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.