c) Grants to Outlying Areas.--Public Law 95-134,
permitting the consolidation of grants to the outlying areas,
shall not apply to funds received under this subpart.
[SEC. 655. MINIMUM STATE GRANT AMOUNTS.
[(a) In General.--The Secretary shall make a grant to each
State educational agency whose application the Secretary has
selected for funding under this subpart in an amount for each
fiscal year that is--
[(1) not less than $500,000, nor more than
$2,000,000, in the case of the 50 States, the District
of Columbia, and the Commonwealth of Puerto Rico; and
[(2) not less than $80,000, in the case of an
outlying area.
[(b) Inflation Adjustment.--Beginning with fiscal year
1999, the Secretary may increase the maximum amount described
in subsection (a)(1) to account for inflation.
[(c) Factors.--The Secretary shall set the amount of each
grant under subsection (a) after considering--
[(1) the amount of funds available for making the
grants;
[(2) the relative population of the State or outlying
area; and
[(3) the types of activities proposed by the State or
outlying area.
[SEC. 656. AUTHORIZATION OF APPROPRIATIONS.
[There are authorized to be appropriated to carry out this
subpart such sums as may be necessary for each of the fiscal
years 1998 through 2002.
[Subpart 2--Coordinated Research, Personnel Preparation, Technical
Assistance, Support, and Dissemination of Information
[SEC. 661. ADMINISTRATIVE PROVISIONS.
[(a) Comprehensive plan.--
[(1) In general.--The Secretary shall develop and
implement a comprehensive plan for activities carried
out under this subpart in order to enhance the
provision of educational, related, transitional, and
early intervention services to children with
disabilities under parts B and C. The plan shall
include mechanisms to address educational, related
services, transitional, and early intervention needs
identified by State educational agencies in
applications submitted for State program improvement
grants under subpart 1.
[(2) Participants in plan development.--In developing
the plan described in paragraph (1), the Secretary
shall consult with--
[(A) individuals with disabilities;
[(B) parents of children with disabilities;
[(C) appropriate professionals; and
[(D) representatives of State and local
educational agencies, private schools,
institutions of higher education, other Federal
agencies, the National Council on Disability,
and national organizations with an interest in,
and expertise in, providing services to
children with disabilities and their families.
[(3) Public comment.--The Secretary shall take public
comment on the plan.
[(4) Distribution of funds.--In implementing the
plan, the Secretary shall, to the extent appropriate,
ensure that funds are awarded to recipients under this
subpart to carry out activities that benefit, directly
or indirectly, children with disabilities of all ages.
[(5) Reports to congress.--The Secretary shall
periodically report to the Congress on the Secretary's
activities under this subsection, including an initial
report not later than the date that is 18 months after
the date of the enactment of the Individuals with
Disabilities Education Act Amendments of 1997.
[(b) Eligible Applicants.--
[(1) In general.--Except as otherwise provided in
this subpart, the following entities are eligible to
apply for a grant, contract, or cooperative agreement
under this subpart:
[(A) A State educational agency.
[(B) A local educational agency.
[(C) An institution of higher education.
[(D) Any other public agency.
[(E) A private nonprofit organization.
[(F) An outlying area.
[(G) An Indian tribe or a tribal organization
(as defined under section 4 of the Indian Self-
Determination and Education Assistance Act).
[(H) A for-profit organization, if the
Secretary finds it appropriate in light of the
purposes of a particular competition for a
grant, contract, or cooperative agreement under
this subpart.
[(2) Special rule.--The Secretary may limit the
entities eligible for an award of a grant, contract, or
cooperative agreement to one or more categories of
eligible entities described in paragraph (1).
[(c) Use of Funds by Secretary.--Notwithstanding any other
provision of law, and in addition to any authority granted the
Secretary under chapter 1 or chapter 2, the Secretary may use
up to 20 percent of the funds available under either chapter 1
or chapter 2 for any fiscal year to carry out any activity, or
combination of activities, subject to such conditions as the
Secretary determines are appropriate effectively to carry out
the purposes of such chapters, that--
[(1) is consistent with the purposes of chapter 1,
chapter 2, or both; and
[(2) involves--
[(A) research;
[(B) personnel preparation;
[(C) parent training and information;
[(D) technical assistance and dissemination;
[(E) technology development, demonstration,
and utilization; or
[(F) media services.
[(d) Special Populations.--
[(1) Application requirement.--In making an award of
a grant, contract, or cooperative agreement under this
subpart, the Secretary shall, as appropriate, require
an applicant to demonstrate how the applicant will
address the needs of children with disabilities from
minority backgrounds.
[(2) Outreach and technical assistance.--
[(A) Requirement.--Notwithstanding any other
provision of this Act, the Secretary shall
ensure that at least one percent of the total
amount of funds appropriated to carry out this
subpart is used for either or both of the
following activities:
[(i) To provide outreach and
technical assistance to Historically
Black Colleges and Universities, and to
institutions of higher education with
minority enrollments of at least 25
percent, to promote the participation
of such colleges, universities, and
institutions in activities under this
subpart.
[(ii) To enable Historically Black
Colleges and Universities, and the
institutions described in clause (i),
to assist other colleges, universities,
institutions, and agencies in improving
educational and transitional results
for children with disabilities.
[(B) Reservation of funds.--The Secretary may
reserve funds appropriated under this subpart
to satisfy the requirements of subparagraph
(A).
[(e) Priorities.--
[(1) In general.--Except as otherwise explicitly
authorized in this subpart, the Secretary shall ensure
that a grant, contract, or cooperative agreement under
chapter 1 or 2 is awarded only--
[(A) for activities that are designed to
benefit children with disabilities, their
families, or the personnel employed to work
with such children or their families; or
[(B) to benefit other individuals with
disabilities that such chapter is intended to
benefit.
[(2) Priority for particular activities.--Subject to
paragraph (1), the Secretary, in making an award of a
grant, contract, or cooperative agreement under this
subpart, may, without regard to the rule making \1\
procedures under section 553 of title 5, United States
Code, limit competitions to, or otherwise give priority
to--
[(A) projects that address one or more--
[(i) age ranges;
[(ii) disabilities;
[(iii) school grades;
[(iv) types of educational placements
or early intervention environments;
[(v) types of services;
[(vi) content areas, such as reading;
or
[(vii) effective strategies for
helping children with disabilities
learn appropriated behavior in the
school and other community-based
educational settings;
[(B) projects that address the needs of
children based on the severity of their
disability;
[(C) projects that address the needs of--
[(i) low-achieving students;
[(ii) underserved populations;
[(iii) children from low-income
families;
[(iv) children with limited English
proficiency;
[(v) unserved and underserved areas;
[(vi) particular types of geographic
areas; or
[(vii) children whose behavior
interferes with their learning and
socialization;
[(D) projects to reduce inappropriate
identification of children as children with
disabilities, particularly among minority
children;
[(E) projects that are carried out in
particular areas of the country, to ensure
broad geographic coverage; and
[(F) any activity that is expressly
authorized in chapter 1 or 2.
[(f) Applicant and Recipient Responsibilities.--
[(1) Development and assessment of projects.--The
Secretary shall require that an applicant for, and a
recipient of a grant, contract, or cooperative
agreement for a project under this subpart--
[(A) involve individuals with disabilities or
parents of individuals with disabilities in
planning, implementing, and evaluating the
project; and
[(B) where appropriate, determine whether the
project has any potential for replication and
adoption by other entities.
[(2) Additional responsibilities.--The Secretary may
require a recipient of a grant, contract, or
cooperative agreement for a project under this
subpart--
[(A) to share in the cost of the project;
[(B) to prepare the research and evaluation
findings and products from the project in
formats that are useful for specific audiences,
including parents, administrators, teachers,
early intervention personnel, related services
personnel, and individuals with disabilities;
[(C) to disseminate such findings and
products; and
[(D) to collaborate with other such
recipients in carrying out subparagraphs (B)
and (C).
[(g) Application Management.--
[(1) Standing panel.--
[(A) In general.--The Secretary shall
establish and use a standing panel of experts
who are competent, by virtue of their training,
expertise, or experience, to evaluate
applications under this subpart that,
individually, request more than $75,000 per
year in Federal financial assistance.
[(B) Membership.--The standing panel shall
include, at a minimum--
[(i) individuals who are
representatives of institutions of
higher education that plan, develop,
and cary out programs of personnel
preparation;
[(ii) individuals who design and
carry out programs of research targeted
to the improvement of special education
programs and services;
[(iii) individuals who have
recognized experience and knowledge
necessary to integrate and apply
research findings to improve
educational and transitional results
for children with disabilities;
[(iv) individuals who administer
programs at the State or local level in
which children with disabilities
participate;
[(v) individuals who prepare parents
of children with disabilities to
participate in making decisions about
the education of their children;
[(vi) individuals who establish
policies that affect the delivery of
services to children with disabilities;
[(vii) individuals who are parents of
children with disabilities who are
benefiting, or have benefited, from
coordinated research, personnel
preparation, and technical assistance;
and
[(viii) individuals with
disabilities.
[(C) Training.--The Secretary shall provide
training to the individuals who are selected as
members of the standing panel under this
paragraph.
[(D) Term.--No individual shall serve on the
standing panel for more than 3 consecutive
years, unless the Secretary determines that the
individual's continued participation is
necessary for the sound administration of this
subpart.
[(2) Peer-review panels for particular
competitions.--
[(A) Composition.--The Secretary shall ensure
that each sub-panel selected from the standing
panel that reviews applications under this
subpart includes--
[(i) individuals with knowledge and
expertise on the issues addressed by
the activities authorized by the
subpart; and
[(ii) to the extent practicable,
parents of children with disabilities,
individuals with disabilities, and
persons from diverse backgrounds.
[(B) Federal employment limitation.--A
majority of individuals on each sub-panel that
reviews an application under this subpart shall
be individuals who are not employees of the
Federal Government.
[(3) Use of discretionary funds for administrative
purposes.--
[(A) Expenses and fees and non-federal panel
members.--The Secretary may use funds available
under this subpart to pay the expenses and fees
of the panel members who are not officers or
employees of the Federal Government.
[(B) Administrative support.--The Secretary
may use not more than 1 percent of the funds
appropriated to carry out this subpart to pay
non-Federal entities for administrative support
related to management of applications submitted
under this subpart.
[(C) Monitoring.--The Secretary may use funds
available under this subpart to pay the
expenses of Federal employees to conduct on-
site monitoring of projects receiving $500,000
or more for any fiscal year under this subpart.
[(h) Program Evaluation.--The Secretary may use funds
appropriated to carry out this subpart to evaluate activities
carried out under the subpart.
[(i) Minimum Funding Required.--
[(1) In general.--Subject to paragraph (2), the
Secretary shall ensure that, for each fiscal year, at
least the following amounts are provided under this
subpart to address the following needs:
[(A) $12,832,000 to address the educational,
related services, transitional, and early
intervention needs of children with deaf-
blindness.
[(B) $4,000,000 to address the postsecondary,
vocational, technical, continuing, and adult
education needs of individuals with deafness.
[(C) $4,000,000 to address the educational,
related services, and transitional needs of
children with an emotional disturbance and
those who are at risk of developing an
emotional disturbance.
[(2) Ratable reduction.--If the total amount
appropriated to carry out sections 672, 673, and 685
for any fiscal year is less than $130,000,000, the
amounts listed in paragraph (1) shall be ratably
reduced.
[(j) Eligibility for Financial Assistance.--Effective for
fiscal years for which the Secretary may make grants under
section 619(b), no State or local educational agency or
educational service agency or other public institution or
agency may receive a grant under this subpart which relates
exclusively to programs, projects, and activities pertaining to
children aged 3 through 5, inclusive, unless the State is
eligible to receive a grant under section 619(b).
[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.
[(a) Findings.--The Congress finds the following:
[(1) The Federal Government has an ongoing obligation
to support programs, projects, and activities that
contribute to positive results for children with
disabilities, enabling them--
[(A) to meet their early intervention,
educational, and transitional goals and, to
maximum extent possible, educational standards
that have been established for all children;
and
[(B) to acquire the skills that will empower
them to lead productive and independent adult
lives.
[(2)(A) As a result of more than 20 years of Federal
support for research, demonstration projects, and
personnel preparation, there is an important knowledge
base for improving results for children with
disabilities.
[(B) Such knowledge should be used by States and
local educational agencies to design and implement
state-of-the-art educational systems that consider the
needs of, and include, children with disabilities,
especially in environments in which they can learn
along with their peers and achieve results measured by
the same standards as the results of their peers.
[(3)(A) Continued Federal support is essential for
the development and maintenance of a coordinated and
high-quality program of research, demonstration
projects, dissemination of information, and personnel
preparation.
[(B) Such support--
[(i) enables State educational agencies and
local educational agencies to improve their
educational systems and results for children
with disabilities;
[(ii) enables State and local agencies to
improve early intervention services and results
for infants and toddlers with disabilities and
their families; and
[(iii) enhances the opportunities for general
and special education personnel, related
services personnel, parents, and
paraprofessionals to participate in pre-service
and in-service training, to collaborate, and to
improve results for children with disabilities
and their families.
[(4) The Federal Government plays a critical role in
facilitating the availability of an adequate number of
qualified personnel--
[(A) to serve effectively the over 5,000,000
children with disabilities;
[(B) to assume leadership positions in
administrative and direct-service capacities
related to teacher training and research
concerning the provision of early intervention
services, special education, and related
services; and
[(C) to work with children with low-incidence
disabilities and their families.
[(5) The Federal Government performs the role
described in paragraph (4)--
[(A) by supporting models of personnel
development that reflect successful practice,
including strategies for recruiting, preparing,
and retaining personnel;
[(B) by promoting the coordination and
integration of--
[(i) personnel-development activities
for teachers of children with
disabilities; and
[(ii) other personnel-development
activities supported under Federal law,
including this chapter;
[(C) by supporting the development and
dissemination of information about teaching
standards; and
[(D) by promoting the coordination and
integration of personnel-development activities
through linkage with systemic-change activities
within States and nationally.
[(b) Purpose.--The purpose of this chapter is to provide
Federal funding for coordinated research, demonstration
projects, out-reach, and personnel-preparation activities
that--
[(1) are described in sections 672 through 675;
[(2) are linked with, and promote, systemic change;
and
[(3) improve early intervention, educational, and
transitional results for children with disabilities.
[SEC. 672. RESEARCH AND INNOVATION TO IMPROVE SERVICES AND RESULTS FOR
CHILDREN WITH DISABILITIES.
[(a) In General.--The Secretary shall make competitive
grants to, or enter into contracts or cooperative agreements
with, eligible entities to produce, and advance the use of,
knowledge--
[(1) to improve--
[(A) services provided under this Act,
including the practices of professionals and
others involved in providing such services to
children with disabilities; and
[(B) educational results for children with
disabilities;
[(2) to address the special needs of preschool-aged
children and infants and toddlers with disabilities,
including infantsand toddlers who would be at risk of
having substantial developmental delays if early intervention services
were not provided to them;
[(3) to address the specific problems of over-
identification and under-identification of children
with disabilities;
[(4) to develop and implement effective strategies
for addressing inappropriate behavior of students with
disabilities in schools, including strategies to
prevent children with emotional and behavioral problems
from developing emotional disturbances that require the
provision of special education and related services;
[(5) to improve secondary and postsecondary education
and transitional services for children with
disabilities; and
[(6) to address the range of special education,
related services, and early intervention needs of
children with disabilities who need significant levels
of support to maximize their participation and learning
in school and in the community.
[(b) New Knowledge Production; Authorized Activities.--
[(1) In general.--In carrying out this section, the
Secretary shall support activities, consistent with the
objectives described in subsection (a), that lead to
the production of new knowledge.
[(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
[(A) Expanding understanding of the
relationships between learning characteristics
of children with disabilities and the diverse
ethnic, cultural, linguistic, social, and
economic backgrounds of children with
disabilities and their families.
[(B) Developing or identifying innovative,
effective, and efficient curricula designs,
instructional approaches, and strategies, and
developing or identifying positive academic and
social learning opportunities, that--
[(i) enable children with
disabilities to make effective
transitions described in section
674(b)(3)(C) or transitions between
educational settings; and
[(ii) improve educational and
transitional results for children with
disabilities at all levels of the
educational system in which the
activities are carried out and, in
particular, that improve the progress
of the children, as measured by
assessments within the general
education curriculum involved.
[(C) Advancing the design of assessment tools
and procedures that will accurately and
efficiently determine the special
instructional, learning, and behavioral needs
of children with disabilities, especially
within the context of general education.
[(D) Studying and promoting improved
alignment and compatibility of general and
special education reforms concerned with
curricular and instructional reform, evaluation
and accountability of such reforms, and
administrative procedures.
[(E) Advancing the design, development, and
integration of technology, assistive technology
devices, media, and materials, to improve early
intervention, educational, and transitional
services and results for children with
disabilities.
[(F) Improving designs, processes, and
results of personnel preparation for personnel
who provide services to children with
disabilities through the acquisition of
information on, and implementation of,
research-based practices.
[(G) Advancing knowledge about the
coordination of education with health and
social services.
[(H) Producing information on the long-term
impact of early intervention and education on
results for individuals with disabilities
through large-scale longitudinal studies.
[(c) Intergration of Research and Practice; Authorized
Activities.--
[(1) In general.--In carrying out this section, the
Secretary shall support activities, consistent with the
objectives described in subsection (a), that integrate
research and practice, including activities that
support State systemic-change and local capacity-
building and improvement efforts.
[(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
[(A) Model demonstration projects to apply
and test research findings in typical service
settings to determine the usability,
effectiveness, and general applicability of
such research findings in such areas as
improving instructional methods, curricula, and
tools, such as textbooks and media.
[(B) Demonstrating and applying research-
based findings to facilitate systemic changes,
related to the provision of services to
children with disabilities, in policy,
procedure, practice, and the training and use
of personnel.
[(C) Promoting and demonstrating the
coordination of early intervention and
educational services for children with
disabilities with services provided by health,
rehabilitation, and social service agencies.
[(D) Identifying and disseminating solutions
that overcome systemic barriers to the
effective and efficient delivery of early
intervention, educational, and transitional
services to children with disabilities.
[(d) Improving the Use of Professional Knowledge;
Authorized Activities.--
[(1) In general.--In carrying out this section, the
Secretary shall support activities, consistent with the
objectives described in subsection (a), that improve
the use of professional knowledge, including activities
that support State systemic-change and local capacity-
building and improvement efforts.
[(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
[(A) Synthesizing useful research and other
information relating to the provision of
services to children with disabilities,
including effective practices.
[(B) Analyzing professional knowledge bases
to advance an understanding of the
relationships, and the effectiveness of
practices, relating to the provision of
services to children with disabilities.
[(C) Ensuring that research and related
products are in appropriate formats for
distribution to teachers, parents, and
individuals with disabilities.
[(D) Enabling professionals, parents of
children with disabilities, and other persons,
to learn about, and implement, the findings of
research, and successful practices developed in
model demonstration projects, relating to the
provision of services to children with
disabilities.
[(E) Conducting outreach, and disseminating
information relating to successful approaches
to overcoming systemic barriers to the
effective and efficient delivery of early
intervention, educational, and transitional
services, to personnel who provide services to
children with disabilities.
[(e) Balance Among Activities and Age Ranges.--In carrying
out this section, the Secretary shall ensure that there is an
appropriate balance--
[(1) among knowledge production, integration of
research and practice, and use of professional
knowledge; and
[(2) across all age ranges of children with
disabilities.
[(f) Applications.--An eligible entity that wishes to
receive a grant, or enter into a contract or cooperative
agreement, under this section shall submit an application to
the Secretary at such time, in such manner, and containing such
information as the Secretary may require.
[(g) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section such sums as may
be necessary for each of the fiscal years 1998 through 2002.
[SEC. 673. PERSONNEL PREPARATION TO IMPROVE SERVICES AND RESULTS FOR
CHILDREN WITH DISABILITIES.
[(a) In General.--The Secretary shall, on a competitive
basis, make grants to, or enter into contracts or cooperative
agreements with, eligible entities--
[(1) to help address State-identified needs for
qualified personnel in special education, related
services, early intervention, and regular education, to
work with children with disabilities; and
[(2) to ensure that those personnel have the skills
and knowledge, derived from practices that have been
determined, through research and experience, to be
successful, that are needed to serve those children.
[(b) Low-Incidence Disabilities; Authorized Activities.--
[(1) In general.--In carrying out this section, the
Secretary shall support activities, consistent with the
objectives described in subsection (a), that benefit
children with low-incidence disabilities.
[(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
[(A) Preparing persons who--
[(i) have prior training in
educational and other related service
fields; and
[(ii) are studying to obtain degrees,
certificates, or licensure that will
enable them to assist children with
disabilities to achieve the objectives
set out in their individualized
education programs described in section
614(d), or to assist infants and
toddlers with disabilities to achieve
the outcomes described in their
individualized family service plans
described in section 636.
[(B) Providing personnel from various
disciplines with interdisciplinary training
that will contribute to improvement in early
intervention, educational, and transitional
results for children with disabilities.
[(C) Preparing personnel in the innovative
uses and application of technology to enhance
learning by children with disabilities through
early intervention, educational, and
transitional services.
[(D) Preparing personnel who provide services
to visually impaired or blind children to teach
and use Braille in the provision of services to
such children.
[(E) Preparing personnel to be qualified
educational interpreters, to assist children
with disabilities, particularly deaf and hard-
of-hearing children in school and school-
related activities and deaf and hard-of-hearing
infants and toddlers and preschool children in
early intervention and preschool programs.
[(F) Preparing personnel who provide services
to children with significant cognitive
disabilities and children with multiple
disabilities.
[(3) Definition.--As used in this section, the term
``low-incidence disability'' means--
[(A) a visual or hearing impairment, or
simultaneous visual and hearing impairments;
[(B) a significant cognitive impairment; or
[(C) any impairment for which a small number
of personnel with highly specialized skills and
knowledge are needed in order for children with
that impairment to receive early intervention
services or a free appropriate public
education.
[(4) Selection of recipients.--In selecting
recipients under this subsection, the Secretary may
give preference to applications that propose to prepare
personnel in more than one low-incidence disability,
such as deafness and blindness.
[(5) Preparation in use of braille.--The Secretary
shall ensure that all recipients of assistance under
this subsection who will use that assistance to prepare
personnel to provide services to visually impaired or
blind children that can appropriately be provided in
Braille will prepare those individuals to provide those
services in Braille.
[(c) Leadership Preparation; Authorized Activities.--
[(1) In general.--In carrying out this section, the
Secretary shall support leadership preparation
activities that are consistent with the objectives
described in subsection (a).
[(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
[(A) Preparing personnel at the advanced
graduate, doctoral, and postdoctoral levels of
training to administer, enhance, or provide
services for children with disabilities.
[(B) Providing interdisciplinary training for
various types of leadership personnel,
including teacher preparation faculty,
administrators, researchers, supervisors,
principals, and other persons whose work
affects early intervention, educational, and
transitional services for children with
disabilities.
[(d) Projects of National Significance; Authorized
Activities.--
[(1) In general.-- In carrying out this section, the
Secretary shall support activities, consistent with the
objectives described in subsection (a), that are of
national significance and have broad applicability.
[(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
[(A) Developing and demonstrating effective
and efficient practices for preparing personnel
to provide services to children with
disabilities, including practices that address
any needs identified in the State's improvement
plan under part C;
[(B) Demonstrating the application of
significant knowledge derived from research and
other sources in development of programs to
prepare personnel to provide services to
children with disabilities.
[(C) Demonstrating models for the preparation
of, and interdisciplinary training of, early
intervention, special education, and general
education personnel, to enable the personnel--
[(i) to acquire the collaboration
skills necessary to work within teams
to assist children with disabilities;
and
[(ii) to achieve results that meet
challenging standards, particularly
within the general education
curriculum.
[(D) Demonstrating models that reduce
shortages of teachers, and pesonnel from other
relevant disciplines, who serve children with
disabilities, through reciprocity arrangements
between States that are related to licensure
and certification.
[(E) Developing, evaluating and disseminating
model teaching standards for persons working
with children with disabilities.
[(F) Promoting the transferability, across
State and local jurisdictions, of licensure and
certification of teachers and administrators
working with such children.
[(G) Developing and disseminating models that
prepare teachers with strategies, including
behavioral interventions, for addressing the
conduct of children with disabilities that
impedes their learning and that of others in
the classroom.
[(H) Institutes that provide professional
development that addresses the needs of
children with disabilities to teachers or teams
of teachers, and where appropriate, to school
board members, administrators, principals,
pupil-service personnel, and other staff from
individual schools.
[(I) Projects to improve the ability of
general education teachers, principals, and
other administrators to meet the needs of
children with disabilities.
[(J) Developing, evaluating, and
disseminating innovative models for the
recruitment, induction, retention, and
assessment of new, qualified teachers,
especially from groups that are
underrepresented in the teaching profession,
including individuals with disabilities.
[(K) Supporting institutions of higher
education with minority enrollments of at least
25 percent for the purpose ot preparing
personnel to work with children with
disabilities.
[(e) High-Incidence Disabilities; Authorized Activities.--
[(1) In general.--In carrying out this section, the
Secretary shall support activities, consistent with the
objectives described in subsection (a), to benefit
children with high-incidence disabilities, such as
children with specific learning disabilities, speech or
language impairment, or mental retardation.
[(2) Authorized activities.--Activities that may be
carried out under this subject include the following:
[(A) Activities undertaken by institutions of
higher education, local educational agencies,
and other local entities--
[(i) to improve and reform their
existing programs to prepare teachers
and related services personnel--
[(I) to meet the diverse
needs of children with
disabilities for early
intervention, educational, and
transitional services; and
[(III) to work
collaboratively in regular
classroom settings; and
[(ii) to incorporate best practices
and research-based knowledge about
preparing personnel so they will have
the knowledge and skills to improve
educational results for children with
disabilities.
[(B) Activities incorporating innovative
strategies to recruit and prepare teachers and
other personnel to meet the needs of areas in
which there are acute and persistent shortages
of personnel.
[(C) Developing career opportunities for
paraprofessionals to receive training as
special education teachers,related services
personnel, and early intervention personnel, including
interdisciplinary training to enable them to improve early
intervention, educational, and transitional results for children with
disabilities.
[(f) Applications.--
[(1) In general.--Any eligible entity that wishes to
receive a grant, or enter into a contract or
cooperative agreement, under this section shall submit
an application to the Secretary at such time, in such
manner, and containing such information as the
Secretary may require.
[(2) Identified state needs.--
[(A) Requirement to address identified
needs.--Any application under subsection (b),
(c), or (e) shall include information
demonstrating to the satisfaction of the
Secretary that the activities described in the
application will address needs identified by
the State or States the applicant proposes to
serve.
[(B) Cooperation with state educational
agencies.--Any applicant that is not a local
educational agency or a State educational
agency shall include information demonstrating
to the satisfaction of the Secretary that the
applicant and one or more State educational
agencies have engaged in a cooperative effort
to plan the project to which the application
pertains, and will cooperate in carrying out
and monitoring the project.
[(3) Acceptance by states of personnel preparation
requirements.--The Secretary may require applicants to
provide letters from one or more States stating that
the States--
[(A) intend to accept successful completion
of the proposed personnel preparation program
as meeting State personnel standards for
serving children with disabilities or serving
infants and toddlers with disabilities; and
[(B) need personnel in the area or areas in
which the applicant proposes to provide
preparation, as identified in the States'
comprehensive systems of personnel development
under parts B and C.
[(g) Selection of Recipients.--
[(1) Impact of project.--In selecting recipients
under this section, the Secretary may consider the
impact of the project proposed in the application in
meeting the need for personnel identified by the
States.
[(2) Requirement on applicants to meet state and
professional standards.--The Secretary shall make
grants under this section only to eligible applicants
that meet State and professionally-recognized standards
for the preparation of special education and related
services personnel, if the purpose of the project is to
assist personnel in obtaining degrees.
[(3) Preferences.--In selecting recipients under this
section, the Secretary may--
[(A) give preference to institutions of
higher education that are educating regular
education personnel to meet the needs of
children with disabilities in integrated
settings and educating special education
personnel to work incollaboration with regular
educators in integrated settings; and
[(B) give preference to institutions of
higher education that are successfully
recruiting and preparing individuals with
disabilities and individuals from groups that
are underrepresented in the profession for
which they are preparing individuals.
[(h) Service Obligation.--
[(1) In general.--Each application for funds under
subsections (b) and (e), and to the extent appropriate
section (d), shall include an assurance that the
applicant will ensure that individuals who receive a
scholarship under the proposed project will
subsequently provide a special education and related
services to children with disabilities for a period of
2 years for every year for which assistance was
received or repay all or part of the cost of that
assistance, in accordance with regulations issued by
the Secretary.
[(2) Leadership preparation.--Each application for
funds under subsection (c) shall include an assurance
that the applicant will ensure that individuals who
receive a scholarship under the proposed project will
subsequently perform work related to their preparation
for a period of 2 years for every year for which
assistance was received or repay all or part of such
costs, in accordance with regulations issued by the
Secretary.
[(i) Scholarships.--The Secretary may include funds for
scholarships, with necessary stipends and allowances, in awards
under subsections (b), (c), (d), and (e).
[(j) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section such sums as may
be necessary for each of the fiscal years 1998 through 2002.
[SEC. 674. STUDIES AND EVALUATIONS.
[(a) Studies and Evaluations.--
[(1) In general.--The Secretary shall, directly or
through grants, contracts, or cooperative agreements,
assess the progress in the implementation of this Act,
including the effectiveness of State and local efforts
to provide--
[(A) a free appropriate public education to
children with disabilities; and
[(B) early intervention services to infants
and toddlers with disabilities and infants and
toddlers who would be at risk of having
substantial developmental delays if early
intervention services were not provided to
them.
[(2) Authorized activities.--In carrying out this
subsection, the Secretary may support studies,
evaluations, and assessments, including studies that--
[(A) analyze measurable impact, outcomes, and
results achieved by State educational agencies
and local educational agencies through their
activities to reform policies, procedures, and
practices designed to improve educational and
transitional services and results for children
with disabilities;
[(B) analyze State and local needs for
professional development, parent training, and
other appropriate activities;that can reduce
the need for disciplinary actions involving children with disabilities;
[(C) assess educational and transitional
services and results for children with
disabilities from minority backgrounds,
including--
[(i) data on--
[(I) the number of minority
children who are referred for
special education evaluation;
[(II) the number of minority
children who are receiving
special education and related
services and their educational
or other service placement; and
[(III) the number of minority
children who graduated from
secoindary and postsecondary
education programs; and
[(ii) the performance of children
with disabilities from minority
backgrounds on State assessments and
other performance indicators
established for all students;
[(D) measure educational and transitional
services and results of children with
disabilities under this Act, including
longitudinal studies that--
[(i) examine educational and
transitional services and results for
children with disabilities who are 3
through 17 years of age and are
receiving special education and related
services under this Act, using a
national, representative sample of
distinct age cohorts and disability
categories; and
[(ii) examine educational results,
postsecondary placement, and employment
status of individuals with
disabilities, 18 through 21 years of
age, who are receiving or have received
special education and related services
under this Act; and
[(E) identify and report on the placement of
children with disabilities by disability
category.
[(b) National Assessment.--
[(1) In general.--The Secretary shall carry out a
national assessment of activities carried out with
Federal funds under this Act in order--
[(A) to determine the effectiveness of this
Act in achieving its purposes;
[(B) to provide information to the President,
the Congress, the States, local educational
agencies, and the public on how to implement
the Act more effectively; and
[(C) to provide the President and the
Congress with information that will be useful
in developing legislation to achieve the
purposes of this Act more effectively.
[(2) Consultation.--The Secretary shall plan, review,
and conduct the national assessment under this
subsection in consultation with researchers, State
practitioners, local practitioners, parents of children
with disabilities, individuals with disabilities, and
other appropriate individuals.
[(3) Scope of assessment.--The national assessment
shall examine how well schools, local educational
agencies, States,other recipients of assistance under
this Act, and the Secretary are achieving the purposes of this Act,
including--
[(A) improving the performance of children
with disabilities in general scholastic
activities and assessments as compared to
nondisabled children;
[(B) providing for the participation of
children with disabilities in the general
curriculum;
[(C) helping children with disabilities make
successful transitions from--
[(i) early intervention services to
preschool education;
[(ii) preschool education to
elementary school; and
[(iii) secondary school to adult
life;
[(D) placing and serving children with
disabilities, including minority children, in
the least restrictive environment appropriate;
[(E) preventing children with disabilities,
especially children with emotional disturbances
and specific learning disabilities, from
dropping out of school;
[(F) addressing behavior problems of children
with disabilities as compared to nondisabled
children;
[(G) coordinating services provided under
this Act with each other, with other
educational and pupil services (including
preschool services), and with health and social
services funded from other sources;
[(H) providing for the participation of
parents of children with disabilities in the
education of their children; and
[(I) resolving disagreements between
education personnel and parents through
activities such as mediation.
[(4) Interim and final reports.--The Secretary shall
submit to the President and the Congress--
[(A) an interim report that summarizes the
preliminary findings of the assessment not
later than October 1, 1999; and
[(B) a final report of the findings of the
assessment not later than October 1, 2001.
[(c) Annual Report.--The Secretary shall report annually to
the Congress to--
[(1) an analysis and summary of the data reported by
the States and the Secretary of the Interior under
section 618;
[(2) the results of activities conducted under
subsection (a);
[(3) the findings and determinations resulting from
reviews of State implementation of this Act.
[(d) Technical Assistance to LEAS.--The Secretary shall
provide directly, or through grants, contacts, or cooperative
agreements, technical assistance to local educational agencies
to assist them in carrying out local capacity-building and
improvement projects under section 611(f)(4) and other LEA
systemic improvement activities under this Act.
[(d) Reservation for Studies and Technical Assistance.--
[(1) In general.--Except as provided in paragraph (2)
and notwithstanding any other provision of this Act,
the Secretary may reserve up to one-half of one percent
of the amount appropriatedunder parts B and C for each
fiscal year to carry out this section.
[(2) Maximum amount.--For the first fiscal year in
which the amount described in paragraph (1) is at least
$20,000,000, the maximum amount the Secretary may
reserve under paragraph (1) is $20,000,000. For each
subsequent fiscal year, the maximum amount the
Secretary may reserve under paragraph (1) is
$20,000,000, increased by the cumulative rate of
inflation since the fiscal year described in the
previous sentence.
[(3) Use of maximum amount.--In any fiscal year
described in paragraph (2) for which the Secretary
reserves the maximum amount described in that
paragraph, the Secretary shall use at least half of the
reserved amount for activities under subsection (d).
[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.
[(a) In General.--The Congress finds as follows:
[(1) National technical assistance, support, and
dissemination activities are necessary to ensure that
parts B and C are fully implemented and achieve quality
early intervention, educational, and transitional
results for children with disabilities and their
families.
[(2) Parents, teachers, administrators, and related
services personnel need technical assistance and
information in a timely, coordinated, and accessible
manner in order to improve early intervention,
educational, and transitional services and results at
the State and local levels for children with
disabilities and their families.
[(3) Parent training and information activities have
taken on increased importance in efforts to assist
parents of a child with a disability in dealing with
the multiple pressures of rearing such a child and are
of particular importance in--
[(A) ensuring the involvement of such parents
in planning and decisionmaking with respect to
early intervention, educational, and
transitional services;
[(B) achieving quality early intervention,
educational, and transitional results for
children with disabilities;
[(C) providing such parents information on
their rights and protections under this Act to
ensure improved early intervention,
educational, and transitional results for
children with disabilities;
[(D) assisting such parents in the
development of skills to participate
effectively in the education and development of
their children and in the transitions described
in section 674(b)(3)(C); and
[(E) supporting the roles of such parents as
participants within partnerships seeking to
improve early interventions,educational, and
transitional services and results for children with disabilities and
their families.
[(4) Providers of parent training and information
activities need to ensure that such parents who have
limited access to services and supports, due to
economic, cultural, or linguistic barriers, are
provided with access to appropriate parent training and
information activities.
[(5) Parents of children with disabilities need
information that helps the parents to understand the
rights and responsibilities of their children under
part B.
[(6) The provision of coordinated technical
assistance and dissemination of information to State
and local agencies, institutions of higher education,
and other providers of services to children with
disabilities is essential in--
[(A) supporting the process of achieving
systemic change:
[(B) supporting actions in areas of priority
specific to the improvement of early
intervention, educational, and transitional
results for children with disabilities;
[(C) conveying information and assistance
that are--
[(i) based on current research (as of
the date the information and assistance
are conveyed);
[(ii) accessible and meaningful for
use in supporting systemic-change
activities of State and local
partnerships; and
[(iii) linked directly to improving
early intervention, educational, and
transitional services and results for
children with disabilities and their
families; and
[(D) organizing systems and information
networks for such information, based on modern
technology related to)
[(i) storing and gaining access to
information; and
[(ii) distributing information in a
systematic manner to parents, students,
professionals, and policymakers.
[(7) Federal support for carrying out technology
research, technology development, and educational media
services and activities has resulted in major
innovations that have significantly improved early
intervention, educational, and transitional services
and results for children with disabilities and their
families.
[(8) Such Federal support is needed--
[(A) to stimulate the development of
software, interactive learning tools, and
devices to address early intervention,
educational, and transitional needs of children
with disabilities who have certain
disabilities;
[(B) to make information available on
technology research, technology development,
and educational media services and activities
to individuals involved in the provision of
early intervention, educational, and
transitional services to children with
disabilities;
[(C) to promote the integration of technology
into curricula results for children with
disabilities;
[(D) to provide incentives for the
development of technology and media devices and
tools that are not readily found or available
because of the small size of potential markets;
[(E) to make resources available to pay for
such devices and tools and educational media
services and activities;
[(F) to promote the training of personnel--
[(i) to provide such devices, tools,
services, and activities in a competent
manner; and
[(ii) to assist children with
disabilities and their families in
using such devices, tools, services,
and activities; and
[(G) to coordinate the provision of such
devices, tools, services, and activities--
[(i) among State human services
programs; and
[(ii) between such programs and
private agencies.
[(b) Purposes.--The purposes of this chapter are to ensure
that--
[(1) children with disabilities, and their parents,
receive training and information on their rights and
protections under this Act, in order to develop the
skills necessary to effectively participate in planning
and decision making relating to early intervention,
educational, and transitional services and in systemic-
change activities;
[(2) parents, teachers, administrators, early
intervention personnel, related services personnel, and
transition personnel receive coordinated and accessible
technical assistance and information to assist such
persons, through systemic-change activities and other
efforts, to improve early intervention, educational,
and transitional services and results for children with
disabilities and their families;
[(3) appropriate technology and media are researched,
developed, demonstrated, and made available in timely
and accessible formats to parents, teachers, and all
types of personnel providing services to children with
disabilities to support their roles as partners in the
improvement and implementation of early intervention,
educational, and transitional services, and results for
children with disabilities and their families;
[(4) on reaching the age of majority under State law,
children with disabilities understand their rights and
responsibilities under part B, if the State provides
for the transfer of parental rights under section
615(m); and
[(5) the general welfare of deaf and hard-of-hearing
individuals is promoted by--
[(A) bringing to such individuals
understanding and appreciation of the films and
television programs that play an important part
in the general and cultural advancement of
hearing individuals;
[(B) providing, through those films and
television programs, enriched educational and
cultural experiences through which deaf and
hard-of-hearing individuals can better
understand the realities of their environment;
and
[(C) providing wholesome and rewarding
experiences that deaf and hard-of-hearing
individuals may share.
[SEC. 682. PARENT TRAINING AND INFORMATION CENTERS.
[(a) Program Authorized.--The Secretary may make grants to,
and enter into contracts and cooperative agreements with,
parent organizations to support parent training and information
centers to carry out activities under this section.
[(b) Required Activities.--Each parent training and
information center that receives assistance under this section
shall--
[(1) provide training and information that meets the
training and information needs of parents of children
with disabilities living the area served by the center,
particularly undeserved parents and parents of children
who may be inappropriately identified;
[(2) assist parents to understand the availability
of, and how to effectively use, procedural safeguards
under this Act, including encouraging the use, and
explaining the benefits, of alternative methods of
dispute resolution, such as the mediation process
described in section 615(e);
[(3) serve the parents of infants, toddlers, and
children with the full range of disabilities;
[(4) assist parents to--
[(A) better understand the nature of their
children's disabilities and their educational
and developmental needs;
[(B) communicate effectively with personnel
responsible for providing special education,
early intervention, and related services;
[(C) participate in decision making processes
and the development of individualized education
programs under part B and individualized family
service plans under part C;
[(D) obtain appropriate information about the
range of options, programs, services, and
resources available to assist children with
disabilities and their families;
[(E) understand the provisions of early
intervention services to, children with
disabilities; and
[(F) participate in school reform activities;
[(5) in State where the State elects to contract with
the parent training and information center, contract
with State educational agencies to provide, consistent
with subparagraphs (B) and (D) of section 615(e)(2),
individuals who meet with parents to explain the
mediation process to them;
[(6) network with appropriate clearinghouses,
including organizations conducting national
dissemination activities under section 685(d), and with
other national, State, and local organizations and
agencies, such as protection and advocacy agencies,
that serve parents and families of children with the
full range of disabilities; and
[(7) annually report to the Secretary on--
[(A) the number of parents to whom it
provided information and training in the most
recently concluded fiscal year; and
[(B) the effectiveness of strategies used to
reach and serve parents, including underserved
parents of children with disabilities.
[(c) Optional Activities.--A parent training and
information center that receives assistance under this section
may--
[(1) provide information to teachers and other
professionals who provide special education and related
services to children with disabilities;
[(2) assist students with disabilities to understand
their rights and responsibilities under section 615(m)
on reaching the age of majority; and;
[(3) assist parents of children with disabilities to
be informed participants in the development and
implementation of the State's State improvement plan
under subpart 1.
[(d) Application Requirements.--Each application for
assistance under this section shall identify with specificity
the special efforts that the applicant will undertake----
[(1) to ensure that the needs for training and
information of underserved parents of children with
disabilities in the area to be served are effectively
met; and
[(2) to work with community-based organizations.
[(e) Distribution of Funds.----
[(1) In general.--The Secretary shall make at least 1
award to a parent organization in each State, unless
the Secretary does not receive an application from such
an organization in each State of sufficient quality to
warrant approval.
[(2) Selection requirement.--The Secretary shall
select among applications submitted by parent
organizations in a State in a manner that ensures the
most effective assistance to parents, including parents
in urban and rural areas, in the State.
[(f) Quarterly Review.----
[(1) Requirements.--
[(A) Meetings.--The board of directors or
special governing committee of each
organization that receives an award under this
section shall meet at least once in each
calendar quarter to review the activities for
which the award was made.
[(B) Advising board.--Each special governing
committee shall directly advise the
organization's governing board of its views and
recommendations.
[(2) Continuation award.--When an organization
requests a continuation award under this section, the
board of directors or special governing committee shall
submit to the Secretary a written review of the parent
training and information program conducted by the
organization during the preceding fiscal year.
[(g) Definition of Parent Organization.--As used in this
section, the term ``parent organization'' means a private
nonprofit organization (other than an institution of higher
education) that--
[(1) has a board of directors--
[(A) the majority of whom are parents of
children with disabilities;
[(B) that includes--
[(i) individuals working in the
fields of special education, related
services, and early intervention; and
[(ii) individuals with disabilities;
and
[(C) the parent and professional members of
which are broadly representative of the
population to be served; or
[(2) has--
[(A) a membership that represents the
interests of individuals with disabilities and
has established a special governing committee
that meets the requirements of paragraph (1);
and
[(B) a memorandum of understanding between
the special governing committee and the board
of directors of the organization that clearly
outlines the relationship between the board and
the committee and the decisionmaking
responsibilities and authority of each.
[SEC. 683. COMMUNITY PARENT RESOURCE CENTERS.
[(a) In General.--The Secretary may make grants to, and
enter into contracts and cooperative agreements with, local
parent organizations to support parent training and information
centers that will help ensure that underserved parents of
children with disabilities, including low-income parents,
parents of children with limited English proficiency, and
parents with disabilities, have the training and information
they need to enable them to participate effectively in helping
their children with disabilities--
[(1) to meet developmental goals and, to the maximum
extent possible, those challenging standards that have
been established for all children; and
[(2) to be prepared to lead productive independent
adult lives, to the maximum extent possible.
[(b) Required Activities.--Each parent training and
information center assisted under this section shall--
[(1) provide training and information that meets the
training and information needs of parents of children
with disabilities proposed to be served by the grant,
contract, or cooperative agreement;
[(2) carry out the activities required of parent
training and information centers under paragraphs (2)
through (7) of section 682(b);
[(3) establish cooperative partnerships with the
parent training and information centers funded under
section 682; and
[(4) be designed to meet the specific needs of
families who experience significant isolation from
available sources of information and support.
[(c) Definition.--As used in this section, the term ``local
parent organization'' means a parent organization, as defined
in section 682(g), that either--
[(1) has a board of directors the majority of whom
are from the community to be served; or
[(2) has--
[(A) as a part of its mission, serving the
interests of individuals with disabilities from
such community; and
[(B) a special governing committee to
administer the grant, contract, or cooperative
agreement, a majority of the members of which
are individuals from such community.
[SEC. 684. TECHNICAL ASSISTANCE FOR PARENT TRAINING AND INFORMATION
CENTERS.
[(a) In General.--The Secretary may, directly or through
awards to eligible entities, provide technical assistance for
developing, assisting, and coordinating parent training and
information programs carried out by parent training and
information centers receiving assistance under sections 682 and
683.
[(b) Authorized Activities.--The Secretary may provide
technical assistance to a parent training and information
center under this section in areas such as--
[(1) effective coordination of parent training
efforts;
[(2) dissemination of information;
[(3) evaluation by the center of itself;
[(4) promotion of the use of technology, including
assistive technology devices and assistive technology
services;
[(5) reaching underserved populations;
[(6) including children with disabilities in general
education programs;
[(7) facilitation of transitions from--
[(A) early intervention services to
preschool;
[(B) preschool to school; and
[(C) secondary school to postsecondary
environments; and
[(8) promotion of alternative methods of dispute
resolution.
[SEC. 685. COORDINATED TECHNICAL ASSISTANCE AND DISSEMINATION.
[(a) In General.--The Secretary shall, by competitively
making grants or entering into contracts and cooperative
agreements with eligible entities, provide technical assistance
and information, through such mechanisms as institutes,
Regional Resource Centers, clearinghouses, and programs that
support States and local entities in building capacity, to
improve early intervention, educational, and transitional
services and results for children with disabilities and their
families, and address systemic-change goals and priorities.
[(b) Systemic Technical Assistance; Authorized
Activities.--
[(1) In general.--In carrying out this section, the
Secretary shall carry out or support technical
assistance activities, consistent with the objectives
described in subsection (a), relating to systemic
change.
[(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
[(A) Assisting States, local education
agencies, and other participants in
partnerships established under subpart 1 with
the process of planning systemic changes that
will promote improved early intervention,
educational, and transitional results for
children with disabilities.
[(B) Promoting change through a multistate or
regional framework that benefits States, local
educational agencies, and other participants in
partnerships that are in the process of
achieving systemic-change outcomes.
[(C) Increasing the depth and utility of
information in ongoing and emerging areas of
priority need identified by States, local
educational agencies, and other participants in
partnerships that are in the process of
achieving systemic-change outcomes.
[(D) Promoting communication and information
exchange among States, local educational
agencies, and other participants in
partnerships, based on the needs and concerns
identified by the participants in the
partnerships, rather than on externally imposed
criteria or topics, regarding--
[(i) the practices, procedures, and
policies of the States, local
educational agencies, and other
participants in partnerships; and
[(ii) accountability of the States,
local educational agencies, and other
participants for improved early
intervention, educational, and
transitional results for children with
disabilities.
[(c) Specialized Technical Assistance; Authorized
Activities.--
[(1) In general.--In carrying out this section, the
Secretary shall carry out or support activities,
consistent with the objectives described in subsection
(a), relating to areas of priority or specific
populations.
[(2) Authorized activities.--Examples of activities
that may be carried out under this subsection include
activities that--
[(A) focus on specific areas of high-priority
need that--
[(i) are identified by States, local
educational agencies and other
participants in partnerships;
[(ii) require the development of new
knowledge, or the analysis and
synthesis of substantial bodies of
information not readily available to
the States, agencies, and other
participants in partnerships; and
[(iii) will contribute significantly
to the improvement of early
intervention, educational, and
transitional services and results for
children with disabilities and their
families;
[(B) focus on needs and issues that are
specific to a population of children with
disabilities, such as the provision of single-
State and multi-State technical assistance and
in-service training--
[(i) to schools and agencies serving
deaf-blind children and their families;
and
[(ii) to programs and agencies
serving other groups of children with
low-incidence disabilities and their
families; or
[(C) address the postsecondary education
needs of individuals who are deaf or hard-of-
hearing.
[(d) National Information Dissemination; Authorized
Activities.
[(1) In general.--In carrying out this section, the
Secretary shall carry out or support information
dissemination activities that are consistent with the
objectives described in subsection (a), including
activities that address national needs for the
preparation and dissemination of information relating
to eliminating barriers to systemic-change and
improving early intervention, educational, and
transitional results for children with disabilities.
[(2) Authorized activities.--Examples of activities
that may be carried out under this subsection include
activities relating to--
[(A) infants and toddlers with disabilities
and their families, and children with
disabilities and their families;
[(B) services for populations of children
with low-incidence disabilities, including
deaf-blind children, and targeted age
groupings;
[(C) the provision of postsecondary services
to individuals with disabilities;
[(D) the need for and use of personnel to
provide services to children with disabilities,
and personnel recruitment, retention, and
preparation;
[(E) issues that are of critical interest to
State educational agencies and local
educational agencies, other agency personnel,
parents of children with disabilities, and
individuals with disabilities;
[(F) educational reform and systemic change
within States; and
[(G) promoting schools that are safe and
conducive to learning.
[(3) Linking states to information sources.--In
carrying out this subsection, the Secretary may support
projects that link States to technical assistance
resources, including special education and general
education resources, and may make research and related
products available through libraries, electronic
networks, parent training projects, and other
information sources.
[(e) Applications.--An eligible entity that wishes to
receive a grant, or enter into a contract or cooperative
agreement, under this section shall submit an application to
the Secretary at such time, in such manner, and containing such
information as the Secretary may require.
[SEC. 686. AUTHORIZATION OF APPROPRIATIONS.
[There are authorized to be appropriated to carry out
sections 681 through 685 such sums as may be necessary for each
of the fiscal years 1998 through 2003.
[SEC. 687. TECHNOLOGY DEVELOPMENT, DEMONSTRATION, AND UTILIZATION; AND
MEDIA SERVICES.
[(a) In General.--The Secretary shall competitively make
grants to, and enter into contracts and cooperative agreements
with, eligible entities to support activities described in
subsections (b) and (c).
[(b) Technology Development, Demonstration, and
Utilization; Authorized Activities.--
[(1) In general.--In carrying out this section, the
Secretary shall support activities to promote the
development, demonstration, and utilization of
technology.
[(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
[(A) Conducting research and development
activities on the use of innovative and
emerging technologies for children with
disabilities.
[(B) Promoting the demonstration and use of
innovative and emerging technologies for
children with disabilities by improving and
expanding the transfer of technology from
research and development to practice.
[(C) Providing technical assistance to
recipients of other assistance under this
section, concerning the development of
accessible, effective, and usable products.
[(D) Communicating information on available
technology and the uses of such technology to
assist children with disabilities.
[(E) Supporting the implementation of
research programs on captioning or video
description.
[(F) Supporting research, development, and
dissemination of technology with universal-
design features, so that the technology is
accessible to individuals with disabilities
without further modification or adaptation.
[(G) Demonstrating the use of publicly-funded
telecommunications systems to provide parents
and teachers with information and training
concerning early diagnosis of, intervention
for, and effective teaching strategies for,
young children with reading disabilities.
[(c) Educational Media Services; Authorized Activities.--In
carrying out this section, the Secretary shall support--
[(1) educational media activities that are designed
to be of educational value to children with
disabilities;
[(2) providing video description, open captioning, or
closed captioning of television programs, videos, or
educational materials through September 30, 2001; and
after fiscal year 2001, providing video description,
open captioning, or closed captioning of educational,
news, and informational television, videos, or
materials;
[(3) distributing captioned and described videos or
educational materials through such mechanisms as a loan
service;
[(4) providing free educational materials, including
text-books, in accessible media for visually impaired
and print-disabled students in elementary, secondary,
postsecondary, and graduate schools;
[(5) providing cultural experiences through
appropriate nonprofit organizations, such as the
National Theater of the Deaf, that--
[(A) enrich the lives of deaf and hard-of-
hearing children and adults;
[(B) increase public awareness and
understanding of deafness and of the artistic
and intellectual achievements of deaf and hard-
of-hearing persons; or
[(C) promote the integration of hearing,
deaf, and hard-of-hearing persons through
shared cultural, educational, and social
experiences; and
[(6) compiling and analyzing appropriate data
relating to the activities described in paragraphs (1)
through (5).
[(d) Applications.--Any eligible entity that wishes to
receive a grant, or enter into a contract or cooperative
agreement, under this section shall submit an application to
the Secretary at such time, in such manner, and containing such
information as the Secretary may require.
[(e) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section such sums as may
be necessary for each of the fiscal years 1998 through 2002.]
PART D--NATIONAL ACTIVITIES TO IMPROVE EDUCATION OF CHILDREN WITH
DISABILITIES
SEC. 650. FINDINGS.
Congress finds the following:
(1) The Federal Government has an ongoing obligation
to support activities that contribute to positive
results for children with disabilities, enabling them
to lead productive and independent adult lives.
(2) Systemic change benefiting all students,
including children with disabilities, requires the
involvement of States, local educational agencies,
parents, individuals with disabilities and their
families, teachers and other service providers, and
other interested individuals and organizations to
develop and implement comprehensive strategies that
improve educational results for children with
disabilities.
(3) State educational agencies, in partnership with
local educational agencies, parents of children with
disabilities, and other individuals and organizations,
are in the best position to improve education for
children with disabilities and to address their special
needs.
(4) An effective educational system serving students
with disabilities should--
(A) maintain high academic achievement
standards and clear performance goals for
children with disabilities, consistent with the
standards and expectations for all students in
the educational system, and provide for
appropriate and effective strategies and
methods to ensure that all children with
disabilities have the opportunity to achieve
those standards and goals;
(B) clearly define, in objective, measurable
terms, the school and post-school results that
children with disabilities are expected to
achieve; and
(C) promote transition services and
coordinate State and local education, social,
health, mental health, and other services, in
addressing the full range of student needs,
particularly the needs of children with
disabilities who need significant levels of
support to participate and learn in school and
the community.
(5) The availability of an adequate number of
qualified personnel is critical to serve effectively
children with disabilities, to assume leadership
positions in administration and direct services, to
provide teacher training, and to conduct high quality
research to improve special education.
(6) High quality, comprehensive professional
development programs are essential to ensure that the
persons responsible for the education or transition of
children with disabilities possess the skills and
knowledge necessary to address the educational and
related needs of those children.
(7) Models of professional development should be
scientifically based and reflect successful practices,
including strategies for recruiting, preparing, and
retaining personnel.
(8) Continued support is essential for the
development and maintenance of a coordinated and high
quality program of research to inform successful
teaching practices and model curricula for educating
children with disabilities.
(9) A comprehensive research agenda should be
established and pursued to promote the highest quality
and rigor in special education research, and to address
the full range of issues facing children with
disabilities, parents of children with disabilities,
school personnel, and others.
(10) Training, technical assistance, support, and
dissemination activities are necessary to ensure that
parts B and C are fully implemented and achieve high
quality early intervention, educational, and
transitional results for children with disabilities and
their families.
(11) Parents, teachers, administrators, and related
services personnel need technical assistance and
information in a timely, coordinated, and accessible
manner in order to improve early intervention,
educational, and transitional services and results at
the State and local levels for children with
disabilities and their families.
(12) Parent training and information activities
assist parents of a child with a disability in dealing
with the multiple pressures of parenting such a child
and are of particular importance in--
(A) playing a vital role in creating and
preserving constructive relationships between
parents of children with disabilities and
schools by facilitating open communication
between the parents and schools; encouraging
dispute resolution at the earliest possible
point in time; and discouraging the escalation
of an adversarial process between the parents
and schools;
(B) ensuring the involvement of parents in
planning and decisionmaking with respect to
early intervention, educational, and
transitional services;
(C) achieving high quality early
intervention, educational, and transitional
results for children with disabilities;
(D) providing such parents information on
their rights, protections, and responsibilities
under this Act to ensure improved early
intervention, educational, and transitional
results for children with disabilities;
(E) assisting such parents in the development
of skills to participate effectively in the
education and development of their children and
in the transitions described in section
673(b)(6);
(F) supporting the roles of such parents as
participants within partnerships seeking to
improve early intervention, educational, and
transitional services and results for children
with disabilities and their families; and
(G) supporting such parents who may have
limited access to services and supports, due to
economic, cultural, or linguistic barriers.
(13) Support is needed to improve technological
resources and integrate technology, including
universally designed technologies, into the lives of
children with disabilities, parents of children with
disabilities, school personnel, and others through
curricula, services, and assistive technologies.
Subpart 1--State Personnel Preparation and Professional Development
Grants
SEC. 651. PURPOSE; DEFINITION; PROGRAM AUTHORITY.
(a) Purpose.--The purpose of this subpart is to assist State
educational agencies in reforming and improving their systems
for personnel preparation and professional development in early
intervention, educational, and transition services in order to
improve results for children with disabilities.
(b) Definition.--In this subpart, the term ``personnel''
means special education teachers, regular education teachers,
principals, administrators, related services personnel,
paraprofessionals, and early intervention personnel serving
infants, toddlers, preschoolers, or children with disabilities,
except where a particular category of personnel, such as
related services personnel, is identified.
(c) Competitive Grants.--
(1) In general.--Except as provided in subsection
(d), for any fiscal year for which the amount
appropriated under section 655, that remains after the
Secretary reserves funds under subsection (e) for the
fiscal year, is less than $100,000,000, the Secretary
shall award grants, on a competitive basis, to State
educational agencies to carry out the activities
described in the State plan submitted under section
653.
(2) Priority.--In awarding grants under paragraph
(1), the Secretary may give priority to State
educational agencies that--
(A) are in States with the greatest personnel
shortages; or
(B) demonstrate the greatest difficulty
meeting the requirements of section 612(a)(14).
(3) Minimum.--The Secretary shall make a grant to
each State educational agency selected under paragraph
(1) in an amount for each fiscal year that is--
(A) not less than $500,000, nor more than
$4,000,000, in the case of the 50 States, the
District of Columbia, and the Commonwealth of
Puerto Rico; and
(B) not less than $80,000 in the case of an
outlying area.
(4) Increases.--The Secretary may increase the
amounts under in paragraph (3) to account for
inflation.
(5) Factors.--The Secretary shall set the amount of
each grant under paragraph (1) after considering--
(A) the amount of funds available for making
the grants;
(B) the relative population of the State or
outlying area;
(C) the types of activities proposed by the
State or outlying area;
(D) the alignment of proposed activities with
section 612(a)(14);
(E) the alignment of proposed activities with
the State plans and applications submitted
under sections 1111 and 2112, respectively, of
the Elementary and Secondary Education Act of
1965; and
(F) the use, as appropriate, of
scientifically based activities.
(d) Formula Grants.--
(1) In general.--Except as provided in paragraphs (2)
and (3), for the first fiscal year for which the amount
appropriated under section 655, that remains after the
Secretary reserves funds under subsection (e) for the
fiscal year, is equal to or greater than $100,000,000,
and for each fiscal year thereafter, the Secretary
shall allot to each State educational agency, whose
application meets the requirements of this subpart, an
amount that bears the same relation to the amount
appropriated as the amount the State received under
section 611(d) for that fiscal year bears to the amount
of funds received by all States (whose applications
meet the requirements of this subpart) under section
611(d) for that fiscal year.
(2) Minimum allotments for states that received
competitive grants.--
(A) In general.--The amount allotted under
this subsection to any State that received a
competitive multi-year grant under subsection
(c) for which the grant period has not expired
shall be at least the amount specified for that
fiscal year in the State's grant award document
under that subsection.
(B) Special rule.--Each such State shall use
the minimum amount described in subparagraph
(A) for the activities described in its
competitive grant award document for that year,
unless the Secretary approves a request from
the State to spend the funds on other
activities.
(3) Minimum allotment.--The amount of any State
educational agency's allotment under this subsection
for any fiscal year shall not be less than--
(A) the greater of $500,000 or \1/2\ of 1
percent of the total amount available under
this subsection for that year, in the case of
each of the 50 States, the District of
Columbia, and the Commonwealth of Puerto Rico;
and
(B) $80,000, in the case of an outlying area.
(e) Continuation Awards.--
(1) In general.--Notwithstanding any other provision
of this subpart, from funds appropriated under section
655 for each fiscal year, the Secretary shall reserve
the amount that is necessary to make a continuation
award to any State (at the request of the State) that
received a multi-year award under this part (as this
part was in effect on the day before the date of
enactment of the Individuals with Disabilities
Education Improvement Act of 2003), to enable the State
to carry out activities in accordance with the terms of
the multi-year award.
(2) Prohibition.--A State that receives a
continuation award under paragraph (1) for any fiscal
year may not receive any other award under this subpart
for that fiscal year.
SEC. 652. ELIGIBILITY AND COLLABORATIVE PROCESS.
(a) Eligible Applicants.--A State educational agency may
apply for a grant under this subpart for a grant period of not
less than 1 year and not more than 5 years.
(b) Partners.--
(1) In general.--In order to be considered for a
grant under this subpart, a State educational agency
shall establish a partnership with local educational
agencies and other State agencies involved in, or
concerned with, the education of children with
disabilities, including institutions of higher
education and the State agencies responsible for
administering part C, child care, and vocational
rehabilitation programs.
(2) Other partners.--In order to be considered for a
grant under this subpart, a State educational agency
shall work in partnership with other persons and
organizations involved in, and concerned with, the
education of children with disabilities, which may
include--
(A) the Governor;
(B) parents of children with disabilities
ages birth through 26;
(C) parents of nondisabled children ages
birth through 26;
(D) individuals with disabilities;
(E) parent training and information centers
or community parent resource centers funded
under sections 671 and 672, respectively;
(F) community based and other nonprofit
organizations involved in the education and
employment of individuals with disabilities;
(G) personnel as defined in section 651(b);
(H) the State advisory panel established
under part B;
(I) the State interagency coordinating
council established under part C;
(J) individuals knowledgeable about
vocational education;
(K) the State agency for higher education;
(L) public agencies with jurisdiction in the
areas of health, mental health, social
services, and juvenile justice;
(M) other providers of professional
development that work with infants, toddlers,
preschoolers, and children with disabilities;
and
(N) other individuals.
(3) Required partner.--If State law assigns
responsibility for teacher preparation and
certification to an individual, entity, or agency other
than the State educational agency, the State
educational agency shall--
(A) include that individual, entity, or
agency as a partner in the partnership under
this subsection; and
(B) ensure that any activities the State will
carry out under this subpart that are within
that partner's jurisdiction (which may include
activities described in section 654(b)) are
carried out by that partner.
SEC. 653. APPLICATIONS.
(a) In General.--
(1) Submission.--A State educational agency that
desires to receive a grant under this subpart shall
submit to the Secretary an application at such time, in
such manner, and including such information as the
Secretary may require.
(2) State plan.--The application shall include a plan
that identifies and addresses the State and local needs
for the personnel preparation and professional
development of administrators, principals, and
teachers, as well as individuals who provide direct
supplementary aids and services to children with
disabilities, and that--
(A) is designed to enable the State to meet
the requirements of section 612(a)(14) and
section 635(a) (8) and (9);
(B) is based on an assessment of State and
local needs that identifies critical aspects
and areas in need of improvement related to the
preparation, ongoing training, and professional
development of personnel that serve infants,
toddlers, preschoolers, and children with
disabilities within the State, including--
(i) current and anticipated personnel
vacancies and shortages; and
(ii) the number of preservice
programs; and
(C) is integrated and aligned, to the maximum
extent possible, with State plans and
activities under the Elementary and Secondary
Education Act of 1965, the Rehabilitation Act
of 1973, and the Higher Education Act of 1965.
(3) Requirement.--The State application shall contain
an assurance that the State educational agency will
carry out each of the strategies described in
subsection (b)(4).
(b) Elements of State Personnel Preparation and Professional
Development Plan.--Each professional development plan under
subsection (a)(2) shall--
(1) describe a partnership agreement that is in
effect for the period of the grant, which agreement
shall specify--
(A) the nature and extent of the partnership
described in section 652(b) and the respective
roles of each member of the partnership,
including the partner described in section
652(b)(3) if applicable; and
(B) how the State will work with other
persons and organizations involved in, and
concerned with, the education of children with
disabilities, including the respective roles of
each of the persons and organizations;
(2) describe how the strategies and activities
described in paragraph (4) will be coordinated with
other public resources (including part B and part C
funds retained for use at the State level for personnel
and professional development purposes) and private
resources;
(3) describe how the State will align its
professional development plan under this subpart with
the plan and application submitted under sections 1111
and 2112, respectively, of the Elementary and Secondary
Education Act of 1965;
(4) describe what strategies the State will use to
address the professional development and personnel
needs identified under subsection (a)(2) and how those
strategies will be implemented, including--
(A) a description of the preservice and
inservice programs and activities to be
supported under this subpart that will provide
personnel with the knowledge and skills to meet
the needs of, and improve the performance and
achievement of, infants, toddlers,
preschoolers, and children with disabilities;
and
(B) how such strategies shall be integrated,
to the maximum extent possible, with other
activities supported by grants funded under
this part, including those under section 664;
(5) provide an assurance that the State will provide
technical assistance to local educational agencies to
improve the quality of professional development
available to meet the needs of personnel who serve
children with disabilities;
(6) provide an assurance that the State will provide
technical assistance to entities that provide services
to infants and toddlers with disabilities to improve
the quality of professional development available to
meet the needs of personnel serving such children;
(7) describe how the State will recruit and retain
highly qualified teachers and other qualified personnel
in geographic areas of greatest need;
(8) describe the steps the State will take to ensure
that poor and minority children are not taught at
higher rates by teachers who are not highly qualified;
and
(9) describe how the State will assess, on a regular
basis, the extent to which the strategies implemented
under this subpart have been effective in meeting the
performance goals described in section 612(a)(15).
(c) Peer Review.--
(1) In general.--The Secretary shall use a panel of
experts who are competent, by virtue of their training,
expertise, or experience, to evaluate applications for
grants under section 651(c)(1).
(2) Composition of panel.--A majority of a panel
described in paragraph (1) shall be composed of
individuals who are not employees of the Federal
Government.
(3) Payment of fees and expenses of certain
members.--The Secretary may use available funds
appropriated to carry out this subpart to pay the
expenses and fees of panel members who are not
employees of the Federal Government.
(d) Reporting Procedures.--Each State educational agency that
receives a grant under this subpart shall submit annual
performance reports to the Secretary. The reports shall
describe the progress of the State in implementing its plan and
analyze the effectiveness of the State's activities under this
subpart.
SEC. 654. USE OF FUNDS.
(a) Professional Development Activities.--A State educational
agency that receives a grant under this subpart shall use the
grant funds to support activities in accordance with the
State's plan described in section 653, including 1 or more of
the following:
(1) Carrying out programs that provide support to
both special education and regular education teachers
of children with disabilities and principals, such as
programs that--
(A) provide teacher mentoring, team teaching,
reduced class schedules and case loads, and
intensive professional development; and
(B) use standards or assessments for guiding
beginning teachers that are consistent with
challenging State student academic achievement
and functional standards and with the
requirements for professional development as
defined in section 9101(34) of the Elementary
and Secondary Education Act of 1965.
(2) Encouraging and supporting the training of
special education and regular education teachers and
administrators to effectively use and integrate
technology--
(A) into curricula and instruction, including
training to improve the ability to collect,
manage, and analyze data to improve teaching,
decisionmaking, school improvement efforts, and
accountability;
(B) to enhance learning by children with
disabilities; and
(C) to effectively communicate with parents.
(3) Providing professional development activities
that--
(A) improve the knowledge of special
education and regular education teachers
concerning--
(i) the academic and developmental or
functional needs of students with
disabilities; or
(ii) effective instructional
strategies, methods, and skills, and
the use of State academic content
standards and student academic
achievement and functional standards,
and State assessments, to improve
teaching practices and student academic
achievement;
(B) improve the knowledge of special
education and regular education teachers and
principals and, in appropriate cases,
paraprofessionals, concerning effective
instructional practices and that--
(i) provide training in how to teach
and address the needs of children with
different learning styles and children
with limited English proficiency;
(ii) involve collaborative groups of
teachers and administrators;
(iii) provide training in methods
of--
(I) positive behavioral
interventions and supports to
improve student behavior in the
classroom;
(II) scientifically based
reading instruction, including
early literacy instruction;
(III) early and appropriate
interventions to identify and
help children with
disabilities;
(IV) effective instruction
for children with low incidence
disabilities;
(V) successful transitioning
to postsecondary opportunities;
and
(VI) using classroom-based
techniques to assist children
prior to referral for special
education;
(iv) provide training to enable
personnel to work with and involve
parents in their child's education,
including parents of low income and
limited English proficient children
with disabilities;
(v) provide training for special
education personnel and regular
education personnel in planning,
developing, and implementing effective
and appropriate IEPs; and
(vi) providing training to meet the
needs of students with significant
health, mobility, or behavioral needs
prior to serving such students; and
(C) train administrators, principals, and
other relevant school personnel in conducting
effective IEP meetings.
(4) Developing and implementing initiatives to
promote the recruitment and retention of highly
qualified special education teachers, particularly
initiatives that have been proven effective in
recruitment and retaining highly qualified teachers,
including programs that provide--
(A) teacher mentoring from exemplary special
education teachers, principals, or
superintendents;
(B) induction and support for special
education teachers during their first 3 years
of employment as teachers; or
(C) incentives, including financial
incentives, to retain special education
teachers who have a record of success in
helping students with disabilities.
(5) Carrying out programs and activities that are
designed to improve the quality of personnel who serve
children with disabilities, such as--
(A) innovative professional development
programs (which may be provided through
partnerships that include institutions of
higher education), including programs that
train teachers and principals to integrate
technology into curricula and instruction to
improve teaching, learning, and technology
literacy, which professional development shall
be consistent with the definition of
professional development in section 9101(34) of
the Elementary and Secondary Education Act of
1965; and
(B) the development and use of proven, cost
effective strategies for the implementation of
professional development activities, such as
through the use of technology and distance
learning.
(6) Carrying out programs and activities that are
designed to improve the quality of early intervention
personnel, including paraprofessionals and primary
referral sources, such as--
(A) professional development programs to
improve the delivery of early intervention
services;
(B) initiatives to promote the recruitment
and retention of early intervention personnel;
and
(C) interagency activities to ensure that
personnel are adequately prepared and trained.
(b) Other Activities.--A State educational agency that
receives a grant under this subpart shall use the grant funds
to support activities in accordance with the State's plan
described in section 653, including 1 or more of the following:
(1) Reforming special education and regular education
teacher certification (including recertification) or
licensing requirements to ensure that--
(A) special education and regular education
teachers have--
(i) the training and information
necessary to address the full range of
needs of children with disabilities
across disability categories; and
(ii) the necessary subject matter
knowledge and teaching skills in the
academic subjects that they teach;
(B) special education and regular education
teacher certification (including
recertification) or licensing requirements are
aligned with challenging State academic content
standards; and
(C) special education and regular education
teachers have the subject matter knowledge and
teaching skills, including technology literacy,
necessary to help students with disabilities
meet challenging State student academic
achievement and functional standards.
(2) Programs that establish, expand, or improve
alternative routes for State certification of special
education teachers for highly qualified individuals
with a baccalaureate or master's degree, including mid-
career professionals from other occupations,
paraprofessionals, and recent college or university
graduates with records of academic distinction who
demonstrate the potential to become highly effective
special education teachers.
(3) Teacher advancement initiatives for special
education teachers that promote professional growth and
emphasize multiple career paths (such as paths to
becoming a career teacher, mentor teacher, or exemplary
teacher) and pay differentiation.
(4) Developing and implementing mechanisms to assist
local educational agencies and schools in effectively
recruiting and retaining highly qualified special
education teachers.
(5) Reforming tenure systems, implementing teacher
testing for subject matter knowledge, and implementing
teacher testing for State certification or licensing,
consistent with title II of the Higher Education Act of
1965.
(6) Funding projects to promote reciprocity of
teacher certification or licensing between or among
States for special education teachers, except that no
reciprocity agreement developed under this paragraph or
developed using funds provided under this subpart may
lead to the weakening of any State teaching
certification or licensing requirement.
(7) Developing or assisting local educational
agencies to serve children with disabilities through
the development and use of proven, innovative
strategies to deliver intensive professional
development programs that are both cost effective and
easily accessible, such as strategies that involve
delivery through the use of technology, peer networks,
and distance learning.
(8) Developing, or assisting local educational
agencies in developing, merit based performance
systems, and strategies that provide differential and
bonus pay for special education teachers.
(9) Supporting activities that ensure that teachers
are able to use challenging State academic content
standards and student academic and functional
achievement standards, and State assessments for all
children with disabilities, to improve instructional
practices and improve the academic achievement of
children with disabilities.
(10) When applicable, coordinating with, and
expanding centers established under, section
2113(c)(18) of the Elementary and Secondary Education
Act of 1965 to benefit special education teachers.
(c) Contracts and Subgrants.--Each such State educational
agency--
(1) shall award contracts or subgrants to local
educational agencies, institutions of higher education,
parent training and information centers, or community
parent resource centers, as appropriate, to carry out
its State plan under this subpart; and
(2) may award contracts and subgrants to other public
and private entities, including the lead agency under
part C, to carry out such plan.
(d) Use of Funds for Professional Development.--A State
educational agency that receives a grant under this subpart
shall use--
(1) not less than 75 percent of the funds the State
educational agency receives under the grant for any
fiscal year for activities under subsection (a); and
(2) not more than 25 percent of the funds the State
educational agency receives under the grant for any
fiscal year for activities under subsection (b).
(e) Grants to Outlying Areas.--Public Law 95-134, permitting
the consolidation of grants to the outlying areas, shall not
apply to funds received under this subpart.
SEC. 655. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this
subpart such sums as may be necessary for each of the fiscal
years 2004 through 2009.
Subpart 2--Scientifically Based Research, Technical Assistance, Model
Demonstration Projects, and Dissemination of Information
SEC. 660. PURPOSE.
The purpose of this subpart is--
(1) to provide Federal funding for scientifically
based research, technical assistance, model
demonstration projects, and information dissemination
to improve early intervention, educational, and
transitional results for children with disabilities;
and
(2) to assist State educational agencies and local
educational agencies in improving their education
systems.
SEC. 661. ADMINISTRATIVE PROVISIONS.
(a) Comprehensive Plan.--
(1) In general.--After receiving input from
interested individuals with relevant expertise, the
Secretary shall develop and implement a comprehensive
plan for activities carried out under this subpart
(other than activities assisted under section 665 and
subpart 3) in order to enhance the provision of early
intervention, educational, related and transitional
services to children with disabilities under parts B
and C. The plan shall be coordinated with the plan
developed pursuant to section 177(c) of the Education
Sciences Reform Act of 2002 and shall include
mechanisms to address early intervention, educational,
related service and transitional needs identified by
State educational agencies in applications submitted
for State Personnel and Professional Development grants
under subpart 1 and for grants under this subpart.
(2) Public comment.--The Secretary shall provide a
public comment period of at least 60 days on the plan.
(3) Distribution of funds.--In implementing the plan,
the Secretary shall, to the extent appropriate, ensure
that funds are awarded to recipients under this
subpart, subpart 3, and subpart 4 to carry out
activities that benefit, directly or indirectly,
children with the full range of disabilities and of all
ages.
(4) Reports to congress.--The Secretary shall
annually report to Congress on the Secretary's
activities under this subpart, subpart 3, and subpart
4, including an initial report not later than 12 months
after the date of enactment of the Individuals with
Disabilities Education Improvement Act of 2003.
(b) Eligible Applicants.--
(1) In general.--Except as otherwise provided in this
subpart, the following entities are eligible to apply
for a grant, contract, or cooperative agreement under
this subpart:
(A) A State educational agency.
(B) A local educational agency.
(C) A public charter school that is a local
educational agency under State law.
(D) An institution of higher education.
(E) Any other public agency.
(F) A private nonprofit organization.
(G) An outlying area.
(H) An Indian tribe or a tribal organization
(as defined under section 4 of the Indian Self-
Determination and Education Assistance Act).
(I) A for-profit organization.
(2) Special rule.--The Secretary may limit the
entities eligible for an award of a grant, contract, or
cooperative agreement to 1 or more categories of
eligible entities described in paragraph (1).
(c) Special Populations.--
(1) Application requirement.--In making an award of a
grant, contract, or cooperative agreement under this
subpart, subpart 3, and subpart 4, the Secretary shall,
as appropriate, require an applicant to meet the
criteria set forth by the Secretary under this subpart
and demonstrate how the applicant will address the
needs of children with disabilities from minority
backgrounds.
(2) Outreach and technical assistance.--
Notwithstanding any other provision of this Act, the
Secretary shall reserve at least 1 percent of the total
amount of funds made available to carry out this
subpart, subpart 3, or subpart 4 for 1 or both of the
following activities:
(A) To provide outreach and technical
assistance to Historically Black Colleges and
Universities, and to institutions of higher
education with minority enrollments of at least
25 percent, to promote the participation of
such colleges, universities, and institutions
in activities under this subpart.
(B) To enable Historically Black Colleges and
Universities, and the institutions described in
subparagraph (A), to assist other colleges,
universities, institutions, and agencies in
improving educational and transitional results
for children with disabilities.
(d) Priorities.--The Secretary, in making an award of a
grant, contract, or cooperative agreement under this subpart,
subpart 3, or subpart 4, may, without regard to the rulemaking
procedures under section 553(a) of title 5, United States Code,
limit competitions to, or otherwise give priority to--
(1) projects that address 1 or more--
(A) age ranges;
(B) disabilities;
(C) school grades;
(D) types of educational placements or early
intervention environments;
(E) types of services;
(F) content areas, such as reading; or
(G) effective strategies for helping children
with disabilities learn appropriate behavior in
the school and other community based
educational settings;
(2) projects that address the needs of children based
on the severity or incidence of their disability;
(3) projects that address the needs of--
(A) low achieving students;
(B) underserved populations;
(C) children from low income families;
(D) limited English proficient children;
(E) unserved and underserved areas;
(F) rural or urban areas;
(G) children whose behavior interferes with
their learning and socialization;
(H) children with reading difficulties;
(I) children in charter schools; or
(J) children who are gifted and talented;
(4) projects to reduce inappropriate identification
of children as children with disabilities, particularly
among minority children;
(5) projects that are carried out in particular areas
of the country, to ensure broad geographic coverage;
(6) projects that promote the development and use of
universally designed technologies, assistive technology
devices, and assistive technology services to maximize
children with disabilities' access to and participation
in the general education curriculum; and
(7) any activity that is authorized in this subpart
or subpart 3.
(e) Applicant and Recipient Responsibilities.--
(1) Development and assessment of projects.--The
Secretary shall require that an applicant for, and a
recipient of, a grant, contract, or cooperative
agreement for a project under this subpart, subpart 3,
or subpart 4--
(A) involve individuals with disabilities or
parents of individuals with disabilities ages
birth through 26 in planning, implementing, and
evaluating the project; and
(B) where appropriate, determine whether the
project has any potential for replication and
adoption by other entities.
(2) Additional responsibilities.--The Secretary may
require a recipient of a grant, contract, or
cooperative agreement under this subpart, subpart 3, or
subpart 4 to--
(A) share in the cost of the project;
(B) prepare any findings and products from
the project in formats that are useful for
specific audiences, including parents,
administrators, teachers, early intervention
personnel, related services personnel, and
individuals with disabilities;
(C) disseminate such findings and products;
and
(D) collaborate with other such recipients in
carrying out subparagraphs (B) and (C).
(f) Application Management.--
(1) Standing panel.--
(A) In general.--The Secretary shall
establish and use a standing panel of experts
who are competent, by virtue of their training,
expertise, or experience, to evaluate
applications under this subpart (other than
applications for assistance under section 665),
subpart 3, and subpart 4 that, individually,
request more than $75,000 per year in Federal
financial assistance.
(B) Membership.--The standing panel shall
include, at a minimum--
(i) individuals who are
representatives of institutions of
higher education that plan, develop,
and carry out high quality programs of
personnel preparation;
(ii) individuals who design and carry
out scientifically based research
targeted to the improvement of special
education programs and services;
(iii) individuals who have recognized
experience and knowledge necessary to
integrate and apply scientifically
based research findings to improve
educational and transitional results
for children with disabilities;
(iv) individuals who administer
programs at the State or local level in
which children with disabilities
participate;
(v) individuals who prepare parents
of children with disabilities to
participate in making decisions about
the education of their children;
(vi) individuals who establish
policies that affect the delivery of
services to children with disabilities;
(vii) parents of children with
disabilities ages birth through 26 who
are benefiting, or have benefited, from
coordinated research, personnel
preparation, and technical assistance;
and
(viii) individuals with disabilities.
(C) Term.--Unless approved by the Secretary
due to extenuating circumstances related to
shortages of experts in a particular area of
expertise or for a specific competition, no
individual shall serve on the standing panel
for more than 3 consecutive years.
(2) Peer review panels for particular competitions.--
(A) Composition.--The Secretary shall ensure
that each sub panel selected from the standing
panel that reviews applications under this
subpart (other than section 665), subpart 3,
and subpart 4 includes--
(i) individuals with knowledge and
expertise on the issues addressed by
the activities authorized by the
relevant subpart; and
(ii) to the extent practicable,
parents of children with disabilities
ages birth through 26, individuals with
disabilities, and persons from diverse
backgrounds.
(B) Federal employment limitation.--A
majority of the individuals on each sub panel
that reviews an application under this subpart
(other than an application under section 665),
subpart 3, and subpart 4 shall be individuals
who are not employees of the Federal
Government.
(3) Use of discretionary funds for administrative
purposes.--
(A) Expenses and fees of non-federal panel
members.--The Secretary may use funds made
available under this subpart, subpart 3, and
subpart 4 to pay the expenses and fees of the
panel members who are not officers or employees
of the Federal Government.
(B) Administrative support.--The Secretary
may use not more than 1 percent of the funds
made available to carry out this subpart,
subpart 3, or subpart 4 to pay non-Federal
entities for administrative support related to
management of applications submitted under this
subpart.
(4) Availability of certain products.--The Secretary
shall ensure that recipients of grants, cooperative
agreements, or contracts under this subpart, subpart 3,
and subpart 4 make available in formats that are
accessible to individuals with disabilities any
products developed under such grants, cooperative
agreements, or contracts that the recipient is making
available to the public.
(g) Program Evaluation.--The Secretary may use funds made
available to carry out this subpart, subpart 3, and subpart 4
to evaluate activities carried out under this subpart.
(h) Minimum Funding Required.--
(1) In general.--Subject to paragraph (2), the
Secretary shall ensure that, for each fiscal year, at
least the following amounts are provided under this
subpart and subpart 3 to address the following needs:
(A) $12,832,000 to address the educational,
related services, transitional, and early
intervention needs of children with deaf-
blindness.
(B) $4,000,000 to address the postsecondary,
vocational, technical, continuing, and adult
education needs of individuals with deafness.
(C) $4,000,000 to address the educational,
related services, and transitional needs of
children with an emotional disturbance and
those who are at risk of developing an
emotional disturbance.
(2) Ratable reduction.--If the total amount
appropriated to carry out this subpart, subpart 3, and
part E of the Education Sciences Reform Act of 2002 for
any fiscal year is less than $130,000,000, the amounts
listed in paragraph (1) shall be ratably reduced.
(i) Eligibility for Financial Assistance.--No State or local
educational agency, or other public institution or agency, may
receive a grant or enter into a contract or cooperative
agreement under this subpart that relates exclusively to
programs, projects, and activities pertaining to children aged
3 through 5, inclusive, unless the State is eligible to receive
a grant under section 619(b).
SEC. 662. RESEARCH COORDINATION TO IMPROVE RESULTS FOR CHILDREN WITH
DISABILITIES.
The Secretary shall coordinate research carried out under
this subpart with research carried out under part E of the
Education Sciences Reform Act of 2002.
SEC. 663. TECHNICAL ASSISTANCE, DEMONSTRATION PROJECTS, DISSEMINATION
OF INFORMATION, AND IMPLEMENTATION OF
SCIENTIFICALLY BASED RESEARCH.
(a) In General.--From amounts made available under section
675, the Secretary, on a competitive basis, shall award grants
to, or enter into contracts or cooperative agreements with,
eligible entities to provide technical assistance, carry out
model demonstration projects, disseminate useful information,
and implement activities that are supported by scientifically
based research.
(b) Required Activities.--The Secretary shall support
activities to improve services provided under this Act,
including the practices of professionals and others involved in
providing such services to children with disabilities, that
promote academic achievement and functional performance to
improve educational results and functional outcomes for
children with disabilities through--
(1) implementing effective strategies that are
conducive to learning and for addressing inappropriate
behavior of students with disabilities in schools,
including strategies to prevent children with emotional
and behavioral problems from developing emotional
disturbances that require the provision of special
education and related services;
(2) improving the alignment, compatibility, and
development of valid and reliable assessment methods,
including alternate assessment methods and evaluation
methods, for assessing adequately yearly progress as
described in section 1111(b)(2) of the Elementary and
Secondary Education Act of 1965;
(3) providing information to both regular education
teachers and special education teachers to address the
different learning styles and disabilities of students;
(4) disseminating information on innovative,
effective, and efficient curricula, materials
(including those that are universally designed),
instructional approaches, and strategies that--
(A) support effective transitions between
educational settings or from school to post-
school settings;
(B) support effective inclusion of students
with disabilities in general education
settings, especially students with low-
incidence disabilities; and
(C) improve educational and transitional
results at all levels of the educational system
in which the activities are carried out and, in
particular, that improve the progress of
children with disabilities, as measured by
assessments within the general education
curriculum involved; and
(5) demonstrating and applying scientifically-based
findings to facilitate systematic changes related to
the provision of services to children with
disabilities.
(c) Authorized Activities.--Activities that may be carried
out under this section include activities to improve services
provided under this Act, including the practices of
professionals and others involved in providing such services to
children with disabilities, that promote increased academic
achievement and enhanced functional outcomes for children with
disabilities through--
(1) supporting and promoting the coordination of
early intervention, education, and transitional
services for children with disabilities with services
provided by health, rehabilitation, and social service
agencies;
(2) promoting improved alignment and compatibility of
general and special education reforms concerned with
curriculum and instructional reform, and evaluating of
such reforms;
(3) enabling professionals, parents of children with
disabilities, and other persons, to learn about, and
implement, the findings of scientifically based
research and effective practices relating to the
provision of services to children with disabilities;
(4) disseminating information relating to successful
approaches to overcoming systemic barriers to the
effective and efficient delivery of early intervention,
educational, and transitional services, to personnel
who provide services to children with disabilities;
(5) assisting States and local educational agencies
with the process of planning systemic changes that will
promote improved early intervention, educational, and
transitional results for children with disabilities;
(6) promoting change through a multi-State or
regional framework that benefits States, local
educational agencies, and other participants in
partnerships that are in the process of achieving
systemic change;
(7) focusing on the needs and issues that are
specific to a population of children with disabilities,
such as providing single-State and multi-State
technical assistance and in-service training--
(A) to schools and agencies serving deaf-
blind children and their families;
(B) to programs and agencies serving other
groups of children with low-incidence
disabilities and their families;
(C) to address the postsecondary education
needs of individuals who are deaf or hard-of-
hearing; and
(D) to schools and personnel providing
special education and related services for
children with autism spectrum disorders;
(8) demonstrating models of personnel preparation to
ensure appropriate placements and services for all
students with disabilities and to reduce
disproportionality in eligibility, placement, and
disciplinary actions for minority and limited English
proficient children: and
(9) disseminating information on how to reduce racial
and ethnic disproportionalities.
(d) Balance Among Disabilities and Age Ranges.--In carrying
out this section, the Secretary shall ensure that there is an
appropriate balance across all age ranges and disabilities.
(e) Linking States to Information Sources.--In carrying out
this section, the Secretary may support projects that link
States to technical assistance resources, including special
education and general education resources, and may make
research and related products available through libraries,
electronic networks, parent training projects, and other
information sources.
(f) Applications.--
(1) In general.--An eligible entity that desires to
receive a grant, or to enter into a contract or
cooperative agreement, under this section shall submit
an application to the Secretary at such time, in such
manner, and containing such information as the
Secretary may require.
(2) Contents.--The Secretary may, as appropriate,
require eligible entities to demonstrate that the
projects described in their applications are supported
by scientifically based research that has been carried
out in conjunction with the standards for the conduct
and evaluation of all research and development
established by the National Center for Education
Research under sections 133 and 134 of the Education
Sciences Reform Act of 2002.
(3) Priority.--As appropriate, the Secretary shall
give priority to applications that propose to serve
teachers and school personnel directly in the school
environment or that strengthen State and local agency
capacity to improve instructional practices of
personnel to improve educational results for children
with disabilities in the school environment.
SEC. 664. PERSONNEL DEVELOPMENT TO IMPROVE SERVICES AND RESULTS FOR
CHILDREN WITH DISABILITIES.
(a) In General.--The Secretary, on a competitive basis, shall
award grants to, or enter into contracts or cooperative
agreements with, eligible entities for 1 or more of the
following:
(1) To help address the needs identified in the State
plan described in section 653(a)(2) for highly
qualified personnel, as defined in section 651(b), to
work with infants, toddlers, or children with
disabilities, consistent with the standards described
in section 612(a)(14).
(2) To ensure that those personnel have the necessary
skills and knowledge, derived from practices that have
been determined, through scientifically based research,
to be successful in serving those children.
(3) To encourage increased focus on academics and
core content areas in special education personnel
preparation programs.
(4) To ensure that regular education teachers have
the necessary skills and knowledge to provide
instruction to students with disabilities in the
regular education classroom.
(5) To ensure that all special education teachers are
highly qualified.
(6) To ensure that preservice and in-service
personnel preparation programs include training in--
(A) the use of new technologies;
(B) the area of early intervention,
educational, and transition services;
(C) effectively involving parents; and
(D) positive behavioral supports.
(7) To provide high-quality professional development
for principals, superintendents, and other
administrators, including training in--
(A) instructional leadership;
(B) behavioral supports in the school and
classroom;
(C) paperwork reduction;
(D) promoting improved collaboration between
special education and general education
teachers;
(E) assessment and accountability;
(F) ensuring effective learning environments;
and
(G) fostering positive relationships with
parents.
(b) Personnel Development; Authorized Activities.--
(1) In general.--In carrying out this section, the
Secretary shall support activities to prepare
personnel, including activities for the preparation of
personnel who will serve children with high-incidence
and low-incidence disabilities, consistent with the
objectives described in subsection (a).
(2) Authorized activities.--Activities that may be
carried out under this subsection include the
following:
(A) Supporting collaborative personnel
preparation activities undertaken by
institutions of higher education, local
educational agencies, and other local
entities--
(i) to improve and reform their
existing programs, to support effective
existing programs, to support the
development of new programs, and to
prepare teachers, principals,
administrators, and related services
personnel--
(I) to meet the diverse needs
of children with disabilities
for early intervention,
educational, and transitional
services; and
(II) to work collaboratively
in regular classroom settings;
and
(ii) to incorporate best practices
and scientifically based research about
preparing personnel--
(I) so the personnel will
have the knowledge and skills
to improve educational results
for children with disabilities;
and
(II) to implement effective
teaching strategies and
interventions to prevent the
misidentification,
overidentification, or
underidentification of children
as having a disability,
especially minority and limited
English proficient children.
(B) Developing, evaluating, and disseminating
innovative models for the recruitment,
induction, retention, and assessment of highly
qualified teachers to reduce teachers
shortages.
(C) Providing continuous personnel
preparation, training, and professional
development designed to provide support and
ensure retention of teachers and personnel who
teach and provide related services to children
with disabilities.
(D) Developing and improving programs for
paraprofessionals to become special education
teachers, related services personnel, and early
intervention personnel, including
interdisciplinary training to enable the
paraprofessionals to improve early
intervention, educational, and transitional
results for children with disabilities.
(E) Demonstrating models for the preparation
of, and interdisciplinary training of, early
intervention, special education, and general
education personnel, to enable the personnel to
acquire the collaboration skills necessary to
work within teams and to improve results for
children with disabilities, particularly within
the general education curriculum.
(F) Promoting effective parental involvement
practices to enable the personnel to work with
parents and involve parents in the education of
such parents' children.
(G) Promoting the transferability, across
State and local jurisdictions, of licensure and
certification of teachers, principals, and
administrators working with such children.
(H) Developing and disseminating models that
prepare teachers with strategies, including
positive behavioral interventions, for
addressing the conduct of children with
disabilities that impedes their learning and
that of others in the classroom.
(I) Developing and improving programs to
enhance the ability of general education
teachers, principals, school administrators,
and school board members to improve results for
children with disabilities.
(J) Supporting institutions of higher
education with minority enrollments of at least
25 percent for the purpose of preparing
personnel to work with children with
disabilities.
(K) Preparing personnel to work in high need
elementary schools and secondary schools,
including urban schools, rural schools, and
schools operated by an entity described in
section 7113(d)(1)(A)(ii) of the Elementary and
Secondary Education Act of 1965, and schools
that serve high numbers or percentages of
limited English proficient children.
(L) Developing, evaluating, and disseminating
innovative models for the recruitment,
induction, retention, and assessment of new,
highly qualified teachers, especially from
groups that are underrepresented in the
teaching profession, including individuals with
disabilities.
(M) Developing and improving programs to
train special education teachers to develop an
expertise in autism spectrum disorders.
(c) Low Incidence Disabilities; Authorized Activities.--
(1) In general.--In carrying out this section, the
Secretary shall support activities, consistent with the
objectives described in subsection (a), that benefit
children with low incidence disabilities.
(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
(A) Preparing persons who--
(i) have prior training in
educational and other related service
fields; and
(ii) are studying to obtain degrees,
certificates, or licensure that will
enable the persons to assist children
with low incidence disabilities to
achieve the objectives set out in their
individualized education programs
described in section 614(d), or to
assist infants and toddlers with low
incidence disabilities to achieve the
outcomes described in their
individualized family service plans
described in section 636.
(B) Providing personnel from various
disciplines with interdisciplinary training
that will contribute to improvement in early
intervention, educational, and transitional
results for children with low incidence
disabilities.
(C) Preparing personnel in the innovative
uses and application of technology, including
universally designed technologies, assistive
technology devices, and assistive technology
services--
(i) to enhance learning by children
with low incidence disabilities through
early intervention, educational, and
transitional services; and
(ii) to improve communication with
parents.
(D) Preparing personnel who provide services
to visually impaired or blind children to teach
and use Braille in the provision of services to
such children.
(E) Preparing personnel to be qualified
educational interpreters, to assist children
with low incidence disabilities, particularly
deaf and hard of hearing children in school and
school related activities, and deaf and hard of
hearing infants and toddlers and preschool
children in early intervention and preschool
programs.
(F) Preparing personnel who provide services
to children with significant cognitive
disabilities and children with multiple
disabilities.
(3) Definition.--As used in this section, the term
``low incidence disability'' means--
(A) a visual or hearing impairment, or
simultaneous visual and hearing impairments;
(B) a significant cognitive impairment; or
(C) any impairment for which a small number
of personnel with highly specialized skills and
knowledge are needed in order for children with
that impairment to receive early intervention
services or a free appropriate public
education.
(4) Selection of recipients.--In selecting recipients
under this subsection, the Secretary may give
preference to eligible entities submitting applications
that include 1 or more of the following:
(A) A proposal to prepare personnel in more
than 1 low incidence disability, such as
deafness and blindness.
(B) A demonstration of an effective
collaboration with an eligible entity and a
local educational agency that promotes
recruitment and subsequent retention of highly
qualified personnel to serve children with
disabilities.
(5) Preparation in use of braille.--The Secretary
shall ensure that all recipients of assistance under
this subsection who will use that assistance to prepare
personnel to provide services to visually impaired or
blind children that can appropriately be provided in
Braille will prepare those individuals to provide those
services in Braille.
(d) Leadership Preparation; Authorized Activities.--
(1) In general.--In carrying out this section, the
Secretary shall support leadership preparation
activities that are consistent with the objectives
described in subsection (a).
(2) Authorized activities.--Activities that may be
carried out under this subsection include activities
such as the following:
(A) Preparing personnel at the graduate,
doctoral, and postdoctoral levels of training
to administer, enhance, or provide services to
improve results for children with disabilities.
(B) Providing interdisciplinary training for
various types of leadership personnel,
including teacher preparation faculty,
administrators, researchers, supervisors,
principals, related services personnel, and
other persons whose work affects early
intervention, educational, and transitional
services for children with disabilities.
(e) Enhanced Support and Training for Beginning Special
Educators; Authorized Activities.--
(1) In general.--In carrying out this section, the
Secretary shall support personnel preparation
activities that are consistent with the objectives
described in subsection (a).
(2) Authorized activities.--Activities that may be
carried out under this subsection include--
(A) enhancing and restructuring an existing
program or developing a preservice teacher
education program, to prepare special education
teachers, at colleges or departments of
education within the institution of higher
education, by incorporating an additional 5th
year clinical learning opportunity, field
experience, or supervised practicum into a
program of preparation and coursework for
special education teachers; or
(B) Creating or supporting professional
development schools that provide--
(i) high quality mentoring and
induction opportunities with ongoing
support for beginning special education
teachers; or
(ii) inservice professional
development to veteran special
education teachers through the ongoing
exchange of information and
instructional strategies.
(3) Eligible partnerships.--Eligible recipients of
assistance under this subsection are partnerships--
(A) that shall consist of--
(i) 1 or more institutions of higher
education with special education
personnel preparation programs; and
(ii) 1 or more local educational
agencies; and
(iii) in the case of activities
assisted under paragraph (2)(B), an
elementary school or secondary school;
and
(B) that may include other entities eligible
for assistance under this part, such as a State
educational agency.
(4) Priority.--In awarding grants or entering into
contracts or cooperative agreements under this
subsection, the Secretary shall give priority to
partnerships that include local educational agencies
that serve--
(A) high numbers or percentages of low-income
students; or
(B) schools that have failed to make adequate
yearly progress toward enabling children with
disabilities to meet academic achievement
standards.
(f) Training To Support General Educators; Authorized
Activities.--
(1) In general.--In carrying out this section, the
Secretary shall support personnel preparation
activities that are consistent with the objectives
described in subsection (a).
(2) Authorized activities.--Activities that may be
carried out under this subsection include--
(A) high quality professional development for
general educators that develops the knowledge
and skills, and enhances the ability, of
general educators to--
(i) use classroom-based techniques to
identify students who may be eligible
for special education services, and
deliver instruction in a way that meets
the individualized needs of children
with disabilities through appropriate
supports, accommodations, and
curriculum modifications;
(ii) use classroom-based techniques,
such as scientifically based reading
instruction;
(iii) work collaboratively with
special education teachers and related
services personnel;
(iv) implement strategies, such as
positive behavioral interventions--
(I) to address the behavior
of children with disabilities
that impedes the learning of
such children and others; or
(II) to prevent children from
being misidentified as children
with disabilities;
(v) prepare children with
disabilities to participate in
statewide assessments (with or without
accommodations) and alternate
assessments, as appropriate;
(vi) develop effective practices for
ensuring that all children with
disabilities are a part of all
accountability systems under the
Elementary and Secondary Education Act
of 1965;
(vii) work with and involve parents
of children with disabilities in their
child's education;
(viii) understand how to effectively
construct IEPs, participate in IEP
meetings, and implement IEPs; and
(ix) in the case of principals and
superintendents, be instructional
leaders and promote improved
collaboration between general
educators, special education teachers,
and related services personnel; and
(B) release and planning time for the
activities described in this subsection.
(3) Eligible partnerships.--Eligible recipients of
assistance under this subsection are partnerships--
(A) that consist of--
(i) 1 or more institutions of higher
education with special education
personnel preparation programs; and
(ii) 1 or more local educational
agencies; and
(B) that may include other entities eligible
for assistance under this part, such as a State
educational agency.
(g) Applications.--
(1) In general.--Any eligible entity that desires to
receive a grant, or enter into a contract or
cooperative agreement, under this section shall submit
an application to the Secretary at such time, in such
manner, and containing such information as the
Secretary may require.
(2) Identified state needs.--
(A) Requirement to address identified
needs.--Any application under subsection (b),
(c), (d), (e), or (f) shall include information
demonstrating to the satisfaction of the
Secretary that the activities described in the
application will address needs identified by
the State or States the applicant proposes to
serve, consistent with the needs identified in
the State plan described in section 653(a)(2).
(B) Cooperation with state educational
agencies.--Any applicant that is not a local
educational agency or a State educational
agency shall include in the application
information demonstrating to the satisfaction
of the Secretary that the applicant and 1 or
more State educational agencies or local
educational agencies have engaged in a
cooperative effort to carry out and monitor the
project to be assisted.
(3) Acceptance by states of personnel preparation
requirements.--The Secretary may require applicants to
provide assurances from 1 or more States that such
States intend to accept successful completion of the
proposed personnel preparation program as meeting State
personnel standards for serving children with
disabilities or serving infants and toddlers with
disabilities.
(h) Selection of Recipients.--
(1) Impact of project.--In selecting award recipients
under this section, the Secretary shall consider the
impact of the proposed project described in the
application in meeting the need for personnel
identified by the States.
(2) Requirement for applicants to meet state and
professional standards.--The Secretary shall make
grants and enter into contracts and cooperative
agreements under this section only to eligible
applicants that meet State and professionally
recognized standards for the preparation of special
education and related services personnel, if the
purpose of the project is to assist personnel in
obtaining degrees.
(3) Preferences.--In selecting recipients under this
section, the Secretary may give preference to
institutions of higher education that are--
(A) educating regular education personnel to
meet the needs of children with disabilities in
integrated settings;
(B) educating special education personnel to
work in collaboration with regular educators in
integrated settings; and
(C) successfully recruiting and preparing
individuals with disabilities and individuals
from groups that are underrepresented in the
profession for which the institution of higher
education is preparing individuals.
(i) Service Obligation.--Each application for funds under
subsections (b), (c), (d), and (e) shall include an assurance
that the applicant will ensure that individuals who receive
assistance under the proposed project will subsequently provide
special education and related services to children with
disabilities for a period of 1 year for every year for which
assistance was received, or repay all or part of the cost of
that assistance, in accordance with regulations issued by the
Secretary.
(j) Scholarships.--The Secretary may include funds for
scholarships, with necessary stipends and allowances, in awards
under subsections (b), (c), (d), and (e).
(k) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section such sums as may be
necessary for each of the fiscal years 2004 through 2009.
SEC. 665. STUDIES AND EVALUATIONS.
(a) Studies and Evaluations.--
(1) Delegation.--The Secretary shall delegate to the
Director of the Institute for Education Sciences
responsibility to carry out this section, other than
subsections (d) and (f).
(2) Assessment.--The Secretary shall, directly or
through grants, contracts, or cooperative agreements
awarded on a competitive basis, assess the progress in
the implementation of this Act, including the
effectiveness of State and local efforts to provide--
(A) a free appropriate public education to
children with disabilities; and
(B) early intervention services to infants
and toddlers with disabilities, and infants and
toddlers who would be at risk of having
substantial developmental delays if early
intervention services were not provided to
them.
(b) National Assessment.--
(1) In general.--The Secretary shall carry out a
national assessment of activities carried out with
Federal funds under this Act in order--
(A) to determine the effectiveness of this
Act in achieving its purposes;
(B) to provide timely information to the
President, Congress, the States, local
educational agencies, and the public on how to
implement this Act more effectively; and
(C) to provide the President and Congress
with information that will be useful in
developing legislation to achieve the purposes
of this Act more effectively.
(2) Consultation.--The Secretary shall plan, review,
and conduct the national assessment under this
subsection in consultation with researchers, State
practitioners, local practitioners, parents of children
with disabilities, and other appropriate individuals.
(3) Scope of assessment.--The national assessment
shall assess the--
(A) implementation of programs assisted under
this Act and the impact of those programs on
addressing the developmental, educational, and
transitional needs of, and improving the
academic achievement and functional outcomes
of, children with disabilities to enable the
children to reach challenging developmental
goals and challenging State academic content
standards based on State academic assessments,
including alternate assessments;
(B) types of programs and services that have
demonstrated the greatest likelihood of helping
students reach the challenging State academic
content standards and developmental goals;
(C) implementation of the personnel
preparation and professional development
activities assisted under this Act and the
impact on instruction, student academic
achievement, and teacher qualifications to
enhance the ability of special education
teachers and regular education teachers to
improve results for children with disabilities;
and
(D) effectiveness of schools, local
educational agencies, States, and other
recipients of assistance under this Act, in
achieving the purposes of this Act in--
(i) improving the academic
achievement of children with
disabilities and their performance on
regular statewide assessments, and the
performance of children with
disabilities on alternate assessments;
(ii) improving the participation rate
of children with disabilities in the
general education curriculum;
(iii) improving the transitions of
children with disabilities at natural
transition points;
(iv) placing and serving children
with disabilities, including minority
children, in the least restrictive
environment appropriate;
(v) preventing children with
disabilities, especially children with
emotional disturbances and specific
learning disabilities, from dropping
out of school;
(vi) addressing the reading and
literacy needs of children with
disabilities;
(vii) coordinating services provided
under this Act with each other, with
other educational and pupil services
(including preschool services), and
with health and social services funded
from other sources;
(viii) improving the participation of
parents of children with disabilities
in the education of their children;
(ix) resolving disagreements between
education personnel and parents through
alternate dispute resolution activities
including mediation; and
(x) reducing the misidentification of
children, especially minority and
limited English proficient children.
(4) Interim and final reports.--The Secretary shall
submit to the President and Congress--
(A) an interim report that summarizes the
preliminary findings of the national assessment
not later than 3 years after the date of
enactment of the Individuals with Disabilities
Education Improvement Act of 2003; and
(B) a final report of the findings of the
assessment not later than 5 years after the
date of enactment of the Individuals with
Disabilities Education Improvement Act of 2003.
(c) Study on Ensuring Accountability for Students With
Significant Disabilities.--The Secretary shall carry out a
national study or studies to examine--
(1) the criteria that States use to determine
eligibility for alternate assessments and the number
and type of children who take those assessments;
(2) the validity and reliability of alternate
assessment instruments and procedures;
(3) the alignment of alternate assessments with State
academic content and achievement standards or with
alternate academic achievement standards; and
(4) the use and effectiveness of alternate
assessments in appropriately measuring student progress
and outcomes specific to individualized instructional
need.
(d) Annual Report.--The Secretary shall provide an annual
report to Congress that--
(1) summarizes the research conducted under section
662;
(2) analyzes and summarizes the data reported by the
States and the Secretary of the Interior under section
618;
(3) summarizes the studies and evaluations conducted
under this section and the timeline for their
completion;
(4) describes the extent and progress of the national
assessment; and
(5) describes the findings and determinations
resulting from reviews of State implementation of this
Act.
(e) Authorized Activities.--In carrying out this section, the
Secretary may support objective studies, evaluations, and
assessments, including studies that--
(1) analyze measurable impact, outcomes, and results
achieved by State educational agencies and local
educational agencies through their activities to reform
policies, procedures, and practices designed to improve
educational and transitional services and results for
children with disabilities;
(2) analyze State and local needs for professional
development, parent training, and other appropriate
activities that can reduce the need for disciplinary
actions involving children with disabilities;
(3) assess educational and transitional services and
results for children with disabilities from minority
backgrounds, including--
(A) data on--
(i) the number of minority children
who are referred for special education
evaluation;
(ii) the number of minority children
who are receiving special education and
related services and their educational
or other service placement;
(iii) the number of minority children
who graduated from secondary programs
with a regular diploma in the standard
number of years; and
(iv) the number of minority children
who drop out of the educational system;
and
(B) the performance of children with
disabilities from minority backgrounds on State
assessments and other performance indicators
established for all students;
(4) measure educational and transitional services and
results of children with disabilities served under this
Act, including longitudinal studies that--
(A) examine educational and transitional
services and results for children with
disabilities who are 3 through 17 years of age
and are receiving special education and related
services under this Act, using a national,
representative sample of distinct age cohorts
and disability categories; and
(B) examine educational results, transition
services, postsecondary placement, and
employment status of individuals with
disabilities, 18 through 21 years of age, who
are receiving or have received special
education and related services under this Act;
and
(5) identify and report on the placement of children
with disabilities by disability category.
(f) Study.--The Secretary shall study, and report to Congress
regarding, the extent to which States adopt policies described
in section 635(b)(1) and on the effects of those policies.
(g) Reservation for Studies and Evaluations.--
(1) In general.--Except as provided in paragraph (2)
and notwithstanding any other provision of this Act,
the Secretary may reserve not more than \1/2\ of 1
percent of the amount appropriated under parts B and C
for each fiscal year to carry out this section, of
which not more than $3,000,000 shall be available to
carry out subsection (c).
(2) Maximum amount.--The maximum amount the Secretary
may reserve under paragraph (1) for any fiscal year is
$40,000,000, increased by the cumulative rate of
inflation since fiscal year 2003.
Subpart 3--Supports To Improve Results for Children With Disabilities
SEC. 670. PURPOSES.
The purposes of this subpart are to ensure that--
(1) children with disabilities and their parents
receive training and information on their rights,
responsibilities, and protections under this Act, in
order to develop the skills necessary to cooperatively
and effectively participate in planning and decision
making relating to early intervention, educational, and
transitional services;
(2) parents, teachers, administrators, early
intervention personnel, related services personnel, and
transition personnel receive coordinated and accessible
technical assistance and information to assist them in
improving early intervention, educational, and
transitional services and results for children with
disabilities and their families; and
(3) appropriate technology and media are researched,
developed, and demonstrated, to improve and implement
early intervention, educational, and transitional
services and results for children with disabilities and
their families.
SEC. 671. PARENT TRAINING AND INFORMATION CENTERS.
(a) Program Authorized.--The Secretary may award grants to,
and enter into contracts and cooperative agreements with,
parent organizations to support parent training and information
centers to carry out activities under this section.
(b) Required Activities.--Each parent training and
information center that receives assistance under this section
shall--
(1) provide training and information that meets the
needs of parents of children with disabilities living
in the area served by the center, particularly
underserved parents and parents of children who may be
inappropriately identified, to enable their children
with disabilities to--
(A) meet developmental and functional goals,
and challenging academic achievement goals that
have been established for all children; and
(B) be prepared to lead productive
independent adult lives, to the maximum extent
possible;
(2) serve the parents of infants, toddlers, and
children with the full range of disabilities described
in section 602(3);
(3) assist parents to--
(A) better understand the nature of their
children's disabilities and their educational,
developmental, and transitional needs;
(B) communicate effectively and work
collaboratively with personnel responsible for
providing special education, early intervention
services, transition services, and related
services;
(C) participate in decisionmaking processes
and the development of individualized education
programs under part B and individualized family
service plans under part C;
(D) obtain appropriate information about the
range, type, and quality of options, programs,
services, technologies, and research based
practices and interventions, and resources
available to assist children with disabilities
and their families in school and at home;
(E) understand the provisions of this Act for
the education of, and the provision of early
intervention services to, children with
disabilities; and
(F) participate in school reform activities;
(4) in States where the State elects to contract with
the parent training and information center, contract
with State educational agencies to provide, consistent
with subparagraphs (B) and (D) of section 615(e)(2),
individuals who meet with parents to explain the
mediation process to the parents;
(5) assist parents in resolving disputes in the most
expeditious and effective way possible, including
encouraging the use, and explaining the benefits, of
alternative methods of dispute resolution, such as the
mediation process described in section 615(e);
(6) assist parents and students with disabilities to
understand their rights and responsibilities under this
Act, including those under section 615(m) on the
student's reaching the age of majority;
(7) assist parents to understand the availability of,
and how to effectively use, procedural safeguards under
this Act;
(8) assist parents in understanding, preparing for,
and participating in, the process described in section
615(f)(1)(B);
(9) establish cooperative partnerships with community
parent resource centers funded under section 672;
(10) network with appropriate clearinghouses,
including organizations conducting national
dissemination activities under section 663, and with
other national, State, and local organizations and
agencies, such as protection and advocacy agencies,
that serve parents and families of children with the
full range of disabilities described in section 602(3);
and
(11) annually report to the Secretary on--
(A) the number and demographics of parents to
whom the center provided information and
training in the most recently concluded fiscal
year;
(B) the effectiveness of strategies used to
reach and serve parents, including underserved
parents of children with disabilities; and
(C) the number of parents served who have
resolved disputes through alternative methods
of dispute resolution.
(c) Optional Activities.--A parent training and information
center that receives assistance under this section may provide
information to teachers and other professionals to assist the
teachers and professionals in improving results for children
with disabilities.
(d) Application Requirements.--Each application for
assistance under this section shall identify with specificity
the special efforts that the parent organization will
undertake--
(1) to ensure that the needs for training and
information of underserved parents of children with
disabilities in the area to be served are effectively
met; and
(2) to work with community based organizations.
(e) Distribution of Funds.--
(1) In general.--The Secretary shall--
(A) make at least 1 award to a parent
organization in each State for a parent
training and information center which is
designated as the statewide parent training and
information center; or
(B) in the case of a large State, make awards
to multiple parent training and information
centers, but only if the centers demonstrate
that coordinated services and supports will
occur among the multiple centers.
(2) Selection requirement.--The Secretary shall
select among applications submitted by parent
organizations in a State in a manner that ensures the
most effective assistance to parents, including parents
in urban and rural areas, in the State.
(f) Quarterly Review.--
(1) Meetings.--The board of directors of each parent
organization that receives an award under this section
shall meet at least once in each calendar quarter to
review the activities for which the award was made.
(2) Continuation award.--When an organization
requests a continuation award under this section, the
board of directors shall submit to the Secretary a
written review of the parent training and information
program conducted by the organization during the
preceding fiscal year.
(g) Definition of Parent Organization.--As used in this
section, the term ``parent organization'' means a private
nonprofit organization (other than an institution of higher
education) that--
(1) has a board of directors--
(A) the majority of whom are parents of
children with disabilities ages birth through
26;
(B) that includes--
(i) individuals working in the fields
of special education, related services,
and early intervention; and
(ii) individuals with disabilities;
(C) the parent and professional members of
which are broadly representative of the
population to be served; and
(2) has as its mission serving families of children
and youth with disabilities who--
(A) are ages birth through 26; and
(B) have the full range of disabilities
described in section 602(3).
SEC. 672. COMMUNITY PARENT RESOURCE CENTERS.
(a) In General.--The Secretary may award grants to, and enter
into contracts and cooperative agreements with, local parent
organizations to support parent training and information
centers that will help ensure that underserved parents of
children with disabilities, including low income parents,
parents of children with limited English proficiency, and
parents with disabilities, have the training and information
the parents need to enable the parents to participate
effectively in helping their children with disabilities--
(1) to meet developmental and functional goals, and
challenging academic achievement goals that have been
established for all children; and
(2) to be prepared to lead productive independent
adult lives, to the maximum extent possible.
(b) Required Activities.--Each community parent resource
center assisted under this section shall--
(1) provide training and information that meets the
training and information needs of parents of children
with disabilities proposed to be served by the grant,
contract, or cooperative agreement;
(2) carry out the activities required of parent
training and information centers under paragraphs (2)
through (9) of section 671(b);
(3) establish cooperative partnerships with the
parent training and information centers funded under
section 671; and
(4) be designed to meet the specific needs of
families who experience significant isolation from
available sources of information and support.
(c) Definition.--As used in this section, the term ``local
parent organization'' means a parent organization, as defined
in section 671(g), that--
(1) has a board of directors the majority of whom are
parents of children with disabilities ages birth
through 26 from the community to be served; and
(2) has as its mission serving parents of children
with disabilities who--
(A) are ages birth through 26; and
(B) have the full range of disabilities
described in section 602(3).
SEC. 673. TECHNICAL ASSISTANCE FOR PARENT TRAINING AND INFORMATION
CENTERS.
(a) In General.--The Secretary may make an award to 1 parent
organization (as defined in section 671(g)) that receives
assistance under section 671 to enable the parent organization
to provide technical assistance for developing, assisting, and
coordinating parent training and information programs carried
out by parent training and information centers receiving
assistance under sections 671 and 672.
(b) Authorized Activities.--The Secretary may provide
technical assistance to a parent training and information
center under this section in areas such as--
(1) effective national coordination of parent
training efforts, which includes encouraging
collaborative efforts among award recipients under
sections 671 and 672;
(2) dissemination of information, scientifically
based research, and research based practices and
interventions;
(3) promotion of the use of technology, including
universally designed technologies, assistive technology
devices, and assistive technology services;
(4) reaching underserved populations;
(5) including children with disabilities in general
education programs;
(6) facilitation of transitions from--
(A) early intervention services to preschool;
(B) preschool to elementary school;
(C) elementary school to secondary school;
and
(D) secondary school to postsecondary
environments; and
(7) promotion of alternative methods of dispute
resolution, including mediation.
(c) Regional Parent Centers.--The recipient of the award
described in section 673(a) shall establish no fewer than 4
regional centers from the parent training and information
centers and community parent resource centers receiving
assistance under sections 671 and 672 for the purpose of
carrying out the authorized activities described in subsection
(b). These regional centers shall be selected on the basis of
the center's--
(1) willingness to be a regional parent center;
(2) demonstrated expertise in the delivery of
required parent training and information center
activities described in section 671(b);
(3) demonstrated capacity to deliver the authorized
activities described in subsection (b);
(4) history of collaboration with other parent
training and information centers, community parent
resource centers, regional resource centers,
clearinghouses, and other projects; and
(5) geographic location.
(d) Collaboration With the Resource Centers.--The recipient
of the award described in subsection (a), in conjunction with
the regional parent centers described in subsection (c), shall
develop collaborative agreements with the geographically
appropriate Regional Resource Center to further parent and
professional collaboration.
SEC. 674. TECHNOLOGY DEVELOPMENT, DEMONSTRATION, AND UTILIZATION; AND
MEDIA SERVICES.
(a) In General.--The Secretary, on a competitive basis, shall
award grants to, and enter into contracts and cooperative
agreements with, eligible entities to support activities
described in subsections (b) and (c).
(b) Technology Development, Demonstration, and Use.--
(1) In general.--In carrying out this section, the
Secretary shall support activities to promote the
development, demonstration, and use of technology.
(2) Authorized activities.--The following activities
may be carried out under this subsection:
(A) Conducting research on and promoting the
demonstration and use of innovative, emerging,
and universally designed technologies for
children with disabilities, by improving the
transfer of technology from research and
development to practice.
(B) Supporting research, development, and
dissemination of technology with universal
design features, so that the technology is
accessible to the broadest range of individuals
with disabilities without further modification
or adaptation.
(C) Demonstrating the use of systems to
provide parents and teachers with information
and training concerning early diagnosis of,
intervention for, and effective teaching
strategies for, young children with reading
disabilities.
(D) Supporting the use of Internet-based
communications for students with cognitive
disabilities in order to maximize their
academic and functional skills.
(c) Educational Media Services; Optional Activities.--
(1) In general.--In carrying out this section, the
Secretary shall support--
(A) educational media activities that are
designed to be of educational value in the
classroom setting to children with
disabilities;
(B) providing video description, open
captioning, or closed captioning, that is
appropriate for use in the classroom setting,
of--
(i) television programs;
(ii) videos;
(iii) other materials, including
programs and materials associated with
new and emerging technologies, such as
CDs, DVDs, video streaming, and other
forms of multimedia; or
(iv) news (but only until September
30, 2006);
(C) distributing materials described in
subparagraphs (A) and (B) through such
mechanisms as a loan service; and
(D) providing free educational materials,
including textbooks, in accessible media for
visually impaired and print disabled students
in elementary schools and secondary schools.
(2) Limitation.--The video description, open
captioning, or closed captioning described in paragraph
(1)(B) shall only be provided when the description or
captioning has not been previously provided by the
producer or distributor, or has not been fully funded
by other sources.
(d) Applications.--Any eligible entity that wishes to receive
a grant, or enter into a contract or cooperative agreement,
under this section shall submit an application to the Secretary
at such time, in such manner, and containing such information
as the Secretary may require.
(e) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section such sums as may be
necessary for each of the fiscal years 2004 through 2009.
SEC. 675. ACCESSIBILITY OF INSTRUCTIONAL MATERIALS.
(a) Instructional Materials Accessibility Standard.--
(1) Accessibility standard.--Not later than 180 days
after the date of enactment of the Individuals with
Disabilities Education Improvement Act of 2003, the
Secretary shall, by rulemaking, promulgate an
Instructional Materials Accessibility Standard which
shall constitute the technical standards to be used by
publishers for the preparation of electronic files for
States under section 612(a)(22).
(2) Relationship to other laws.--For purposes of this
section:
(A) Authorized entity.--Notwithstanding the
provisions of section 106 of title 17, United
States Code, it is not an infringement of
copyright for an authorized entity to reproduce
or to distribute copies of the electronic files
described in section 612(a)(22)(B), containing
the contents of the print instructional
materials using the Instructional Materials
Accessibility Standard, if such copies are used
solely for reproduction or distribution of the
contents of such print instructional materials
in specialized formats designed exclusively for
use by the blind or other persons with print
disabilities.
(B) Publisher.--Notwithstanding the
provisions of section of 106 of title 17,
United States Code, it is not an infringement
of copyright for a publisher to create and
distribute copies of the electronic files
described in section 612(a)(22)(B), containing
the contents of the print instructional
materials using the Instructional Material
Accessibility Standard, if such copies are used
solely for reproduction or distribution of the
contents of such print instructional materials
in specialized formats designed exclusively for
use by the blind or other persons with print
disabilities.
(C) Copies.--Copies of the electronic files
containing the contents of the print
instructional materials using the Instructional
Materials Accessibility Standard shall be made
in compliance with the provisions of section
121(b) of title 17, United States Code,
regarding the reproduction and distribution of
copyrighted print instructional materials in
specialized formats.
(3) Definitions.--In this section:
(A) Instructional materials accessibility
standard.--The term ``Instructional Materials
Accessibility Standard'' means the technical
standards described in paragraph (2), to be
used in the preparation of electronic files
suitable and used solely for efficient
conversion into specialized formats.
(B) Blind or other persons with print
disabilities.--The term ``blind or other
persons with print disabilities'' means
children served under this Act and who may
qualify in accordance with the Act entitled
``An Act to provide books for the adult
blind'', approved March 3, 1931 (2 U.S.C. 135a;
46 Stat. 1487) to receive books and other
publications produced in specialized formats.
(C) Specialized formats.--The term
``specialized formats'' has the meaning given
the term in section 121(c)(3) of title 17,
United States Code, and for the purposes of
this section, includes synthesized speech,
digital audio, and large print.
(D) Print instructional materials.--The term
``print instructional materials'' means printed
textbooks and related printed core materials
that are written and published primarily for
use in elementary school and secondary school
instruction and are required by a State
educational agency or local educational agency
for use by pupils in the classroom.
(E) Authorized entity.--The term ``authorized
entity'' has the meaning given the term in
section 121(c)(1) of title 17, United States
Code.
(4) Applicability.--This section shall apply to print
instructional materials published and copyrighted after
the date on which the final rule establishing the
Instructional Materials Accessibility Standard is
published in the Federal Register.
(b) National Instructional Materials Access Center.--
(1) Establishment.--Not later than 2 years after the
date of enactment of the Individuals with Disabilities
Education Improvement Act of 2003, the Secretary shall
establish a center, to be known as the National
Instructional Materials Access Center, which shall
coordinate the acquisition and distribution of print
instructional materials prepared in the Instructional
Materials Accessibility Standard described in
subsection (a)(2).
(2) Responsibilities.--The duties of the National
Instructional Materials Access Center are the
following:
(A) To receive and maintain a catalog of
print instructional materials made available
under section 612(a)(22) and section 613(a)(6).
(B) To provide authorized entities with
access to such print instructional materials,
free of charge, in accordance with such terms
and procedures as the National Instructional
Materials Access Center may prescribe.
(C) To develop, adopt, and publish procedures
to protect against copyright infringement and
otherwise to administratively assure compliance
with title 17, United States Code, with respect
to the print instructional materials provided
under section 612(a)(22) and section 613(a)(6).
(3) Contract authorized.--To assist in carrying out
paragraph (1), the Secretary shall award, on a
competitive basis, a contract renewable on a biennial
basis with a nonprofit organization, or with a
consortium of such organizations, determined by the
Secretary to be best qualified to carry out the
responsibilities described in paragraph (2). The
contractor shall report directly to the Assistant
Secretary for Special Education and Rehabilitative
Services.
(4) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection such sums as may be necessary.
SEC. 676. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out sections
671, 672, 673, and 663 such sums as may be necessary for each
of the fiscal years 2004 through 2009.
Subpart 4--Interim Alternative Educational Settings, Behavioral
Supports, and Whole School Interventions
SEC. 681. PURPOSE.
The purpose of this subpart is to authorize resources to
foster a safe learning environment that supports academic
achievement for all students by improving the quality of
interim alternative educational settings, providing more
behavioral supports in schools, and supporting whole school
interventions.
SEC. 682. DEFINITION OF ELIGIBLE ENTITY.
In this subpart, the term ``eligible entity'' means--
(1) a local educational agency; or
(2) a consortium consisting of a local educational
agency and 1 or more of the following entities:
(A) another local educational agency;
(B) a community-based organization with a
demonstrated record of effectiveness in helping
children with disabilities who have behavioral
challenges succeed;
(C) an institution of higher education;
(D) a mental health provider; or
(E) an educational service agency.
SEC. 683. PROGRAM AUTHORIZED.
The Secretary is authorized to award grants, on a competitive
basis, to eligible entities to enable the eligible entities--
(1) to establish or expand behavioral supports and
whole school behavioral interventions by providing for
effective, research-based practices, including--
(A) comprehensive, early screening efforts
for students at risk for emotional and
behavioral difficulties;
(B) training for school staff on early
identification, prereferral, and referral
procedures;
(C) training for administrators, teachers,
related services personnel, behavioral
specialists, and other school staff in whole
school positive behavioral interventions and
supports, behavioral intervention planning, and
classroom and student management techniques;
(D) joint training for administrators,
parents, teachers, related services personnel,
behavioral specialists, and other school staff
on effective strategies for positive behavioral
interventions and behavior management
strategies that focus on the prevention of
behavior problems;
(E) developing or implementing specific
curricula, programs, or interventions aimed at
addressing behavioral problems;
(F) stronger linkages between school-based
services and community-based resources, such as
community mental health and primary care
providers; or
(G) using behavioral specialists, related
services personnel, and other staff necessary
to implement behavioral supports; or
(2) to improve interim alternative educational
settings by--
(A) improving the training of administrators,
teachers, related services personnel,
behavioral specialists, and other school staff
(including ongoing mentoring of new teachers);
(B) attracting and retaining a high quality,
diverse staff;
(C) providing for on-site counseling
services;
(D) using research-based interventions,
curriculum, and practices;
(E) allowing students to use instructional
technology that provides individualized
instruction;
(F) ensuring that the services are fully
consistent with the goals of the individual
student's IEP;
(G) promoting effective case management and
collaboration among parents, teachers,
physicians, related services personnel,
behavioral specialists, principals,
administrators, and other school staff;
(H) promoting interagency coordination and
coordinated service delivery among schools,
juvenile courts, child welfare agencies,
community mental health providers, primary care
providers, public recreation agencies, and
community-based organizations; or
(I) providing for behavioral specialists to
help students transitioning from interim
alternative educational settings reintegrate
into their regular classrooms.
SEC. 684. PROGRAM EVALUATIONS.
(a) Report and Evaluation.--Each eligible entity receiving a
grant under this subpart shall prepare and submit annually to
the Secretary a report on the outcomes of the activities
assisted under the grant.
(b) Best Practices on Website.--The Secretary shall make
available on the Department's website information for parents,
teachers, and school administrators on best practices for
interim alternative educational settings, behavior supports,
and whole school intervention.
SEC. 685. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this
subpart $50,000,000 for fiscal year 2004 and such sums as may
be necessary for each of the 5 succeeding fiscal years.
Education Sciences Reform Act of 2002
* * * * * * *
PART II--EDUCATION SCIENCES REFORM
* * * * * * *
TITLE I--EDUCATION SCIENCES REFORM
* * * * * * *
PART A--THE INSTITUTE OF EDUCATION SCIENCES
SEC. 111. ESTABLISHMENT.
(a) Establishment.--* * *
(b) Mission.--
(1) In general.--* * *
(A) the condition and progress of education
in the United States, including early childhood
education early childhood education;
* * * * * * *
(c) * * *
* * * * * * *
(3) * * *
(A) * * *
(B) the National Center for Education
Statistics (as described in part C); [and]
(C) the National Center for Education
Evaluation and Regional Assistance (as
described in part D)[.]; and
(D) the National Center for Special Education
Research (as described in part E).
* * * * * * *
SEC. 115. PRIORITIES.
(a) Proposal.--The Director shall propose to the Board
priorities for the Institute (taking into consideration long-
term research and development on core issues conducted through
the national research and development centers). The Director
shall identify topics that may require long-term research and
topics that are focused on understanding and solving particular
education problems and issues, [including those associated with
the goals and requirements established in the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.) and
the Higher Education Act of 1965 (20 U.S.C. 1001 et seq.), such
as--] including those associated with the goals and
requirements of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 6301 et seq.), the Individuals with
Disabilities Education Act (20 U.S.C. 1400 et seq.), and the
Higher Education Act of 1965 (20 U.S.C 1001 et seq.) such as--
* * * * * * *
SEC. 116. NATIONAL BOARD FOR EDUCATION SCIENCES.
(a) Establishment.--* * *
* * * * * * *
(c) * * *
* * * * * * *
(4) * * *
(A) * * *
* * * * * * *
(i) * * *
(ii) Individuals who are
knowledgeable about the educational
needs of the United States, who may
include school-based professional
educators, parents (including parents
with experience in promoting parental
involvement in education), Chief State
School Officers, State postsecondary
education executives, presidents of
institutions of higher education, local
educational agency superintendents,
early childhood experts, special
education experts, principals, members
of State or local boards of education
or Bureau-funded school boards, and
individuals from business and industry
with experience in promoting private
sector involvement in education.
* * * * * * *
PART E--NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH
SEC. 175. ESTABLISHMENT.
(a) Establishment.--There is established in the Institute a
National Center for Special Education Research.
(b) Mission.--The mission of the National Center for Special
Education Research (in this part referred to as the ``Special
Education Research Center'') is--
(1) to sponsor research to expand knowledge and
understanding of the needs of infants, toddlers, and
children with disabilities in order to improve the
developmental, educational, and transitional results of
such individuals;
(2) to sponsor research to improve services provided
under, and support the implementation of, the
Individuals with Disabilities Education Act; and
(3) to evaluate the implementation and effectiveness
of the Individuals with Disabilities Education Act in
coordination with the National Center for Education
Evaluation and Regional Assistance.
(c) Applicability of Education Sciences Reform Act of 2002.--
Parts A and F, and the standards for peer review of
applications and for the conduct and evaluation of research
under sections 133(a) and 134, respectively, shall apply to the
Secretary, the Director, and the Commissioner in carrying out
this part.
SEC. 176. COMMISSIONER FOR SPECIAL EDUCATION RESEARCH.
The Special Education Research Center shall be headed by a
Commissioner for Special Education Research (in this part
referred to as ``the Special Education Research Commissioner'')
who shall have substantial knowledge of the Special Education
Research Center's activities, including a high level of
expertise in the fields of research, research management, and
the education of children with disabilities.
SEC. 177. DUTIES.
(a) General Duties.--The Special Education Research Center
shall carry out research activities under this part consistent
with the mission described in section 175(b), such as
activities that--
(1) improve services provided under the Individuals
with Disabilities Education Act in order to improve--
(A) academic achievement, functional
outcomes, and educational results for children
with disabilities; and
(B) developmental outcomes for infants and
toddlers;
(2) identify scientifically based educational
practices that support learning and improve academic
achievement, functional outcomes, and educational
results for all students with disabilities;
(3) examine the special needs of preschool aged
children, infants, and toddlers with disabilities,
including factors that may result in developmental
delays;
(4) identify scientifically based related services
and interventions that promote participation and
progress in the general education curriculum and
general education settings;
(5) improve the alignment, compatibility, and
development of valid and reliable assessments,
including alternate assessments, as required by section
1111(b) of the Elementary and Secondary Education Act
of 1965;
(6) examine State content standards and alternate
assessments for students with significant cognitive
impairment in terms of academic achievement,
individualized instructional need, appropriate
education settings, and improved post-school results;
(7) examine the educational, developmental, and
transitional needs of children with high incidence and
low incidence disabilities;
(8) examine the extent to which overidentification
and underidentification of children with disabilities
occurs, and the causes thereof;
(9) improve reading and literacy skills of children
with disabilities;
(10) examine and improve secondary and postsecondary
education and transitional outcomes and results for
children with disabilities;
(11) examine methods of early intervention for
children with disabilities, including children with
multiple or complex developmental delays;
(12) examine and incorporate universal design
concepts in the development of standards, assessments,
curricula, and instructional methods as a method to
improve educational and transitional results for
children with disabilities;
(13) improve the preparation of personnel, including
early intervention personnel, who provide educational
and related services to children with disabilities to
increase the academic achievement and functional
performance of students with disabilities;
(14) examine the excess costs of educating a child
with a disability and expenses associated with high
cost special education and related services;
(15) help parents improve educational results for
their children, particularly related to transition
issues; and
(16) address the unique needs of children with
significant cognitive disabilities.
(b) Standards.--The Commissioner of Special Education
Research shall ensure that activities assisted under this
section--
(1) conform to high standards of quality, integrity,
accuracy, validity, and reliability;
(2) are carried out in conjunction with the standards
for the conduct and evaluation of all research and
development established by the National Center for
Education Research; and
(3) are objective, secular, neutral, and
nonideological, and are free of partisan political
influence, and racial, cultural, gender, regional, or
disability bias.
(c) Plan.--The Commissioner of Special Education Research
shall propose to the Director a research plan, developed in
collaboration with the Assistant Secretary for Special
Education and Rehabilitative Services, that--
(1) is consistent with the priorities and mission of
the Institute and the mission of the Special Education
Research Center;
(2) is carried out, updated, and modified, as
appropriate;
(3) is consistent with the purpose of the Individuals
with Disabilities Education Act;
(4) contains an appropriate balance across all age
ranges and types of children with disabilities;
(5) provides for research that is objective and uses
measurable indicators to assess its progress and
results;
(6) is coordinated with the comprehensive plan
developed under section 661 of the Individuals with
Disabilities Education Act; and
(7) provides that the research conducted under part D
of the Individuals with Disabilities Education Act is
relevant to special education practice and policy.
(d) Grants, Contracts, and Cooperative Agreements.--In
carrying out the duties under this section, the Director may
award grants to, or enter into contracts or cooperative
agreements with, eligible entities.
(e) Applications.--An eligible entity that wishes to receive
a grant, or enter into a contract or cooperative agreement,
under this part shall submit an application to the Director at
such time, in such manner, and containing such information as
the Director may require.
(f) Dissemination.--The Special Education Research Center
shall--
(1) synthesize and disseminate, through the National
Center for Education Evaluation and Regional
Assistance, the findings and results of special
education research conducted or supported by the
Special Education Research Center; and
(2) assist the Director in the preparation of a
biennial report, as described in section 119.
(g) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this part such sums as may be
necessary for each of fiscal years 2004 through 2009.
PART [E]F--GENERAL PROVISIONS
* * * * * * *
Elementary and Secondary Education Act of 1965
* * * * * * *
TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE DISADVANTAGED
* * * * * * *
PART A--IMPROVING BASIC PROGRAMS OPERATED BY LOCAL EDUCATIONAL AGENCIES
Subpart 1--Basic Program Requirements
* * * * * * *
(3) Regional centers.--Such a statewide system shall,
to the extent practicable, work with and receive
support and assistance from regional educational
laboratories established under [part E] part D of the
Education Sciences Reform Act of 2002 and comprehensive
centers established under the Educational Technical
Assistance Act of 2002 and the comprehensive regional
technical assistance centers and the regional
educational laboratories under section 941(h) of the
Educational Research, Development, Dissemination, and
Improvement Act of 1994 (as such section existed on the
day before the date of enactment of the Education
Sciences Reform Act of 2002), or other providers of
technical assistance.
* * * * * * *
Rehabilitation Act of 1973
* * * * * * *
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Rehabilitation Act of 1973''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
* * * * * * *
Part B--Basic Vocational Rehabilitation Services
Sec. 110. State allotments.
Sec. 110A. Reservation for expanded transition services.
* * * * * * *
SEC. 2. FINDINGS; PURPOSE; POLICY.
(a) Findings.--Congress finds that--
(1) * * *
* * * * * * *
(5) individuals with disabilities continually
encounter various forms of discrimination in such
critical areas as employment, housing, public
accommodations, education, transportation,
communication, recreation, institutionalization, health
services, voting, and public services; [and]
(6) the goals of the Nation properly include the goal
of providing individuals with disabilities with the
tools necessary to--
(A) make informed choices and decisions; and
(B) achieve equality of opportunity, full
inclusion and integration in society,
employment, independent living, and economic
and social self-sufficiency, for such
individuals[.]; and
(7) there is a substantial need to improve and expand
services for students with disabilities under this Act.
* * * * * * *
SEC. 7. DEFINITIONS.
For the purposes of this Act:
(1) Administrative costs.--* * *
* * * * * * *
(35)(A) The term ``student with a disability'' means
an individual with a disability who--
(i) is not younger than 14 and not older than
21;
(ii) has been determined to be eligible under
section 102(a) for assistance under this title;
and
(iii)(I) is eligible for, and is receiving,
special education under part B of the
Individuals with Disabilities Education Act (20
U.S.C. 1411 et seq.); or
(II) is an individual with a disability, for
purposes of section 504.
(B) the term ``students with disabilities'' means
more than 1 student with a disability.
[(35) (36) Supported employment.--
(A) In general.--The term ``supported
employment'' means competitive work in
integrated work settings, or employment in
integrated work settings in which individuals
are working toward competitive work, consistent
with the strengths, resources, priorities,
concerns, abilities, capabilities, interests,
and informed choice of the individuals, for
individuals with the most significant
disabilities--
(i)(I) for whom competitive
employment has not traditionally
occurred; or
(II) for whom competitive employment
has been interrupted or intermittent as
a result of a significant disability;
and
(ii) who, because of the nature and
severity of their disability, need
intensive supported employment services
for the period, and any extension,
described in [paragaph (36)(C)]
paragraph (37)(C) and extended services
after the transition described in
paragraph (13)(C) in order to perform
such work.
(B) Certain transitional employment.--Such
term includes transitional employment for
persons who are individuals with the most
significant disabilities due to mental illness.
[(36)] (37) Supported employment services.--The term
``supported employment services'' means ongoing support
services and other appropriate services needed to
support and maintain an individual with a most
significant disability in supported employment, that--
(A) are provided singly or in combination and
are organized and made available in such a way
as to assist an eligible individual to achieve
competitive employment;
(B) are based on a determination of the needs
of an eligible individual, as specified in an
individualized plan for employment; and
(C) are provided by the designated State unit
for a period of time not to extend beyond 18
months, unless under special circumstances the
eligible individual and the rehabilitation
counselor or coordinator involved jointly agree
to extend the time in order to achieve the
employment outcome identified in the
individualized plan for employment.
[(37)] (38) Transition services.--The term
``transition services'' means a coordinated set of
activities for a student, designed within an outcome-
oriented process, that promotes movement from school to
post school activities, including postsecondary
education, vocational training, integrated employment
(including supported employment), continuing and adult
education, adult services, independent living, or
community participation. The coordinated set of
activities shall be based upon the individual student's
needs, taking into account the student's preferences
and interests, and shall include instruction, community
experience, the development of employment and other
post school adult living objectives, and, when
appropriate, acquisition of daily living skills and
functional vocational evaluation.
(39) The term ``transition services expansion year''
means--
(A) the first fiscal year for which the
amount appropriated under section 100(b)
exceeds the amount appropriated under section
100(b) for fiscal year 2004 by not less than
$100,000,000; and
(B) each fiscal year subsequent to that first
fiscal year.
[(38)] (40) Vocational Rehabilitation Services.--The
term ``vocational rehabilitation services'' means those
services identified in section 103 which are provided
to individuals with disabilities under this Act.
[(39)] (41) Workforce investment activities.--The
term ``workforce investment activities'' means
workforce investment activities, as defined in section
101 of the Workforce Investment Act of 1998, that are
carried out under that Act.
* * * * * * *
SEC. 101. STATE PLANS.
(a) Plan Requirements.--
(1) In general.--
* * * * * * *
(15) Annual state goals and reports of progress.--
(A) Assessments and Estimates.--The State
plan shall--
* * * * * * *
(II) individuals with
disabilities who are minorities
and individuals with
disabilities who have been
unserved or underserved by the
vocational rehabilitation
program carried out under this
title; [and]
(III) individuals with
disabilities served through
other components of the
statewide workforce investment
system (other than the
vocational rehabilitation
program), as identified by such
individuals and personnel
assisting such individuals
through the components; and
(IV) in a transition services
expansion year; students with
disabilities, including their need for
transition services;
* * * * * * *
(D) Strategies.--The State plan shall contain
a description of the strategies the State will
use to address the needs identified in the
assessment conducted under subparagraph (A) and
achieve the goals and priorities identified in
subparagraph (C), including--
(i) * * *
* * * * * * *
(iii) in a transition services
expansion year, the methods to be used
to improve and expand vocational
rehabilitation services for students
with disabilities, including the
coordination of services designed to
facilitate the transition of such
students from the receipt of
educational services in school to the
receipt of vocational rehabilitation
services under this title or to
postsecondary education or employment;
[(iii)] (iv) where necessary, the
plan of the State for establishing,
developing, or improving community
rehabilitation programs;
[(iv)] (v) strategies to improve the
performance of the State with respect
to the evaluation standards and
performance indicators established
pursuant to section 106; and
[(v)] (vi) strategies for assisting
entities carrying out other components
of the statewide workforce investment
system (other than the vocational
rehabilitation program) in assisting
individuals with disabilities.
* * * * * * *
(25) Services for students with disabilities.--The
State plan for a transition services expansion year
shall provide an assurance satisfactory to the
Secretary that the State--
(A) has developed and implemented strategies
to address the needs identified in the
assessment described in paragraph (15), and
achieve the goals and priorities identified by
the State, to improve and expand vocational
rehabilitation services for students with
disabilities on a statewide basis in accordance
with paragraph (15); and
(B) from funds reserved under section 110A
shall carry out programs or activities designed
to improve and expand vocational rehabilitation
services for students with disabilities that--
(i) facilitate the transition of the
students with disabilities from the
receipt of educational services in
school, to the receipt of vocational
rehabilitation services under this
title, including, at a minimum, those
services specified in the interagency
agreement required in paragraph
(11)(D);
(ii) improve the achievement of post-
school goals of students with
disabilities, including improving the
achievement through participation in
meetings regarding individualized
education programs developed under
section 614 of the Individuals with
Disabilities Education Act (20 U.S.C.
1414);
(iii) provide vocational guidance,
career exploration services, and job
search skills and strategies and
technical assistance to students with
disabilities;
(iv) support the provision of
training and technical assistance to
State and local educational agency and
designated State agency personnel
responsible for the planning and
provision of services to students with
disabilities; and
(v) support outreach activities to
students with disabilities who are
eligible for, and need, services under
this title.
* * * * * * *
SEC. 103. VOCATIONAL REHABILITATION SERVICES.
(a) Vocational Rehabilitation Services for Individuals.--
* * * * * * *
(1) * * *
[(15) transition services for students with
disabilities, that facilitate the achievement of the
employment outcome identified in the individualized
plan for employment;]
(15) transition services for students with
disabilities, that facilitate the achievement of the
employment outcome identified in the individualized
plan for employment, including, in a transition
services expansion year, services described in clauses
(i) through (iii) of section 101(a)(25)(B);
* * * * * * *
(b) Vocational Rehabilitation Services for Groups of
Individuals.--Vocational rehabilitation services provided for
the benefit of groups of individuals with disabilities may also
include the following:
(1) * * *
* * * * * * *
[(6) Consultative and technical assistance services
to assist educational agencies in planning for the
transition of students with disabilities from school to
post-school activities, including employment.]
(6)(A)(i) Consultation and technical assistance
services to assist State and local educational agencies
in planning for the transition of students with
disabilities from school to post-school activities,
including employment.
(ii) In a transition services expansion year,
training and technical assistance described in section
101(a)(25)(B)(iv).
(B) In a transition services expansion year, services
for groups of individuals with disabilities who meet
the requirements of clauses (i) and (iii) of section
7(35)(A), including services described in clauses (i),
(ii), (iii), and (v) of section 101(a)(25)(B), to
assist in the transition from school to post-school
activities.
* * * * * * *
SEC. 106. EVALUATION STANDARDS AND PERFORMANCE INDICATORS.
(A) Establishment.--
(1) In General.--
(A) Establishment of standards and
indicators.--
* * * * * * *
[(C) Bases.--Effective July 1, 1999, to the
maximum extent practicable, the standards and
indicators shall be consistent with the core
indicators of performance established under
section 136(b) of the Workforce Investment Act
of 1998.
[(2) Measures.--The standards and indicators shall
include outcome and related measures of program
performance that facilitate the accomplishment of the
purpose and policy of this title.]
(2) Measures.--The standards and indicators shall
include outcome and related measures of program
performance that--
(A) facilitate the accomplishment of the
purpose and policy of this title;
(B) to the maximum extent practicable, are
consistent with the core indicators of
performance, and corresponding State adjusted
levels of performance, established under
section 136(b) of the Workforce Investment Act
of 1998 (29 U.S.C. 2871(b)); and
(C) include measures of the program's
performance with respect to the transition to
post-school activities, and achievement of the
postschool goals, of students with disabilities
served under the program.
* * * * * * *
PART B--BASIC VOCATIONAL REHABILITATION SERVICES
STATE ALLOTMENTS
Sec. 110. (a)(1) * * *
* * * * * * *
SEC. 110A. RESERVATION FOR EXPANDED TRANSITION SERVICES.
(a) Reservation.--From the State allotment under section
110 in a transition services expansion year, each State shall
reserve an amount calculated by the Commissioner under
subsection (b) to carry out programs and activities under
sections 101(a)(25)(B) and 103(b)(6).
(b) Calculation.--The Commissioner shall calculate the
amount to be reserved for such programs and activities for a
fiscal year by each State by multiplying $50,000,000 by the
percentage determined by dividing--
(1) the amount allotted to that State under section
110 for the prior fiscal year; by
(2) the total amount allotted to all States under
section 110 for that prior fiscal year.
* * * * * * *