20 U.S.C. § 1412 : US Code - Section 1412: State eligibility

Search 20 U.S.C. § 1412 : US Code - Section 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 is highly qualified by the deadline
established in section 6319(a)(2) of this title.
(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 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 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 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 definition of adequate
yearly progress, including the State's objectives for
progress by children with disabilities, under section
6311(b)(2)(C) 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 measurable annual objectives for
progress by children with disabilities under section
6311(b)(2)(C)(v)(II)(cc) 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 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 6311(b)(1) 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.