[United States Statutes at Large, Volume 118, 108th Congress, 2nd Session]
[From the U.S. Government Publishing Office, www.gpo.gov]

118 STAT. 2647

Public Law 108-446
108th Congress

An Act


 
To reauthorize the Individuals with Disabilities Education Act, and for
other purposes. NOTE: Dec. 3, 2004 -  [H.R. 1350]

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, NOTE: Individuals with
Disabilities Education Improvement Act of 2004. 20 USC 1400 note.

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Individuals with Disabilities
Education Improvement Act of 2004''.

SEC. 2. ORGANIZATION OF THE ACT.

This Act is organized into the following titles:
Title I--Amendments to the Individuals With Disabilities
Education Act.
Title II--National Center for Special Education Research.
Title III--Miscellaneous Provisions.

TITLE I--AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

SEC. 101. AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT.

Parts A through D of the Individuals with Disabilities Education Act
(20 U.S.C. 1400 et seq.) are amended to read as follows:

``PART A--GENERAL PROVISIONS

``SEC. 601. NOTE: 20 USC 1400. SHORT TITLE; TABLE OF CONTENTS;
FINDINGS; PURPOSES.

``(a) Short Title.--This title may be cited as the `Individuals with
Disabilities Education Act'.
``(b) Table of Contents.--The table of contents for this title 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. Paperwork reduction.
``Sec. 610. Freely associated states.

[[Page 2648]]
118 STAT. 2648

``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 development grants

``Sec. 651. Purpose; definition of personnel; program authority.
``Sec. 652. Eligibility and collaborative process.
``Sec. 653. Applications.
``Sec. 654. Use of funds.
``Sec. 655. Authorization of appropriations.
``subpart 2--personnel preparation, technical assistance, model
demonstration projects, and dissemination of information

``Sec. 661. Purpose; definition of eligible entity.
``Sec. 662. Personnel development to improve services and
results for children with disabilities.
``Sec. 663. Technical assistance, demonstration projects,
dissemination of information, and
implementation of scientifically based
research.
``Sec. 664. Studies and evaluations.
``Sec. 665. Interim alternative educational settings, behavioral
supports, and systemic school interventions.
``Sec. 667. Authorization of appropriations.
``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. Authorization of appropriations.
``subpart 4--general provisions

``Sec. 681. Comprehensive plan for subparts 2 and 3.
``Sec. 682. Administrative provisions.

``(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

[[Page 2649]]
118 STAT. 2649

policy of ensuring equality of opportunity, full participation,
independent living, and economic self-sufficiency for
individuals with disabilities.
``(2) Before the date of 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 title
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 title 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) Almost 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 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 title 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 such
children 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

[[Page 2650]]
118 STAT. 2650

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
early intervening services to reduce the need to label
children as disabled in order to address the learning
and behavioral needs of such children;
``(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 diverse society.
``(B) America's ethnic profile is rapidly changing. In 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 in order
to provide appropriate role models with sufficient knowledge to
address the special education needs of these students.
``(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) Such discrepancies pose a special challenge for
special education in the referral of, assessment of, and
provision of services for, our Nation's students from non-
English language backgrounds.

[[Page 2651]]
118 STAT. 2651

``(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
White 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 full participation by minority
individuals, minority organizations, and Historically Black
Colleges and Universities in awards for grants and contracts,
boards of organizations receiving assistance under this title,
peer review panels, and training of professionals in the area of
special education is essential 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 further education,
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 system improvement 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.

[[Page 2652]]
118 STAT. 2652

``SEC. 602. NOTE: 20 USC 1401. DEFINITIONS.

``Except as otherwise provided, in this title:
``(1) Assistive technology device.--
``(A) In general.--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.
``(B) Exception.--The term does not include a
medical device that is surgically implanted, or the
replacement of such device.
``(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
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 (referred to in this title 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

[[Page 2653]]
118 STAT. 2653

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 subjects.--The term `core academic
subjects' has the meaning given the term in section 9101 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, including a
public elementary charter 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;
``(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;

[[Page 2654]]
118 STAT. 2654

``(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.--
``(A) In general.--For any special education
teacher, the term `highly qualified' has the meaning
given the term in section 9101 of the Elementary and
Secondary Education Act of 1965, except that such term
also--
``(i) includes the requirements described in
subparagraph (B); and
``(ii) includes the option for teachers to
meet the requirements of section 9101 of such Act
by meeting the requirements of subparagraph (C) or
(D).
``(B) Requirements for special education teachers.--
When used with respect to any public elementary school
or secondary school special education teacher teaching
in a State, such term means that--
``(i) the teacher has obtained full State
certification as a special education teacher
(including certification obtained through
alternative routes to certification), or passed
the State special education teacher 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 special
education certification or licensure requirements
waived on an emergency, temporary, or provisional
basis; and
``(iii) the teacher holds at least a
bachelor's degree.
``(C) Special education teachers teaching to
alternate achievement standards.--When used with respect
to a special education teacher who teaches core academic
subjects exclusively to children who are assessed
against alternate achievement standards established
under the regulations promulgated under section
1111(b)(1) of the Elementary and Secondary Education Act
of 1965, such term means the teacher, whether new or not
new to the profession, may either--
``(i) meet the applicable requirements of
section 9101 of such Act for any elementary,
middle, or secondary school teacher who is new or
not new to the profession; or
``(ii) meet the requirements of subparagraph
(B) or (C) of section 9101(23) of such Act as
applied to an elementary school teacher, or, in
the case of instruction above the elementary
level, has subject matter knowledge appropriate to
the level of instruction being provided, as
determined by the State, needed to effectively
teach to those standards.
``(D) Special education teachers teaching multiple
subjects.--When used with respect to a special education

[[Page 2655]]
118 STAT. 2655

teacher who teaches 2 or more core academic subjects
exclusively to children with disabilities, such term
means that the teacher may either--
``(i) meet the applicable requirements of
section 9101 of the Elementary and Secondary
Education Act of 1965 for any elementary, middle,
or secondary school teacher who is new or not new
to the profession;
``(ii) in the case of a teacher who is not new
to the profession, demonstrate competence in all
the core academic subjects in which the teacher
teaches in the same manner as is required for an
elementary, middle, or secondary school teacher
who is not new to the profession under section
9101(23)(C)(ii) of such Act, which may include a
single, high objective uniform State standard of
evaluation covering multiple subjects; or
``(iii) in the case of a new special education
teacher who teaches multiple subjects and who is
highly qualified in mathematics, language arts, or
science, demonstrate competence in the other core
academic subjects in which the teacher teaches in
the same manner as is required for an elementary,
middle, or secondary school teacher under section
9101(23)(C)(ii) of such Act, which may include a
single, high objective uniform State standard of
evaluation covering multiple subjects, not later
than 2 years after the date of employment.
``(E) Rule of construction.--Notwithstanding any
other individual right of action that a parent or
student may maintain under this part, nothing in this
section or part shall be construed to create a right of
action on behalf of an individual student or class of
students for the failure of a particular State
educational agency or local educational agency employee
to be highly qualified.
``(F) Definition for purposes of the esea.--A
teacher who is highly qualified under this paragraph
shall be considered highly qualified for purposes of the
Elementary and Secondary Education Act of 1965.
``(11) Homeless children.--The term `homeless children' has
the meaning given the term `homeless children and youths' in
section 725 of the McKinney-Vento Homeless Assistance Act (42
U.S.C. 11434a).
``(12) Indian.--The term `Indian' means an individual who is
a member of an Indian tribe.
``(13) 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 (43 U.S.C. 1601 et seq.)).
``(14) Individualized education program; IEP.--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).
``(15) Individualized family service plan.--The term
`individualized family service plan' has the meaning given the
term in section 636.

[[Page 2656]]
118 STAT. 2656

``(16) Infant or toddler with a disability.--The term
`infant or toddler with a disability' has the meaning given the
term in section 632.
``(17) Institution of higher education.--The term
`institution of higher education'--
``(A) has the meaning given the term in section 101
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.
``(18) Limited english proficient.--The term `limited
English proficient' has the meaning given the term in section
9101 of the Elementary and Secondary Education Act of 1965.
``(19) Local educational agency.--
``(A) In general.--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) Educational service agencies and other public
institutions or agencies.--The term includes--
``(i) an educational service agency; and
``(ii) any other public institution or agency
having administrative control and direction of a
public elementary school or secondary school.
``(C) BIA funded schools.--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 title 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.
``(20) Native language.--The term `native language', when
used with respect to an individual who is limited English
proficient, 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.
``(21) 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.
``(22) Outlying area.--The term `outlying area' means the
United States Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands.

[[Page 2657]]
118 STAT. 2657

``(23) Parent.--The term `parent' means--
``(A) a natural, adoptive, or foster parent of a
child (unless a foster parent is prohibited by State law
from serving as a parent);
``(B) a guardian (but not the State if the child is
a ward of the State);
``(C) an individual acting in the place of a natural
or adoptive parent (including a grandparent, stepparent,
or other relative) with whom the child lives, or an
individual who is legally responsible for the child's
welfare; or
``(D) except as used in sections 615(b)(2) and
639(a)(5), an individual assigned under either of those
sections to be a surrogate parent.
``(24) Parent organization.--The term `parent organization'
has the meaning given the term in section 671(g).
``(25) Parent training and information center.--The term
`parent training and information center' means a center assisted
under section 671 or 672.
``(26) Related services.--
``(A) In general.--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 nurse services designed to
enable a child with a disability to receive a free
appropriate public education as described in the
individualized education program of the child,
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.
``(B) Exception.--The term does not include a
medical device that is surgically implanted, or the
replacement of such device.
``(27) Secondary school.--The term `secondary school' means
a nonprofit institutional day or residential school, including a
public secondary charter school, that provides secondary
education, as determined under State law, except that it does
not include any education beyond grade 12.
``(28) Secretary.--The term `Secretary' means the Secretary
of Education.
``(29) 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.
``(30) 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

[[Page 2658]]
118 STAT. 2658

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.
``(31) 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.
``(32) 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.
``(33) 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).
``(34) Transition services.--The term `transition services'
means a coordinated set of activities for a child with a
disability 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 education, 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.
``(35) Universal design.--The term `universal design' has
the meaning given the term in section 3 of the Assistive
Technology Act of 1998 (29 U.S.C. 3002).
``(36) Ward of the state.--
``(A) In general.--The term `ward of the State'
means a child who, as determined by the State where the
child resides, is a foster child, is a ward of the
State, or is in the custody of a public child welfare
agency.
``(B) Exception.--The term does not include a foster
child who has a foster parent who meets the definition
of a parent in paragraph (23).

[[Page 2659]]
118 STAT. 2659

``SEC. 603. NOTE: 20 USC 1402. 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 the Department for administering and carrying out this title
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 title.

``SEC. 604. NOTE: 20 USC 1403. 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 title.
``(b) Remedies.--In a suit against a State for a violation of this
title, 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. NOTE: 20 USC 1404. ACQUISITION OF EQUIPMENT;
CONSTRUCTION OR ALTERATION OF FACILITIES.

``(a) In General.--If the Secretary determines that a program
authorized under this title 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. NOTE: 20 USC 1405. EMPLOYMENT OF INDIVIDUALS WITH
DISABILITIES.

``The Secretary shall ensure that each recipient of assistance under
this title makes positive efforts to employ and advance in employment
qualified individuals with disabilities in programs assisted under this
title.

``SEC. 607. NOTE: 20 USC 1406. REQUIREMENTS FOR PRESCRIBING
REGULATIONS.

``(a) In General.--In carrying out the provisions of this title, the
Secretary shall issue regulations under this title only to the extent
that such regulations are necessary to ensure that there is compliance
with the specific requirements of this title.

[[Page 2660]]
118 STAT. 2660

``(b) Protections Provided to Children.--The Secretary may not
implement, or publish in final form, any regulation prescribed pursuant
to this title that--
``(1) violates or contradicts any provision of this title;
or
``(2) procedurally or substantively lessens the protections
provided to children with disabilities under this title, 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 Congress in legislation.

``(c) Public Comment Period.--The Secretary shall provide a public
comment period of not less than 75 days on any regulation proposed under
part B or part C 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 title; or
``(2) establish a rule that is required for compliance with,
and eligibility under, this title 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 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 Title.--
``(1) NOTE: Federal Register, publication. 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 title or
the regulations implemented pursuant to this title.
``(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.

[[Page 2661]]
118 STAT. 2661

``SEC. 608. NOTE: 20 USC 1407. STATE ADMINISTRATION.

``(a) Rulemaking.--Each State that receives funds under this title
shall--
``(1) ensure that any State rules, regulations, and policies
relating to this title conform to the purposes of this title;
``(2) identify in writing to local educational agencies
located in the State and the Secretary any such rule,
regulation, or policy as a State-imposed requirement that is not
required by this title and Federal regulations; and
``(3) minimize the number of rules, regulations, and
policies to which the local educational agencies and schools
located in the State are subject under this title.

``(b) Support and Facilitation.--State rules, regulations, and
policies under this title shall support and facilitate local educational
agency and school-level system improvement designed to enable children
with disabilities to meet the challenging State student academic
achievement standards.

``SEC. 609. NOTE: 20 USC 1408. PAPERWORK REDUCTION.

``(a) Pilot Program.--
``(1) Purpose.--The purpose of this section is to provide an
opportunity for States to identify ways to reduce paperwork
burdens and other administrative duties that are directly
associated with the requirements of this title, in order to
increase the time and resources available for instruction and
other activities aimed at improving educational and functional
results for children with disabilities.
``(2) Authorization.--
``(A) In general.--In order to carry out the purpose
of this section, the Secretary is authorized to grant
waivers of statutory requirements of, or regulatory
requirements relating to, part B for a period of time
not to exceed 4 years with respect to not more than 15
States based on proposals submitted by States to reduce
excessive paperwork and noninstructional time burdens
that do not assist in improving educational and
functional results for children with disabilities.
``(B) Exception.--The Secretary shall not waive
under this section any statutory requirements of, or
regulatory requirements relating to, applicable civil
rights requirements.
``(C) Rule of construction.--Nothing in this section
shall be construed to--
``(i) affect the right of a child with a
disability to receive a free appropriate public
education under part B; and
``(ii) permit a State or local educational
agency to waive procedural safeguards under
section 615.
``(3) Proposal.--
``(A) In general.--A State desiring to participate
in the program under this section shall submit a
proposal to the Secretary at such time and in such
manner as the Secretary may reasonably require.
``(B) Content.--The proposal shall include--
``(i) a list of any statutory requirements of,
or regulatory requirements relating to, part B
that the State

[[Page 2662]]
118 STAT. 2662

desires the Secretary to waive, in whole or in
part; and
``(ii) a list of any State requirements that
the State proposes to waive or change, in whole or
in part, to carry out a waiver granted to the
State by the Secretary.
``(4) Termination of waiver.--The Secretary shall terminate
a State's waiver under this section if the Secretary determines
that the State--
``(A) needs assistance under section
616(d)(2)(A)(ii) and that the waiver has contributed to
or caused such need for assistance;
``(B) needs intervention under section
616(d)(2)(A)(iii) or needs substantial intervention
under section 616(d)(2)(A)(iv); or
``(C) failed to appropriately implement its waiver.

``(b) Report.--Beginning 2 years after the date of enactment of the
Individuals with Disabilities Education Improvement Act of 2004, the
Secretary shall include in the annual report to Congress submitted
pursuant to section 426 of the Department of Education Organization Act
information related to the effectiveness of waivers granted under
subsection (a), including any specific recommendations for broader
implementation of such waivers, in--
``(1) reducing--
``(A) the paperwork burden on teachers, principals,
administrators, and related service providers; and
``(B) noninstructional time spent by teachers in
complying with part B;
``(2) enhancing longer-term educational planning;
``(3) improving positive outcomes for children with
disabilities;
``(4) promoting collaboration between IEP Team members; and
``(5) ensuring satisfaction of family members.

``SEC. 610. NOTE: 20 USC 1409. FREELY ASSOCIATED STATES.

``The Republic of the Marshall Islands, the Federated States of
Micronesia, and the Republic of Palau shall continue to be eligible for
competitive grants administered by the Secretary under this title to the
extent that such grants continue to be available to States and local
educational agencies under this title.

``PART B--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES

``SEC. 611. NOTE: 20 USC 1411. AUTHORIZATION; ALLOTMENT; USE OF
FUNDS; AUTHORIZATION OF APPROPRIATIONS.

``(a) Grants to States.--
``(1) Purpose of grants.--The Secretary shall make grants to
States, outlying areas, and freely associated States, 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 of the grant a
State may receive under this section--
``(A) for fiscal years 2005 and 2006 is--

[[Page 2663]]
118 STAT. 2663

``(i) 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
``(ii) 40 percent of the average per-pupil
expenditure in public elementary schools and
secondary schools in the United States; and
``(B) for fiscal year 2007 and subsequent fiscal
years is--
``(i) the number of children with disabilities
in the 2004-2005 school year in the State who
received 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
``(ii) 40 percent of the average per-pupil
expenditure in public elementary schools and
secondary schools in the United States; adjusted
by
``(iii) the rate of annual change in the sum
of--
``(I) 85 percent of such State's
population described in subsection
(d)(3)(A)(i)(II); and
``(II) 15 percent of such State's
population described in subsection
(d)(3)(A)(i)(III).

``(b) Outlying Areas and Freely Associated States; Secretary of the
Interior.--
``(1) Outlying areas and freely associated states.--
``(A) 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--
``(i) to provide assistance to the outlying
areas in accordance with their respective
populations of individuals aged 3 through 21; and
``(ii) 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 2004.
``(B) 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.
``(C) Definition.--In this paragraph, the term
`freely associated States' means the Republic of the
Marshall Islands, the Federated States of Micronesia,
and the Republic of Palau.
``(2) 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 (h).

``(c) Technical Assistance.--

[[Page 2664]]
118 STAT. 2664

``(1) In general.--The Secretary may reserve not more than
\1/2\ of 1 percent of the amounts appropriated under this part
for each fiscal year to provide technical assistance activities
authorized under section 616(i).
``(2) Maximum amount.--The maximum amount the Secretary may
reserve under paragraph (1) for any fiscal year is $25,000,000,
cumulatively adjusted by 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.

``(d) Allocations to States.--
``(1) In general.--After reserving funds for technical
assistance, 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:

[[Page 2665]]
118 STAT. 2665

``(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.

[[Page 2666]]
118 STAT. 2666

``(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 for each fiscal
year not more than the maximum amount the State
was eligible to reserve for State administration
under this section for fiscal year 2004 or
$800,000 (adjusted in accordance with subparagraph
(B)), whichever is greater; and
``(ii) each outlying area may reserve for each
fiscal year not more than 5 percent of the amount
the outlying area receives under subsection (b)(1)
for the fiscal year or $35,000, whichever is
greater.
``(B) Cumulative annual adjustments.--For each
fiscal year beginning with fiscal year 2005, the
Secretary shall cumulatively adjust--
``(i) the maximum amount the State was
eligible to reserve for State administration under
this part for fiscal year 2004; and
``(ii) $800,000,
by 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) 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.
``(D) 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 such part.
``(2) Other state-level activities.--
``(A) State-level activities.--
``(i) In general.--Except as provided in
clause (iii), for the purpose of carrying out
State-level activities, each State may reserve for
each of the fiscal years 2005 and 2006 not more
than 10 percent from the amount of the State's
allocation under subsection (d) for each of the
fiscal years 2005 and 2006, respectively. For
fiscal year 2007 and each subsequent fiscal

[[Page 2667]]
118 STAT. 2667

year, the State may reserve the maximum amount the
State was eligible to reserve under the preceding
sentence for fiscal year 2006 (cumulatively
adjusted by 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).
``(ii) Small state adjustment.--
Notwithstanding clause (i) and except as provided
in clause (iii), in the case of a State for which
the maximum amount reserved for State
administration is not greater than $850,000, the
State may reserve for the purpose of carrying out
State-level activities for each of the fiscal
years 2005 and 2006, not more than 10.5 percent
from the amount of the State's allocation under
subsection (d) for each of the fiscal years 2005
and 2006, respectively. For fiscal year 2007 and
each subsequent fiscal year, such State may
reserve the maximum amount the State was eligible
to reserve under the preceding sentence for fiscal
year 2006 (cumulatively adjusted by 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).
``(iii) Exception.--If a State does not
reserve funds under paragraph (3) for a fiscal
year, then--
``(I) in the case of a State that is
not described in clause (ii), for fiscal
year 2005 or 2006, clause (i) shall be
applied by substituting `9.0 percent'
for `10 percent'; and
``(II) in the case of a State that
is described in clause (ii), for fiscal
year 2005 or 2006, clause (ii) shall be
applied by substituting `9.5 percent'
for `10.5 percent'.
``(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 process required by section 615(e),
including providing for the cost of mediators and
support personnel.
``(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 appropriate mental health services
for children with disabilities.

[[Page 2668]]
118 STAT. 2668

``(iv) To improve the use of technology in the
classroom by children with disabilities to enhance
learning.
``(v) To support the use of technology,
including technology with universal design
principles and assistive technology devices, to
maximize accessibility to the general education
curriculum for children with disabilities.
``(vi) Development and implementation of
transition programs, including coordination of
services with agencies involved in supporting the
transition of children with disabilities to
postsecondary 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
with disabilities who have been expelled from
school, and services for children with
disabilities in correctional facilities, children
enrolled in State-operated or State-supported
schools, and children with disabilities 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.
``(xi) To provide technical assistance to
schools and local educational agencies, and direct
services, including supplemental educational
services as defined in 1116(e) of the Elementary
and Secondary Education Act of 1965 to children
with disabilities, in schools or local educational
agencies identified for improvement under section
1116 of the Elementary and Secondary Education Act
of 1965 on the sole basis of the assessment
results of the disaggregated subgroup of children
with disabilities, including providing
professional development to special and regular
education teachers, who teach children with
disabilities, based on scientifically based
research to improve educational instruction, in
order to improve academic achievement to meet or
exceed the objectives established by the State
under section 1111(b)(2)(G) the Elementary and
Secondary Education Act of 1965.
``(3) Local educational agency risk pool.--
``(A) In general.--
``(i) Reservation of funds.--For the purpose
of assisting local educational agencies (including
a charter school that is a local educational
agency or a consortium of local educational
agencies) in addressing the needs of high need
children with disabilities, each State shall have
the option to reserve for each fiscal year 10
percent of the amount of funds the State reserves
for State-level activities under paragraph
(2)(A)--

[[Page 2669]]
118 STAT. 2669

``(I) to establish and make
disbursements from the high cost fund to
local educational agencies in accordance
with this paragraph during the first and
succeeding fiscal years of the high cost
fund; and
``(II) to support innovative and
effective ways of cost sharing by the
State, by a local educational agency, or
among a consortium of local educational
agencies, as determined by the State in
coordination with representatives from
local educational agencies, subject to
subparagraph (B)(ii).
``(ii) Definition of local educational
agency.--In this paragraph the term `local
educational agency' includes a charter school that
is a local educational agency, or a consortium of
local educational agencies.
``(B) Limitation on uses of funds.--
``(i) Establishment of high cost fund.--A
State shall not use any of the funds the State
reserves pursuant to subparagraph (A)(i), but may
use the funds the State reserves under paragraph
(1), to establish and support the high cost fund.
``(ii) Innovative and effective cost
sharing.--A State shall not use more than 5
percent of the funds the State reserves pursuant
to subparagraph (A)(i) for each fiscal year to
support innovative and effective ways of cost
sharing among consortia of local educational
agencies.
``(C) State plan for high cost fund.--
``(i) Definition.--The State educational
agency shall establish the State's definition of a
high need child with a disability, which
definition shall be developed in consultation with
local educational agencies.
``(ii) NOTE: Deadline. State plan.--The
State educational agency shall develop, not later
than 90 days after the State reserves funds under
this paragraph, annually review, and amend as
necessary, a State plan for the high cost fund.
Such State plan shall--
``(I) establish, in coordination
with representatives from local
educational agencies, a definition of a
high need child with a disability that,
at a minimum--
``(aa) addresses the
financial impact a high need
child with a disability has on
the budget of the child's local
educational agency; and
``(bb) ensures that the cost
of the high need child with a
disability is greater than 3
times the average per pupil
expenditure (as defined in
section 9101 of the Elementary
and Secondary Education Act of
1965) in that State;
``(II) establish eligibility
criteria for the participation of a
local educational agency that, at a
minimum, takes into account the number
and percentage of high need children
with disabilities served by a local
educational agency;

[[Page 2670]]
118 STAT. 2670

``(III) develop a funding mechanism
that provides distributions each fiscal
year to local educational agencies that
meet the criteria developed by the State
under subclause (II); and
``(IV) establish an annual schedule
by which the State educational agency
shall make its distributions from the
high cost fund each fiscal year.
``(iii) NOTE: Deadline. Public
availability.--The State shall make its final
State plan publicly available not less than 30
days before the beginning of the school year,
including dissemination of such information on the
State website.
``(D) Disbursements from the high cost fund.--
``(i) In general.--Each State educational
agency shall make all annual disbursements from
the high cost fund established under subparagraph
(A)(i) in accordance with the State plan published
pursuant to subparagraph (C).
``(ii) Use of disbursements.--Each State
educational agency shall make annual disbursements
to eligible local educational agencies in
accordance with its State plan under subparagraph
(C)(ii).
``(iii) Appropriate costs.--The costs
associated with educating a high need child with a
disability under subparagraph (C)(i) are only
those costs associated with providing direct
special education and related services to such
child that are identified in such child's 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 a child with a disability to ensure
a free appropriate public education for such child.
``(F) Assurance of a free appropriate public
education.--Nothing in this paragraph 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 the
least restrictive environment pursuant to section
612(a)(5); or
``(ii) to authorize a State educational agency
or local educational agency to establish a limit
on what may be spent on the education of a child
with a disability.
``(G) Special rule for risk pool and high need
assistance programs in effect as of january 1, 2004.--
Notwithstanding the provisions of subparagraphs (A)
through (F), a State may use funds reserved pursuant to
this paragraph for implementing a placement neutral cost
sharing and reimbursement program of high need, low
incidence, catastrophic, or extraordinary aid to local
educational agencies that provides services to high need
students based on eligibility criteria for such programs
that were created not later than January 1, 2004, and
are currently in operation, if such program serves
children that meet the requirement of the definition of
a high need

[[Page 2671]]
118 STAT. 2671

child with a disability as described in subparagraph
(C)(ii)(I).
``(H) Medicaid services not affected.--Disbursements
provided under this paragraph shall not be used to pay
costs that otherwise would be reimbursed as medical
assistance for a child with a disability under the State
medicaid program under title XIX of the Social Security
Act.
``(I) Remaining funds.--Funds reserved under
subparagraph (A) in any fiscal year but not expended in
that fiscal year pursuant to subparagraph (D) shall be
allocated to local educational agencies for the
succeeding fiscal year in the same manner as funds are
allocated to local educational agencies under subsection
(f) for the succeeding fiscal year.
``(4) Inapplicability of certain prohibitions.--A State may
use funds the State reserves under paragraphs (1) and (2)
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
title; and
``(B) will be allocated among the activities
described in this section to meet State priorities based
on input from local educational agencies.
``(6) Special rule for increased funds.--A State may use
funds the State reserves under paragraph (1)(A) as a result of
inflationary increases under paragraph (1)(B) to carry out
activities authorized under clause (i), (iii), (vii), or (viii)
of paragraph (2)(C).
``(7) 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 preliteracy, 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, or elementary
school as appropriate.

``(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.

[[Page 2672]]
118 STAT. 2672

``(2) Procedure for allocations to local educational
agencies.--For each fiscal year for which funds are allocated to
States under subsection (d), each State shall allocate funds
under paragraph (1) as follows:
``(A) 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.
``(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.
``(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.--In this section:
``(1) Average per-pupil expenditure in public elementary
schools and secondary schools in the united states.--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 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.
``(2) State.--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.--

[[Page 2673]]
118 STAT. 2673

``(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 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 (b)(2) for that fiscal
year. Of the amount described in the preceding
sentence--
``(i) 80 percent shall be allocated to such
schools by July 1 of that fiscal year; and
``(ii) 20 percent shall be allocated to such
schools by September 30 of 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 (referred to in this subsection as the
`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 those 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 related to the requirements described in
subparagraph (A);
``(D) includes an assurance that the Secretary of
the Interior will provide such information as the
Secretary of Education may require to comply with
section 618;

[[Page 2674]]
118 STAT. 2674

``(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 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.--The Secretary shall withhold payments
under this subsection with respect to the information described
in paragraph (2) in the same manner as the Secretary withholds
payments under section 616(e)(6).
``(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 the Indian Self-Determination
and Education Assistance Act) or consortia of tribes or
tribal organizations 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 (b)(2).
``(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, tribal organization, or consortium an amount
based on the number of children with disabilities aged 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

[[Page 2675]]
118 STAT. 2675

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 tribe or tribal organization
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 title.
Such plan shall provide for the coordination of services
benefiting those 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 educational
agencies 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)(21), 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

[[Page 2676]]
118 STAT. 2676

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 of the
Interior'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 early
intervention services or 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--
``(1) $12,358,376,571 for fiscal year 2005;
``(2) $14,648,647,143 for fiscal year 2006;
``(3) $16,938,917,714 for fiscal year 2007;
``(4) $19,229,188,286 for fiscal year 2008;
``(5) $21,519,458,857 for fiscal year 2009;
``(6) $23,809,729,429 for fiscal year 2010;
``(7) $26,100,000,000 for fiscal year 2011; and
``(8) such sums as may be necessary for fiscal year 2012 and
each succeeding fiscal year.

``SEC. 612. NOTE: 20 USC 1412. 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--

[[Page 2677]]
118 STAT. 2677

``(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; 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 who are homeless children or are wards of
the State and 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 title 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.--

[[Page 2678]]
118 STAT. 2678

``(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 for services
under this title will be selected and administered so as
not to be racially or culturally discriminatory. Such
materials or procedures shall be provided and
administered in the child's native language or mode of
communication, unless it clearly is not feasible to do
so, and no single procedure shall be the sole criterion
for determining an appropriate educational program for a
child.
``(7) Evaluation.--Children with disabilities are evaluated
in accordance with subsections (a) through (c) of section 614.
``(8) Confidentiality.--Agencies in the State comply with
section 617(c) (relating to the confidentiality of records and
information).
``(9) Transition from part c to preschool programs.--
Children participating in early intervention programs assisted
under part C, and who will participate in preschool programs
assisted under this part, experience a smooth and effective
transition to those preschool programs in a manner consistent
with section 637(a)(9). 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

[[Page 2679]]
118 STAT. 2679

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
private school children) by the local
educational agency shall be equal to a
proportionate amount of Federal funds
made available under this part.
``(II) In calculating the
proportionate amount of Federal funds,
the local educational agency, after
timely and meaningful consultation with
representatives of private schools as
described in clause (iii), shall conduct
a thorough and complete child find
process to determine the number of
parentally placed children with
disabilities attending private schools
located in the local educational agency.
``(III) Such services to parentally
placed private school children with
disabilities may be provided to the
children on the premises of private,
including religious, schools, to the
extent consistent with law.
``(IV) State and local funds may
supplement and in no case shall supplant
the proportionate amount of Federal
funds required to be expended under this
subparagraph.
``(V) Each local educational agency
shall maintain in its records and
provide to the State educational agency
the number of children evaluated under
this subparagraph, the number of
children determined to be children with
disabilities under this paragraph, and
the number of children served under this
paragraph.
``(ii) Child find requirement.--
``(I) In general.--The requirements
of paragraph (3) (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.
``(II) Equitable participation.--The
child find process shall be designed to
ensure the equitable participation of
parentally placed private school
children with disabilities 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 the agency's public
school children.
``(IV) Cost.--The cost of carrying
out this clause, including individual
evaluations, may not be considered in
determining whether a local educational
agency has met its obligations under
clause (i).

[[Page 2680]]
118 STAT. 2680

``(V) Completion period.--Such child
find process shall be completed in a
time period comparable to that for other
students attending public schools in the
local educational agency.
``(iii) Consultation.--To ensure timely and
meaningful consultation, a local educational
agency, or where appropriate, a State educational
agency, shall consult with private school
representatives and representatives of parents of
parentally placed private school children with
disabilities during the design and development of
special education and related services for the
children, including 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 amount of Federal funds
available to serve parentally placed
private school children with
disabilities under this subparagraph,
including the determination of how the
amount was calculated;
``(III) the consultation process
among the local educational agency,
private school officials, and
representatives of parents of parentally
placed private school children with
disabilities, including how such process
will operate throughout the school year
to ensure that parentally placed private
school 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 with
disabilities, including a discussion of
types of services, including direct
services and 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 or the types of
services, whether provided directly or
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 directly or through a contract.
``(iv) Written affirmation.--When timely and
meaningful consultation as required by clause
(iii) has occurred, the local educational agency
shall obtain a written affirmation signed by the
representatives of participating private schools,
and if such representatives do not provide such
affirmation within a reasonable period of time,
the local educational agency shall

[[Page 2681]]
118 STAT. 2681

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 submit
a complaint 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 submit a
complaint, the official shall provide
the basis of the noncompliance with this
subparagraph 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
submit a complaint to the Secretary by
providing the basis of the noncompliance
with this subparagraph 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) Directly or through
contracts.--The provision of services
pursuant to this subparagraph shall be
provided--
``(aa) by employees of a
public agency; or
``(bb) through contract by
the public agency with an
individual, association, agency,
organization, or other entity.
``(II) Secular, neutral,
nonideological.--Special education and
related services provided to parentally
placed private school children with
disabilities, 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 subparagraph, 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
title, 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.

[[Page 2682]]
118 STAT. 2682

``(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 educational agencies
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 item
(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

[[Page 2683]]
118 STAT. 2683

``(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;
``(bb) the parents had not
received notice, pursuant to
section 615, of the notice
requirement in clause (iii)(I);
or
``(cc) compliance with
clause (iii)(I) would likely
result in physical harm to the
child; 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 or cannot write in
English; or
``(bb) compliance with
clause (iii)(I) would likely
result in 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;
``(ii) all educational programs for children
with disabilities in the State, including all such
programs administered by any other State agency 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; and
``(iii) in carrying out this part with respect
to homeless children, the requirements of subtitle
B of title VII of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11431 et seq.) are met.
``(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.--

[[Page 2684]]
118 STAT. 2684

``(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(26)
relating to related services, 602(33) relating to
supplementary aids and services, and 602(34)
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

[[Page 2685]]
118 STAT. 2685

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 qualifications.--
``(A) In general.--The State educational agency has
established and maintains qualifications 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 qualifications under
subparagraph (A) include qualifications 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

[[Page 2686]]
118 STAT. 2686

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) Qualifications for special education
teachers.--The qualifications described in subparagraph
(A) shall ensure that each person employed as a special
education teacher in the State who teaches elementary
school, middle school, or secondary school is highly
qualified by the deadline established in section
1119(a)(2) of the Elementary and Secondary Education Act
of 1965.
``(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
paragraph 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 title, 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 dropout
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) NOTE: Reports. 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),
which may include elements of the reports required under
section 1111(h) of the Elementary and Secondary
Education Act of 1965.
``(16) Participation in assessments.--
``(A) In general.--All children with disabilities
are included in all general State and districtwide
assessment programs, including assessments described
under section

[[Page 2687]]
118 STAT. 2687

1111 of the Elementary and Secondary Education Act of
1965, with appropriate accommodations and 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 (A) with
accommodations 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 standards
and challenging student academic
achievement standards; and
``(II) if the State has adopted
alternate academic achievement standards
permitted under the regulations
promulgated to carry out 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 alternate 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.

[[Page 2688]]
118 STAT. 2688

``(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 which the State fails to comply with
the requirement of subparagraph (A) by the same amount
by which the State fails to meet the requirement.
``(C) Waivers for exceptional or uncontrollable
circumstances.--The Secretary may waive the requirement
of subparagraph (A) for a State, for 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

[[Page 2689]]
118 STAT. 2689

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) Rule of construction.--In complying with paragraphs
(17) and (18), a State may not use funds paid to it under this
part to satisfy State-law mandated funding obligations to local
educational agencies, including funding based on student
attendance or enrollment, or inflation.
``(21) State advisory panel.--
``(A) In general.--The State has established and
maintains an advisory panel for the purpose of providing
policy guidance with respect to special education and
related services for children with disabilities in the
State.
``(B) Membership.--Such advisory panel shall consist
of members appointed by the Governor, or any other
official authorized under State law to make such
appointments, be representative of the State population,
and be 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,
including officials who carry out activities under
subtitle B of title VII of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11431 et seq.);
``(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) not less than 1 representative of a
vocational, community, or business organization
concerned with the provision of transition
services to children with disabilities;
``(x) a representative from the State child
welfare agency responsible for foster care; and
``(xi) 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 (ages birth
through 26).
``(D) Duties.--The advisory panel shall--

[[Page 2690]]
118 STAT. 2690

``(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, including data disaggregated by race and
ethnicity, 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 positive behavioral interventions and supports, and
procedural safeguards, to ensure that such policies,
procedures, and practices comply with this title.
``(23) Access to instructional materials.--
``(A) In general.--The State adopts the National
Instructional Materials Accessibility Standard 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 National
Instructional Materials Accessibility Standard in the
Federal Register.
``(B) Rights of state educational agency.--Nothing
in this paragraph shall be construed to require any
State educational agency to coordinate with the National
Instructional Materials Access Center. If a State
educational agency chooses not to coordinate with the
National Instructional Materials Access Center, such
agency shall provide an assurance to the Secretary that
the agency will provide instructional materials to blind
persons or other persons with print disabilities in a
timely manner.
``(C) NOTE: Deadline. Contracts. Preparation and
delivery of files.--If a State educational agency
chooses to coordinate with the National Instructional
Materials Access Center, not later than 2 years after
the date of enactment of the Individuals with
Disabilities Education Improvement Act of 2004, the

[[Page 2691]]
118 STAT. 2691

agency, as part of any print instructional materials
adoption process, procurement contract, or other
practice or instrument used for purchase of print
instructional materials, shall enter into a written
contract with the publisher of the print instructional
materials to--
``(i) require the publisher to prepare and, on
or before delivery of the print instructional
materials, provide to the National Instructional
Materials Access Center electronic files
containing the contents of the print instructional
materials using the National Instructional
Materials Accessibility Standard; or
``(ii) purchase instructional materials from
the publisher that are produced in, or may be
rendered in, specialized formats.
``(D) Assistive technology.--In carrying out this
paragraph, the State educational agency, to the maximum
extent possible, shall work collaboratively with the
State agency responsible for assistive technology
programs.
``(E) Definitions.--In this paragraph:
``(i) National instructional materials access
center.--The term `National Instructional
Materials Access Center' means the center
established pursuant to section 674(e).
``(ii) National instructional materials
accessibility standard.--The term `National
Instructional Materials Accessibility Standard'
has the meaning given the term in section
674(e)(3)(A).
``(iii) Specialized formats.--The term
`specialized formats' has the meaning given the
term in section 674(e)(3)(D).
``(24) Overidentification and disproportionality.--The State
has in effect, consistent with the purposes of this title and
with section 618(d), policies and procedures designed to prevent
the inappropriate overidentification or disproportionate
representation by race and ethnicity of children as children
with disabilities, including children with disabilities with a
particular impairment described in section 602.
``(25) Prohibition on mandatory medication.--
``(A) In general.--The State educational agency
shall prohibit State and local educational agency
personnel from requiring a child to obtain a
prescription for a substance covered by the Controlled
Substances Act (21 U.S.C. 801 et seq.) as a condition of
attending school, receiving an evaluation under
subsection (a) or (c) of section 614, or receiving
services under this title.
``(B) Rule of construction.--Nothing in subparagraph
(A) shall be construed to create a Federal prohibition
against teachers and other school personnel consulting
or sharing classroom-based observations with parents or
guardians regarding a student's academic and functional
performance, or behavior in the classroom or school, or
regarding the need for evaluation for special education
or related services under paragraph (3).

[[Page 2692]]
118 STAT. 2692

``(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 2004, 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 NOTE: Termination date. 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. NOTE: Applicability. 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 2004, the provisions of this title
are amended (or the regulations developed to carry out this
title are amended), there is a new interpretation of this title
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) NOTE: Notification. 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

[[Page 2693]]
118 STAT. 2693

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 that 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) NOTE: Deadlines. 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 not less than 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

[[Page 2694]]
118 STAT. 2694

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. NOTE: 20 USC 1413. 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--

[[Page 2695]]
118 STAT. 2695

``(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) Adjustment to local fiscal effort in certain
fiscal years.--
``(i) Amounts in excess.--Notwithstanding
clauses (ii) and (iii) of subparagraph (A), for
any fiscal year for which the allocation received
by a local educational agency under section 611(f)
exceeds the amount the local educational agency
received for the previous fiscal year, the local
educational agency may reduce the level of
expenditures otherwise required by subparagraph
(A)(iii) by not more than 50 percent of the amount
of such excess.
``(ii) Use of amounts to carry out activities
under esea.--If a local educational agency
exercises the authority under clause (i), the
agency shall use an amount of local funds equal to
the reduction in expenditures under clause (i) to
carry out activities authorized under the
Elementary and Secondary Education Act of 1965.
``(iii) State prohibition.--Notwithstanding
clause (i), if a State educational agency
determines that a local educational agency is
unable to establish and maintain programs of free
appropriate public education that meet the
requirements of subsection (a) or the State
educational agency has taken action against the
local educational agency under section 616, the
State educational agency shall prohibit the local
educational agency from reducing the level of
expenditures under clause (i) for that fiscal
year.
``(iv) Special rule.--The amount of funds
expended by a local educational agency under
subsection (f) shall count toward the maximum
amount of expenditures such local educational
agency may reduce under clause (i).
``(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.

[[Page 2696]]
118 STAT. 2696

``(3) Personnel development.--The local educational agency
shall ensure that all personnel necessary to carry out this part
are appropriately and adequately prepared, subject to the
requirements of section 612(a)(14) 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).
``(iii) High cost education and related
services.--To establish and implement cost or risk
sharing funds, consortia, or cooperatives for the
local educational agency itself, or for local
educational agencies working in a consortium of
which the local educational agency is a part, to
pay for high cost special education and related
services.
``(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--
``(i) on the same basis as the local
educational agency provides funds to the local
educational agency's other public schools,
including proportional distribution based on
relative enrollment of children with disabilities;
and

[[Page 2697]]
118 STAT. 2697

``(ii) at the same time as the agency
distributes other Federal funds to the agency's
other public schools, consistent with the State's
charter school law.
``(6) Purchase of instructional materials.--
``(A) NOTE: Deadline. In general.--Not later
than 2 years after the date of enactment of the
Individuals with Disabilities Education Improvement Act
of 2004, a local educational agency that chooses to
coordinate with the National Instructional Materials
Access Center, when purchasing print instructional
materials, shall acquire the print instructional
materials in the same manner and subject to the same
conditions as a State educational agency acquires print
instructional materials under section 612(a)(23).
``(B) Rights of local educational agency.--Nothing
in this paragraph shall be construed to require a local
educational agency to coordinate with the National
Instructional Materials Access Center. If a local
educational agency chooses not to coordinate with the
National Instructional Materials Access Center, the
local educational agency shall provide an assurance to
the State educational agency that the local educational
agency will provide instructional materials to blind
persons or other persons with print disabilities in a
timely manner.
``(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 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 2004, 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

[[Page 2698]]
118 STAT. 2698

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 2004, the provisions
of this title are amended (or the regulations developed to carry
out this title are amended), there is a new interpretation of
this title 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

[[Page 2699]]
118 STAT. 2699

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 have
received 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 reduced by the
agency 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 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 have not been identified as needing special education or
related services but who need additional academic and behavioral
support to succeed in a general education environment.
``(2) Activities.--In implementing coordinated, early
intervening 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
instruction and behavioral interventions, including
scientifically based literacy instruction, and, where
appropriate, instruction on the use of adaptive and
instructional software; and

[[Page 2700]]
118 STAT. 2700

``(B) providing educational and behavioral
evaluations, services, and supports, including
scientifically based literacy instruction.
``(3) Construction.--Nothing in this subsection shall be
construed to 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 services
under this subsection shall annually report to the State
educational agency on--
``(A) the number of students served under this
subsection; and
``(B) the number of students served under this
subsection who subsequently receive special education
and related services under this title during the
preceding 2-year period.
``(5) Coordination with elementary and secondary education
act of 1965.--Funds made available to carry out this subsection
may be used to carry out coordinated, early intervening 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.

``(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 local educational
agency or State 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
educational 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--

[[Page 2701]]
118 STAT. 2701

``(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) Adjustment to state fiscal effort in certain fiscal
years.--For any fiscal year for which the allotment received by
a State under section 611 exceeds the amount the State received
for the previous fiscal year and if the State in school year
2003-2004 or any subsequent school year pays or reimburses all
local educational agencies within the State from State revenue
100 percent of the non-Federal share of the costs of special
education and related services, the State educational agency,
notwithstanding paragraphs (17) and (18) of section 612(a) and
section 612(b), may reduce the level of expenditures from State
sources for the education of children with disabilities by not
more than 50 percent of the amount of such excess.
``(2) Prohibition.--Notwithstanding paragraph (1), 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, or
that the State needs assistance, intervention, or substantial
intervention under section 616(d)(2)(A), the Secretary shall
prohibit the State educational agency from exercising the
authority in paragraph (1).
``(3) Education activities.--If a State educational agency
exercises the authority under paragraph (1), the agency shall
use funds from State sources, in an amount equal to the amount
of the reduction under paragraph (1), to support activities
authorized under the Elementary and Secondary Education Act of
1965 or to support need based student or teacher higher
education programs.
``(4) Report.--For each fiscal year for which a State
educational agency exercises the authority under paragraph (1),
the State educational agency shall report to the Secretary the
amount of expenditures reduced pursuant to such paragraph

[[Page 2702]]
118 STAT. 2702

and the activities that were funded pursuant to paragraph (3).
``(5) Limitation.--Notwithstanding paragraph (1), a State
educational agency may not reduce the level of expenditures
described in paragraph (1) if any local educational agency in
the State would, as a result of such reduction, receive less
than 100 percent of the amount necessary to ensure that all
children with disabilities served by the local educational
agency receive a free appropriate public education from the
combination of Federal funds received under this title and State
funds received from the State educational agency.

``SEC. 614. NOTE: 20 USC 1414. EVALUATIONS, ELIGIBILITY
DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND
EDUCATIONAL PLACEMENTS.

``(a) Evaluations, Parental Consent, 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.--
``(i) In general.--Such initial evaluation
shall consist of procedures--
``(I) NOTE: Deadline. to
determine whether a child is a child
with a disability (as defined in section
602) within 60 days of receiving
parental consent for the evaluation, or,
if the State establishes a timeframe
within which the evaluation must be
conducted, within such timeframe; and
``(II) to determine the educational
needs of such child.
``(ii) Exception.--The relevant timeframe in
clause (i)(I) shall not apply to a local
educational agency if--
``(I) a child enrolls in a school
served by the local educational agency
after the relevant timeframe in clause
(i)(I) has begun and prior to a
determination by the child's previous
local educational agency as to whether
the child is a child with a disability
(as defined in section 602), but only if
the subsequent local educational agency
is making sufficient progress to ensure
a prompt completion of the evaluation,
and the parent and subsequent local
educational agency agree to a specific
time when the evaluation will be
completed; or
``(II) the parent of a child
repeatedly fails or refuses to produce
the child for the evaluation.
``(D) Parental consent.--
``(i) In general.--

[[Page 2703]]
118 STAT. 2703

``(I) Consent for initial
evaluation.--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 shall obtain informed
consent from the parent of such child
before conducting the evaluation.
Parental consent for evaluation shall
not be construed as consent for
placement for receipt of special
education and related services.
``(II) Consent for services.--An
agency that is responsible for making a
free appropriate public education
available to a child with a disability
under this part shall seek to obtain
informed consent from the parent of such
child before providing special education
and related services to the child.
``(ii) Absence of consent.--
``(I) For initial evaluation.--If
the parent of such child does not
provide consent for an initial
evaluation under clause (i)(I), or the
parent fails to respond to a request to
provide the consent, the local
educational agency may pursue the
initial evaluation of the child by
utilizing the procedures described in
section 615, except to the extent
inconsistent with State law relating to
such parental consent.
``(II) For services.--If the parent
of such child refuses to consent to
services under clause (i)(II), the local
educational agency shall not provide
special education and related services
to the child by utilizing the procedures
described in section 615.
``(III) Effect on agency
obligations.--If the parent of such
child refuses to consent to the receipt
of special education and related
services, or the parent fails to respond
to a request to provide such consent--
``(aa) 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 such child
with the special education and
related services for which the
local educational agency
requests such consent; and
``(bb) the local educational
agency shall not be required to
convene an IEP meeting or
develop an IEP under this
section for the child for the
special education and related
services for which the local
educational agency requests such
consent.
``(iii) Consent for wards of the state.--
``(I) In general.--If the child is a
ward of the State and is not residing
with the child's parent, the agency
shall make reasonable efforts to obtain
the informed consent from the parent (as
defined in section 602) of the child for
an

[[Page 2704]]
118 STAT. 2704

initial evaluation to determine whether
the child is a child with a disability.
``(II) Exception.--The agency shall
not be required to obtain informed
consent from the parent of a child for
an initial evaluation to determine
whether the child is a child with a
disability if--
``(aa) despite reasonable
efforts to do so, the agency
cannot discover the whereabouts
of the parent of the child;
``(bb) the rights of the
parents of the child have been
terminated in accordance with
State law; or
``(cc) the rights of the
parent to make educational
decisions have been subrogated
by a judge in accordance with
State law and consent for an
initial evaluation has been
given by an individual appointed
by the judge to represent the
child.
``(E) Rule of construction.--The screening of a
student by a teacher or specialist to determine
appropriate instructional strategies for curriculum
implementation shall not be considered to be an
evaluation for eligibility for special education and
related services.
``(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 frequently 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

[[Page 2705]]
118 STAT. 2705

``(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 education
curriculum, or, for preschool children, to
participate in appropriate activities;
``(B) not use any single 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) assessments 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 in the
language and form most likely to yield accurate
information on what the child knows and can do
academically, developmentally, and functionally,
unless it is not feasible to so provide or
administer;
``(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
assessments;
``(B) the child is assessed in all areas of
suspected disability;
``(C) assessment tools and strategies that provide
relevant information that directly assists persons in
determining the educational needs of the child are
provided; and
``(D) assessments of children with disabilities who
transfer from 1 school district to another school
district in the same academic year are coordinated with
such children's prior and subsequent schools, as
necessary and as expeditiously as possible, to ensure
prompt completion of full evaluations.
``(4) Determination of eligibility and educational need.--
Upon completion of the administration of assessments and other
evaluation measures--
``(A) the determination of whether the child is a
child with a disability as defined in section 602(3) and
the educational needs of the child 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--

[[Page 2706]]
118 STAT. 2706

``(A) lack of appropriate instruction in reading,
including in the essential components of reading
instruction (as defined in section 1208(3) of the
Elementary and Secondary Education Act of 1965);
``(B) lack of instruction in math; 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, 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 and other
qualified professionals, as appropriate, shall--
``(A) review existing evaluation data on the child,
including--
``(i) evaluations and information provided by
the parents of the child;
``(ii) current classroom-based, local, or
State assessments, and classroom-based
observations; and
``(iii) observations by teachers and related
services providers; 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 is a child with a
disability as defined in section 602(3), and the
educational needs of the child, or, in case of a
reevaluation of a child, whether the child
continues to have such a disability and such
educational needs;
``(ii) the present levels of academic
achievement and related developmental 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 education
curriculum.

[[Page 2707]]
118 STAT. 2707

``(2) Source of data.--The local educational agency shall
administer such assessments and other evaluation measures 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 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 and
to determine the child's educational needs, 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
continues to be a child with a disability and to
determine the child's educational needs; 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) 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 due 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.--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--

[[Page 2708]]
118 STAT. 2708

``(aa) how the child's
disability affects the child's
involvement and progress in the
general education curriculum;
``(bb) for preschool
children, as appropriate, how
the disability affects the
child's participation in
appropriate activities; and
``(cc) for children with
disabilities who take alternate
assessments aligned to alternate
achievement standards, a
description of benchmarks or
short-term objectives;
``(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
education 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, based
on peer-reviewed research to the extent
practicable, 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
education 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
subparagraph;
``(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

[[Page 2709]]
118 STAT. 2709

``(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 16, 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 to assist the
child in reaching those goals;
and
``(cc) beginning not later
than 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) not less than 1 regular education
teacher of such child (if the child is, or may be,
participating in the regular education
environment);
``(iii) not less than 1 special education
teacher, or where appropriate, not less than 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 education curriculum; and

[[Page 2710]]
118 STAT. 2710

``(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 the parent of
a child with a disability and the local
educational agency agree that the attendance of
such member is not necessary because the member's
area of the curriculum or related services is not
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) the parent and the local
educational agency consent to the
excusal; and
``(II) the member submits, in
writing to the parent and the IEP Team,
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.
``(D) IEP team transition.--In the case of a child
who was previously served under part C, an invitation to
the initial IEP meeting shall, at the request of the
parent, be sent to the part C service coordinator or
other representatives of the part C system to assist
with the smooth transition of services.
``(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 the
agency's 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), the IEP Team shall consider the
individualized family service plan that contains the
material described in section 636, and that is developed
in accordance with this section, and the individualized
family service plan may serve as the IEP of the child if
using that plan as the IEP is--

[[Page 2711]]
118 STAT. 2711

``(i) consistent with State policy; and
``(ii) agreed to by the agency and the child's
parents.
``(C) Program for children who transfer school
districts.--
``(i) In general.--
``(I) Transfer within the same
state.--In the case of a child with a
disability who transfers school
districts within the same academic year,
who enrolls in a new school, and who had
an IEP that was in effect in the same
State, the local educational agency
shall provide such child with a free
appropriate public education, including
services comparable to those described
in the previously held IEP, in
consultation with the parents until such
time as the local educational agency
adopts the previously held IEP or
develops, adopts, and implements a new
IEP that is consistent with Federal and
State law.
``(II) Transfer outside state.--In
the case of a child with a disability
who transfers school districts within
the same academic year, who enrolls in a
new school, and who had an IEP that was
in effect in another State, the local
educational agency shall provide such
child with a free appropriate public
education, including services comparable
to those described in the previously
held IEP, in consultation with the
parents until such time as the local
educational agency conducts an
evaluation pursuant to subsection
(a)(1), if determined to be necessary by
such agency, and develops a new IEP, if
appropriate, that is consistent with
Federal and State law.
``(ii) Transmittal of records.--To facilitate
the transition for a child described in clause
(i)--
``(I) the new school in which the
child enrolls shall take reasonable
steps to promptly obtain the child's
records, including the IEP and
supporting documents and any other
records relating to the provision of
special education or related services to
the child, from the previous school in
which the child was enrolled, pursuant
to section 99.31(a)(2) of title 34, Code
of Federal Regulations; and
``(II) the previous school in which
the child was enrolled shall take
reasonable steps to promptly respond to
such request from the new school.
``(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

[[Page 2712]]
118 STAT. 2712

``(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,
consider the use of 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, 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 needs
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 reevaluation meetings for
the child and other IEP Team meetings for the child.
``(F) Amendments.--Changes to the IEP may be made
either by the entire IEP Team or, as provided in
subparagraph (D), by amending the IEP rather than by
redrafting the entire IEP. Upon request, a parent shall
be provided with a revised copy of the IEP with the
amendments incorporated.
``(4) Review and revision of iep.--

[[Page 2713]]
118 STAT. 2713

``(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 frequently 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 education 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) Multi-year iep demonstration.--
``(A) Pilot program.--
``(i) Purpose.--The purpose of this paragraph
is to provide an opportunity for States to allow
parents and local educational agencies the
opportunity for long-term planning by offering the
option of developing a comprehensive multi-year
IEP, not to exceed 3 years, that is designed to
coincide with the natural transition points for
the child.
``(ii) Authorization.--In order to carry out
the purpose of this paragraph, the Secretary is
authorized to approve not more than 15 proposals
from States to carry out the activity described in
clause (i).
``(iii) Proposal.--
``(I) In general.--A State desiring
to participate in the program under this
paragraph shall submit a proposal to the
Secretary at such time and in such
manner as the Secretary may reasonably
require.
``(II) Content.--The proposal shall
include--
``(aa) assurances that the
development of a multi-year IEP
under this paragraph is optional
for parents;
``(bb) assurances that the
parent is required to provide
informed consent before a
comprehensive multi-year IEP is
developed;
``(cc) a list of required
elements for each multi-year
IEP, including--
``(AA) measurable goals pursuant to
paragraph (1)(A)(i)(II), coinciding with
natural transition points for the child,
that will enable the child to be
involved in and make progress in the
general education curriculum and that
will meet the child's other needs that
result from the child's disability; and



[[Page 2714]]
118 STAT. 2714




``(BB) measurable annual goals for
determining progress toward meeting the
goals described in subitem (AA); and
``(dd) a description of the
process for the review and
revision of each multi-year IEP,
including--
``(AA) a review by the IEP Team of
the child's multi-year IEP at each of
the child's natural transition points;
``(BB) in years other than a child's
natural transition points, an annual
review of the child's IEP to determine
the child's current levels of progress
and whether the annual goals for the
child are being achieved, and a
requirement to amend the IEP, as
appropriate, to enable the child to
continue to meet the measurable goals
set out in the IEP;
``(CC) if the IEP Team determines on
the basis of a review that the child is
not making sufficient progress toward
the goals described in the multi-year
IEP, a requirement that the local
educational agency shall ensure that the
IEP Team carries out a more thorough
review of the IEP in accordance with
paragraph (4) within 30 calendar days;
and
``(DD) at the request of the parent,
a requirement that the IEP Team shall
conduct a review of the child's multi-
year IEP rather than or subsequent to an
annual review.
``(B) Report.--Beginning 2 years after the date of
enactment of the Individuals with Disabilities Education
Improvement Act of 2004, the Secretary shall submit an
annual report to the Committee on Education and the
Workforce of the House of Representatives and the
Committee on Health, Education, Labor, and Pensions of
the Senate regarding the effectiveness of the program
under this paragraph and any specific recommendations
for broader implementation of such program, including--
``(i) reducing--
``(I) the paperwork burden on
teachers, principals, administrators,
and related service providers; and
``(II) noninstructional time spent
by teachers in complying with this part;
``(ii) enhancing longer-term educational
planning;
``(iii) improving positive outcomes for
children with disabilities;
``(iv) promoting collaboration between IEP
Team members; and
``(v) ensuring satisfaction of family members.
``(C) Definition.--In this paragraph, the term
`natural transition points' means those periods that are
close in time to the transition of a child with a
disability from preschool to elementary grades, from
elementary grades


[[Page 2715]]
118 STAT. 2715

to middle or junior high school grades, from middle or
junior high school grades to secondary school grades,
and from secondary school grades to post-secondary
activities, but in no case a period longer than 3 years.
``(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 the IEP.
``(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)(VI) (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
such children's age, before such children 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 paragraph
(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,
section 615(e), and section 615(f)(1)(B), and carrying out
administrative matters under section 615 (such as scheduling, exchange
of witness lists, and status conferences), 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. NOTE: 20 USC 1415. 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 a
free appropriate public education by such agencies.
``(b) Types of Procedures.--The procedures required by this section
shall include the following:

[[Page 2716]]
118 STAT. 2716

``(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)(A) 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 to act as a surrogate for the parents, which
surrogate 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. In the case
of--
``(i) a child who is a ward of the State, such
surrogate may alternatively be appointed by the judge
overseeing the child's care provided that the surrogate
meets the requirements of this paragraph; and
``(ii) an unaccompanied homeless youth as defined in
section 725(6) of the McKinney-Vento Homeless Assistance
Act (42 U.S.C. 11434a(6)), the local educational agency
shall appoint a surrogate in accordance with this
paragraph.
``(B) The State shall make reasonable efforts to ensure the
assignment of a surrogate not more than 30 days after there is a
determination by the agency that the child needs a surrogate.
``(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 any party to present a complaint--
``(A) 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; and
``(B) NOTE: Applicability. which sets forth an
alleged violation that occurred not more than 2 years
before 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 presenting such a complaint
under this part, in such time as the State law allows,
except that the exceptions to the timeline described in
subsection (f)(3)(D) shall apply to the timeline
described in this subparagraph.
``(7)(A) Procedures that require either party, or the
attorney representing a party, to provide due process complaint
notice

[[Page 2717]]
118 STAT. 2717

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 (or available contact
information in the case of a homeless 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.
``(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) 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 notice 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 and a description of each
evaluation procedure, assessment, record, or report the
agency used as a basis for the proposed or refused
action;
``(C) 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;
``(D) sources for parents to contact to obtain
assistance in understanding the provisions of this part;
``(E) a description of other options considered by
the IEP Team and the reason why those options were
rejected; and
``(F) a description of the factors that are relevant
to the agency's proposal or refusal.
``(2) Due process complaint notice.--
``(A) Complaint.--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 subsection (b)(7)(A).
``(B) Response to complaint.--

[[Page 2718]]
118 STAT. 2718

``(i) Local educational agency response.--
``(I) NOTE: Deadline. In
general.--If the local educational
agency has not sent a prior written
notice to the parent regarding the
subject matter contained in the parent's
due process complaint notice, such local
educational agency shall, within 10 days
of receiving the complaint, send to the
parent a response that shall include--
``(aa) an explanation of why
the agency proposed or refused
to take the action raised in the
complaint;
``(bb) a description of
other options that the IEP Team
considered and the reasons why
those options were rejected;
``(cc) a description of each
evaluation procedure,
assessment, record, or report
the agency used as the basis for
the proposed or refused action;
and
``(dd) a description of the
factors that are relevant to the
agency's proposal or refusal.
``(II) Sufficiency.--A response
filed by a local educational agency
pursuant to subclause (I) shall not be
construed to preclude such local
educational agency from asserting that
the parent's due process complaint
notice was insufficient where
appropriate.
``(ii) NOTE: Deadline. Other party
response.--Except as provided in clause (i), the
non-complaining party shall, within 10 days of
receiving the complaint, send to the complaint a
response that specifically addresses the issues
raised in the complaint.
``(C) NOTE: Deadline. Timing.--The party
providing a hearing officer notification under
subparagraph (A) shall provide the notification within
15 days of receiving the complaint.
``(D) NOTE: Deadline. Determination.--Within 5
days of receipt of the notification provided under
subparagraph (C), 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 the parties in
writing of such determination.
``(E) Amended complaint notice.--
``(i) In general.--A party may amend its due
process complaint notice only if--
``(I) the other party 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, except that the hearing
officer may only grant such permission
at any time not later than 5 days 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, including the timeline under
subsection (f)(1)(B).

``(d) Procedural Safeguards Notice.--

[[Page 2719]]
118 STAT. 2719

``(1) In general.--
``(A) Copy to parents.--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--
``(i) upon initial referral or parental
request for evaluation;
``(ii) upon the first occurrence of the filing
of a complaint under subsection (b)(6); and
``(iii) upon request by a parent.
``(B) Internet website.--A local educational agency
may place a current copy of the procedural safeguards
notice on its Internet website if such website exists.
``(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) 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, 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

[[Page 2720]]
118 STAT. 2720

``(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
that 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 agreement.--In the case that a
resolution is reached to resolve the complaint through
the mediation process, the parties shall execute a
legally binding agreement that sets forth such
resolution and that--
``(i) states that all discussions that
occurred during the mediation process shall be
confidential and may not be used as evidence in
any subsequent due process hearing or civil
proceeding;
``(ii) is signed by both the parent and a
representative of the agency who has the authority
to bind such agency; and
``(iii) is enforceable in any State court of
competent jurisdiction or in a district court of
the United States.
``(G) NOTE: Confidential information. Mediation
discussions.--Discussions that occur during the
mediation process shall be confidential and may not be
used as evidence in any subsequent due process hearing
or civil proceeding.

``(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) Resolution session.--
``(i) Preliminary meeting.--Prior to the
opportunity for an impartial due process hearing
under subparagraph (A), the local educational
agency shall

[[Page 2721]]
118 STAT. 2721

convene a meeting with the parents and the
relevant member or members of the IEP Team who
have specific knowledge of the facts identified in
the complaint--
``(I) NOTE: Deadline. within 15
days of receiving notice of the parents'
complaint;
``(II) which shall include a
representative of the 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
facts 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) NOTE: Deadline. Hearing.--If the
local educational agency has not resolved the
complaint to the satisfaction of the parents
within 30 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 a resolution is reached to resolve the
complaint at a meeting described in clause (i),
the parties shall execute a legally binding
agreement that is--
``(I) signed by both the parent and
a representative of the agency who has
the authority to bind such agency; and
``(II) enforceable in any State
court of competent jurisdiction or in a
district court of the United States.
``(iv) Review period.--If the parties execute
an agreement pursuant to clause (iii), a party may
void such agreement within 3 business days of the
agreement's execution.
``(2) Disclosure of evaluations and recommendations.--
``(A) NOTE: Deadline. 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--

[[Page 2722]]
118 STAT. 2722

``(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 knowledge of, and the ability
to understand, the provisions of this title,
Federal and State regulations pertaining to this
title, and legal interpretations of this title by
Federal and State 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) Timeline for requesting hearing.--A parent or
agency shall request an impartial due process hearing
within 2 years of the date the parent or 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.
``(D) Exceptions to the timeline.--The timeline
described in subparagraph (C) shall not apply to a
parent if the parent was prevented from requesting the
hearing due to--
``(i) specific misrepresentations by the local
educational agency that it had resolved the
problem forming the basis of the complaint; or
``(ii) the local educational agency's
withholding of information from the parent that
was required under this part to be provided to the
parent.
``(E) 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) impeded the child's right to a
free appropriate public education;
``(II) significantly impeded the
parents' opportunity to participate in
the decisionmaking process regarding the
provision of a free appropriate public
education to the parents' child; or
``(III) caused a deprivation of
educational benefits.
``(iii) Rule of construction.--Nothing in this
subparagraph shall be construed to preclude a
hearing

[[Page 2723]]
118 STAT. 2723

officer from ordering a local educational agency
to comply with procedural requirements under this
section.
``(F) Rule of construction.--Nothing in this
paragraph shall be construed to affect the right of a
parent to file a complaint with the State educational
agency.

``(g) Appeal.--
``(1) In general.--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.
``(2) Impartial review and independent decision.--The State
educational agency shall conduct an impartial review of the
findings and decision appealed under paragraph (1). The officer
conducting such review shall make an independent decision upon
completion of such review.

``(h) Safeguards.--Any party to a hearing conducted pursuant to
subsection (f) or (k), or an appeal conducted pursuant to subsection
(g), shall be accorded--
``(1) the right to be accompanied and advised by counsel and
by individuals with special knowledge or training with respect
to the problems of children with disabilities;
``(2) the right to present evidence and confront, cross-
examine, and compel the attendance of witnesses;
``(3) the right to a written, or, at the option of the
parents, electronic verbatim record of such hearing; and
``(4) the right to written, or, at the option of the
parents, electronic findings of fact and decisions, which
findings and decisions--
``(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)(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).
``(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 made 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.

[[Page 2724]]
118 STAT. 2724

``(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.--
``(i) In general.--In any action or proceeding
brought under this section, the court, in its
discretion, may award reasonable attorneys' fees
as part of the costs--
``(I) to a prevailing party who is
the parent of a child with a disability;
``(II) to a prevailing party who is
a State educational agency or local
educational agency against the attorney
of a parent who files a complaint or
subsequent cause of action that is
frivolous, unreasonable, or without
foundation, or against the attorney of a
parent who continued to litigate after
the litigation clearly became frivolous,
unreasonable, or without foundation; or
``(III) to a prevailing State
educational agency or local educational
agency against the attorney of a parent,
or against the parent, if the parent's
complaint or subsequent cause of action
was presented for any improper purpose,
such as to harass, to cause unnecessary
delay, or to needlessly increase the
cost of litigation.
``(ii) Rule of construction.--Nothing in this
subparagraph shall be construed to affect section
327 of the District of Columbia Appropriations
Act, 2005.
``(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--

[[Page 2725]]
118 STAT. 2725

``(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.

``(j) Maintenance of Current Educational Placement.--Except as
provided in subsection (k)(4), during the pendency of

[[Page 2726]]
118 STAT. 2726

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 the 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) Case-by-case determination.--School personnel
may consider any unique circumstances on a case-by-case
basis when determining whether to order a change in
placement for a child with a disability who violates a
code of student conduct.
``(B) Authority.--School personnel under this
subsection may remove a child with a disability who
violates a code of student conduct from their current
placement 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).
``(C) 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 (E), the relevant disciplinary procedures
applicable to children without disabilities may be
applied to the child in the same manner and for the same
duration in which the procedures would be applied to
children without disabilities, except as provided in
section 612(a)(1) although it may be provided in an
interim alternative educational setting.
``(D) Services.--A child with a disability who is
removed from the child's current placement under
subparagraph (G) (irrespective of whether the behavior
is determined to be a manifestation of the child's
disability) or subparagraph (C) shall--
``(i) continue to receive educational
services, as provided in 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, as appropriate, a functional
behavioral assessment, behavioral intervention
services and modifications, that are designed to
address the behavior violation so that it does not
recur.
``(E) Manifestation determination.--
``(i) NOTE: Deadline. In general.--Except
as provided in subparagraph (B), 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 local educational
agency, the parent, and relevant members of the
IEP Team (as determined by the parent and the
local educational agency) shall review all
relevant information in the student's file,
including the

[[Page 2727]]
118 STAT. 2727

child's IEP, any teacher observations, and any
relevant information provided by the parents to
determine--
``(I) if the conduct in question was
caused by, or had a direct and
substantial relationship to, the child's
disability; or
``(II) if the conduct in question
was the direct result of the local
educational agency's failure to
implement the IEP.
``(ii) Manifestation.--If the local
educational agency, the parent, and relevant
members of the IEP Team determine 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.
``(F) Determination that behavior was a
manifestation.--If the local educational agency, the
parent, and relevant members of the IEP Team make the
determination that the conduct was a manifestation of
the child's disability, the IEP Team shall--
``(i) conduct a functional behavioral
assessment, and implement a behavioral
intervention plan for such child, provided that
the local educational agency had not conducted
such assessment prior to such determination before
the behavior that resulted in a change in
placement described in subparagraph (C) or (G);
``(ii) in the situation where a behavioral
intervention plan has been developed, review the
behavioral intervention plan if the child already
has such a behavioral intervention plan, and
modify it, as necessary, to address the behavior;
and
``(iii) except as provided in subparagraph
(G), return the child to the placement from which
the child was removed, unless the parent and the
local educational agency agree to a change of
placement as part of the modification of the
behavioral intervention plan.
``(G) Special circumstances.--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, 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;
``(ii) knowingly possesses or uses illegal
drugs, or sells or solicits the sale of a
controlled substance, while at school, on school
premises, or at a school function under the
jurisdiction of a State or local educational
agency; or
``(iii) has inflicted serious bodily injury
upon another person while at school, on school
premises, or at a school function under the
jurisdiction of a State or local educational
agency.
``(H) 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,

[[Page 2728]]
118 STAT. 2728

and of all procedural safeguards accorded under this
section.
``(2) Determination of setting.--The interim alternative
educational setting in subparagraphs (C) and (G) of paragraph
(1) 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
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.--A hearing officer shall
hear, and make a determination regarding, an
appeal requested under subparagraph (A).
``(ii) Change of placement order.--In making
the determination under clause (i), the hearing
officer may order a change in placement of a child
with a disability. In such situations, the hearing
officer may--
``(I) return a child with a
disability to the placement from which
the child was removed; or
``(II) 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 an appeal under
paragraph (3) has been requested by either the parent or the
local educational agency--
``(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)(C), whichever
occurs first, unless the parent and the State or local
educational agency agree otherwise; and
``(B) NOTE: Deadlines. 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 and shall result in a
determination within 10 school days after the hearing.
``(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

[[Page 2729]]
118 STAT. 2729

with a disability if, before the behavior that
precipitated the disciplinary action occurred--
``(i) the parent of the child has expressed
concern in writing to supervisory or
administrative personnel of the appropriate
educational agency, or a teacher of the child,
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(a)(1)(B); or
``(iii) the teacher of the child, or other
personnel of the local educational agency, has
expressed specific concerns about a pattern of
behavior demonstrated by the child, directly to
the director of special education of such agency
or to other supervisory personnel of the agency.
``(C) Exception.--A local educational agency shall
not be deemed to have knowledge that the child is a
child with a disability if the parent of the child has
not allowed an evaluation of the child pursuant to
section 614 or has refused services under this part or
the child has been evaluated and it was determined that
the child was not a child with a disability under this
part.
``(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 this subsection, 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) Rule of 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

[[Page 2730]]
118 STAT. 2730

of the child are transmitted for consideration by the
appropriate authorities to whom the agency reports the
crime.
``(7) Definitions.--In this subsection:
``(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) NOTE: Notification. the 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) Electronic mail.--A parent of a child with a disability may
elect to receive notices required under this section by an

[[Page 2731]]
118 STAT. 2731

electronic mail (e-mail) communication, if the agency makes such option
available.
``(o) Separate Complaint.--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.

``SEC. 616. NOTE: 20 USC 1416. MONITORING, TECHNICAL ASSISTANCE, AND
ENFORCEMENT.

``(a) Federal and State Monitoring.--
``(1) In general.--The Secretary shall--
``(A) monitor implementation of this part through--
``(i) oversight of the exercise of general
supervision by the States, as required in section
612(a)(11); and
``(ii) the State performance plans, described
in subsection (b);
``(B) enforce this part in accordance with
subsection (e); and
``(C) require States to--
``(i) monitor implementation of this part by
local educational agencies; and
``(ii) enforce this part in accordance with
paragraph (3) and subsection (e).
``(2) Focused monitoring.--The primary focus of Federal and
State monitoring activities described in paragraph (1) shall be
on--
``(A) improving educational results and functional
outcomes for all children with disabilities; and
``(B) ensuring that States meet the program
requirements under this part, 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
the States, and shall require each State to monitor the local
educational agencies located in the State (except the State
exercise of general supervisory responsibility), using
quantifiable indicators in each of the following priority areas,
and using such qualitative indicators as are needed to
adequately measure performance in the following priority areas:
``(A) Provision of a free appropriate public
education in the least restrictive environment.
``(B) State exercise of general supervisory
authority, including child find, effective monitoring,
the use of resolution sessions, mediation, voluntary
binding arbitration, and a system of transition services
as defined in sections 602(34) and 637(a)(9).
``(C) Disproportionate representation of racial and
ethnic groups in special education and related services,
to the extent the representation is the result of
inappropriate identification.
``(4) Permissive areas of review.--The Secretary shall
consider other relevant information and data, including data
provided by States under section 618.

``(b) State Performance Plans.--
``(1) Plan.--

[[Page 2732]]
118 STAT. 2732

``(A) NOTE: Deadline. In general.--Not later
than 1 year after the date of enactment of the
Individuals with Disabilities Education Improvement Act
of 2004, each State shall have in place a performance
plan that evaluates that State's efforts to implement
the requirements and purposes of this part and describes
how the State will improve such implementation.
``(B) Submission for approval.--Each State shall
submit the State's performance plan to the Secretary for
approval in accordance with the approval process
described in subsection (c).
``(C) NOTE: Deadline. Review.--Each State shall
review its State performance plan at least once every 6
years and submit any amendments to the Secretary.
``(2) Targets.--
``(A) In general.--As a part of the State
performance plan described under paragraph (1), each
State shall establish measurable and rigorous targets
for the indicators established under the priority areas
described in subsection (a)(3).
``(B) Data collection.--
``(i) In general.--Each State shall collect
valid and reliable information as needed to report
annually to the Secretary on the priority areas
described in subsection (a)(3).
``(ii) Rule of construction.--Nothing in this
title shall be construed to authorize the
development of a nationwide database of personally
identifiable information on individuals involved
in studies or other collections of data under this
part.
``(C) Public reporting and privacy.--
``(i) In general.--The State shall use the
targets established in the plan and priority areas
described in subsection (a)(3) to analyze the
performance of each local educational agency in
the State in implementing this part.
``(ii) Report.--
``(I) Public report.--The State
shall report annually to the public on
the performance of each local
educational agency located in the State
on the targets in the State's
performance plan. The State shall make
the State's performance plan available
through public means, including by
posting on the website of the State
educational agency, distribution to the
media, and distribution through public
agencies.
``(II) State performance report.--
The State shall report annually to the
Secretary on the performance of the
State under the State's performance
plan.
``(iii) Privacy.--The State shall not report
to the public or the Secretary any information on
performance that would result in the disclosure of
personally identifiable information about
individual children or where the available data is
insufficient to yield statistically reliable
information.

``(c) Approval Process.--

[[Page 2733]]
118 STAT. 2733

``(1) NOTE: Deadline. Deemed approval.--The Secretary
shall review (including the specific provisions described in
subsection (b)) each performance plan submitted by a State
pursuant to subsection (b)(1)(B) and the plan shall be deemed to
be approved by the Secretary unless the Secretary makes a
written determination, prior to the expiration of the 120-day
period beginning on the date on which the Secretary received the
plan, that the plan does not meet the requirements of this
section, including the specific provisions described in
subsection (b).
``(2) Disapproval.--The Secretary shall not finally
disapprove a performance plan, except after giving the State
notice and an opportunity for a hearing.
``(3) Notification.--If the Secretary finds that the plan
does not meet the requirements, in whole or in part, of this
section, the Secretary shall--
``(A) give the State notice and an opportunity for a
hearing; and
``(B) notify the State of the finding, and in such
notification shall--
``(i) cite the specific provisions in the plan
that do not meet the requirements; and
``(ii) request additional information, only as
to the provisions not meeting the requirements,
needed for the plan to meet the requirements of
this section.
``(4) NOTE: Deadlines. Response.--If the State responds
to the Secretary's notification described in paragraph (3)(B)
during the 30-day period beginning on the date on which the
State received the notification, and resubmits the plan with the
requested information described in paragraph (3)(B)(ii), the
Secretary shall approve or disapprove such plan prior to the
later of--
``(A) the expiration of the 30-day period beginning
on the date on which the plan is resubmitted; or
``(B) the expiration of the 120-day period described
in paragraph (1).
``(5) Failure to respond.--If the State does not respond to
the Secretary's notification described in paragraph (3)(B)
during the 30-day period beginning on the date on which the
State received the notification, such plan shall be deemed to be
disapproved.

``(d) Secretary's Review and Determination.--
``(1) Review.--The Secretary shall annually review the State
performance report submitted pursuant to subsection
(b)(2)(C)(ii)(II) in accordance with this section.
``(2) Determination.--
``(A) In general.--Based on the information provided
by the State in the State performance report,
information obtained through monitoring visits, and any
other public information made available, the Secretary
shall determine if the State--
``(i) meets the requirements and purposes of
this part;
``(ii) needs assistance in implementing the
requirements of this part;
``(iii) needs intervention in implementing the
requirements of this part; or
``(iv) needs substantial intervention in
implementing the requirements of this part.

[[Page 2734]]
118 STAT. 2734

``(B) Notice and opportunity for a hearing.--For
determinations made under clause (iii) or (iv) of
subparagraph (A), the Secretary shall provide reasonable
notice and an opportunity for a hearing on such
determination.

``(e) Enforcement.--
``(1) Needs assistance.--If the Secretary determines, for 2
consecutive years, that a State needs assistance under
subsection (d)(2)(A)(ii) in implementing the requirements of
this part, the Secretary shall take 1 or more of the following
actions:
``(A) Advise the State of available sources of
technical assistance that may help the State address the
areas in which the State needs assistance, which may
include assistance from the Office of Special Education
Programs, other offices of the Department of Education,
other Federal agencies, technical assistance providers
approved by the Secretary, and other federally funded
nonprofit agencies, and require the State to work with
appropriate entities. Such technical assistance may
include--
``(i) the provision of advice by experts to
address the areas in which the State needs
assistance, including explicit plans for
addressing the area for concern within a specified
period of time;
``(ii) assistance in identifying and
implementing professional development,
instructional strategies, and methods of
instruction that are based on scientifically based
research;
``(iii) designating and using distinguished
superintendents, principals, special education
administrators, special education teachers, and
other teachers to provide advice, technical
assistance, and support; and
``(iv) devising additional approaches to
providing technical assistance, such as
collaborating with institutions of higher
education, educational service agencies, national
centers of technical assistance supported under
part D, and private providers of scientifically
based technical assistance.
``(B) Direct the use of State-level funds under
section 611(e) on the area or areas in which the State
needs assistance.
``(C) Identify the State as a high-risk grantee and
impose special conditions on the State's grant under
this part.
``(2) Needs intervention.--If the Secretary determines, for
3 or more consecutive years, that a State needs intervention
under subsection (d)(2)(A)(iii) in implementing the requirements
of this part, the following shall apply:
``(A) The Secretary may take any of the actions
described in paragraph (1).
``(B) The Secretary shall take 1 or more of the
following actions:
``(i) Require the State to 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) Require the State to enter into a
compliance agreement under section 457 of the
General Education

[[Page 2735]]
118 STAT. 2735

Provisions Act, if the Secretary has reason to
believe that the State cannot correct the problem
within 1 year.
``(iii) For each year of the determination,
withhold not less than 20 percent and not more
than 50 percent of the State's funds under section
611(e), until the Secretary determines the State
has sufficiently addressed the areas in which the
State needs intervention.
``(iv) Seek to recover funds under section 452
of the General Education Provisions Act.
``(v) Withhold, in whole or in part, any
further payments to the State under this part
pursuant to paragraph (5).
``(vi) Refer the matter for appropriate
enforcement action, which may include referral to
the Department of Justice.
``(3) Needs substantial intervention.--Notwithstanding
paragraph (1) or (2), at any time that the Secretary determines
that a State needs substantial intervention in implementing the
requirements of this part or that there is a substantial failure
to comply with any condition of a State educational agency's or
local educational agency's eligibility under this part, the
Secretary shall take 1 or more of the following actions:
``(A) Recover funds under section 452 of the General
Education Provisions Act.
``(B) Withhold, in whole or in part, any further
payments to the State under this part.
``(C) Refer the case to the Office of the Inspector
General at the Department of Education.
``(D) Refer the matter for appropriate enforcement
action, which may include referral to the Department of
Justice.
``(4) Opportunity for hearing.--
``(A) NOTE: Notification. Withholding funds.--
Prior to withholding any funds under this section, the
Secretary shall provide reasonable notice and an
opportunity for a hearing to the State educational
agency involved.
``(B) Suspension.--Pending the outcome of any
hearing to withhold payments under subsection (b), the
Secretary may suspend payments to a recipient, suspend
the authority of the recipient to obligate funds under
this part, or both, after such recipient has been given
reasonable notice and an opportunity to show cause why
future payments or authority to obligate funds under
this part should not be suspended.
``(5) Report to congress.--The Secretary shall report to the
Committee on Education and the Workforce of the House of
Representatives and the Committee on Health, Education, Labor,
and Pensions of the Senate within 30 days of taking enforcement
action pursuant to paragraph (1), (2), or (3), on the specific
action taken and the reasons why enforcement action was taken.
``(6) Nature of withholding.--
``(A) Limitation.--If the Secretary withholds
further payments pursuant to paragraph (2) or (3), the
Secretary may determine--

[[Page 2736]]
118 STAT. 2736

``(i) that such withholding will be limited to
programs or projects, or portions of programs or
projects, that affected the Secretary's
determination under subsection (d)(2); or
``(ii) that the State educational agency shall
not make further payments under this part to
specified State agencies or local educational
agencies that caused or were involved in the
Secretary's determination under subsection (d)(2).
``(B) Withholding until rectified.--Until the
Secretary is satisfied that the condition that caused
the initial withholding has been substantially
rectified--
``(i) payments to the State under this part
shall be withheld in whole or in part; and
``(ii) payments by the State educational
agency under this part shall be limited to State
agencies and local educational agencies whose
actions did not cause or were not involved in the
Secretary's determination under subsection (d)(2),
as the case may be.
``(7) Public attention.--Any State that has received notice
under subsection (d)(2) 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 State.
``(8) Judicial review.--
``(A) NOTE: Deadline. In general.--If any State
is dissatisfied with the Secretary's 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 transmitted by the clerk of the court to the
Secretary. NOTE: Records. 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) NOTE: Records. 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 be
conclusive if supported by substantial evidence.

``(f) State Enforcement.--If a State educational agency determines
that a local educational agency is not meeting the requirements of this
part, including the targets in the State's performance

[[Page 2737]]
118 STAT. 2737

plan, the State educational agency shall prohibit the local educational
agency from reducing the local educational agency's maintenance of
effort under section 613(a)(2)(C) for any fiscal year.
``(g) Rule of Construction.--Nothing in this section shall be
construed to restrict the Secretary from utilizing any authority under
the General Education Provisions Act to monitor and enforce the
requirements of this title.
``(h) 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.

``(i) Data Capacity and Technical Assistance Review.--The Secretary
shall--
``(1) review the data collection and analysis capacity of
States to ensure that data and information determined necessary
for implementation of this section is collected, analyzed, and
accurately reported to the Secretary; and
``(2) provide technical assistance (from funds reserved
under section 611(c)), where needed, to improve the capacity of
States to meet the data collection requirements.

``SEC. 617. NOTE: 20 USC 1417. 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) Prohibition Against Federal Mandates, Direction, or Control.--
Nothing in this title shall be construed to authorize an officer or
employee of the Federal Government to mandate, direct, or control a
State, local educational agency, or school's specific instructional
content, academic achievement standards and assessments, curriculum, or
program of instruction.
``(c) Confidentiality.--The Secretary shall take appropriate action,
in accordance with section 444 of the General Education Provisions Act,
to ensure the protection of the confidentiality of any personally
identifiable data, information, and records collected or maintained by
the Secretary and by State educational agencies and local educational
agencies pursuant to this part.

[[Page 2738]]
118 STAT. 2738

``(d) Personnel.--The Secretary is authorized to hire qualified
personnel necessary to carry out the Secretary's duties under subsection
(a), under section 618, and under subpart 4 of part D, 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 20 such
personnel shall be employed at any time.
``(e) NOTE: Deadline. Public information. Model Forms.--Not
later than the date that the Secretary publishes final regulations under
this title, to implement amendments made by the Individuals with
Disabilities Education Improvement Act of 2004, 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
subsections (b)(3) and (c)(1) of section 615 that is consistent
with the requirements of this part and is sufficient to meet
such requirements.

``SEC. 618. NOTE: 20 USC 1418. 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 the following:
``(1)(A) The number and percentage of children with
disabilities, by race, ethnicity, limited English proficiency
status, gender, and disability category, who are in each of the
following separate categories:
``(i) Receiving a free appropriate public education.
``(ii) Participating in regular education.
``(iii) In separate classes, separate schools or
facilities, or public or private residential facilities.
``(iv) 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.
``(v)(I) Removed to an interim alternative
educational setting under section 615(k)(1).
``(II) The acts or items precipitating those
removals.
``(III) The number of children with
disabilities who are subject to long-term
suspensions or expulsions.
``(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, gender, and ethnicity, who, from birth
through age 2, stopped receiving early intervention services
because of program completion or for other reasons.

[[Page 2739]]
118 STAT. 2739

``(D) 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.
``(E) 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.
``(F) The number of due process complaints filed under
section 615 and the number of hearings conducted.
``(G) The number of hearings requested under section 615(k)
and the number of changes in placements ordered as a result of
those hearings.
``(H) 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.
``(3) Any other information that may be required by the
Secretary.

``(b) Data Reporting.--
``(1) Protection of identifiable data.--The data described
in subsection (a) shall be publicly reported by each State in a
manner that does not result in the disclosure of data
identifiable to individual children.
``(2) Sampling.--The Secretary may permit States and the
Secretary of the Interior to obtain the data described in
subsection (a) through sampling.

``(c) Technical Assistance.--The Secretary may provide technical
assistance to States to ensure compliance with the data collection and
reporting requirements under this title.
``(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 and ethnicity is
occurring in the State and the local educational agencies of 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--
``(A) 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,

[[Page 2740]]
118 STAT. 2740

procedures, and practices comply with the requirements
of this title;
``(B) require any local educational agency
identified under paragraph (1) to reserve the maximum
amount of funds under section 613(f) to provide
comprehensive coordinated early intervening services to
serve children in the local educational agency,
particularly children in those groups that were
significantly overidentified under paragraph (1); and
``(C) require the local educational agency to
publicly report on the revision of policies, practices,
and procedures described under subparagraph (A).

``SEC. 619. NOTE: 20 USC 1419. 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) for a fiscal year 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.

[[Page 2741]]
118 STAT. 2741

``(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) 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) 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

[[Page 2742]]
118 STAT. 2742

fiscal year 1997 bears to the total of all such
increases for all States.
``(B) Ratable reductions.--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 the State received for
fiscal year 1997, 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) NOTE: Reports. 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.

``(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;
``(5) to provide early intervention services (which shall
include an educational component that promotes school readiness
and incorporates preliteracy, language, and numeracy

[[Page 2743]]
118 STAT. 2743

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;
or
``(6) at the State's discretion, to continue service
coordination or case management for families who receive
services under part C.

``(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 the local educational 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 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) State Defined.--In 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.--There are authorized to be
appropriated to carry out this section such sums as may be necessary.

[[Page 2744]]
118 STAT. 2744

``PART C--INFANTS AND TODDLERS WITH DISABILITIES

``SEC. 631. NOTE: 20 USC 1431. 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 that
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, and infants and toddlers in foster care.

``(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 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. NOTE: 20 USC 1432. DEFINITIONS.

``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;

[[Page 2745]]
118 STAT. 2745

``(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, as identified
by the individualized family service plan team, 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) occupational therapists;
``(iv) physical therapists;
``(v) psychologists;
``(vi) social workers;
``(vii) nurses;
``(viii) registered dietitians;
``(ix) family therapists;
``(x) vision specialists, including
ophthalmologists and optometrists;
``(xi) orientation and mobility specialists;
and
``(xii) 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

[[Page 2746]]
118 STAT. 2746

``(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 that 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 or elementary school,
as appropriate, provided that any programs under
this part serving such children shall include--
``(I) an educational component that
promotes school readiness and
incorporates pre-literacy, language, and
numeracy skills; and
``(II) a written notification to
parents of their rights and
responsibilities in determining whether
their child will continue to receive
services under this part or participate
in preschool programs under section 619.

``SEC. 633. NOTE: Grants. 20 USC 1433. 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. NOTE: 20 USC 1434. ELIGIBILITY.

``In order to be eligible for a grant under section 633, a State
shall provide assurances 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,
infants and toddlers with disabilities who are homeless children
and their families, and infants and toddlers with disabilities
who are wards of the State; and
``(2) has in effect a statewide system that meets the
requirements of section 635.

[[Page 2747]]
118 STAT. 2747

``SEC. 635. NOTE: 20 USC 1435. REQUIREMENTS FOR STATEWIDE SYSTEM.

``(a) In General.--A statewide system described in section 633 shall
include, at a minimum, the following components:
``(1) A rigorous definition of the term `developmental
delay' that will be used by the State in carrying out programs
under this part in order to appropriately identify infants and
toddlers with disabilities that are in need of services under
this part.
``(2) A State policy that is in effect and that ensures that
appropriate early intervention services based on scientifically
based research, to the extent practicable, are available to all
infants and toddlers with disabilities and their families,
including Indian infants and toddlers with disabilities and
their families residing on a reservation geographically located
in the State and infants and toddlers with disabilities who are
homeless children and their families.
``(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 assist
appropriately 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 and that ensures rigorous standards
for appropriately identifying infants and toddlers with
disabilities for services under this part that will reduce the
need for future services.
``(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 to be given to parents, especially to inform parents
with premature infants, or infants with other physical risk
factors associated with learning or developmental complications,
on the availability of early intervention services under this
part and of services under section 619, and procedures for
assisting such sources in disseminating such information to
parents of infants and toddlers with disabilities.
``(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 that--
``(A) shall include--
``(i) implementing innovative strategies and
activities for the recruitment and retention of
early education service providers;
``(ii) promoting the preparation of early
intervention providers who are fully and
appropriately qualified

[[Page 2748]]
118 STAT. 2748

to provide early intervention services under this
part; and
``(iii) training personnel to coordinate
transition services for infants and toddlers
served under this part from a program providing
early intervention services under this part and
under part B (other than section 619), to a
preschool program receiving funds under section
619, or another appropriate program; and
``(B) may include--
``(i) training personnel to work in rural and
inner-city areas; and
``(ii) training personnel in the emotional and
social development of young children.
``(9) Policies and procedures relating to the establishment
and maintenance of qualifications to ensure that personnel
necessary to carry out this part are appropriately and
adequately prepared and trained, including the establishment and
maintenance of qualifications that are consistent with any
State-approved or recognized certification, licensing,
registration, or other comparable requirements that 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
and supervised 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.

[[Page 2749]]
118 STAT. 2749

``(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)--
``(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 with a disability occurs in a
setting other than a natural environment that is most
appropriate, as determined by the parent and the
individualized family service plan team, only when early
intervention cannot be achieved 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).
``(c) Flexibility To Serve Children 3 Years of Age Until Entrance
Into Elementary School.--
``(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 that--
``(A) parents of children with disabilities served
pursuant to this subsection are provided annual notice
that contains--
``(i) a description of the rights of such
parents to elect to receive services pursuant to
this subsection or under part B; and

[[Page 2750]]
118 STAT. 2750

``(ii) an explanation of the differences
between services provided pursuant to this
subsection and services provided under part B,
including--
``(I) types of services and the
locations at which the services are
provided;
``(II) applicable procedural
safeguards; and
``(III) possible costs (including
any fees to be charged to families as
described in section 632(4)(B)), if any,
to parents of infants or toddlers with
disabilities;
``(B) services provided pursuant to this subsection
include an educational component that promotes school
readiness and incorporates preliteracy, language, and
numeracy skills;
``(C) 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;
``(D) all early intervention services outlined in
the child's individualized family service plan under
section 636 are continued while any eligibility
determination is being made for services under this
subsection;
``(E) the parents of infants or toddlers with
disabilities (as defined in section 632(5)(A)) provide
informed written consent to the State, before such
infants or 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;
``(F) the requirements under section 637(a)(9) shall
not apply with respect to a child who is receiving
services in accordance with this subsection until not
less than 90 days (and at the discretion of the parties
to the conference, not more than 9 months) before the
time the child will no longer receive those services;
and
``(G) there will be a referral for evaluation for
early intervention services of a child who experiences a
substantiated case of trauma due to exposure to family
violence (as defined in section 320 of the Family
Violence Prevention and Services Act).
``(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 the number and 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.
``(4) 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)(E), including fees (if any) to be charged to
families as described in section 632(4)(B).
``(5) Rules of construction.--
``(A) Services under part b.--If a statewide system
includes a State policy described in paragraph (1), a
State that provides services in accordance with this
subsection

[[Page 2751]]
118 STAT. 2751

to a child with a disability who is eligible for
services under section 619 shall not be required to
provide the child with a free appropriate public
education under part B for the period of time in which
the child is receiving services under this part.
``(B) Services under this part.--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.

``SEC. 636. NOTE: 20 USC 1436. 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 infant or toddler.

``(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 results or outcomes
expected to be achieved for the infant or toddler and the
family, including pre-literacy and language skills, as
developmentally appropriate for the child, and the criteria,
procedures, and timelines used to determine the degree to which
progress toward achieving the results or outcomes is being made
and whether modifications or revisions of the results or
outcomes or services are necessary;
``(4) a statement of specific early intervention services
based on peer-reviewed research, to the extent practicable,
necessary to meet the unique needs of the infant or toddler and
the family, including the frequency, intensity, and method of
delivering services;

[[Page 2752]]
118 STAT. 2752

``(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. NOTE: 20 USC 1437. 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 statewide 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 early intervention services under
this part 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;

[[Page 2753]]
118 STAT. 2753

``(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(c)) to preschool, school, 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
not less than 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;
``(10) a description of State efforts to promote
collaboration among Early Head Start programs under section 645A
of the Head Start Act, early education and child care programs,
and services under part C; and
``(11) such other information and assurances as the
Secretary may reasonably require.

``(b) Assurances.--The application described in subsection (a)--

[[Page 2754]]
118 STAT. 2754

``(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 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, homeless,
and rural families and children with disabilities who are wards
of the State, 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 this part (as in effect before the date of
enactment of the Individuals with Disabilities Education Improvement Act
of 2004), 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.

[[Page 2755]]
118 STAT. 2755

``(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 title, or a Federal
regulation issued under this title;
``(2) a new interpretation of this title 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. NOTE: 20 USC 1438. 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 until such
children enter, or are eligible under State law to enter,
kindergarten, 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. NOTE: 20 USC 1439. 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

[[Page 2756]]
118 STAT. 2756

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 a 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

[[Page 2757]]
118 STAT. 2757

services currently being provided or, if applying for initial services,
shall receive the services not in dispute.

``SEC. 640. NOTE: 20 USC 1440. 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 designated lead 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 such dispute.
``(B) Consistency between agreements or mechanisms
under part b.--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), where
appropriate.
``(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

[[Page 2758]]
118 STAT. 2758

``(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. NOTE: 20 USC 1441. 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.--Not less than 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. Not less
than 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.--Not less than 20 percent
of the members shall be public or private providers of
early intervention services.
``(C) State legislature.--Not less than 1 member
shall be from the State legislature.
``(D) Personnel preparation.--Not less than 1 member
shall be involved in personnel preparation.
``(E) Agency for early intervention services.--Not
less than 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.--Not less than
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.

[[Page 2759]]
118 STAT. 2759

``(G) State medicaid agency.--Not less than 1 member
shall be from the agency responsible for the State
medicaid program.
``(H) Head start agency.--Not less than 1 member
shall be a representative from a Head Start agency or
program in the State.
``(I) Child care agency.--Not less than 1 member
shall be a representative from a State agency
responsible for child care.
``(J) Agency for health insurance.--Not less than 1
member shall be from the agency responsible for the
State regulation of health insurance.
``(K) Office of the coordinator of education of
homeless children and youth.--Not less than 1 member
shall be a representative designated by the Office of
Coordinator for Education of Homeless Children and
Youths.
``(L) State foster care representative.--Not less
than 1 member shall be a representative from the State
child welfare agency responsible for foster care.
``(M) Mental health agency.--Not less than 1 member
shall be a representative from the State agency
responsible for children's mental health.
``(2) Other members.--The council may include other members
selected by the Governor, including a representative from the
Bureau of Indian Affairs (BIA), 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 a minimum, on a
quarterly basis, 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

[[Page 2760]]
118 STAT. 2760

``(D) NOTE: Reports. 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. NOTE: Applicability. 20 USC 1442. 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. NOTE: 20 USC 1443. 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 for assistance under this part.
``(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

[[Page 2761]]
118 STAT. 2761

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 Bureau of Indian Affairs, 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 payment 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 infants and toddlers contacted and receiving services
for each year, and the estimated number of infants and toddlers
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.

[[Page 2762]]
118 STAT. 2762

``(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.--In 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 Incentive Grants.--
``(1) In general.--For any fiscal year for which the amount
appropriated pursuant to the authorization of appropriations
under section 644 exceeds $460,000,000, the Secretary shall
reserve 15 percent of such appropriated amount to provide grants
to States that are carrying out the policy described in section
635(c) in order to facilitate the implementation of such policy.
``(2) Amount of grant.--
``(A) In general.--Notwithstanding paragraphs (2)
and (3) of subsection (c), the Secretary shall provide a
grant to each State under paragraph (1) in an amount
that bears the same ratio to the amount reserved under
such paragraph as the number of infants and toddlers in
the State bears to the number of infants and toddlers in
all States receiving grants under such paragraph.
``(B) Maximum amount.--No State shall receive a
grant under paragraph (1) for any fiscal year in an
amount that is greater than 20 percent of the amount
reserved under such paragraph for the fiscal year.
``(3) Carryover of amounts.--
``(A) First succeeding fiscal year.--Pursuant to
section 421(b) of the General Education Provisions Act,
amounts under a grant provided under paragraph (1) that
are not obligated and expended prior to the beginning of
the first fiscal year succeeding the fiscal year for
which such amounts were appropriated shall remain
available for obligation and expenditure during such
first succeeding fiscal year.

[[Page 2763]]
118 STAT. 2763

``(B) Second succeeding fiscal year.--Amounts under
a grant provided under paragraph (1) that are not
obligated and expended prior to the beginning of the
second fiscal year succeeding the fiscal year for which
such amounts were appropriated shall be returned to the
Secretary and used to make grants to States under
section 633 (from their allotments under this section)
during such second succeeding fiscal year.

``SEC. 644. NOTE: 20 USC 1444. 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 2005 through 2010.

``PART D--NATIONAL ACTIVITIES TO IMPROVE EDUCATION OF CHILDREN WITH
DISABILITIES

``SEC. 650. NOTE: 20 USC 1450. 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 those children 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--
``(A) to serve effectively children with
disabilities;

[[Page 2764]]
118 STAT. 2764

``(B) to assume leadership positions in
administration and direct services;
``(C) to provide teacher training; and
``(D) 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) 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.
``(10) 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.
``(11) 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
title 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

[[Page 2765]]
118 STAT. 2765

``(G) supporting such parents who may have limited
access to services and supports, due to economic,
cultural, or linguistic barriers.
``(12) 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 Development Grants

``SEC. 651. NOTE: 20 USC 1451. PURPOSE; DEFINITION OF PERSONNEL;
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 of Personnel.--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 amount.--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) Increase in amount.--The Secretary may increase the
amounts of grants under paragraph (4) to account for inflation.
``(5) Factors.--The Secretary shall determine the amount of
a 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;

[[Page 2766]]
118 STAT. 2766

``(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 research 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 remaining 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 educational agency that received
a competitive multi-year grant under subsection (c) for
which the grant period has not expired shall be not less
than the amount specified for that fiscal year in the
State educational agency's grant award document under
that subsection.
``(B) Special rule.--Each such State educational
agency shall use the minimum amount described in
subparagraph (A) for the activities described in the
State educational agency's competitive grant award
document for that year, unless the Secretary approves a
request from the State educational agency 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.
``(4) Direct benefit.--In using grant funds allotted under
paragraph (1), a State educational agency shall, through grants,
contracts, or cooperative agreements, undertake activities that
significantly and directly benefit the local educational
agencies in the State.

``(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

[[Page 2767]]
118 STAT. 2767

is necessary to make a continuation award to any State
educational agency (at the request of the State educational
agency) 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 2004), to enable the State educational agency to carry out
activities in accordance with the terms of the multi-year award.
``(2) Prohibition.--A State educational agency 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. NOTE: 20 USC 1452. 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--
``(A) not less than 1 institution of higher
education; and
``(B) the State agencies responsible for
administering part C, early education, 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

[[Page 2768]]
118 STAT. 2768

``(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
educational agency 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. NOTE: 20 USC 1453. 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 personnel,
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 who
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 and inservice
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 Development Plan.--Each State
personnel 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 educational agency 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;

[[Page 2769]]
118 STAT. 2769

``(2) describe how the strategies and activities described
in paragraph (4) will be coordinated with activities supported
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 educational agency will align
its personnel 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 those strategies the State educational agency
will use to address the professional development and personnel
needs identified under subsection (a)(2) and how such strategies
will be implemented, including--
``(A) a description of the 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 will be integrated, to the
maximum extent possible, with other activities supported
by grants funded under section 662;
``(5) provide an assurance that the State educational agency
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 educational agency
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 educational agency will recruit
and retain highly qualified teachers and other qualified
personnel in geographic areas of greatest need;
``(8) describe the steps the State educational agency 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 educational agency 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.

[[Page 2770]]
118 STAT. 2770

``(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--
``(1) describe the progress of the State educational agency
in implementing its plan;
``(2) analyze the effectiveness of the State educational
agency's activities under this subpart and of the State
educational agency's strategies for meeting its goals under
section 612(a)(15); and
``(3) identify changes in the strategies used by the State
educational agency and described in subsection (b)(4), if any,
to improve the State educational agency's performance.

``SEC. 654. NOTE: 20 USC 1454. 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;
``(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 of the
Elementary and Secondary Education Act of 1965; and
``(C) encourage collaborative and consultative
models of providing early intervention, special
education, and related services.
``(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;

[[Page 2771]]
118 STAT. 2771

``(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 who are limited
English proficient;
``(ii) involve collaborative groups of
teachers, administrators, and, in appropriate
cases, related services personnel;
``(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) provide training to meet the needs of
students with significant health, mobility, or
behavioral needs prior to serving such students;
``(C) train administrators, principals, and other
relevant school personnel in conducting effective IEP
meetings; and
``(D) train early intervention, preschool, and
related services providers, and other relevant school
personnel, in conducting effective individualized family
service plan (IFSP) 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 recruiting 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.

[[Page 2772]]
118 STAT. 2772

``(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
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 early
intervention 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
the teachers 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.

[[Page 2773]]
118 STAT. 2773

``(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) 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 achievement and functional 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.--A State educational agency that
receives a grant under this subpart--
``(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 the State 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 90 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 10 percent of the funds the State
educational agency receives under the grant for any fiscal year
for activities under subsection (b).

[[Page 2774]]
118 STAT. 2774

``(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. NOTE: 20 USC 1455. 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 2005 through
2010.

``Subpart 2--Personnel Preparation, Technical Assistance, Model
Demonstration Projects, and Dissemination of Information

``SEC. 661. NOTE: 20 USC 1461. PURPOSE; DEFINITION OF ELIGIBLE
ENTITY.

``(a) Purpose.--The purpose of this subpart is--
``(1) to provide Federal funding for personnel preparation,
technical assistance, model demonstration projects, information
dissemination, and studies and evaluations, in order 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 for
children with disabilities.

``(b) Definition of Eligible Entity.--
``(1) In general.--In this subpart, the term `eligible
entity' means--
``(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) a public agency not described in subparagraphs
(A) through (D);
``(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); or
``(I) 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 which eligible
entities described in paragraph (1) are eligible for a grant,
contract, or cooperative agreement under this subpart to 1 or
more of the categories of eligible entities described in
paragraph (1).

``SEC. 662. NOTE: 20 USC 1462. 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 to carry out 1 or more of the following objectives:
``(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 or toddlers

[[Page 2775]]
118 STAT. 2775

with disabilities, or children with disabilities, consistent
with the qualifications 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; Enhanced Support for Beginning Special
Educators.--
``(1) In general.--In carrying out this section, the
Secretary shall support activities--
``(A) for personnel development, including
activities for the preparation of personnel who will
serve children with high incidence and low incidence
disabilities, to prepare special education and general
education teachers, principals, administrators, and
related services personnel (and school board members,
when appropriate) to meet the diverse and individualized
instructional needs of children with disabilities and
improve early intervention, educational, and
transitional services and results for children with
disabilities, consistent with the objectives described
in subsection (a); and
``(B) for enhanced support for beginning special
educators, consistent with the objectives described in
subsection (a).
``(2) Personnel development.--In carrying out paragraph
(1)(A), the Secretary shall support not less than 1 of the
following activities:
``(A) Assisting effective existing, improving
existing, or developing new, collaborative personnel
preparation activities undertaken by institutions of
higher education, local educational agencies, and other
local entities that

[[Page 2776]]
118 STAT. 2776

incorporate best practices and scientifically based
research, where applicable, in providing special
education and general education teachers, principals,
administrators, and related services personnel with the
knowledge and skills to effectively support students
with disabilities, including--
``(i) working collaboratively in regular
classroom settings;
``(ii) using appropriate supports,
accommodations, and curriculum modifications;
``(iii) implementing effective teaching
strategies, classroom-based techniques, and
interventions to ensure appropriate identification
of students who may be eligible for special
education services, and to prevent the
misidentification, inappropriate
overidentification, or underidentification of
children as having a disability, especially
minority and limited English proficient children;
``(iv) effectively working with and involving
parents in the education of their children;
``(v) utilizing strategies, including positive
behavioral interventions, for addressing the
conduct of children with disabilities that impedes
their learning and that of others in the
classroom;
``(vi) effectively constructing IEPs,
participating in IEP meetings, and implementing
IEPs;
``(vii) preparing children with disabilities
to participate in statewide assessments (with or
without accommodations) and alternate assessments,
as appropriate, and to ensure that all children
with disabilities are a part of all accountability
systems under the Elementary and Secondary
Education Act of 1965; and
``(viii) working 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.
``(B) Developing, evaluating, and disseminating
innovative models for the recruitment, induction,
retention, and assessment of new, highly qualified
teachers to reduce teacher shortages, especially from
groups that are underrepresented in the teaching
profession, including individuals with disabilities.
``(C) Providing continuous personnel preparation,
training, and professional development designed to
provide support and ensure retention of special
education and general education 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) In the case of principals and superintendents,
providing activities to promote instructional leadership
and

[[Page 2777]]
118 STAT. 2777

improved collaboration between general educators,
special education teachers, and related services
personnel.
``(F) Supporting institutions of higher education
with minority enrollments of not less than 25 percent
for the purpose of preparing personnel to work with
children with disabilities.
``(G) Developing and improving programs to train
special education teachers to develop an expertise in
autism spectrum disorders.
``(H) Providing continuous personnel preparation,
training, and professional development designed to
provide support and improve the qualifications of
personnel who provide related services to children with
disabilities, including to enable such personnel to
obtain advanced degrees.
``(3) Enhanced support for beginning special educators.--In
carrying out paragraph (1)(B), the Secretary shall support not
less than 1 of the following activities:
``(A) Enhancing and restructuring existing programs
or developing preservice teacher education programs to
prepare special education teachers, at colleges or
departments of education within institutions of higher
education, by incorporating an extended (such as an
additional 5th year) clinical learning opportunity,
field experience, or supervised practicum into such
programs.
``(B) Creating or supporting teacher-faculty
partnerships (such as professional development schools)
that--
``(i) consist of not less than--
``(I) 1 or more institutions of
higher education with special education
personnel preparation programs;
``(II) 1 or more local educational
agencies that serve high numbers or
percentages of low-income students; or
``(III) 1 or more elementary schools
or secondary schools, particularly
schools that have failed to make
adequate yearly progress on the basis,
in whole and in part, of the assessment
results of the disaggregated subgroup of
students with disabilities;
``(ii) may include other entities eligible for
assistance under this part; and
``(iii) provide--
``(I) high-quality mentoring and
induction opportunities with ongoing
support for beginning special education
teachers; or
``(II) inservice professional
development to beginning and veteran
special education teachers through the
ongoing exchange of information and
instructional strategies with faculty.

``(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.

[[Page 2778]]
118 STAT. 2778

``(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.
``(G) Preparing personnel who provide services to
children with low incidence disabilities and limited
English proficient children.
``(3) Definition.--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 eligible
entities for assistance 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.

[[Page 2779]]
118 STAT. 2779

``(B) A demonstration of an effective collaboration
between an eligible entity and a local educational
agency that promotes recruitment and subsequent
retention of highly qualified personnel to serve
children with low incidence disabilities.
``(5) Preparation in use of braille.--The Secretary shall
ensure that all recipients of awards 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, related services faculty,
administrators, researchers, supervisors, principals,
and other persons whose work affects early intervention,
educational, and transitional services for children with
disabilities, including children with disabilities who
are limited English proficient children.

``(e) Applications.--
``(1) In general.--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.
``(2) Identified state needs.--
``(A) Requirement to address identified needs.--An
application for assistance under subsection (b), (c), or
(d) 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 eligible entity
proposes to serve.
``(B) Cooperation with state educational agencies.--
An eligible entity that is not a local educational
agency or a State educational agency shall include in
the eligible entity's application information
demonstrating to the satisfaction of the Secretary that
the eligible entity and 1 or more State educational
agencies or local educational agencies will cooperate in
carrying out and monitoring the proposed project.
``(3) Acceptance by states of personnel preparation
requirements.--The Secretary may require eligible entities to
provide in the eligible entities' applications 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 or other requirements in

[[Page 2780]]
118 STAT. 2780

State law or regulation for serving children with disabilities
or serving infants and toddlers with disabilities.

``(f) Selection of Recipients.--
``(1) Impact of project.--In selecting eligible entities for
assistance 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 eligible entities to meet state and
professional qualifications.--
The NOTE: Grants. Contracts. Secretary shall make grants and
enter into contracts and cooperative agreements under this
section only to eligible entities that meet State and
professionally recognized qualifications 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 eligible entities for
assistance under this section, the Secretary may give preference
to eligible entities that are 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.

``(g) Scholarships.--The Secretary may include funds for
scholarships, with necessary stipends and allowances, in awards under
subsections (b), (c), and (d).
``(h) Service Obligation.--
``(1) In general.--Each application for assistance under
subsections (b), (c), and (d) shall include an assurance that
the eligible entity will ensure that individuals who receive a
scholarship under the proposed project agree to subsequently
provide special education and related services to children with
disabilities, or in the case of leadership personnel to
subsequently work in the appropriate field, for a period of 2
years for every year for which the scholarship was received or
repay all or part of the amount of the scholarship, in
accordance with regulations issued by the Secretary.
``(2) Special rule.--Notwithstanding paragraph (1), the
Secretary may reduce or waive the service obligation requirement
under paragraph (1) if the Secretary determines that the service
obligation is acting as a deterrent to the recruitment of
students into special education or a related field.
``(3) Secretary's responsibility.--The Secretary--
``(A) shall ensure that individuals described in
paragraph (1) comply with the requirements of that
paragraph; and
``(B) may use not more than 0.5 percent of the funds
appropriated under subsection (i) for each fiscal year,
to carry out subparagraph (A), in addition to any other
funds that are available for that purpose.

[[Page 2781]]
118 STAT. 2781

``(i) 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 2005 through 2010.

``SEC. 663. TECHNICAL ASSISTANCE, DEMONSTRATION PROJECTS, DISSEMINATION
OF INFORMATION, AND IMPLEMENTATION OF SCIENTIFICALLY BASED
RESEARCH.

``(a) NOTE: Grants. Contracts. 20 USC 1463. In General.--The
Secretary shall make competitive grants to, or enter into contracts or
cooperative agreements with, eligible entities to provide technical
assistance, support model demonstration projects, disseminate useful
information, and implement activities that are supported by
scientifically based research.

``(b) Required Activities.--Funds received under this section shall
be used to support activities to improve services provided under this
title, including the practices of professionals and others involved in
providing such services to children with disabilities, that promote
academic achievement and improve results for children with disabilities
through--
``(1) implementing 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;
``(2) improving the alignment, compatibility, and
development of valid and reliable assessments and alternate
assessments for assessing adequate yearly progress, as described
under section 1111(b)(2)(B) of the Elementary and Secondary
Education Act of 1965;
``(3) providing training for both regular education teachers
and special education teachers to address the needs of students
with different learning styles;
``(4) disseminating information about innovative, effective,
and efficient curricula designs, instructional approaches, and
strategies, and identifying positive academic and social
learning opportunities, that--
``(A) provide effective transitions between
educational settings or from school to post school
settings; and
``(B) 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) applying scientifically 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) Authorized Activities.--Activities that may be carried out
under this section include activities to improve services provided under
this title, including the practices of professionals and others involved
in providing such services to children with disabilities, that promote
academic achievement and improve results for children with disabilities
through--
``(1) applying and testing research findings in typical
settings where children with disabilities receive services to
determine the usefulness, effectiveness, and general
applicability

[[Page 2782]]
118 STAT. 2782

of such research findings in such areas as improving
instructional methods, curricula, and tools, such as textbooks
and media;
``(2) supporting and promoting the coordination of early
intervention and educational services for children with
disabilities with services provided by health, rehabilitation,
and social service agencies;
``(3) promoting improved alignment and compatibility of
general and special education reforms concerned with curricular
and instructional reform, and evaluation of such reforms;
``(4) enabling professionals, parents of children with
disabilities, and other persons to learn about, and implement,
the findings of scientifically based research, and successful
practices developed in model demonstration projects, relating to
the provision of services to children with disabilities;
``(5) 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;
``(6) 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;
``(7) 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;
``(8) 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) addressing 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;
``(9) demonstrating models of personnel preparation to
ensure appropriate placements and services for all students and
to reduce disproportionality in eligibility, placement, and
disciplinary actions for minority and limited English proficient
children; and
``(10) disseminating information on how to reduce
inappropriate racial and ethnic disproportionalities identified
under section 618.

``(d) Balance Among Activities and Age Ranges.--In carrying out this
section, the Secretary shall ensure that there is an appropriate balance
across all age ranges of children with disabilities.
``(e) Linking States to Information Sources.--In carrying out this
section, the Secretary shall support projects that link States to
technical assistance resources, including special education and general
education resources, and shall make research and

[[Page 2783]]
118 STAT. 2783

related products available through libraries, electronic networks,
parent training projects, and other information sources, including
through the activities of the National Center for Education Evaluation
and Regional Assistance established under part D of the Education
Sciences Reform Act of 2002.
``(f) Applications.--
``(1) In general.--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.
``(2) Standards.--To the maximum extent feasible, each
eligible entity shall demonstrate that the project described in
the eligible entity's application is supported by scientifically
valid research that has been carried out in accordance with the
standards for the conduct and evaluation of all relevant
research and development established by the National Center for
Education Research.
``(3) Priority.--As appropriate, the Secretary shall give
priority to applications that propose to serve teachers and
school personnel directly in the school environment.

``SEC. 664. NOTE: 20 USC 1464. STUDIES AND EVALUATIONS.

``(a) Studies and Evaluations.--
``(1) Delegation.--The Secretary shall delegate to the
Director of the Institute of 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 to eligible
entities on a competitive basis, assess the progress in the
implementation of this title, 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 the infants and toddlers.

``(b) Assessment of National Activities.--
``(1) In general.--The Secretary shall carry out a national
assessment of activities carried out with Federal funds under
this title in order--
``(A) to determine the effectiveness of this title
in achieving the purposes of this title;
``(B) to provide timely information to the
President, Congress, the States, local educational
agencies, and the public on how to implement this title
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 title more
effectively.
``(2) Scope of assessment.--The national assessment shall
assess activities supported under this title, including--
``(A) the implementation of programs assisted under
this title and the impact of such programs on addressing
the developmental needs of, and improving the academic

[[Page 2784]]
118 STAT. 2784

achievement of, children with disabilities to enable the
children to reach challenging developmental goals and
challenging State academic content standards based on
State academic assessments;
``(B) the 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) the implementation of the professional
development activities assisted under this title 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) the effectiveness of schools, local
educational agencies, States, other recipients of
assistance under this title, and the Secretary in
achieving the purposes of this title by--
``(i) improving the academic achievement of
children with disabilities and their performance
on regular statewide assessments as compared to
nondisabled children, and the performance of
children with disabilities on alternate
assessments;
``(ii) improving the participation 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) reducing the inappropriate
overidentification of children, especially
minority and limited English proficient children,
as having a disability;
``(viii) improving the participation of
parents of children with disabilities in the
education of their children; and
``(ix) resolving disagreements between
education personnel and parents through alternate
dispute resolution activities, including
mediation.
``(3) Interim and final reports.--The Secretary shall submit
to the President and Congress--
``(A) an interim report that summarizes the
preliminary findings of the assessment not later than 3
years after the date of enactment of the Individuals
with Disabilities Education Improvement Act of 2004; and
``(B) a final report of the findings of the
assessment not later than 5 years after the date of
enactment of such Act.

``(c) Study on Ensuring Accountability for Students Who Are Held to
Alternative Achievement Standards.--The Secretary shall carry out a
national study or studies to examine--
``(1) the criteria that States use to determine--

[[Page 2785]]
118 STAT. 2785

``(A) eligibility for alternate assessments; and
``(B) the number and type of children who take those
assessments and are held accountable to alternative
achievement standards;
``(2) the validity and reliability of alternate assessment
instruments and procedures;
``(3) the alignment of alternate assessments and alternative
achievement standards to State academic content standards in
reading, mathematics, and science; 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 part E of the
Education Sciences Reform Act of 2002;
``(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 assessment of
national activities; and
``(5) describes the findings and determinations resulting
from reviews of State implementation of this title.

``(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 for children with disabilities served under this title,
including longitudinal studies that--

[[Page 2786]]
118 STAT. 2786

``(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 title, using a
national, representative sample of distinct age cohorts
and disability categories; and
``(B) examine educational results, transition
services, postsecondary placement, and employment status
for individuals with disabilities, 18 through 21 years
of age, who are receiving or have received special
education and related services under this title; and
``(5) identify and report on the placement of children with
disabilities by disability category.

``(f) NOTE: Reports. Study.--The Secretary shall study, and
report to Congress regarding, the extent to which States adopt policies
described in section 635(c)(1) and on the effects of those policies.

``SEC. 665. NOTE: 20 USC 1465. INTERIM ALTERNATIVE EDUCATIONAL
SETTINGS, BEHAVIORAL SUPPORTS, AND SYSTEMIC SCHOOL
INTERVENTIONS.

``(a) Program Authorized.--The Secretary may award grants, and enter
into contracts and cooperative agreements, to support safe learning
environments that support academic achievement for all students by--
``(1) improving the quality of interim alternative
educational settings; and
``(2) providing increased behavioral supports and research-
based, systemic interventions in schools.

``(b) Authorized Activities.--In carrying out this section, the
Secretary may support activities to--
``(1) establish, expand, or increase the scope of behavioral
supports and systemic interventions by providing for effective,
research-based practices, including--
``(A) training for school staff on early
identification, prereferral, and referral procedures;
``(B) training for administrators, teachers, related
services personnel, behavioral specialists, and other
school staff in positive behavioral interventions and
supports, behavioral intervention planning, and
classroom and student management techniques;
``(C) 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;
``(D) developing or implementing specific curricula,
programs, or interventions aimed at addressing
behavioral problems;
``(E) stronger linkages between school-based
services and community-based resources, such as
community mental health and primary care providers; or
``(F) using behavioral specialists, related services
personnel, and other staff necessary to implement
behavioral supports; or
``(2) improve interim alternative educational settings by--
``(A) improving the training of administrators,
teachers, related services personnel, behavioral
specialists, and other

[[Page 2787]]
118 STAT. 2787

school staff (including ongoing mentoring of new
teachers) in behavioral supports and interventions;
``(B) attracting and retaining a high quality,
diverse staff;
``(C) providing for referral to counseling services;
``(D) utilizing 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.

``(c) Definition of Eligible Entity.--In this section, 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 community mental health provider.
``(E) An educational service agency.

``(d) Applications.--Any eligible entity that wishes to receive a
grant, or enter into a contract or cooperative agreement, under this
section shall--
``(1) submit an application to the Secretary at such time,
in such manner, and containing such information as the Secretary
may require; and
``(2) involve parents of participating students in the
design and implementation of the activities funded under this
section.

``(e) Report and Evaluation.--Each eligible entity receiving a grant
under this section shall prepare and submit annually to the Secretary a
report on the outcomes of the activities assisted under the grant.

``SEC. 667. NOTE: 20 USC 1466. AUTHORIZATION OF APPROPRIATIONS.

``(a) In General.--There are authorized to be appropriated to carry
out this subpart (other than section 662) such sums as may be necessary
for each of the fiscal years 2005 through 2010.
``(b) Reservation.--From amounts appropriated under subsection (a)
for fiscal year 2005, the Secretary shall reserve $1,000,000 to carry
out the study authorized in section 664(c). From amounts appropriated
under subsection (a) for a succeeding fiscal year, the Secretary may
reserve an additional amount to

[[Page 2788]]
118 STAT. 2788

carry out such study if the Secretary determines the additional amount
is necessary.

``Subpart 3--Supports To Improve Results for Children With Disabilities

``SEC. 670. NOTE: 20 USC 1470. PURPOSES.

``The purposes of this subpart are to ensure that--
``(1) children with disabilities and their parents receive
training and information designed to assist the children in
meeting developmental and functional goals and challenging
academic achievement goals, and in preparing to lead productive
independent adult lives;
``(2) children with disabilities and their parents receive
training and information on their rights, responsibilities, and
protections under this title, 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;
``(3) parents, teachers, administrators, early intervention
personnel, related services personnel, and transition personnel
receive coordinated and accessible technical assistance and
information to assist such personnel in improving early
intervention, educational, and transitional services and results
for children with disabilities and their families; and
``(4) 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. NOTE: 20 USC 1471. PARENT TRAINING AND INFORMATION
CENTERS.

``(a) Program Authorized.--
``(1) In general.--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.
``(2) Definition of parent organization.--In this section,
the term `parent organization' means a private nonprofit
organization (other than an institution of higher education)
that--
``(A) has a board of directors--
``(i) the majority of whom are parents of
children with disabilities ages birth through 26;
``(ii) that includes--
``(I) individuals working in the
fields of special education, related
services, and early intervention; and
``(II) individuals with
disabilities; and
``(iii) the parent and professional members of
which are broadly representative of the population
to be served, including low-income parents and
parents of limited English proficient children;
and
``(B) has as its mission serving families of
children with disabilities who--
``(i) are ages birth through 26; and
``(ii) have the full range of disabilities
described in section 602(3).

[[Page 2789]]
118 STAT. 2789

``(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) ensure that the training and information provided
meets the needs of low-income parents and parents of limited
English proficient children;
``(4) 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--
``(i) options, programs, services,
technologies, practices and interventions based on
scientifically based research, to the extent
practicable; and
``(ii) resources available to assist children
with disabilities and their families in school and
at home;
``(E) understand the provisions of this title for
the education of, and the provision of early
intervention services to, children with disabilities;
``(F) participate in activities at the school level
that benefit their children; and
``(G) participate in school reform activities;
``(5) 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;
``(6) 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);
``(7) assist parents and students with disabilities to
understand their rights and responsibilities under this title,
including those under section 615(m) upon the student's reaching
the age of majority (as appropriate under State law);

[[Page 2790]]
118 STAT. 2790

``(8) assist parents to understand the availability of, and
how to effectively use, procedural safeguards under this title,
including the resolution session described in section 615(e);
``(9) assist parents in understanding, preparing for, and
participating in, the process described in section 615(f)(1)(B);
``(10) establish cooperative partnerships with community
parent resource centers funded under section 672;
``(11) network with appropriate clearinghouses, including
organizations conducting national dissemination activities under
section 663 and the Institute of Education Sciences, 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
``(12) NOTE: Reports. Deadlines. 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, including
community based organizations that work with low-income parents
and parents of limited English proficient children.

``(e) Distribution of Funds.--
``(1) In general.--The Secretary shall--
``(A) make not less than 1 award to a parent
organization in each State for a parent training and
information center that 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 not less than once in each calendar quarter to review the
activities for which the award was made.

[[Page 2791]]
118 STAT. 2791

``(2) Continuation award.--When a parent 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 parent
organization during the preceding fiscal year.

``SEC. 672. NOTE: 20 USC 1472. COMMUNITY PARENT RESOURCE CENTERS.

``(a) Program Authorized.--
``(1) In general.--The Secretary may award grants to, and
enter into contracts and cooperative agreements with, local
parent organizations to support community parent resource
centers that will help ensure that underserved parents of
children with disabilities, including low income parents,
parents of limited English proficient children, 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--
``(A) to meet developmental and functional goals,
and challenging academic achievement goals that have
been established for all children; and
``(B) to be prepared to lead productive independent
adult lives, to the maximum extent possible.
``(2) Definition of local parent organization.--In this
section, the term `local parent organization' means a parent
organization, as defined in section 671(a)(2), that--
``(A) 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
``(B) has as its mission serving parents of children
with disabilities who--
``(i) are ages birth through 26; and
``(ii) have the full range of disabilities
described in section 602(3).

``(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.

``SEC. 673. NOTE: 20 USC 1473. TECHNICAL ASSISTANCE FOR PARENT
TRAINING AND INFORMATION CENTERS.

``(a) Program Authorized.--
``(1) 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 section 671 and

[[Page 2792]]
118 STAT. 2792

community parent resource centers receiving assistance under
section 672.
``(2) Definition of eligible entity.--In this section, the
term `eligible entity' has the meaning given the term in section
661(b).

``(b) Authorized Activities.--The Secretary may provide technical
assistance to a parent training and information center or a community
parent resource center under this section in areas such as--
``(1) effective coordination of parent training efforts;
``(2) dissemination of scientifically based research and
information;
``(3) promotion of the use of technology, including
assistive technology devices and assistive technology services;
``(4) reaching underserved populations, including parents of
low-income and limited English proficient children with
disabilities;
``(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) Collaboration With the Resource Centers.--Each eligible entity
receiving an award under subsection (a) shall develop collaborative
agreements with the geographically appropriate regional resource center
and, as appropriate, the regional educational laboratory supported under
section 174 of the Education Sciences Reform Act of 2002, to further
parent and professional collaboration.

``SEC. 674. NOTE: 20 USC 1474. TECHNOLOGY DEVELOPMENT,
DEMONSTRATION, AND UTILIZATION; MEDIA SERVICES; AND
INSTRUCTIONAL MATERIALS.

``(a) Program Authorized.--
``(1) NOTE: Grants. Contracts. 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).
``(2) Definition of eligible entity.--In this section, the
term `eligible entity' has the meaning given the term in section
661(b).

``(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.

[[Page 2793]]
118 STAT. 2793

``(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.--
``(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, postsecondary schools,
and graduate schools.
``(2) Limitation.--The video description, open captioning,
or closed captioning described in paragraph (1)(B) shall be
provided only 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.--
``(1) In general.--Any eligible entity that wishes to
receive a grant, or enter into a contract or cooperative
agreement, under subsection (b) or (c) shall submit an
application to the Secretary at such time, in such manner, and
containing such information as the Secretary may require.
``(2) Special rule.--For the purpose of an application for
an award to carry out activities described in subsection
(c)(1)(D), such eligible entity shall--
``(A) be a national, nonprofit entity with a proven
track record of meeting the needs of students with print
disabilities through services described in subsection
(c)(1)(D);
``(B) have the capacity to produce, maintain, and
distribute in a timely fashion, up-to-date textbooks in
digital audio formats to qualified students; and

[[Page 2794]]
118 STAT. 2794

``(C) have a demonstrated ability to significantly
leverage Federal funds through other public and private
contributions, as well as through the expansive use of
volunteers.

``(e) National Instructional Materials Access Center.--
``(1) NOTE: Establishment. Deadline. In general.--The
Secretary shall establish and support, through the American
Printing House for the Blind, a center to be known as the
`National Instructional Materials Access Center' not later than
1 year after the date of enactment of the Individuals with
Disabilities Education Improvement Act of 2004.
``(2) Duties.--The duties of the National Instructional
Materials Access Center are the following:
``(A) To receive and maintain a catalog of print
instructional materials prepared in the National
Instructional Materials Accessibility Standard, as
established by the Secretary, made available to such
center by the textbook publishing industry, State
educational agencies, and local educational agencies.
``(B) To provide access to print instructional
materials, including textbooks, in accessible media,
free of charge, to blind or other persons with print
disabilities in elementary schools and secondary
schools, 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, with respect to
the print instructional materials provided under
sections 612(a)(23) and 613(a)(6).
``(3) Definitions.--In this subsection:
``(A) 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.
``(B) National instructional materials accessibility
standard.--The term `National Instructional Materials
Accessibility Standard' means the standard established
by the Secretary to be used in the preparation of
electronic files suitable and used solely for efficient
conversion into specialized formats.
``(C) 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 students in the classroom.
``(D) Specialized formats.--The term `specialized
formats' has the meaning given the term in section
121(d)(3) of title 17, United States Code.
``(4) Applicability.--This subsection shall apply to print
instructional materials published after the date on which the
final rule establishing the National Instructional Materials
Accessibility Standard was published in the Federal Register.

[[Page 2795]]
118 STAT. 2795

``(5) Liability of the secretary.--Nothing in this
subsection shall be construed to establish a private right of
action against the Secretary for failure to provide
instructional materials directly, or for failure by the National
Instructional Materials Access Center to perform the duties of
such center, or to otherwise authorize a private right of action
related to the performance by such center, including through the
application of the rights of children and parents established
under this Act.
``(6) Inapplicability.--Subsections (a) through (d) shall
not apply to this subsection.

``SEC. 675. NOTE: 20 USC 1475. 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 2005 through
2010.

``Subpart 4--General Provisions

``SEC. 681. NOTE: 20 USC 1481. COMPREHENSIVE PLAN FOR SUBPARTS 2 AND
3.

``(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 subparts 2 and 3 in order to enhance the provision of
early intervention services, educational services, related
services, and transitional services to children with
disabilities under parts B and C. To the extent practicable, the
plan shall be coordinated with the plan developed pursuant to
section 178(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 development grants under subpart 1 and for
grants under subparts 2 and 3.
``(2) Public comment.--The Secretary shall provide a public
comment period of not less than 45 days on the plan.
``(3) Distribution of funds.--In implementing the plan, the
Secretary shall, to the extent appropriate, ensure that funds
awarded under subparts 2 and 3 are used 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 subparts
2 and 3, including an initial report not later than 12 months
after the date of enactment of the Individuals with Disabilities
Education Improvement Act of 2004.

``(b) Assistance Authorized.--The Secretary is authorized to award
grants to, or enter into contracts or cooperative agreements with,
eligible entities to enable the eligible entities to carry out the
purposes of such subparts in accordance with the comprehensive plan
described in subsection (a).
``(c) Special Populations.--
``(1) Application requirement.--In making an award of a
grant, contract, or cooperative agreement under subpart 2 or 3,
the Secretary shall, as appropriate, require an eligible

[[Page 2796]]
118 STAT. 2796

entity to demonstrate how the eligible entity will address the
needs of children with disabilities from minority backgrounds.
``(2) NOTE: Historically Black colleges and
universities. Required outreach and technical assistance.--
Notwithstanding any other provision of this title, the Secretary
shall reserve not less than 2 percent of the total amount of
funds appropriated to carry out subparts 2 and 3 for either or
both of the following activities:
``(A) Providing outreach and technical assistance to
historically Black colleges and universities, and to
institutions of higher education with minority
enrollments of not less than 25 percent, to promote the
participation of such colleges, universities, and
institutions in activities under this subpart.
``(B) Enabling 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, if the historically Black colleges and
universities and the institutions of higher education
described in subparagraph (A) meet the criteria
established by the Secretary under this subpart.

``(d) Priorities.--The Secretary, in making an award of a grant,
contract, or cooperative agreement under subpart 2 or 3, may, without
regard to the rulemaking procedures under section 553 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 public charter schools;
``(J) children who are gifted and talented; or
``(K) children with disabilities served by local
educational agencies that receive payments under title
VIII of the Elementary and Secondary Education Act of
1965;
``(4) projects to reduce inappropriate identification of
children as children with disabilities, particularly among
minority children;

[[Page 2797]]
118 STAT. 2797

``(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
technologies with universal design, 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 subpart 2 or 3.

``(e) 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 subpart 2
or 3 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. 682. NOTE: 20 USC 1482. ADMINISTRATIVE PROVISIONS.

``(a) 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
subpart 2 or 3--
``(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 subpart 2 or 3 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).

``(b) Application Management.--
``(1) Standing panel.--
``(A) In general.--The Secretary shall establish and
use a standing panel of experts who are qualified, by
virtue of their training, expertise, or experience, to
evaluate each application under subpart 2 or 3 that
requests 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;

[[Page 2798]]
118 STAT. 2798

``(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) individuals who are 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.--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 subpanel selected from the standing panel that
reviews an application under subpart 2 or 3 includes--
``(i) individuals with knowledge and expertise
on the issues addressed by the activities
described in the application; 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 subpanel that reviews an
application under subpart 2 or 3 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 available under
subpart 2 or 3 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 subpart 2 or 3 to pay non-Federal entities for
administrative support related to management of
applications submitted under subpart 2 or 3,
respectively.

``(c) Program Evaluation.--The Secretary may use funds made
available to carry out subpart 2 or 3 to evaluate activities carried out
under subpart 2 or 3, respectively.
``(d) Minimum Funding Required.--
``(1) In general.--Subject to paragraph (2), the Secretary
shall ensure that, for each fiscal year, not less than the
following amounts are provided under subparts 2 and 3 to address
the following needs:

[[Page 2799]]
118 STAT. 2799

``(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 sum of the amount
appropriated to carry out subparts 2 and 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 for the fiscal year.''.

TITLE II--NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH

SEC. 201. NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH.

(a) Amendment.--The Education Sciences Reform Act of 2002 (20 U.S.C.
9501 et seq.) is amended--
(1) by redesignating part E as part F; and
(2) by inserting after part D the following:

``PART E--NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH

``SEC. 175. NOTE: 20 USC 9567. ESTABLISHMENT.

``(a) Establishment.--There is established in the Institute a
National Center for Special Education Research (in this part referred to
as the `Special Education Research Center').
``(b) Mission.--The mission of 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 (20 U.S.C. 1400 et seq.); 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. NOTE: 20 USC 9567a. 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

[[Page 2800]]
118 STAT. 2800

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. NOTE: 20 USC 9567b. 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 or toddlers
with disabilities;
``(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 (20 U.S.C. 6311(b));
``(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 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;

[[Page 2801]]
118 STAT. 2801

``(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;
``(16) address the unique needs of children with significant
cognitive disabilities; and
``(17) examine the special needs of limited English
proficient children with disabilities.

``(b) Standards.--The Special Education Research Commissioner 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 accordance 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 Special Education Research Commissioner 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 purposes 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; and
``(6) is coordinated with the comprehensive plan developed
under section 681 of the Individuals with Disabilities Education
Act.

``(d) Grants, Contracts, and Cooperative Agreements.--
``(1) In general.--In carrying out the duties under this
section, the Director may award grants to, or enter into
contracts or cooperative agreements with, eligible applicants.
``(2) Eligible applicants.--Activities carried out under
this subsection through contracts, grants, or cooperative
agreements shall be carried out only by recipients with the
ability and capacity to conduct scientifically valid research.
``(3) Applications.--An eligible applicant that wishes to
receive a grant, or enter into a contract or cooperative
agreement, under this section shall submit an application to the
Director at such time, in such manner, and containing such
information as the Director may require.

``(e) 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

[[Page 2802]]
118 STAT. 2802

``(2) assist the Director in the preparation of a biennial
report, as described in section 119.

``(f) 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 2005 through 2010.''.
(b) Conforming Amendments.--
(1) Amendments to the table of contents.--The table of
contents in section 1 of the Act entitled ``An Act to provide
for improvement of Federal education research, statistics,
evaluation, information, and dissemination, and for other
purposes'', approved November 5, 2002 (116 Stat. 1940; Public
Law 107-279), is amended--
(A) by redesignating the item relating to part E as
the item relating to part F; and
(B) by inserting after the item relating to section
174 the following:

``Part E--National Center for Special Education Research

``Sec. 175. Establishment.
``Sec. 176. Commissioner for Special Education Research.
``Sec. 177. Duties.''.

(2) Education sciences reform act of 2002.--The Education
Sciences Reform Act of 2002 (20 U.S.C. 9501 et seq.) is
amended--
(A) in section 111(b)(1)(A) (20 U.S.C.
9511(b)(1)(A)), by inserting ``and special education''
after ``early childhood education'';
(B) in section 111(c)(3) (20 U.S.C. 9511(c)(3))--
(i) in subparagraph (B), by striking ``and''
after the semicolon;
(ii) in subparagraph (C), by striking the
period and inserting ``; and''; and
(iii) by adding at the end the following:
``(D) the National Center for Special Education
Research (as described in part E).'';
(C) in section 115(a) (20 U.S.C. 9515(a)), by
striking ``including those'' and all that follows
through ``such as'' and inserting ``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''; and
(D) in section 116(c)(4)(A)(ii) (20 U.S.C.
9516(c)(4)(A)(ii), by inserting ``special education
experts,'' after ``early childhood experts,''.
(3) Elementary and secondary education act of 1965.--Section
1117(a)(3) of the Elementary and Secondary Education Act of 1965
(20 U.S.C. 6317(a)(3)) is amended by striking ``part E'' and
inserting ``part D''.

SEC. 202. NATIONAL BOARD FOR EDUCATION SCIENCES.

Section 116(c)(9) of the Education Sciences Reform Act of 2002 (20
U.S.C. 9516(c)(9)) is amended by striking the third sentence and
inserting the following: ``Meetings of the Board are subject to section
552b of title 5, United States Code (commonly referred to as the
Government in the Sunshine Act).''.

[[Page 2803]]
118 STAT. 2803

SEC. 203. REGIONAL ADVISORY COMMITTEES.

Section 206(d)(3) of the Educational Technical Assistance Act of
2002 (20 U.S.C. 9605(d)(3)) is amended by striking ``Academy'' and
inserting ``Institute''.

TITLE III--MISCELLANEOUS PROVISIONS

SEC. 301. AMENDMENT TO CHILDREN'S HEALTH ACT OF 2000.

Section 1004 of the Children's Health Act of 2000 (42 U.S.C. 285g
note) is amended--
(1) in subsection (b), by striking ``Agency'' and inserting
``Agency, and the Department of Education''; and
(2) in subsection (c)--
(A) in paragraph (2), by striking ``and'' after the
semicolon;
(B) in paragraph (3), by striking the period at the
end and inserting ``; and''; and
(C) by adding at the end the following:
``(4) be conducted in compliance with section 444 of the
General Education Provisions Act (20 U.S.C. 1232g), including
the requirement of prior parental consent for the disclosure of
any education records, except without the use of authority or
exceptions granted to authorized representatives of the
Secretary of Education for the evaluation of Federally-supported
education programs or in connection with the enforcement of the
Federal legal requirements that relate to such programs.''.

SEC. 302. EFFECTIVE DATES.

(a) NOTE: 20 USC 1400 note. Parts A, B, and C, and subpart 1 of
part D.--
(1) In general.--Except as provided in paragraph (2), parts
A, B, and C, and subpart 1 of part D, of the Individuals with
Disabilities Education Act, as amended by title I, shall take
effect on July 1, 2005.
(2) Highly qualified definition.--Subparagraph (A), and
subparagraphs (C) through (F), of section 602(10) of the
Individuals with Disabilities Education Act, as amended by title
I, shall take effect on the date of enactment of this Act for
purposes of the Elementary and Secondary Education Act of 1965.

(b) Subparts 2, 3, and 4 of part D.--Subparts 2, 3, and 4 of part D
of the Individuals with Disabilities Education Act, as amended by title
I, shall take effect on the date of enactment of this Act.
(c) NOTE: 20 USC 9567b note. Education Sciences Reform Act of
2002.--
(1) National center for special education research.--
Sections 175, 176, and 177 (other than section 177(c)) of the
Education Sciences Reform Act of 2002, as enacted by section
201(a)(2) of this Act, shall take effect on the date of
enactment of this Act.
(2) Plan.--Section 177(c) of the Education Sciences Reform
Act of 2002, as enacted by section 201(a)(2) of this Act, shall
take effect on October 1, 2005.

SEC. 303. NOTE: 20 USC 1400 note. TRANSITION.

(a) Orderly Transition.--

[[Page 2804]]
118 STAT. 2804

(1) In general.--The Secretary of Education (in this section
referred to as ``the Secretary'') shall take such steps as are
necessary to provide for the orderly transition from the
Individuals with Disabilities Education Act, as such Act was in
effect on the day preceding the date of enactment of this Act,
to the Individuals with Disabilities Education Act and part E of
the Education Sciences Reform Act of 2002, as amended by this
Act.
(2) Limitation.--The Secretary's authority in paragraph (1)
shall terminate 1 year after the date of enactment of this Act.

(b) Multi-year Awards.--Notwithstanding any other provision of law,
the Secretary may use funds appropriated under part D of the Individuals
with Disabilities Education Act to make continuation awards for projects
that were funded under section 618, and part D, of the Individuals with
Disabilities Education Act (as such section and part were in effect on
September 30, 2004), in accordance with the terms of the original
awards.
(c) Research.--Notwithstanding section 302(b) or any other provision
of law, the Secretary may award funds that are appropriated under the
Department of Education Appropriations Act, 2005 for special education
research under either of the headings ``Special Education'' or
``Institute of Education Sciences'' in accordance with sections 672 and
674 of the Individuals with Disabilities Education Act, as such sections
were in effect on October 1, 2004.

SEC. 304. REPEALER.

Section 644 of the NOTE: 20 USC 1444. Individuals with
Disabilities Education Act, as such section was in effect on the day
before the enactment of this Act, is repealed.

SEC. 305. IDEA TECHNICAL AMENDMENTS TO OTHER LAWS.

(a) Title 10.--Section 2164(f) of title 10, United States Code is
amended--
(1) in paragraph (1)(B)--
(A) by striking ``infants and toddlers'' each place
the term appears and inserting ``infants or toddlers'';
(B) by striking ``part H'' and inserting ``part C'';
and
(C) by striking ``1471'' and inserting ``1431''; and
(2) in paragraph (3)--
(A) in subparagraph (A)--
(i) by striking ``602(a)(1)'' and inserting
``602''; and
(ii) by striking ``1401(a)(1)'' and inserting
``1401'';
(B) by striking subparagraph (B);
(C) by redesignating subparagraph (C) as
subparagraph (B); and
(D) in subparagraph (B) (as so redesignated)--
(i) by striking ``and toddlers'' and inserting
``or toddlers'';
(ii) by striking ``672(1)'' and inserting
``632''; and
(iii) by striking ``1472(1)'' and inserting
``1432''.

(b) Defense Dependents Education Act of 1978.--Section 1409(c)(2) of
the Defense Dependents Education Act of 1978 (20 U.S.C. 927(c)(2)) is
amended--
(1) by striking ``677'' and inserting ``636''; and
(2) by striking ``part H'' and inserting ``part C''.

[[Page 2805]]
118 STAT. 2805

(c) Higher Education Act of 1965.--The Higher Education Act of 1965
(20 U.S.C. 1001 et seq.) is amended--
(1) in section 465(a)(2)(C) (20 U.S.C. 1087ee(a)(2)(C), by
striking ``Individuals With'' and inserting ``Individuals with''
and;
(2) in section 469(c) (20 U.S.C. 1087ii(c)), by striking
``602(a)(1) and 672(1)'' and inserting ``602 and 632''.

(d) Education of the Deaf Act.--The matter preceding subparagraph
(A) of section 104(b)(2) of the Education of the Deaf Act (20 U.S.C.
4304(b)(2)) is amended by striking ``618(a)(1)(A)'' and inserting
``618(a)(1)''.
(e) Goals 2000: Educate America Act.--Section 3(a)(9) of the Goals
2000: Educate America Act (20 U.S.C. 5802(a)(9)) is amended by striking
``602(a)(17)'' and inserting ``602''.
(f) School-to-Work Opportunities Act of 1994.--Section 4(15) of the
School-to-Work Opportunities Act of 1994 (20 U.S.C. 6103(15)) is
amended--
(1) by striking ``602(a)(17)'' and inserting ``602''; and
(2) by striking ``1401(17)'' and inserting ``1401''.

(g) Elementary and Secondary Education Act of 1965.--The Elementary
and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.) is
amended--
(1) in section 1111(b)(2)(I)(ii) (20 U.S.C.
6311(b)(2)(I)(ii)), by striking ``612(a)(17)(A)'' and inserting
``612(a)(16)(A)'';
(2) in section 5208 (20 U.S.C. 7221g), by striking
``602(11)'' and inserting ``602''; and
(3) in section 5563(b)(8)(C) (20 U.S.C. 7273b(b)(8)(C)), by
striking ``682'' and inserting ``671''.

(h) Rehabilitation Act of 1973.--The Rehabilitation Act of 1973 (29
U.S.C. 701 et seq.) is amended--
(1) in section 101(a)(11)(D)(ii) (29 U.S.C.
721(a)(11)(D)(ii)), by striking ``(as added by section 101 of
Public Law 105-17)'';
(2) in section 105(b)(1)(A)(ii) (29 U.S.C.
725(b)(1)(A)(ii)), by striking ``682(a) of the Individuals with
Disabilities Education Act (as added by section 101 of the
Individuals with Disabilities Education Act Amendments of 1997;
Public Law 105-17)'' and inserting ``671 of the Individuals with
Disabilities Education Act'';
(3) in section 105(c)(6) (29 U.S.C. 725(c)(6))--
(A) by striking ``612(a)(21)'' and inserting
``612(a)(20)'';
(B) by striking ``Individual with'' and inserting
``Individuals with''; and
(C) by striking ``(as amended by section 101 of the
Individuals with Disabilities Education Act Amendments
of 1997; Public Law 105-17)'';
(4) in section 302(f)(1)(D)(ii) (29 U.S.C. 772
(f)(1)(D)(ii)), by striking ``(as amended by section 101 of the
Individuals with Disabilities Education Act Amendments of 1997
(Public Law 105-17))'';
(5) in section 303(c)(6) (29 U.S.C. 773(c)(6))--
(A) by striking ``682(a)'' and inserting ``671'';
and
(B) by striking ``(as added by section 101 of the
Individuals with Disabilities Education Act Amendments
of 1997; Public Law 105-17)''; and
(6) in section 303(c)(4)(A)(ii) (29 U.S.C.
773(c)(4)(A)(ii)), by striking ``682(a) of the Individuals with
Disabilities Education

[[Page 2806]]
118 STAT. 2806

Act (as added by section 101 of the Individuals with
Disabilities Education Act Amendments of 1997; Public Law 105-
17)'' and inserting ``671 of the Individuals with Disabilities
Education Act''.

(i) Public Health Service Act.--The Public Health Service Act (42
U.S.C. 201 et seq.) is amended--
(1) in section 399A(f) NOTE: 42 USC 290bb-25. (42 U.S.C.
280d(f), by striking ``part H'' and inserting ``part C'';
(2) in section 399(n)(3) (42 U.S.C. 280c-6(n)(3)), by
striking ``part H'' and inserting ``part C'';
(3) in section 399A(b)(8) NOTE: 42 USC 290bb-25. (42
U.S.C. 280d(b)(8)), by striking ``part H'' and inserting ``part
C'';
(4) in section 562(d)(3)(B) (42 U.S.C. 290ff-1(d)(3)(B)), by
striking ``and H'' and inserting ``and C''; and
(5) in section 563(d)(2) (42 U.S.C. 290ff-2(d)(2)), by
striking ``602(a)(19)'' and inserting ``602''.

(j) Social Security Act.--The Social Security Act (42 U.S.C. 301 et
seq.) is amended--
(1) in section 1903(c) (42 U.S.C. 1396b(c)), by striking
``part H'' and inserting ``part C''; and
(2) in section 1915(c)(5)(C)(i) (42 U.S.C.
1396n(c)(5)(C)(i)), by striking ``(as defined in section 602(16)
and (17) of the Education of the Handicapped Act (20 U.S.C.
1401(16), (17))'' and inserting ``(as such terms are defined in
section 602 of the Individuals with Disabilities Education Act
(20 U.S.C. 1401))''.

(k) Domestic Volunteer Service Act of 1973.--Section 211(a) of the
Domestic Volunteer Service Act of 1973 (42 U.S.C. 5011(a)) is amended--
(1) by striking ``part H'' and inserting ``part C''; and
(2) by striking ``1471'' and inserting ``1431''.

(l) Head Start Act.--The Head Start Act (42 U.S.C. 9831 et seq.) is
amended--
(1) in section 640(a)(5)(C)(iv) (42 U.S.C.
9835(a)(5)(C)(iv)), by striking ``1445'' and inserting ``1444'';
(2) in section 640(d) (42 U.S.C. 9835(d))--
(A) by striking ``U.S.C'' and inserting ``U.S.C.'';
and
(B) by striking ``1445'' and inserting ``1444'';
(3) in section 641(d)(3) (42 U.S.C. 9836(d)(3)), by striking
``U.S.C 1431-1445'' and inserting ``U.S.C. 1431-1444''; and
(4) in section 642(c) (42 U.S.C. 9837(c)), by striking
``1445'' and inserting ``1444''.

(m) National and Community Service Act of 1990.--Section 101(21)(B)
of the National and Community Service Act of 1990 (42 U.S.C.
12511(21)(B)) is amended--
(1) by striking ``602(a)(1)'' and inserting ``602''; and
(2) by striking ``1401(a)(1)'' and inserting ``1401''.

(n) Developmental Disabilities Assistance and Bill of Rights Act of
2000.--The Developmental Disabilities Assistance and Bill of Rights Act
of 2000 (42 U.S.C. 15001 et seq.) is amended--
(1) in section 125(c)(5)(G)(i) (42 U.S.C.
15025(c)(5)(G)(i)), by striking ``subtitle C'' and inserting
``part C''; and
(2) in section 154(a)(3)(E)(ii)(VI) (42 U.S.C.
15064(a)(3)(E)(ii)(VI))--
(A) by striking ``682 or 683'' and inserting ``671
or 672''; and
(B) by striking ``(20 U.S.C. 1482, 1483)''.

[[Page 2807]]
118 STAT. 2807

(o) District of Columbia School Reform Act of 1995.--The District of
Columbia School Reform Act of 1995 (Public Law 104-134) is amended--
(1) NOTE: 110 Stat. 1321-107. in section 2002(32)--
(A) by striking ``602(a)(1)'' and inserting ``602'';
and
(B) by striking ``1401(a)(1)'' and inserting
``1401'';
(2) in section 2202(19), NOTE: 110 Stat. 1321-116. by
striking ``Individuals With'' and inserting ``Individuals
with''; and
(3) NOTE: 110 Stat. 1321-125. in section 2210--
(A) in the heading for subsection (c), by striking
``With Disabilities'' and inserting ``with
Disabilities''; and
(B) in subsection (c), by striking ``Individuals
With'' and inserting ``Individuals with''.

SEC. 306. COPYRIGHT.

Section 121 of title 17, United States Code, is amended--
(1) by redesignating subsection (c) as subsection (d);
(2) by inserting after subsection (b) the following:

``(c) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a publisher of print instructional
materials for use in elementary or secondary schools to create and
distribute to the National Instructional Materials Access Center copies
of the electronic files described in sections 612(a)(23)(C), 613(a)(6),
and section 674(e) of the Individuals with Disabilities Education Act
that contain the contents of print instructional materials using the
National Instructional Material Accessibility Standard (as defined in
section 674(e)(3) of that Act), if--
``(1) the inclusion of the contents of such print
instructional materials is required by any State educational
agency or local educational agency;
``(2) the publisher had the right to publish such print
instructional materials in print formats; and
``(3) such copies are used solely for reproduction or
distribution of the contents of such print instructional
materials in specialized formats.''; and
(3) in subsection (d), as redesignated by this section--
(A) in paragraph (2), by striking ``and'' after the
semicolon; and
(B) by striking paragraph (3) and inserting the
following:
``(3) `print instructional materials' has the meaning given
under section 674(e)(3)(C) of the Individuals with Disabilities
Education Act; and
``(4) `specialized formats' means--
``(A) braille, audio, or digital text which is
exclusively for use by blind or other persons with
disabilities; and
``(B) with respect to print instructional materials,
includes large print formats when such materials are

[[Page 2808]]
118 STAT. 2808

distributed exclusively for use by blind or other
persons with disabilities.''.

Approved December 3, 2004.

LEGISLATIVE HISTORY--H.R. 1350 (S. 1248):
---------------------------------------------------------------------------

HOUSE REPORTS: Nos. 108-77 (Comm. on Education and the Workforce) and
108-779 (Comm. of Conference).
SENATE REPORTS: No. 108-185 accompanying S. 1248 (Comm. on Health,
Education, Labor, and Pensions).
CONGRESSIONAL RECORD:
Vol. 149 (2003):
Apr. 30, considered and passed
House.
Vol. 150 (2004):
May 13, considered and passed
Senate, amended, in lieu of
S. 1248.
Nov. 19, House and Senate agreed to
conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 40 (2004):
Dec. 3, Presidential statement and remarks.