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SECTION 1412
Statute/Regs Main » Statute » Subchapter II (Part B) » 1412
AAA
§1412. STATE ELIGIBILITY
(A) IN GENERAL
A State is eligible for assistance under this subchapter for a fiscal year if
the State submits a plan that provides assurances to the Secretary that the
State has in effect policies and procedures to ensure that the State meets each
of the following conditions:
(1) FREE APPROPRIATE PUBLIC EDUCATION
(A) IN GENERAL
* A free appropriate public education is available to all children with
disabilities residing in the State between the ages of 3 and 21,
inclusive, including children with disabilities who have been suspended or
expelled from school.
(B) LIMITATION
* The obligation to make a free appropriate public education available to
all children with disabilities does not apply with respect to children—
* (i) aged 3 through 5 and 18 through 21 in a State to the extent that
its application to those children would be inconsistent with State law
or practice, or the order of any court, respecting the provision of
public education to children in those age ranges; and
* (ii) aged 18 through 21 to the extent that State law does not require
that special education and related services under this subchapter 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 1401 of this title; or
* (II) did not have an individualized education program under this
subchapter.
(C) STATE FLEXIBILITY
* A State that provides early intervention services in accordance with
subchapter III to a child who is eligible for services under section 1419
of this title, 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 chapter requires that children be classified by their
disability so long as each child who has a disability listed in section
1401 of this title and who, by reason of that disability, needs special
education and related services is regarded as a child with a disability
under this subchapter.
(4) INDIVIDUALIZED EDUCATION PROGRAM
* An individualized education program, or an individualized family service plan
that meets the requirements of section 1436(d) of this title, is developed,
reviewed, and revised for each child with a disability in accordance with
section 1414(d) of this title.
(5) LEAST RESTRICTIVE ENVIRONMENT
(A) IN GENERAL
* To the maximum extent appropriate, children with disabilities, including
children in public or private institutions or other care facilities, are
educated with children who are not disabled, and special classes, separate
schooling, or other removal of children with disabilities from the regular
educational environment occurs only when the nature or severity of the
disability of a child is such that education in regular classes with the
use of supplementary aids and services cannot be achieved satisfactorily.
(B) ADDITIONAL REQUIREMENT
(I) IN GENERAL
* A State funding mechanism shall not result in placements that violate
the requirements of subparagraph (A), and a State shall not use a
funding mechanism by which the State distributes funds on the basis of
the type of setting in which a child is served that will result in the
failure to provide a child with a disability a free appropriate public
education according to the unique needs of the child as described in
the child’s IEP.
(II) ASSURANCE
* If the State does not have policies and procedures to ensure compliance
with clause (i), the State shall provide the Secretary an assurance
that the State will revise the funding mechanism as soon as feasible to
ensure that such mechanism does not result in such placements.
(6) PROCEDURAL SAFEGUARDS
(A) IN GENERAL
* Children with disabilities and their parents are afforded the procedural
safeguards required by section 1415 of this title.
(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 chapter 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 1414 of this title.
(8) CONFIDENTIALITY
* Agencies in the State comply with section 1417(c) of this title (relating to
the confidentiality of records and information).
(9) TRANSITION FROM SUBCHAPTER III TO PRESCHOOL PROGRAMS
* Children participating in early intervention programs assisted under
subchapter III, and who will participate in preschool programs assisted under
this subchapter, experience a smooth and effective transition to those
preschool programs in a manner consistent with section 1437(a)(9) of this
title. By the third birthday of such a child, an individualized education
program or, if consistent with sections 1414(d)(2)(B) and 1436(d) of this
title, 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 1435(a)(10) of this title.
(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
subchapter 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
subchapter.
* (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).
(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 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 chapter, 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 subchapter or any other applicable law requiring
the provision of special education and related services to all children
with disabilities within such State.
(II) STANDARDS
* In all cases described in clause (i), the State educational agency shall
determine whether such schools and facilities meet standards that apply to
State 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 subchapter 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 1415(b)(3) of this title, of its
intent to evaluate the child (including a statement of the purpose of
the evaluation that was appropriate and reasonable), but the parents
did not make the child available for such evaluation; or
* (III) upon a judicial finding of unreasonableness with respect to
actions taken by the parents.
(IV) EXCEPTION
* Notwithstanding the notice requirement in clause (iii)(I), the cost of
reimbursement—
* (I) shall not be reduced or denied for failure to provide such notice
if—
* (aa) the school prevented the parent from providing such notice;
* (bb) the parents had not received notice, pursuant to section 1415
of this title, 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 subchapter 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 subchapter 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 subchapter are met with respect to children with
disabilities who are convicted as adults under State law and incarcerated
in adult prisons.
(12) OBLIGATIONS RELATED TO AND METHODS OF ENSURING SERVICES
(A) ESTABLISHING RESPONSIBILITY FOR SERVICES
* The Chief Executive Officer of a State or designee of the officer shall
ensure that an interagency agreement or other mechanism for interagency
coordination is in effect between each public agency described in
subparagraph (B) and the State educational agency, in order to ensure that
all services described in subparagraph (B)(i) that are needed to ensure a
free appropriate public education are provided, including the provision of
such services during the pendency of any dispute under clause (iii). Such
agreement or mechanism shall include the following:
(I) AGENCY FINANCIAL RESPONSIBILITY
* An identification of, or a method for defining, the financial
responsibility of each agency for providing services described in
subparagraph (B)(i) to ensure a free appropriate public education to
children with disabilities, provided that the financial responsibility
of each public agency described in subparagraph (B), including the
State medicaid agency and other public insurers of children with
disabilities, shall precede the financial responsibility of the local
educational agency (or the State agency responsible for developing the
child’s IEP).
(II) CONDITIONS AND TERMS OF REIMBURSEMENT
* The conditions, terms, and procedures under which a local educational
agency shall be reimbursed by other agencies.
(III) INTERAGENCY DISPUTES
* Procedures for resolving interagency disputes (including procedures
under which local educational agencies may initiate proceedings) under
the agreement or other mechanism to secure reimbursement from other
agencies or otherwise implement the provisions of the agreement or
mechanism.
(IV) COORDINATION OF SERVICES PROCEDURES
* Policies and procedures for agencies to determine and identify the
interagency coordination responsibilities of each agency to promote the
coordination and timely and appropriate delivery of services described
in subparagraph (B)(i).
(B) OBLIGATION OF PUBLIC AGENCY
(I) IN GENERAL
* If any public agency other than an educational agency is otherwise
obligated under Federal or State law, or assigned responsibility under
State policy pursuant to subparagraph (A), to provide or pay for any
services that are also considered special education or related services
(such as, but not limited to, services described in section 1401(1)
relating to assistive technology devices, 1401(2) relating to assistive
technology services, 1401(26) relating to related services, 1401(33)
relating to supplementary aids and services, and 1401(34) of this title
relating to transition services) that are necessary for ensuring a free
appropriate public education to children with disabilities within the
State, such public agency shall fulfill that obligation or
responsibility, either directly or through contract or other
arrangement pursuant to subparagraph (A) or an agreement pursuant to
subparagraph (C).
(II) REIMBURSEMENT FOR SERVICES BY PUBLIC AGENCY
* If a public agency other than an educational agency fails to provide or
pay for the special education and related services described in clause
(i), the local educational agency (or State agency responsible for
developing the child’s IEP) shall provide or pay for such services to
the child. Such local educational agency or State agency is authorized
to claim reimbursement for the services from the public agency that
failed to provide or pay for such services and such public agency shall
reimburse the local educational agency or State agency pursuant to the
terms of the interagency agreement or other mechanism described in
subparagraph (A)(i) according to the procedures established in such
agreement pursuant to subparagraph (A)(ii).
(C) SPECIAL RULE
* The requirements of subparagraph (A) may be met through—
* (i) State statute or regulation;
* (ii) signed agreements between respective agency officials that clearly
identify the responsibilities of each agency relating to the provision
of services; or
* (iii) other appropriate written methods as determined by the Chief
Executive Officer of the State or designee of the officer and approved
by the Secretary.
(13) PROCEDURAL REQUIREMENTS RELATING TO LOCAL EDUCATIONAL AGENCY ELIGIBILITY
* The State educational agency will not make a final determination that a local
educational agency is not eligible for assistance under this subchapter
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 subchapter 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 meeting the requirements of this subchapter to be
used to assist in the provision of special education and related
services under this subchapter 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—
* (i) has obtained full State certification as a special education
teacher (including participating in an alternate route to certification
as a special educator, if such alternate route meets minimum
requirements described in section 2005.56(a)(2)(ii) of title 34, Code
of Federal Regulations, as such section was in effect on November 28,
2008), or passed the State special education teacher licensing
examination, and holds a license to teach in the State as a special
education teacher, except with respect to any teacher teaching in a
public charter school who shall meet the requirements set forth in the
State’s public charter school law;
* (ii) has not had special education certification or licensure
requirements waived on an emergency, temporary, or provisional basis;
and
* (iii) holds at least a bachelor’s degree..1
(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 personnel who meet the
applicable requirements described in this paragraph to provide special
education and related services under this subchapter to children with
disabilities.
(E) RULE OF CONSTRUCTION
* Notwithstanding any other individual right of action that a parent or
student may maintain under this subchapter, 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 meet the applicable requirements
described in this paragraph, or to prevent a parent from filing a
complaint about staff qualifications with the State educational agency as
provided for under this subchapter.
(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 chapter, as stated in section 1400(d)
of this title;
* (ii) are the same as the State’s long-term goals and measurements of
interim progress for children with disabilities under section
6311(c)(4)(A)(i) of this title;
* (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 measurements of interim progress for children with disabilities
under section 6311(c)(4)(A)(i) of this title; and
* (C) will annually report to the Secretary and the public on the progress
of the State, and of children with disabilities in the State, toward
meeting the goals established under subparagraph (A), which may include
elements of the reports required under section 6311(h) of this title.
(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 6311 of this title, 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 challenging State academic content
standards under section 6311(b)(1) of this title and alternate
academic achievement standards under section 6311(b)(1)(E) of this
title; and
* (II) if the State has adopted alternate academic achievement
standards permitted under section 6311(b)(1)(E) of this title,
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.
(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 subchapter will be expended in accordance
with all the provisions of this subchapter.
(B) PROHIBITION AGAINST COMMINGLING
* Funds paid to a State under this subchapter will not be commingled with
State funds.
(C) PROHIBITION AGAINST SUPPLANTATION AND CONDITIONS FOR WAIVER BY
SECRETARY
* Except as provided in section 1413 of this title, funds paid to a State
under this subchapter 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 subchapter 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 1411 of
this title 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 subchapter.
(D) SUBSEQUENT YEARS
* If, for any year, a State fails to meet the requirement of subparagraph
(A), including any year for which the State is granted a waiver under
subparagraph (C), the financial support required of the State in future
years under subparagraph (A) shall be the amount that would have been
required in the absence of that failure and not the reduced level of the
State’s support.
(19) PUBLIC PARTICIPATION
* Prior to the adoption of any policies and procedures needed to comply with
this section (including any amendments to such policies and procedures), the
State ensures that there are public hearings, adequate notice of the
hearings, and an opportunity for comment available to the general public,
including individuals with disabilities and parents of children with
disabilities.
(20) RULE OF CONSTRUCTION
* In complying with paragraphs (17) and (18), a State may not use funds paid to
it under this subchapter 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—
* (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 1418 of this title;
* (iv) advise the State educational agency in developing corrective
action plans to address findings identified in Federal monitoring
reports under this subchapter; 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
chapter.
(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) 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
December 3, 2004, the 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 1474(e) of this title.
(II) NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY STANDARD
* The term “National Instructional Materials Accessibility Standard” has
the meaning given the term in section 1474(e)(3)(A) of this title.
(III) SPECIALIZED FORMATS
* The term “specialized formats” has the meaning given the term in
section 1474(e)(3)(D) of this title.
(24) OVERIDENTIFICATION AND DISPROPORTIONALITY
* The State has in effect, consistent with the purposes of this chapter and
with section 1418(d) of this title, 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 1401 of this title.
(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 1414 of this title, or receiving services
under this chapter.
(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).
(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 1413(a) of this
title, as if such agency were a local educational agency; and
* (2) may use amounts that are otherwise available to such agency under this
subchapter to serve those children without regard to section 1413(a)(2)(A)(i)
of this title (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 subchapter 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
subchapter.
(2) MODIFICATIONS MADE BY STATE
* Subject to paragraph (3), an application submitted by a State in accordance
with this section shall remain in effect until the State submits to the
Secretary such modifications as the State determines necessary. This section
shall apply to a modification to an application to the same extent and in the
same manner as this section applies to the original plan.
(3) MODIFICATIONS REQUIRED BY THE SECRETARY
* If, after the effective date of the Individuals with Disabilities Education
Improvement Act of 2004, the provisions of this chapter are amended (or the
regulations developed to carry out this chapter are amended), there is a new
interpretation of this chapter 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
subchapter.
(D) APPROVAL BY THE SECRETARY
(1) IN GENERAL
* If the Secretary determines that a State is eligible to receive a grant under
this subchapter, 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 subchapter 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 chapter permits a State to reduce medical and other assistance
available, or to alter eligibility, under titles V and XIX of the Social
Security Act [42 U.S.C. 701 et seq., 1396 et seq.] 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 December 2, 1983, a State educational agency was prohibited by law
from providing for the equitable participation in special programs of
children with disabilities enrolled in private elementary schools and
secondary schools as required by subsection (a)(10)(A), or if the Secretary
determines that a State educational agency, local educational agency, or
other entity has substantially failed or is unwilling to provide for such
equitable participation, then the Secretary shall, notwithstanding such
provision of law, arrange for the provision of services to such children
through arrangements 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 subchapter 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 1418 of this
title.
(B) WITHHOLDING OF CERTAIN AMOUNTS
* Pending final resolution of any investigation or complaint that may result
in a determination under this subsection, the Secretary may withhold from
the allocation of the affected State educational agency the amount the
Secretary estimates will be necessary to pay the cost of services
described in subparagraph (A).
(C) PERIOD OF PAYMENTS
* The period under which payments are made under subparagraph (A) shall
continue until the Secretary determines that there will no longer be any
failure or inability on the part of the State educational agency to meet
the requirements of subsection (a)(10)(A).
(3) NOTICE AND HEARING
(A) IN GENERAL
* The Secretary shall not take any final action under this subsection until
the State educational agency affected by such action has had an
opportunity, for 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.
(C) REVIEW OF FINDINGS OF FACT
* The findings of fact by the Secretary, if supported by substantial
evidence, shall be conclusive, but the court, for good cause shown, may
remand the case to the Secretary to take further evidence, and the
Secretary may thereupon make new or modified findings of fact and may
modify the Secretary’s previous action, and shall file in the court the
record of the further proceedings. Such new or modified findings of fact
shall likewise be conclusive if supported by substantial evidence.
(D) JURISDICTION OF COURT OF APPEALS; REVIEW BY UNITED STATES SUPREME
COURT
* Upon the filing of a petition under subparagraph (B), the United States
court of appeals shall have jurisdiction to affirm the action of the
Secretary or to set it aside, in whole or in part. The judgment of the
court shall be subject to review by the Supreme Court of the United States
upon certiorari or certification as provided in section 1254 of title 28.
Severe Discrepancy, Screening, District-wide, District wide, District-wide,
District wide
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Last modified on November 7, 2019
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