20 U.S.C. § 1416 : US Code - Section 1416: Monitoring, technical assistance, and enforcement

Search 20 U.S.C. § 1416 : US Code - Section 1416: Monitoring, technical assistance, and enforcement

(a) Federal and State monitoring
(1) In general
The Secretary shall -
(A) monitor implementation of this subchapter through -
(i) oversight of the exercise of general supervision by the
States, as required in section 1412(a)(11) of this title; and
(ii) the State performance plans, described in subsection
(b);
(B) enforce this subchapter in accordance with subsection
(e); and
(C) require States to -
(i) monitor implementation of this subchapter by local
educational agencies; and
(ii) enforce this subchapter in accordance with paragraph
(3) and subsection (e).
(2) Focused monitoring
The primary focus of Federal and State monitoring activities
described in paragraph (1) shall be on -
(A) improving educational results and functional outcomes for
all children with disabilities; and
(B) ensuring that States meet the program requirements under
this subchapter, with a particular emphasis on those
requirements that are most closely related to improving
educational results for children with disabilities.
(3) Monitoring priorities
The Secretary shall monitor the States, and shall require each
State to monitor the local educational agencies located in the
State (except the State exercise of general supervisory
responsibility), using quantifiable indicators in each of the
following priority areas, and using such qualitative indicators
as are needed to adequately measure performance in the following
priority areas:
(A) Provision of a free appropriate public education in the
least restrictive environment.
(B) State exercise of general supervisory authority,
including child find, effective monitoring, the use of
resolution sessions, mediation, voluntary binding arbitration,
and a system of transition services as defined in sections
1401(34) and 1437(a)(9) of this title.
(C) Disproportionate representation of racial and ethnic
groups in special education and related services, to the extent
the representation is the result of inappropriate
identification.
(4) Permissive areas of review
The Secretary shall consider other relevant information and
data, including data provided by States under section 1418 of
this title.
(b) State performance plans
(1) Plan
(A) In general
Not later than 1 year after December 3, 2004, each State
shall have in place a performance plan that evaluates that
State's efforts to implement the requirements and purposes of
this subchapter and describes how the State will improve such
implementation.
(B) Submission for approval
Each State shall submit the State's performance plan to the
Secretary for approval in accordance with the approval process
described in subsection (c).
(C) Review
Each State shall review its State performance plan at least
once every 6 years and submit any amendments to the Secretary.
(2) Targets
(A) In general
As a part of the State performance plan described under
paragraph (1), each State shall establish measurable and
rigorous targets for the indicators established under the
priority areas described in subsection (a)(3).
(B) Data collection
(i) In general
Each State shall collect valid and reliable information as
needed to report annually to the Secretary on the priority
areas described in subsection (a)(3).
(ii) Rule of construction
Nothing in this chapter shall be construed to authorize the
development of a nationwide database of personally
identifiable information on individuals involved in studies
or other collections of data under this subchapter.
(C) Public reporting and privacy
(i) In general
The State shall use the targets established in the plan and
priority areas described in subsection (a)(3) to analyze the
performance of each local educational agency in the State in
implementing this subchapter.
(ii) Report
(I) Public report
The State shall report annually to the public on the
performance of each local educational agency located in the
State on the targets in the State's performance plan. The
State shall make the State's performance plan available
through public means, including by posting on the website
of the State educational agency, distribution to the media,
and distribution through public agencies.
(II) State performance report
The State shall report annually to the Secretary on the
performance of the State under the State's performance
plan.
(iii) Privacy
The State shall not report to the public or the Secretary
any information on performance that would result in the
disclosure of personally identifiable information about
individual children or where the available data is
insufficient to yield statistically reliable information.
(c) Approval process
(1) Deemed approval
The Secretary shall review (including the specific provisions
described in subsection (b)) each performance plan submitted by a
State pursuant to subsection (b)(1)(B) and the plan shall be
deemed to be approved by the Secretary unless the Secretary makes
a written determination, prior to the expiration of the 120-day
period beginning on the date on which the Secretary received the
plan, that the plan does not meet the requirements of this
section, including the specific provisions described in
subsection (b).
(2) Disapproval
The Secretary shall not finally disapprove a performance plan,
except after giving the State notice and an opportunity for a
hearing.
(3) Notification
If the Secretary finds that the plan does not meet the
requirements, in whole or in part, of this section, the Secretary
shall -
(A) give the State notice and an opportunity for a hearing;
and
(B) notify the State of the finding, and in such notification
shall -
(i) cite the specific provisions in the plan that do not
meet the requirements; and
(ii) request additional information, only as to the
provisions not meeting the requirements, needed for the plan
to meet the requirements of this section.
(4) Response
If the State responds to the Secretary's notification described
in paragraph (3)(B) during the 30-day period beginning on the
date on which the State received the notification, and resubmits
the plan with the requested information described in paragraph
(3)(B)(ii), the Secretary shall approve or disapprove such plan
prior to the later of -
(A) the expiration of the 30-day period beginning on the date
on which the plan is resubmitted; or
(B) the expiration of the 120-day period described in
paragraph (1).
(5) Failure to respond
If the State does not respond to the Secretary's notification
described in paragraph (3)(B) during the 30-day period beginning
on the date on which the State received the notification, such
plan shall be deemed to be disapproved.
(d) Secretary's review and determination
(1) Review
The Secretary shall annually review the State performance
report submitted pursuant to subsection (b)(2)(C)(ii)(II) in
accordance with this section.
(2) Determination
(A) In general
Based on the information provided by the State in the State
performance report, information obtained through monitoring
visits, and any other public information made available, the
Secretary shall determine if the State -
(i) meets the requirements and purposes of this subchapter;
(ii) needs assistance in implementing the requirements of
this subchapter;
(iii) needs intervention in implementing the requirements
of this subchapter; or
(iv) needs substantial intervention in implementing the
requirements of this subchapter.
(B) Notice and opportunity for a hearing
For determinations made under clause (iii) or (iv) of
subparagraph (A), the Secretary shall provide reasonable notice
and an opportunity for a hearing on such determination.
(e) Enforcement
(1) Needs assistance
If the Secretary determines, for 2 consecutive years, that a
State needs assistance under subsection (d)(2)(A)(ii) in
implementing the requirements of this subchapter, the Secretary
shall take 1 or more of the following actions:
(A) Advise the State of available sources of technical
assistance that may help the State address the areas in which
the State needs assistance, which may include assistance from
the Office of Special Education Programs, other offices of the
Department of Education, other Federal agencies, technical
assistance providers approved by the Secretary, and other
federally funded nonprofit agencies, and require the State to
work with appropriate entities. Such technical assistance may
include -
(i) the provision of advice by experts to address the areas
in which the State needs assistance, including explicit plans
for addressing the area for concern within a specified period
of time;
(ii) assistance in identifying and implementing
professional development, instructional strategies, and
methods of instruction that are based on scientifically based
research;
(iii) designating and using distinguished superintendents,
principals, special education administrators, special
education teachers, and other teachers to provide advice,
technical assistance, and support; and
(iv) devising additional approaches to providing technical
assistance, such as collaborating with institutions of higher
education, educational service agencies, national centers of
technical assistance supported under subchapter IV, and
private providers of scientifically based technical
assistance.
(B) Direct the use of State-level funds under section 1411(e)
of this title on the area or areas in which the State needs
assistance.
(C) Identify the State as a high-risk grantee and impose
special conditions on the State's grant under this subchapter.
(2) Needs intervention
If the Secretary determines, for 3 or more consecutive years,
that a State needs intervention under subsection (d)(2)(A)(iii)
in implementing the requirements of this subchapter, the
following shall apply:
(A) The Secretary may take any of the actions described in
paragraph (1).
(B) The Secretary shall take 1 or more of the following
actions:
(i) Require the State to prepare a corrective action plan
or improvement plan if the Secretary determines that the
State should be able to correct the problem within 1 year.
(ii) Require the State to enter into a compliance agreement
under section 457 of the General Education Provisions Act [20
U.S.C. 1234f], if the Secretary has reason to believe that
the State cannot correct the problem within 1 year.
(iii) For each year of the determination, withhold not less
than 20 percent and not more than 50 percent of the State's
funds under section 1411(e) of this title, until the
Secretary determines the State has sufficiently addressed the
areas in which the State needs intervention.
(iv) Seek to recover funds under section 452 of the General
Education Provisions Act [20 U.S.C. 1234a].
(v) Withhold, in whole or in part, any further payments to
the State under this subchapter pursuant to paragraph (5).
(vi) Refer the matter for appropriate enforcement action,
which may include referral to the Department of Justice.
(3) Needs substantial intervention
Notwithstanding paragraph (1) or (2), at any time that the
Secretary determines that a State needs substantial intervention
in implementing the requirements of this subchapter or that there
is a substantial failure to comply with any condition of a State
educational agency's or local educational agency's eligibility
under this subchapter, the Secretary shall take 1 or more of the
following actions:
(A) Recover funds under section 452 of the General Education
Provisions Act [20 U.S.C. 1234a].
(B) Withhold, in whole or in part, any further payments to
the State under this subchapter.
(C) Refer the case to the Office of the Inspector General at
the Department of Education.
(D) Refer the matter for appropriate enforcement action,
which may include referral to the Department of Justice.
(4) Opportunity for hearing
(A) Withholding funds
Prior to withholding any funds under this section, the
Secretary shall provide reasonable notice and an opportunity
for a hearing to the State educational agency involved.
(B) Suspension
Pending the outcome of any hearing to withhold payments under
subsection (b), the Secretary may suspend payments to a
recipient, suspend the authority of the recipient to obligate
funds under this subchapter, or both, after such recipient has
been given reasonable notice and an opportunity to show cause
why future payments or authority to obligate funds under this
subchapter should not be suspended.
(5) Report to Congress
The Secretary shall report to the Committee on Education and
the Workforce of the House of Representatives and the Committee
on Health, Education, Labor, and Pensions of the Senate within 30
days of taking enforcement action pursuant to paragraph (1), (2),
or (3), on the specific action taken and the reasons why
enforcement action was taken.
(6) Nature of withholding
(A) Limitation
If the Secretary withholds further payments pursuant to
paragraph (2) or (3), the Secretary may determine -
(i) that such withholding will be limited to programs or
projects, or portions of programs or projects, that affected
the Secretary's determination under subsection (d)(2); or
(ii) that the State educational agency shall not make
further payments under this subchapter to specified State
agencies or local educational agencies that caused or were
involved in the Secretary's determination under subsection
(d)(2).
(B) Withholding until rectified
Until the Secretary is satisfied that the condition that
caused the initial withholding has been substantially rectified
-
(i) payments to the State under this subchapter shall be
withheld in whole or in part; and
(ii) payments by the State educational agency under this
subchapter shall be limited to State agencies and local
educational agencies whose actions did not cause or were not
involved in the Secretary's determination under subsection
(d)(2), as the case may be.
(7) Public attention
Any State that has received notice under subsection (d)(2)
shall, by means of a public notice, take such measures as may be
necessary to bring the pendency of an action pursuant to this
subsection to the attention of the public within the State.
(8) Judicial review
(A) In general
If any State is dissatisfied with the Secretary's action with
respect to the eligibility of the State under section 1412 of
this title, such State may, not later than 60 days after notice
of such action, file with the United States court of appeals
for the circuit in which such State is located a petition for
review of that action. A copy of the petition shall be
transmitted by the clerk of the court to the Secretary. The
Secretary thereupon shall file in the court the record of the
proceedings upon which the Secretary's action was based, as
provided in section 2112 of title 28.
(B) Jurisdiction; review by United States Supreme Court
Upon the filing of such petition, the court shall have
jurisdiction to affirm the action of the Secretary or to set it
aside, in whole or in part. The judgment of the court shall be
subject to review by the Supreme Court of the United States
upon certiorari or certification as provided in section 1254 of
title 28.
(C) Standard of review
The findings of fact by the Secretary, if supported by
substantial evidence, shall be conclusive, but the court, for
good cause shown, may remand the case to the Secretary to take
further evidence, and the Secretary may thereupon make new or
modified findings of fact and may modify the Secretary's
previous action, and shall file in the court the record of the
further proceedings. Such new or modified findings of fact
shall be conclusive if supported by substantial evidence.
(f) State enforcement
If a State educational agency determines that a local educational
agency is not meeting the requirements of this subchapter,
including the targets in the State's performance plan, the State
educational agency shall prohibit the local educational agency from
reducing the local educational agency's maintenance of effort under
section 1413(a)(2)(C) of this title for any fiscal year.
(g) Rule of construction
Nothing in this section shall be construed to restrict the
Secretary from utilizing any authority under the General Education
Provisions Act [20 U.S.C. 1221 et seq.] to monitor and enforce the
requirements of this chapter.
(h) Divided State agency responsibility
For purposes of this section, where responsibility for 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 is assigned to a public
agency other than the State educational agency pursuant to section
1412(a)(11)(C) of this title, the Secretary, in instances where the
Secretary finds that the failure to comply substantially with the
provisions of this subchapter are related to a failure by the
public agency, shall take appropriate corrective action to ensure
compliance with this subchapter, except that -
(1) any reduction or withholding of payments to the State shall
be proportionate to the total funds allotted under section 1411
of this title to the State as the number of eligible children
with disabilities in adult prisons under the supervision of the
other public agency is proportionate to the number of eligible
individuals with disabilities in the State under the supervision
of the State educational agency; and
(2) any withholding of funds under paragraph (1) shall be
limited to the specific agency responsible for the failure to
comply with this subchapter.
(i) Data capacity and technical assistance review
The Secretary shall -
(1) review the data collection and analysis capacity of States
to ensure that data and information determined necessary for
implementation of this section is collected, analyzed, and
accurately reported to the Secretary; and
(2) provide technical assistance (from funds reserved under
section 1411(c) of this title), where needed, to improve the
capacity of States to meet the data collection requirements.