PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2647

Public Law 108–446

108th Congress

An Act

To reauthorize the Individuals with Disabilities Education Act, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Individuals with Disabilities

Education Improvement Act of 2004’’.

SEC. 2. ORGANIZATION OF THE ACT.

This Act is organized into the following titles:

Title I—Amendments to the Individuals With Disabilities

Education Act.

Title II—National Center for Special Education Research.

Title III—Miscellaneous Provisions.

TITLE I—AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

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

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

‘‘PART A—GENERAL PROVISIONS

‘‘SEC. 601. SHORT TITLE; TABLE OF CONTENTS; FINDINGS; PURPOSES.

‘‘(a) SHORT TITLE.—This title may be cited as the ‘Individuals

with Disabilities Education Act’.

‘‘(b) TABLE OF CONTENTS.—The table of contents for this title

is as follows:

‘‘PART A—GENERAL PROVISIONS

‘‘Sec. 601. Short title; table of contents; findings; purposes.

‘‘Sec. 602. Definitions.

‘‘Sec. 603. Office of Special Education Programs.

‘‘Sec. 604. Abrogation of State sovereign immunity.

‘‘Sec. 605. Acquisition of equipment; construction or alteration of facilities.

‘‘Sec. 606. Employment of individuals with disabilities.

‘‘Sec. 607. Requirements for prescribing regulations.

‘‘Sec. 608. State administration.

‘‘Sec. 609. Paperwork reduction.

‘‘Sec. 610. Freely associated states.

20 USC 1400.

Individuals with

Disabilities

Education

Improvement Act

of 2004.

20 USC 1400

note.

Dec. 3, 2004

[H.R. 1350]

118 STAT. 2648 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘PART B—ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES

‘‘Sec. 611. Authorization; allotment; use of funds; authorization of appropriations.

‘‘Sec. 612. State eligibility.

‘‘Sec. 613. Local educational agency eligibility.

‘‘Sec. 614. Evaluations, eligibility determinations, individualized education programs, and educational placements.

‘‘Sec. 615. Procedural safeguards.

‘‘Sec. 616. Monitoring, technical assistance, and enforcement.

‘‘Sec. 617. Administration.

‘‘Sec. 618. Program information.

‘‘Sec. 619. Preschool grants.

‘‘PART C—INFANTS AND TODDLERS WITH DISABILITIES

‘‘Sec. 631. Findings and policy.

‘‘Sec. 632. Definitions.

‘‘Sec. 633. General authority.

‘‘Sec. 634. Eligibility.

‘‘Sec. 635. Requirements for statewide system.

‘‘Sec. 636. Individualized family service plan.

‘‘Sec. 637. State application and assurances.

‘‘Sec. 638. Uses of funds.

‘‘Sec. 639. Procedural safeguards.

‘‘Sec. 640. Payor of last resort.

‘‘Sec. 641. State interagency coordinating council.

‘‘Sec. 642. Federal administration.

‘‘Sec. 643. Allocation of funds.

‘‘Sec. 644. Authorization of appropriations.

‘‘PART D—NATIONAL ACTIVITIES TO IMPROVE EDUCATION OF CHILDREN WITH

DISABILITIES

‘‘Sec. 650. Findings.

‘‘SUBPART 1—STATE PERSONNEL DEVELOPMENT GRANTS

‘‘Sec. 651. Purpose; definition of personnel; program authority.

‘‘Sec. 652. Eligibility and collaborative process.

‘‘Sec. 653. Applications.

‘‘Sec. 654. Use of funds.

‘‘Sec. 655. Authorization of appropriations.

‘‘SUBPART 2—PERSONNEL PREPARATION, TECHNICAL ASSISTANCE, MODEL

DEMONSTRATION PROJECTS, AND DISSEMINATION OF INFORMATION

‘‘Sec. 661. Purpose; definition of eligible entity.

‘‘Sec. 662. Personnel development to improve services and results for children

with disabilities.

‘‘Sec. 663. Technical assistance, demonstration projects, dissemination of information, and implementation of scientifically based research.

‘‘Sec. 664. Studies and evaluations.

‘‘Sec. 665. Interim alternative educational settings, behavioral supports, and

systemic school interventions.

‘‘Sec. 667. Authorization of appropriations.

‘‘SUBPART 3—SUPPORTS TO IMPROVE RESULTS FOR CHILDREN WITH DISABILITIES

‘‘Sec. 670. Purposes.

‘‘Sec. 671. Parent training and information centers.

‘‘Sec. 672. Community parent resource centers.

‘‘Sec. 673. Technical assistance for parent training and information centers.

‘‘Sec. 674. Technology development, demonstration, and utilization; and media

services.

‘‘Sec. 675. Authorization of appropriations.

‘‘SUBPART 4—GENERAL PROVISIONS

‘‘Sec. 681. Comprehensive plan for subparts 2 and 3.

‘‘Sec. 682. Administrative provisions.

‘‘(c) FINDINGS.—Congress finds the following:

‘‘(1) Disability is a natural part of the human experience

and in no way diminishes the right of individuals to participate

in or contribute to society. Improving educational results for

children with disabilities is an essential element of our national

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2649

policy of ensuring equality of opportunity, full participation,

independent living, and economic self-sufficiency for individuals

with disabilities.

‘‘(2) Before the date of enactment of the Education for

All Handicapped Children Act of 1975 (Public Law 94–142),

the educational needs of millions of children with disabilities

were not being fully met because—

‘‘(A) the children did not receive appropriate educational services;

‘‘(B) the children were excluded entirely from the public

school system and from being educated with their peers;

‘‘(C) undiagnosed disabilities prevented the children

from having a successful educational experience; or

‘‘(D) a lack of adequate resources within the public

school system forced families to find services outside the

public school system.

‘‘(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this title

has been successful in ensuring children with disabilities and

the families of such children access to a free appropriate public

education and in improving educational results for children

with disabilities.

‘‘(4) However, the implementation of this title has been

impeded by low expectations, and an insufficient focus on

applying replicable research on proven methods of teaching

and learning for children with disabilities.

‘‘(5) Almost 30 years of research and experience has demonstrated that the education of children with disabilities can

be made more effective by—

‘‘(A) having high expectations for such children and

ensuring their access to the general education curriculum

in the regular classroom, to the maximum extent possible,

in order to—

‘‘(i) meet developmental goals and, to the maximum extent possible, the challenging expectations

that have been established for all children; and

‘‘(ii) be prepared to lead productive and independent adult lives, to the maximum extent possible;

‘‘(B) strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their

children at school and at home;

‘‘(C) coordinating this title with other local, educational

service agency, State, and Federal school improvement

efforts, including improvement efforts under the

Elementary and Secondary Education Act of 1965, in order

to ensure that such children benefit from such efforts and

that special education can become a service for such children rather than a place where such children are sent;

‘‘(D) providing appropriate special education and

related services, and aids and supports in the regular classroom, to such children, whenever appropriate;

‘‘(E) supporting high-quality, intensive preservice

preparation and professional development for all personnel

who work with children with disabilities in order to ensure

that such personnel have the skills and knowledge necessary to improve the academic achievement and functional

118 STAT. 2650 PUBLIC LAW 108–446—DEC. 3, 2004

performance of children with disabilities, including the use

of scientifically based instructional practices, to the maximum extent possible;

‘‘(F) providing incentives for whole-school approaches,

scientifically based early reading programs, positive behavioral interventions and supports, and early intervening

services to reduce the need to label children as disabled

in order to address the learning and behavioral needs of

such children;

‘‘(G) focusing resources on teaching and learning while

reducing paperwork and requirements that do not assist

in improving educational results; and

‘‘(H) supporting the development and use of technology,

including assistive technology devices and assistive technology services, to maximize accessibility for children with

disabilities.

‘‘(6) While States, local educational agencies, and educational service agencies are primarily responsible for providing

an education for all children with disabilities, it is in the

national interest that the Federal Government have a supporting role in assisting State and local efforts to educate

children with disabilities in order to improve results for such

children and to ensure equal protection of the law.

‘‘(7) A more equitable allocation of resources is essential

for the Federal Government to meet its responsibility to provide

an equal educational opportunity for all individuals.

‘‘(8) Parents and schools should be given expanded

opportunities to resolve their disagreements in positive and

constructive ways.

‘‘(9) Teachers, schools, local educational agencies, and

States should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes.

‘‘(10)(A) The Federal Government must be responsive to

the growing needs of an increasingly diverse society.

‘‘(B) America’s ethnic profile is rapidly changing. In 2000,

1 of every 3 persons in the United States was a member

of a minority group or was limited English proficient.

‘‘(C) Minority children comprise an increasing percentage

of public school students.

‘‘(D) With such changing demographics, recruitment efforts

for special education personnel should focus on increasing the

participation of minorities in the teaching profession in order

to provide appropriate role models with sufficient knowledge

to address the special education needs of these students.

‘‘(11)(A) The limited English proficient population is the

fastest growing in our Nation, and the growth is occurring

in many parts of our Nation.

‘‘(B) Studies have documented apparent discrepancies in

the levels of referral and placement of limited English proficient

children in special education.

‘‘(C) Such discrepancies pose a special challenge for special

education in the referral of, assessment of, and provision of

services for, our Nation’s students from non-English language

backgrounds.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2651

‘‘(12)(A) Greater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities.

‘‘(B) More minority children continue to be served in special

education than would be expected from the percentage of

minority students in the general school population.

‘‘(C) African-American children are identified as having

mental retardation and emotional disturbance at rates greater

than their White counterparts.

‘‘(D) In the 1998–1999 school year, African-American children represented just 14.8 percent of the population aged 6

through 21, but comprised 20.2 percent of all children with

disabilities.

‘‘(E) Studies have found that schools with predominately

White students and teachers have placed disproportionately

high numbers of their minority students into special education.

‘‘(13)(A) As the number of minority students in special

education increases, the number of minority teachers and

related services personnel produced in colleges and universities

continues to decrease.

‘‘(B) The opportunity for full participation by minority

individuals, minority organizations, and Historically Black Colleges and Universities in awards for grants and contracts,

boards of organizations receiving assistance under this title,

peer review panels, and training of professionals in the area

of special education is essential to obtain greater success in

the education of minority children with disabilities.

‘‘(14) As the graduation rates for children with disabilities

continue to climb, providing effective transition services to promote successful post-school employment or education is an

important measure of accountability for children with disabilities.

‘‘(d) PURPOSES.—The purposes of this title are—

‘‘(1)(A) to ensure that all children with disabilities have

available to them a free appropriate public education that

emphasizes special education and related services designed to

meet their unique needs and prepare them for further education, employment, and independent living;

‘‘(B) to ensure that the rights of children with disabilities

and parents of such children are protected; and

‘‘(C) to assist States, localities, educational service agencies,

and Federal agencies to provide for the education of all children

with disabilities;

‘‘(2) to assist States in the implementation of a statewide,

comprehensive, coordinated, multidisciplinary, interagency

system of early intervention services for infants and toddlers

with disabilities and their families;

‘‘(3) to ensure that educators and parents have the necessary tools to improve educational results for children with

disabilities by supporting system improvement activities;

coordinated research and personnel preparation; coordinated

technical assistance, dissemination, and support; and technology development and media services; and

‘‘(4) to assess, and ensure the effectiveness of, efforts to

educate children with disabilities.

118 STAT. 2652 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘SEC. 602. DEFINITIONS.

‘‘Except as otherwise provided, in this title:

‘‘(1) ASSISTIVE TECHNOLOGY DEVICE.—

‘‘(A) IN GENERAL.—The term ‘assistive technology

device’ means any item, piece of equipment, or product

system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain,

or improve functional capabilities of a child with a disability.

‘‘(B) EXCEPTION.—The term does not include a medical

device that is surgically implanted, or the replacement

of such device.

‘‘(2) ASSISTIVE TECHNOLOGY SERVICE.—The term ‘assistive

technology service’ means any service that directly assists a

child with a disability in the selection, acquisition, or use of

an assistive technology device. Such term includes—

‘‘(A) the evaluation of the needs of such child, including

a functional evaluation of the child in the child’s customary

environment;

‘‘(B) purchasing, leasing, or otherwise providing for

the acquisition of assistive technology devices by such child;

‘‘(C) selecting, designing, fitting, customizing, adapting,

applying, maintaining, repairing, or replacing assistive

technology devices;

‘‘(D) coordinating and using other therapies, interventions, or services with assistive technology devices, such

as those associated with existing education and rehabilitation plans and programs;

‘‘(E) training or technical assistance for such child,

or, where appropriate, the family of such child; and

‘‘(F) training or technical assistance for professionals

(including individuals providing education and rehabilitation services), employers, or other individuals who provide

services to, employ, or are otherwise substantially involved

in the major life functions of such child.

‘‘(3) CHILD WITH A DISABILITY.—

‘‘(A) IN GENERAL.—The term ‘child with a disability’

means a child—

‘‘(i) with mental retardation, hearing impairments

(including deafness), speech or language impairments,

visual impairments (including blindness), serious emotional disturbance (referred to in this title as ‘emotional

disturbance’), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

‘‘(ii) who, by reason thereof, needs special education and related services.

‘‘(B) CHILD AGED 3 THROUGH 9.—The term ‘child with

a disability’ for a child aged 3 through 9 (or any subset

of that age range, including ages 3 through 5), may, at

the discretion of the State and the local educational agency,

include a child—

‘‘(i) experiencing developmental delays, as defined

by the State and as measured by appropriate diagnostic

20 USC 1401.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2653

instruments and procedures, in 1 or more of the following areas: physical development; cognitive development; communication development; social or emotional

development; or adaptive development; and

‘‘(ii) who, by reason thereof, needs special education and related services.

‘‘(4) CORE ACADEMIC SUBJECTS.—The term ‘core academic

subjects’ has the meaning given the term in section 9101 of

the Elementary and Secondary Education Act of 1965.

‘‘(5) EDUCATIONAL SERVICE AGENCY.—The term ‘educational

service agency’—

‘‘(A) means a regional public multiservice agency—

‘‘(i) authorized by State law to develop, manage,

and provide services or programs to local educational

agencies; and

‘‘(ii) recognized as an administrative agency for

purposes of the provision of special education and

related services provided within public elementary

schools and secondary schools of the State; and

‘‘(B) includes any other public institution or agency

having administrative control and direction over a public

elementary school or secondary school.

‘‘(6) ELEMENTARY SCHOOL.—The term ‘elementary school’

means a nonprofit institutional day or residential school,

including a public elementary charter school, that provides

elementary education, as determined under State law.

‘‘(7) EQUIPMENT.—The term ‘equipment’ includes—

‘‘(A) machinery, utilities, and built-in equipment, and

any necessary enclosures or structures to house such

machinery, utilities, or equipment; and

‘‘(B) all other items necessary for the functioning of

a particular facility as a facility for the provision of educational services, including items such as instructional

equipment and necessary furniture; printed, published, and

audio-visual instructional materials; telecommunications,

sensory, and other technological aids and devices; and

books, periodicals, documents, and other related materials.

‘‘(8) EXCESS COSTS.—The term ‘excess costs’ means those

costs that are in excess of the average annual per-student

expenditure in a local educational agency during the preceding

school year for an elementary school or secondary school student, as may be appropriate, and which shall be computed

after deducting—

‘‘(A) amounts received—

‘‘(i) under part B;

‘‘(ii) under part A of title I of the Elementary

and Secondary Education Act of 1965; and

‘‘(iii) under parts A and B of title III of that Act;

and

‘‘(B) any State or local funds expended for programs

that would qualify for assistance under any of those parts.

‘‘(9) FREE APPROPRIATE PUBLIC EDUCATION.—The term ‘free

appropriate public education’ means special education and

related services that—

‘‘(A) have been provided at public expense, under public

supervision and direction, and without charge;

118 STAT. 2654 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(B) meet the standards of the State educational

agency;

‘‘(C) include an appropriate preschool, elementary

school, or secondary school education in the State involved;

and

‘‘(D) are provided in conformity with the individualized

education program required under section 614(d).

‘‘(10) HIGHLY QUALIFIED.— ‘‘(A) IN GENERAL.—For any special education teacher,

the term ‘highly qualified’ has the meaning given the term

in section 9101 of the Elementary and Secondary Education

Act of 1965, except that such term also—

‘‘(i) includes the requirements described in

subparagraph (B); and

‘‘(ii) includes the option for teachers to meet the

requirements of section 9101 of such Act by meeting

the requirements of subparagraph (C) or (D).

‘‘(B) REQUIREMENTS FOR SPECIAL EDUCATION

TEACHERS.—When used with respect to any public

elementary school or secondary school special education

teacher teaching in a State, such term means that—

‘‘(i) the teacher has obtained full State certification

as a special education teacher (including certification

obtained through alternative routes to certification),

or passed the State special education teacher licensing

examination, and holds a license to teach in the State

as a special education teacher, except that when used

with respect to any teacher teaching in a public charter

school, the term means that the teacher meets the

requirements set forth in the State’s public charter

school law;

‘‘(ii) the teacher has not had special education

certification or licensure requirements waived on an

emergency, temporary, or provisional basis; and

‘‘(iii) the teacher holds at least a bachelor’s degree.

‘‘(C) SPECIAL EDUCATION TEACHERS TEACHING TO ALTERNATE ACHIEVEMENT STANDARDS.—When used with respect

to a special education teacher who teaches core academic

subjects exclusively to children who are assessed against

alternate achievement standards established under the

regulations promulgated under section 1111(b)(1) of the

Elementary and Secondary Education Act of 1965, such

term means the teacher, whether new or not new to the

profession, may either—

‘‘(i) meet the applicable requirements of section

9101 of such Act for any elementary, middle, or secondary school teacher who is new or not new to the

profession; or

‘‘(ii) meet the requirements of subparagraph (B)

or (C) of section 9101(23) of such Act as applied to

an elementary school teacher, or, in the case of instruction above the elementary level, has subject matter

knowledge appropriate to the level of instruction being

provided, as determined by the State, needed to effectively teach to those standards.

‘‘(D) SPECIAL EDUCATION TEACHERS TEACHING MULTIPLE

SUBJECTS.—When used with respect to a special education

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2655

teacher who teaches 2 or more core academic subjects exclusively to children with disabilities, such term means that

the teacher may either—

‘‘(i) meet the applicable requirements of section

9101 of the Elementary and Secondary Education Act

of 1965 for any elementary, middle, or secondary school

teacher who is new or not new to the profession;

‘‘(ii) in the case of a teacher who is not new to

the profession, demonstrate competence in all the core

academic subjects in which the teacher teaches in the

same manner as is required for an elementary, middle,

or secondary school teacher who is not new to the

profession under section 9101(23)(C)(ii) of such Act,

which may include a single, high objective uniform

State standard of evaluation covering multiple subjects;

or

‘‘(iii) in the case of a new special education teacher

who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate competence in the other core academic subjects in which the teacher teaches in the same manner

as is required for an elementary, middle, or secondary

school teacher under section 9101(23)(C)(ii) of such

Act, which may include a single, high objective uniform

State standard of evaluation covering multiple subjects,

not later than 2 years after the date of employment.

‘‘(E) RULE OF CONSTRUCTION.—Notwithstanding any

other individual right of action that a parent or student

may maintain under this part, nothing in this section or

part shall be construed to create a right of action on behalf

of an individual student or class of students for the failure

of a particular State educational agency or local educational

agency employee to be highly qualified.

‘‘(F) DEFINITION FOR PURPOSES OF THE ESEA.—A

teacher who is highly qualified under this paragraph shall

be considered highly qualified for purposes of the

Elementary and Secondary Education Act of 1965.

‘‘(11) HOMELESS CHILDREN.—The term ‘homeless children’

has the meaning given the term ‘homeless children and youths’

in section 725 of the McKinney-Vento Homeless Assistance

Act (42 U.S.C. 11434a).

‘‘(12) INDIAN.—The term ‘Indian’ means an individual who

is a member of an Indian tribe.

‘‘(13) INDIAN TRIBE.—The term ‘Indian tribe’ means any

Federal or State Indian tribe, band, rancheria, pueblo, colony,

or community, including any Alaska Native village or regional

village corporation (as defined in or established under the

Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)).

‘‘(14) INDIVIDUALIZED EDUCATION PROGRAM; IEP.—The term

‘individualized education program’ or ‘IEP’ means a written

statement for each child with a disability that is developed,

reviewed, and revised in accordance with section 614(d).

‘‘(15) INDIVIDUALIZED FAMILY SERVICE PLAN.—The term

‘individualized family service plan’ has the meaning given the

term in section 636.

118 STAT. 2656 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(16) INFANT OR TODDLER WITH A DISABILITY.—The term

‘infant or toddler with a disability’ has the meaning given

the term in section 632.

‘‘(17) INSTITUTION OF HIGHER EDUCATION.—The term

‘institution of higher education’—

‘‘(A) has the meaning given the term in section 101

of the Higher Education Act of 1965; and

‘‘(B) also includes any community college receiving

funding from the Secretary of the Interior under the Tribally Controlled College or University Assistance Act of

1978.

‘‘(18) LIMITED ENGLISH PROFICIENT.—The term ‘limited

English proficient’ has the meaning given the term in section

9101 of the Elementary and Secondary Education Act of 1965.

‘‘(19) LOCAL EDUCATIONAL AGENCY.— ‘‘(A) IN GENERAL.—The term ‘local educational agency’

means a public board of education or other public authority

legally constituted within a State for either administrative

control or direction of, or to perform a service function

for, public elementary schools or secondary schools in a

city, county, township, school district, or other political

subdivision of a State, or for such combination of school

districts or counties as are recognized in a State as an

administrative agency for its public elementary schools or

secondary schools.

‘‘(B) EDUCATIONAL SERVICE AGENCIES AND OTHER

PUBLIC INSTITUTIONS OR AGENCIES.—The term includes—

‘‘(i) an educational service agency; and

‘‘(ii) any other public institution or agency having

administrative control and direction of a public

elementary school or secondary school.

‘‘(C) BIA FUNDED SCHOOLS.—The term includes an

elementary school or secondary school funded by the

Bureau of Indian Affairs, but only to the extent that such

inclusion makes the school eligible for programs for which

specific eligibility is not provided to the school in another

provision of law and the school does not have a student

population that is smaller than the student population

of the local educational agency receiving assistance under

this title with the smallest student population, except that

the school shall not be subject to the jurisdiction of any

State educational agency other than the Bureau of Indian

Affairs.

‘‘(20) NATIVE LANGUAGE.—The term ‘native language’, when

used with respect to an individual who is limited English

proficient, means the language normally used by the individual

or, in the case of a child, the language normally used by

the parents of the child.

‘‘(21) NONPROFIT.—The term ‘nonprofit’, as applied to a

school, agency, organization, or institution, means a school,

agency, organization, or institution owned and operated by

1 or more nonprofit corporations or associations no part of

the net earnings of which inures, or may lawfully inure, to

the benefit of any private shareholder or individual.

‘‘(22) OUTLYING AREA.—The term ‘outlying area’ means the

United States Virgin Islands, Guam, American Samoa, and

the Commonwealth of the Northern Mariana Islands.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2657

‘‘(23) PARENT.—The term ‘parent’ means—

‘‘(A) a natural, adoptive, or foster parent of a child

(unless a foster parent is prohibited by State law from

serving as a parent);

‘‘(B) a guardian (but not the State if the child is a

ward of the State);

‘‘(C) an individual acting in the place of a natural

or adoptive parent (including a grandparent, stepparent,

or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare;

or

‘‘(D) except as used in sections 615(b)(2) and 639(a)(5),

an individual assigned under either of those sections to

be a surrogate parent.

‘‘(24) PARENT ORGANIZATION.—The term ‘parent organization’ has the meaning given the term in section 671(g).

‘‘(25) PARENT TRAINING AND INFORMATION CENTER.—The

term ‘parent training and information center’ means a center

assisted under section 671 or 672.

‘‘(26) RELATED SERVICES.—

‘‘(A) IN GENERAL.—The term ‘related services’ means

transportation, and such developmental, corrective, and

other supportive services (including speech-language

pathology and audiology services, interpreting services,

psychological services, physical and occupational therapy,

recreation, including therapeutic recreation, social work

services, school nurse services designed to enable a child

with a disability to receive a free appropriate public education as described in the individualized education program

of the child, counseling services, including rehabilitation

counseling, orientation and mobility services, and medical

services, except that such medical services shall be for

diagnostic and evaluation purposes only) as may be

required to assist a child with a disability to benefit from

special education, and includes the early identification and

assessment of disabling conditions in children.

‘‘(B) EXCEPTION.—The term does not include a medical

device that is surgically implanted, or the replacement

of such device.

‘‘(27) SECONDARY SCHOOL.—The term ‘secondary school’

means a nonprofit institutional day or residential school,

including a public secondary charter school, that provides secondary education, as determined under State law, except that

it does not include any education beyond grade 12.

‘‘(28) SECRETARY.—The term ‘Secretary’ means the Secretary of Education.

‘‘(29) SPECIAL EDUCATION.—The term ‘special education’

means specially designed instruction, at no cost to parents,

to meet the unique needs of a child with a disability, including—

‘‘(A) instruction conducted in the classroom, in the

home, in hospitals and institutions, and in other settings;

and

‘‘(B) instruction in physical education.

‘‘(30) SPECIFIC LEARNING DISABILITY.—

‘‘(A) IN GENERAL.—The term ‘specific learning disability’ means a disorder in 1 or more of the basic psychological processes involved in understanding or in using

118 STAT. 2658 PUBLIC LAW 108–446—DEC. 3, 2004

language, spoken or written, which disorder may manifest

itself in the imperfect ability to listen, think, speak, read,

write, spell, or do mathematical calculations.

‘‘(B) DISORDERS INCLUDED.—Such term includes such

conditions as perceptual disabilities, brain injury, minimal

brain dysfunction, dyslexia, and developmental aphasia.

‘‘(C) DISORDERS NOT INCLUDED.—Such term does not

include a learning problem that is primarily the result

of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

‘‘(31) STATE.—The term ‘State’ means each of the 50 States,

the District of Columbia, the Commonwealth of Puerto Rico,

and each of the outlying areas.

‘‘(32) STATE EDUCATIONAL AGENCY.—The term ‘State educational agency’ means the State board of education or other

agency or officer primarily responsible for the State supervision

of public elementary schools and secondary schools, or, if there

is no such officer or agency, an officer or agency designated

by the Governor or by State law.

‘‘(33) SUPPLEMENTARY AIDS AND SERVICES.—The term

‘supplementary aids and services’ means aids, services, and

other supports that are provided in regular education classes

or other education-related settings to enable children with

disabilities to be educated with nondisabled children to the

maximum extent appropriate in accordance with section

612(a)(5).

‘‘(34) TRANSITION SERVICES.—The term ‘transition services’

means a coordinated set of activities for a child with a disability

that—

‘‘(A) is designed to be within a results-oriented process,

that is focused on improving the academic and functional

achievement of the child with a disability to facilitate the

child’s movement from school to post-school activities,

including post-secondary education, vocational education,

integrated employment (including supported employment),

continuing and adult education, adult services, independent

living, or community participation;

‘‘(B) is based on the individual child’s needs, taking

into account the child’s strengths, preferences, and

interests; and

‘‘(C) includes instruction, related services, community

experiences, the development of employment and other

post-school adult living objectives, and, when appropriate,

acquisition of daily living skills and functional vocational

evaluation.

‘‘(35) UNIVERSAL DESIGN.—The term ‘universal design’ has

the meaning given the term in section 3 of the Assistive Technology Act of 1998 (29 U.S.C. 3002).

‘‘(36) WARD OF THE STATE.—

‘‘(A) IN GENERAL.—The term ‘ward of the State’ means

a child who, as determined by the State where the child

resides, is a foster child, is a ward of the State, or is

in the custody of a public child welfare agency.

‘‘(B) EXCEPTION.—The term does not include a foster

child who has a foster parent who meets the definition

of a parent in paragraph (23).

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2659

‘‘SEC. 603. OFFICE OF SPECIAL EDUCATION PROGRAMS.

‘‘(a) ESTABLISHMENT.—There shall be, within the Office of Special Education and Rehabilitative Services in the Department of

Education, an Office of Special Education Programs, which shall

be the principal agency in the Department for administering and

carrying out this title and other programs and activities concerning

the education of children with disabilities.

‘‘(b) DIRECTOR.—The Office established under subsection (a)

shall be headed by a Director who shall be selected by the Secretary

and shall report directly to the Assistant Secretary for Special

Education and Rehabilitative Services.

‘‘(c) VOLUNTARY AND UNCOMPENSATED SERVICES.—Notwithstanding section 1342 of title 31, United States Code, the Secretary

is authorized to accept voluntary and uncompensated services in

furtherance of the purposes of this title.

‘‘SEC. 604. ABROGATION OF STATE SOVEREIGN IMMUNITY.

‘‘(a) IN GENERAL.—A State shall not be immune under the

11th amendment to the Constitution of the United States from

suit in Federal court for a violation of this title.

‘‘(b) REMEDIES.—In a suit against a State for a violation of

this title, remedies (including remedies both at law and in equity)

are available for such a violation to the same extent as those

remedies are available for such a violation in the suit against

any public entity other than a State.

‘‘(c) EFFECTIVE DATE.—Subsections (a) and (b) apply with

respect to violations that occur in whole or part after the date

of enactment of the Education of the Handicapped Act Amendments

of 1990.

‘‘SEC. 605. ACQUISITION OF EQUIPMENT; CONSTRUCTION OR ALTERATION OF FACILITIES.

‘‘(a) IN GENERAL.—If the Secretary determines that a program

authorized under this title will be improved by permitting program

funds to be used to acquire appropriate equipment, or to construct

new facilities or alter existing facilities, the Secretary is authorized

to allow the use of those funds for those purposes.

‘‘(b) COMPLIANCE WITH CERTAIN REGULATIONS.—Any construction of new facilities or alteration of existing facilities under subsection (a) shall comply with the requirements of—

‘‘(1) appendix A of part 36 of title 28, Code of Federal

Regulations (commonly known as the ‘Americans with Disabilities Accessibility Guidelines for Buildings and Facilities’); or

‘‘(2) appendix A of subpart 101–19.6 of title 41, Code of

Federal Regulations (commonly known as the ‘Uniform Federal

Accessibility Standards’).

‘‘SEC. 606. EMPLOYMENT OF INDIVIDUALS WITH DISABILITIES.

‘‘The Secretary shall ensure that each recipient of assistance

under this title makes positive efforts to employ and advance in

employment qualified individuals with disabilities in programs

assisted under this title.

‘‘SEC. 607. REQUIREMENTS FOR PRESCRIBING REGULATIONS.

‘‘(a) IN GENERAL.—In carrying out the provisions of this title,

the Secretary shall issue regulations under this title only to the

extent that such regulations are necessary to ensure that there

is compliance with the specific requirements of this title.

20 USC 1406.

20 USC 1405.

20 USC 1404.

20 USC 1403.

20 USC 1402.

118 STAT. 2660 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(b) PROTECTIONS PROVIDED TO CHILDREN.—The Secretary may

not implement, or publish in final form, any regulation prescribed

pursuant to this title that—

‘‘(1) violates or contradicts any provision of this title; or

‘‘(2) procedurally or substantively lessens the protections

provided to children with disabilities under this title, as

embodied in regulations in effect on July 20, 1983 (particularly

as such protections related to parental consent to initial evaluation or initial placement in special education, least restrictive

environment, related services, timelines, attendance of evaluation personnel at individualized education program meetings,

or qualifications of personnel), except to the extent that such

regulation reflects the clear and unequivocal intent of Congress

in legislation.

‘‘(c) PUBLIC COMMENT PERIOD.—The Secretary shall provide

a public comment period of not less than 75 days on any regulation

proposed under part B or part C on which an opportunity for

public comment is otherwise required by law.

‘‘(d) POLICY LETTERS AND STATEMENTS.—The Secretary may

not issue policy letters or other statements (including letters or

statements regarding issues of national significance) that—

‘‘(1) violate or contradict any provision of this title; or

‘‘(2) establish a rule that is required for compliance with,

and eligibility under, this title without following the requirements of section 553 of title 5, United States Code.

‘‘(e) EXPLANATION AND ASSURANCES.—Any written response by

the Secretary under subsection (d) regarding a policy, question,

or interpretation under part B shall include an explanation in

the written response that—

‘‘(1) such response is provided as informal guidance and

is not legally binding;

‘‘(2) when required, such response is issued in compliance

with the requirements of section 553 of title 5, United States

Code; and

‘‘(3) such response represents the interpretation by the

Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented.

‘‘(f) CORRESPONDENCE FROM DEPARTMENT OF EDUCATION

DESCRIBING INTERPRETATIONS OF THIS TITLE.—

‘‘(1) IN GENERAL.—The Secretary shall, on a quarterly basis,

publish in the Federal Register, and widely disseminate to

interested entities through various additional forms of communication, a list of correspondence from the Department of Education received by individuals during the previous quarter that

describes the interpretations of the Department of Education

of this title or the regulations implemented pursuant to this

title.

‘‘(2) ADDITIONAL INFORMATION.—For each item of correspondence published in a list under paragraph (1), the Secretary shall—

‘‘(A) identify the topic addressed by the correspondence

and shall include such other summary information as the

Secretary determines to be appropriate; and

‘‘(B) ensure that all such correspondence is issued,

where applicable, in compliance with the requirements of

section 553 of title 5, United States Code.

Federal Register,

publication.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2661

‘‘SEC. 608. STATE ADMINISTRATION.

‘‘(a) RULEMAKING.—Each State that receives funds under this

title shall—

‘‘(1) ensure that any State rules, regulations, and policies

relating to this title conform to the purposes of this title;

‘‘(2) identify in writing to local educational agencies located

in the State and the Secretary any such rule, regulation, or

policy as a State-imposed requirement that is not required

by this title and Federal regulations; and

‘‘(3) minimize the number of rules, regulations, and policies

to which the local educational agencies and schools located

in the State are subject under this title.

‘‘(b) SUPPORT AND FACILITATION.—State rules, regulations, and

policies under this title shall support and facilitate local educational

agency and school-level system improvement designed to enable

children with disabilities to meet the challenging State student

academic achievement standards.

‘‘SEC. 609. PAPERWORK REDUCTION.

‘‘(a) PILOT PROGRAM.—

‘‘(1) PURPOSE.—The purpose of this section is to provide

an opportunity for States to identify ways to reduce paperwork

burdens and other administrative duties that are directly associated with the requirements of this title, in order to increase

the time and resources available for instruction and other

activities aimed at improving educational and functional results

for children with disabilities.

‘‘(2) AUTHORIZATION.—

‘‘(A) IN GENERAL.—In order to carry out the purpose

of this section, the Secretary is authorized to grant waivers

of statutory requirements of, or regulatory requirements

relating to, part B for a period of time not to exceed

4 years with respect to not more than 15 States based

on proposals submitted by States to reduce excessive paperwork and noninstructional time burdens that do not assist

in improving educational and functional results for children

with disabilities.

‘‘(B) EXCEPTION.—The Secretary shall not waive under

this section any statutory requirements of, or regulatory

requirements relating to, applicable civil rights requirements.

‘‘(C) RULE OF CONSTRUCTION.—Nothing in this section

shall be construed to—

‘‘(i) affect the right of a child with a disability

to receive a free appropriate public education under

part B; and

‘‘(ii) permit a State or local educational agency

to waive procedural safeguards under section 615.

‘‘(3) PROPOSAL.—

‘‘(A) IN GENERAL.—A State desiring to participate in

the program under this section shall submit a proposal

to the Secretary at such time and in such manner as

the Secretary may reasonably require.

‘‘(B) CONTENT.—The proposal shall include—

‘‘(i) a list of any statutory requirements of, or regulatory requirements relating to, part B that the State

20 USC 1408.

20 USC 1407.

118 STAT. 2662 PUBLIC LAW 108–446—DEC. 3, 2004

desires the Secretary to waive, in whole or in part;

and

‘‘(ii) a list of any State requirements that the State

proposes to waive or change, in whole or in part, to

carry out a waiver granted to the State by the Secretary.

‘‘(4) TERMINATION OF WAIVER.—The Secretary shall terminate a State’s waiver under this section if the Secretary determines that the State—

‘‘(A) needs assistance under section 616(d)(2)(A)(ii) and

that the waiver has contributed to or caused such need

for assistance;

‘‘(B) needs intervention under section 616(d)(2)(A)(iii)

or needs substantial intervention under section

616(d)(2)(A)(iv); or

‘‘(C) failed to appropriately implement its waiver.

‘‘(b) REPORT.—Beginning 2 years after the date of enactment

of the Individuals with Disabilities Education Improvement Act

of 2004, the Secretary shall include in the annual report to Congress

submitted pursuant to section 426 of the Department of Education

Organization Act information related to the effectiveness of waivers

granted under subsection (a), including any specific recommendations for broader implementation of such waivers, in—

‘‘(1) reducing—

‘‘(A) the paperwork burden on teachers, principals,

administrators, and related service providers; and

‘‘(B) noninstructional time spent by teachers in complying with part B;

‘‘(2) enhancing longer-term educational planning;

‘‘(3) improving positive outcomes for children with disabilities;

‘‘(4) promoting collaboration between IEP Team members;

and

‘‘(5) ensuring satisfaction of family members.

‘‘SEC. 610. FREELY ASSOCIATED STATES.

‘‘The Republic of the Marshall Islands, the Federated States

of Micronesia, and the Republic of Palau shall continue to be eligible

for competitive grants administered by the Secretary under this

title to the extent that such grants continue to be available to

States and local educational agencies under this title.

‘‘PART B—ASSISTANCE FOR EDUCATION OF

ALL CHILDREN WITH DISABILITIES

‘‘SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION OF APPROPRIATIONS.

‘‘(a) GRANTS TO STATES.—

‘‘(1) PURPOSE OF GRANTS.—The Secretary shall make grants

to States, outlying areas, and freely associated States, and

provide funds to the Secretary of the Interior, to assist them

to provide special education and related services to children

with disabilities in accordance with this part.

‘‘(2) MAXIMUM AMOUNT.—The maximum amount of the

grant a State may receive under this section—

‘‘(A) for fiscal years 2005 and 2006 is—

20 USC 1411.

20 USC 1409.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2663

‘‘(i) the number of children with disabilities in

the State who are receiving special education and

related services—

‘‘(I) aged 3 through 5 if the State is eligible

for a grant under section 619; and

‘‘(II) aged 6 through 21; multiplied by

‘‘(ii) 40 percent of the average per-pupil expenditure in public elementary schools and secondary

schools in the United States; and

‘‘(B) for fiscal year 2007 and subsequent fiscal years

is—

‘‘(i) the number of children with disabilities in

the 2004–2005 school year in the State who received

special education and related services—

‘‘(I) aged 3 through 5 if the State is eligible

for a grant under section 619; and

‘‘(II) aged 6 through 21; multiplied by

‘‘(ii) 40 percent of the average per-pupil expenditure in public elementary schools and secondary

schools in the United States; adjusted by

‘‘(iii) the rate of annual change in the sum of—

‘‘(I) 85 percent of such State’s population

described in subsection (d)(3)(A)(i)(II); and

‘‘(II) 15 percent of such State’s population

described in subsection (d)(3)(A)(i)(III).

‘‘(b) OUTLYING AREAS AND FREELY ASSOCIATED STATES; SECRETARY OF THE INTERIOR.—

‘‘(1) OUTLYING AREAS AND FREELY ASSOCIATED STATES.—

‘‘(A) FUNDS RESERVED.—From the amount appropriated

for any fiscal year under subsection (i), the Secretary shall

reserve not more than 1 percent, which shall be used—

‘‘(i) to provide assistance to the outlying areas

in accordance with their respective populations of

individuals aged 3 through 21; and

‘‘(ii) to provide each freely associated State a grant

in the amount that such freely associated State

received for fiscal year 2003 under this part, but only

if the freely associated State meets the applicable

requirements of this part, as well as the requirements

of section 611(b)(2)(C) as such section was in effect

on the day before the date of enactment of the Individuals with Disabilities Education Improvement Act of

2004.

‘‘(B) SPECIAL RULE.—The provisions of Public Law 95–

134, permitting the consolidation of grants by the outlying

areas, shall not apply to funds provided to the outlying

areas or the freely associated States under this section.

‘‘(C) DEFINITION.—In this paragraph, the term ‘freely

associated States’ means the Republic of the Marshall

Islands, the Federated States of Micronesia, and the

Republic of Palau.

‘‘(2) SECRETARY OF THE INTERIOR.—From the amount appropriated for any fiscal year under subsection (i), the Secretary

shall reserve 1.226 percent to provide assistance to the Secretary of the Interior in accordance with subsection (h).

‘‘(c) TECHNICAL ASSISTANCE.—

118 STAT. 2664 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(1) IN GENERAL.—The Secretary may reserve not more

than 1⁄2 of 1 percent of the amounts appropriated under this

part for each fiscal year to provide technical assistance activities

authorized under section 616(i).

‘‘(2) MAXIMUM AMOUNT.—The maximum amount the Secretary may reserve under paragraph (1) for any fiscal year

is $25,000,000, cumulatively adjusted by the rate of inflation

as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban

Consumers, published by the Bureau of Labor Statistics of

the Department of Labor.

‘‘(d) ALLOCATIONS TO STATES.— ‘‘(1) IN GENERAL.—After reserving funds for technical assistance, and for payments to the outlying areas, the freely associated States, and the Secretary of the Interior under subsections

(b) and (c) for a fiscal year, the Secretary shall allocate the

remaining amount among the States in accordance with this

subsection.

‘‘(2) SPECIAL RULE FOR USE OF FISCAL YEAR 1999 AMOUNT.—

If a State received any funds under this section for fiscal

year 1999 on the basis of children aged 3 through 5, but

does not make a free appropriate public education available

to all children with disabilities aged 3 through 5 in the State

in any subsequent fiscal year, the Secretary shall compute

the State’s amount for fiscal year 1999, solely for the purpose

of calculating the State’s allocation in that subsequent year

under paragraph (3) or (4), by subtracting the amount allocated

to the State for fiscal year 1999 on the basis of those children.

‘‘(3) INCREASE IN FUNDS.—If the amount available for allocations to States under paragraph (1) for a fiscal year is equal

to or greater than the amount allocated to the States under

this paragraph for the preceding fiscal year, those allocations

shall be calculated as follows:

‘‘(A) ALLOCATION OF INCREASE.—

‘‘(i) IN GENERAL.—Except as provided in subparagraph (B), the Secretary shall allocate for the fiscal

year—

‘‘(I) to each State the amount the State

received under this section for fiscal year 1999;

‘‘(II) 85 percent of any remaining funds to

States on the basis of the States’ relative populations of children aged 3 through 21 who are

of the same age as children with disabilities for

whom the State ensures the availability of a free

appropriate public education under this part; and

‘‘(III) 15 percent of those remaining funds to

States on the basis of the States’ relative populations of children described in subclause (II) who

are living in poverty.

‘‘(ii) DATA.—For the purpose of making grants

under this paragraph, the Secretary shall use the most

recent population data, including data on children

living in poverty, that are available and satisfactory

to the Secretary.

‘‘(B) LIMITATIONS.—Notwithstanding subparagraph (A),

allocations under this paragraph shall be subject to the

following:

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2665

‘‘(i) PRECEDING YEAR ALLOCATION.—No State’s

allocation shall be less than its allocation under this

section for the preceding fiscal year.

‘‘(ii) MINIMUM.—No State’s allocation shall be less

than the greatest of—

‘‘(I) the sum of—

‘‘(aa) the amount the State received under

this section for fiscal year 1999; and

‘‘(bb) 1⁄3 of 1 percent of the amount by

which the amount appropriated under subsection (i) for the fiscal year exceeds the

amount appropriated for this section for fiscal

year 1999;

‘‘(II) the sum of—

‘‘(aa) the amount the State received under

this section for the preceding fiscal year; and

‘‘(bb) that amount multiplied by the

percentage by which the increase in the funds

appropriated for this section from the preceding fiscal year exceeds 1.5 percent; or

‘‘(III) the sum of—

‘‘(aa) the amount the State received under

this section for the preceding fiscal year; and

‘‘(bb) that amount multiplied by 90 percent

of the percentage increase in the amount

appropriated for this section from the preceding fiscal year.

‘‘(iii) MAXIMUM.—Notwithstanding clause (ii), no

State’s allocation under this paragraph shall exceed

the sum of—

‘‘(I) the amount the State received under this

section for the preceding fiscal year; and

‘‘(II) that amount multiplied by the sum of

1.5 percent and the percentage increase in the

amount appropriated under this section from the

preceding fiscal year.

‘‘(C) RATABLE REDUCTION.—If the amount available for

allocations under this paragraph is insufficient to pay those

allocations in full, those allocations shall be ratably

reduced, subject to subparagraph (B)(i).

‘‘(4) DECREASE IN FUNDS.—If the amount available for

allocations to States under paragraph (1) for a fiscal year

is less than the amount allocated to the States under this

section for the preceding fiscal year, those allocations shall

be calculated as follows:

‘‘(A) AMOUNTS GREATER THAN FISCAL YEAR 1999 ALLOCATIONS.—If the amount available for allocations is greater

than the amount allocated to the States for fiscal year

1999, each State shall be allocated the sum of—

‘‘(i) the amount the State received under this section for fiscal year 1999; and

‘‘(ii) an amount that bears the same relation to

any remaining funds as the increase the State received

under this section for the preceding fiscal year over

fiscal year 1999 bears to the total of all such increases

for all States.

118 STAT. 2666 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(B) AMOUNTS EQUAL TO OR LESS THAN FISCAL YEAR

1999 ALLOCATIONS.— ‘‘(i) IN GENERAL.—If the amount available for

allocations under this paragraph is equal to or less

than the amount allocated to the States for fiscal year

1999, each State shall be allocated the amount the

State received for fiscal year 1999.

‘‘(ii) RATABLE REDUCTION.—If the amount available

for allocations under this paragraph is insufficient to

make the allocations described in clause (i), those

allocations shall be ratably reduced.

‘‘(e) STATE-LEVEL ACTIVITIES.— ‘‘(1) STATE ADMINISTRATION.— ‘‘(A) IN GENERAL.—For the purpose of administering

this part, including paragraph (3), section 619, and the

coordination of activities under this part with, and providing technical assistance to, other programs that provide

services to children with disabilities—

‘‘(i) each State may reserve for each fiscal year

not more than the maximum amount the State was

eligible to reserve for State administration under this

section for fiscal year 2004 or $800,000 (adjusted in

accordance with subparagraph (B)), whichever is

greater; and

‘‘(ii) each outlying area may reserve for each fiscal

year not more than 5 percent of the amount the outlying area receives under subsection (b)(1) for the fiscal

year or $35,000, whichever is greater.

‘‘(B) CUMULATIVE ANNUAL ADJUSTMENTS.—For each

fiscal year beginning with fiscal year 2005, the Secretary

shall cumulatively adjust—

‘‘(i) the maximum amount the State was eligible

to reserve for State administration under this part

for fiscal year 2004; and

‘‘(ii) $800,000,

by the rate of inflation as measured by the percentage

increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published

by the Bureau of Labor Statistics of the Department of

Labor.

‘‘(C) CERTIFICATION.—Prior to expenditure of funds

under this paragraph, the State shall certify to the Secretary that the arrangements to establish responsibility

for services pursuant to section 612(a)(12)(A) are current.

‘‘(D) PART C.—Funds reserved under subparagraph (A)

may be used for the administration of part C, if the State

educational agency is the lead agency for the State under

such part.

‘‘(2) OTHER STATE-LEVEL ACTIVITIES.—

‘‘(A) STATE-LEVEL ACTIVITIES.—

‘‘(i) IN GENERAL.—Except as provided in clause

(iii), for the purpose of carrying out State-level activities, each State may reserve for each of the fiscal

years 2005 and 2006 not more than 10 percent from

the amount of the State’s allocation under subsection

(d) for each of the fiscal years 2005 and 2006, respectively. For fiscal year 2007 and each subsequent fiscal

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2667

year, the State may reserve the maximum amount

the State was eligible to reserve under the preceding

sentence for fiscal year 2006 (cumulatively adjusted

by the rate of inflation as measured by the percentage

increase, if any, from the preceding fiscal year in the

Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor).

‘‘(ii) SMALL STATE ADJUSTMENT.—Notwithstanding

clause (i) and except as provided in clause (iii), in

the case of a State for which the maximum amount

reserved for State administration is not greater than

$850,000, the State may reserve for the purpose of

carrying out State-level activities for each of the fiscal

years 2005 and 2006, not more than 10.5 percent from

the amount of the State’s allocation under subsection

(d) for each of the fiscal years 2005 and 2006, respectively. For fiscal year 2007 and each subsequent fiscal

year, such State may reserve the maximum amount

the State was eligible to reserve under the preceding

sentence for fiscal year 2006 (cumulatively adjusted

by the rate of inflation as measured by the percentage

increase, if any, from the preceding fiscal year in the

Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor).

‘‘(iii) EXCEPTION.—If a State does not reserve funds

under paragraph (3) for a fiscal year, then—

‘‘(I) in the case of a State that is not described

in clause (ii), for fiscal year 2005 or 2006, clause

(i) shall be applied by substituting ‘9.0 percent’

for ‘10 percent’; and

‘‘(II) in the case of a State that is described

in clause (ii), for fiscal year 2005 or 2006, clause

(ii) shall be applied by substituting ‘9.5 percent’

for ‘10.5 percent’.

‘‘(B) REQUIRED ACTIVITIES.—Funds reserved under

subparagraph (A) shall be used to carry out the following

activities:

‘‘(i) For monitoring, enforcement, and complaint

investigation.

‘‘(ii) To establish and implement the mediation

process required by section 615(e), including providing

for the cost of mediators and support personnel.

‘‘(C) AUTHORIZED ACTIVITIES.—Funds reserved under

subparagraph (A) may be used to carry out the following

activities:

‘‘(i) For support and direct services, including technical assistance, personnel preparation, and professional development and training.

‘‘(ii) To support paperwork reduction activities,

including expanding the use of technology in the IEP

process.

‘‘(iii) To assist local educational agencies in providing positive behavioral interventions and supports

and appropriate mental health services for children

with disabilities.

118 STAT. 2668 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(iv) To improve the use of technology in the classroom by children with disabilities to enhance learning.

‘‘(v) To support the use of technology, including

technology with universal design principles and

assistive technology devices, to maximize accessibility

to the general education curriculum for children with

disabilities.

‘‘(vi) Development and implementation of transition programs, including coordination of services with

agencies involved in supporting the transition of children with disabilities to postsecondary activities.

‘‘(vii) To assist local educational agencies in

meeting personnel shortages.

‘‘(viii) To support capacity building activities and

improve the delivery of services by local educational

agencies to improve results for children with disabilities.

‘‘(ix) Alternative programming for children with

disabilities who have been expelled from school, and

services for children with disabilities in correctional

facilities, children enrolled in State-operated or Statesupported schools, and children with disabilities in

charter schools.

‘‘(x) To support the development and provision of

appropriate accommodations for children with disabilities, or the development and provision of alternate

assessments that are valid and reliable for assessing

the performance of children with disabilities, in accordance with sections 1111(b) and 6111 of the Elementary

and Secondary Education Act of 1965.

‘‘(xi) To provide technical assistance to schools and

local educational agencies, and direct services,

including supplemental educational services as defined

in 1116(e) of the Elementary and Secondary Education

Act of 1965 to children with disabilities, in schools

or local educational agencies identified for improvement under section 1116 of the Elementary and Secondary Education Act of 1965 on the sole basis of

the assessment results of the disaggregated subgroup

of children with disabilities, including providing professional development to special and regular education

teachers, who teach children with disabilities, based

on scientifically based research to improve educational

instruction, in order to improve academic achievement

to meet or exceed the objectives established by the

State under section 1111(b)(2)(G) the Elementary and

Secondary Education Act of 1965.

‘‘(3) LOCAL EDUCATIONAL AGENCY RISK POOL.—

‘‘(A) IN GENERAL.—

‘‘(i) RESERVATION OF FUNDS.—For the purpose of

assisting local educational agencies (including a charter

school that is a local educational agency or a consortium of local educational agencies) in addressing the

needs of high need children with disabilities, each State

shall have the option to reserve for each fiscal year

10 percent of the amount of funds the State reserves

for State-level activities under paragraph (2)(A)—

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2669

‘‘(I) to establish and make disbursements from

the high cost fund to local educational agencies

in accordance with this paragraph during the first

and succeeding fiscal years of the high cost fund;

and

‘‘(II) to support innovative and effective ways

of cost sharing by the State, by a local educational

agency, or among a consortium of local educational

agencies, as determined by the State in coordination with representatives from local educational

agencies, subject to subparagraph (B)(ii).

‘‘(ii) DEFINITION OF LOCAL EDUCATIONAL AGENCY.—

In this paragraph the term ‘local educational agency’

includes a charter school that is a local educational

agency, or a consortium of local educational agencies.

‘‘(B) LIMITATION ON USES OF FUNDS.—

‘‘(i) ESTABLISHMENT OF HIGH COST FUND.—A State

shall not use any of the funds the State reserves pursuant to subparagraph (A)(i), but may use the funds

the State reserves under paragraph (1), to establish

and support the high cost fund.

‘‘(ii) INNOVATIVE AND EFFECTIVE COST SHARING.—

A State shall not use more than 5 percent of the

funds the State reserves pursuant to subparagraph

(A)(i) for each fiscal year to support innovative and

effective ways of cost sharing among consortia of local

educational agencies.

‘‘(C) STATE PLAN FOR HIGH COST FUND.—

‘‘(i) DEFINITION.—The State educational agency

shall establish the State’s definition of a high need

child with a disability, which definition shall be developed in consultation with local educational agencies.

‘‘(ii) STATE PLAN.—The State educational agency

shall develop, not later than 90 days after the State

reserves funds under this paragraph, annually review,

and amend as necessary, a State plan for the high

cost fund. Such State plan shall—

‘‘(I) establish, in coordination with representatives from local educational agencies, a definition

of a high need child with a disability that, at

a minimum—

‘‘(aa) addresses the financial impact a high

need child with a disability has on the budget

of the child’s local educational agency; and

‘‘(bb) ensures that the cost of the high

need child with a disability is greater than

3 times the average per pupil expenditure (as

defined in section 9101 of the Elementary and

Secondary Education Act of 1965) in that

State;

‘‘(II) establish eligibility criteria for the participation of a local educational agency that, at a

minimum, takes into account the number and

percentage of high need children with disabilities

served by a local educational agency;

Deadline.

118 STAT. 2670 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(III) develop a funding mechanism that provides distributions each fiscal year to local educational agencies that meet the criteria developed

by the State under subclause (II); and

‘‘(IV) establish an annual schedule by which

the State educational agency shall make its distributions from the high cost fund each fiscal year.

‘‘(iii) PUBLIC AVAILABILITY.—The State shall make

its final State plan publicly available not less than

30 days before the beginning of the school year,

including dissemination of such information on the

State website.

‘‘(D) DISBURSEMENTS FROM THE HIGH COST FUND.—

‘‘(i) IN GENERAL.—Each State educational agency

shall make all annual disbursements from the high

cost fund established under subparagraph (A)(i) in

accordance with the State plan published pursuant

to subparagraph (C).

‘‘(ii) USE OF DISBURSEMENTS.—Each State educational agency shall make annual disbursements to

eligible local educational agencies in accordance with

its State plan under subparagraph (C)(ii).

‘‘(iii) APPROPRIATE COSTS.—The costs associated

with educating a high need child with a disability

under subparagraph (C)(i) are only those costs associated with providing direct special education and related

services to such child that are identified in such child’s

IEP.

‘‘(E) LEGAL FEES.—The disbursements under subparagraph (D) shall not support legal fees, court costs, or other

costs associated with a cause of action brought on behalf

of a child with a disability to ensure a free appropriate

public education for such child.

‘‘(F) ASSURANCE OF A FREE APPROPRIATE PUBLIC EDUCATION.—Nothing in this paragraph shall be construed—

‘‘(i) to limit or condition the right of a child with

a disability who is assisted under this part to receive

a free appropriate public education pursuant to section

612(a)(1) in the least restrictive environment pursuant

to section 612(a)(5); or

‘‘(ii) to authorize a State educational agency or

local educational agency to establish a limit on what

may be spent on the education of a child with a disability.

‘‘(G) SPECIAL RULE FOR RISK POOL AND HIGH NEED

ASSISTANCE PROGRAMS IN EFFECT AS OF JANUARY 1, 2004.—

Notwithstanding the provisions of subparagraphs (A)

through (F), a State may use funds reserved pursuant

to this paragraph for implementing a placement neutral

cost sharing and reimbursement program of high need,

low incidence, catastrophic, or extraordinary aid to local

educational agencies that provides services to high need

students based on eligibility criteria for such programs

that were created not later than January 1, 2004, and

are currently in operation, if such program serves children

that meet the requirement of the definition of a high need

Deadline.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2671

child with a disability as described in subparagraph

(C)(ii)(I).

‘‘(H) MEDICAID SERVICES NOT AFFECTED.—Disbursements provided under this paragraph shall not be used

to pay costs that otherwise would be reimbursed as medical

assistance for a child with a disability under the State

medicaid program under title XIX of the Social Security

Act.

‘‘(I) REMAINING FUNDS.—Funds reserved under

subparagraph (A) in any fiscal year but not expended in

that fiscal year pursuant to subparagraph (D) shall be

allocated to local educational agencies for the succeeding

fiscal year in the same manner as funds are allocated

to local educational agencies under subsection (f) for the

succeeding fiscal year.

‘‘(4) INAPPLICABILITY OF CERTAIN PROHIBITIONS.—A State

may use funds the State reserves under paragraphs (1) and

(2) without regard to—

‘‘(A) the prohibition on commingling of funds in section

612(a)(17)(B); and

‘‘(B) the prohibition on supplanting other funds in section 612(a)(17)(C).

‘‘(5) REPORT ON USE OF FUNDS.—As part of the information

required to be submitted to the Secretary under section 612,

each State shall annually describe how amounts under this

section—

‘‘(A) will be used to meet the requirements of this

title; and

‘‘(B) will be allocated among the activities described

in this section to meet State priorities based on input

from local educational agencies.

‘‘(6) SPECIAL RULE FOR INCREASED FUNDS.—A State may

use funds the State reserves under paragraph (1)(A) as a result

of inflationary increases under paragraph (1)(B) to carry out

activities authorized under clause (i), (iii), (vii), or (viii) of

paragraph (2)(C).

‘‘(7) FLEXIBILITY IN USING FUNDS FOR PART C.—Any State

eligible to receive a grant under section 619 may use funds

made available under paragraph (1)(A), subsection (f)(3), or

section 619(f)(5) to develop and implement a State policy jointly

with the lead agency under part C and the State educational

agency to provide early intervention services (which shall

include an educational component that promotes school readiness and incorporates preliteracy, language, and numeracy

skills) in accordance with part C to children with disabilities

who are eligible for services under section 619 and who previously received services under part C until such children enter,

or are eligible under State law to enter, kindergarten, or

elementary school as appropriate.

‘‘(f) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—

‘‘(1) SUBGRANTS REQUIRED.—Each State that receives a

grant under this section for any fiscal year shall distribute

any funds the State does not reserve under subsection (e)

to local educational agencies (including public charter schools

that operate as local educational agencies) in the State that

have established their eligibility under section 613 for use

in accordance with this part.

118 STAT. 2672 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(2) PROCEDURE FOR ALLOCATIONS TO LOCAL EDUCATIONAL

AGENCIES.—For each fiscal year for which funds are allocated

to States under subsection (d), each State shall allocate funds

under paragraph (1) as follows:

‘‘(A) BASE PAYMENTS.—The State shall first award each

local educational agency described in paragraph (1) the

amount the local educational agency would have received

under this section for fiscal year 1999, if the State had

distributed 75 percent of its grant for that year under

section 611(d) as section 611(d) was then in effect.

‘‘(B) ALLOCATION OF REMAINING FUNDS.—After making

allocations under subparagraph (A), the State shall—

‘‘(i) allocate 85 percent of any remaining funds

to those local educational agencies on the basis of

the relative numbers of children enrolled in public

and private elementary schools and secondary schools

within the local educational agency’s jurisdiction; and

‘‘(ii) allocate 15 percent of those remaining funds

to those local educational agencies in accordance with

their relative numbers of children living in poverty,

as determined by the State educational agency.

‘‘(3) REALLOCATION OF FUNDS.—If a State educational

agency determines that a local educational agency is adequately

providing a free appropriate public education to all children

with disabilities residing in the area served by that local educational agency with State and local funds, the State educational agency may reallocate any portion of the funds under

this part that are not needed by that local educational agency

to provide a free appropriate public education to other local

educational agencies in the State that are not adequately providing special education and related services to all children

with disabilities residing in the areas served by those other

local educational agencies.

‘‘(g) DEFINITIONS.—In this section:

‘‘(1) AVERAGE PER-PUPIL EXPENDITURE IN PUBLIC

ELEMENTARY SCHOOLS AND SECONDARY SCHOOLS IN THE UNITED

STATES.—The term ‘average per-pupil expenditure in public

elementary schools and secondary schools in the United States’

means—

‘‘(A) without regard to the source of funds—

‘‘(i) the aggregate current expenditures, during the

second fiscal year preceding the fiscal year for which

the determination is made (or, if satisfactory data for

that year are not available, during the most recent

preceding fiscal year for which satisfactory data are

available) of all local educational agencies in the 50

States and the District of Columbia; plus

‘‘(ii) any direct expenditures by the State for the

operation of those agencies; divided by

‘‘(B) the aggregate number of children in average daily

attendance to whom those agencies provided free public

education during that preceding year.

‘‘(2) STATE.—The term ‘State’ means each of the 50 States,

the District of Columbia, and the Commonwealth of Puerto

Rico.

‘‘(h) USE OF AMOUNTS BY SECRETARY OF THE INTERIOR.— ‘‘(1) PROVISION OF AMOUNTS FOR ASSISTANCE.—

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2673

‘‘(A) IN GENERAL.—The Secretary of Education shall

provide amounts to the Secretary of the Interior to meet

the need for assistance for the education of children with

disabilities on reservations aged 5 to 21, inclusive, enrolled

in elementary schools and secondary schools for Indian

children operated or funded by the Secretary of the Interior.

The amount of such payment for any fiscal year shall

be equal to 80 percent of the amount allotted under subsection (b)(2) for that fiscal year. Of the amount described

in the preceding sentence—

‘‘(i) 80 percent shall be allocated to such schools

by July 1 of that fiscal year; and

‘‘(ii) 20 percent shall be allocated to such schools

by September 30 of that fiscal year.

‘‘(B) CALCULATION OF NUMBER OF CHILDREN.—In the

case of Indian students aged 3 to 5, inclusive, who are

enrolled in programs affiliated with the Bureau of Indian

Affairs (referred to in this subsection as the ‘BIA’) schools

and that are required by the States in which such schools

are located to attain or maintain State accreditation, and

which schools have such accreditation prior to the date

of enactment of the Individuals with Disabilities Education

Act Amendments of 1991, the school shall be allowed to

count those children for the purpose of distribution of the

funds provided under this paragraph to the Secretary of

the Interior. The Secretary of the Interior shall be responsible for meeting all of the requirements of this part for

those children, in accordance with paragraph (2).

‘‘(C) ADDITIONAL REQUIREMENT.—With respect to all

other children aged 3 to 21, inclusive, on reservations,

the State educational agency shall be responsible for

ensuring that all of the requirements of this part are implemented.

‘‘(2) SUBMISSION OF INFORMATION.—The Secretary of Education may provide the Secretary of the Interior amounts under

paragraph (1) for a fiscal year only if the Secretary of the

Interior submits to the Secretary of Education information

that—

‘‘(A) demonstrates that the Department of the Interior

meets the appropriate requirements, as determined by the

Secretary of Education, of sections 612 (including monitoring and evaluation activities) and 613;

‘‘(B) includes a description of how the Secretary of

the Interior will coordinate the provision of services under

this part with local educational agencies, tribes and tribal

organizations, and other private and Federal service providers;

‘‘(C) includes an assurance that there are public

hearings, adequate notice of such hearings, and an opportunity for comment afforded to members of tribes, tribal

governing bodies, and affected local school boards before

the adoption of the policies, programs, and procedures

related to the requirements described in subparagraph (A);

‘‘(D) includes an assurance that the Secretary of the

Interior will provide such information as the Secretary

of Education may require to comply with section 618;

118 STAT. 2674 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(E) includes an assurance that the Secretary of the

Interior and the Secretary of Health and Human Services

have entered into a memorandum of agreement, to be

provided to the Secretary of Education, for the coordination

of services, resources, and personnel between their respective Federal, State, and local offices and with State and

local educational agencies and other entities to facilitate

the provision of services to Indian children with disabilities

residing on or near reservations (such agreement shall

provide for the apportionment of responsibilities and costs,

including child find, evaluation, diagnosis, remediation or

therapeutic measures, and (where appropriate) equipment

and medical or personal supplies as needed for a child

to remain in school or a program); and

‘‘(F) includes an assurance that the Department of

the Interior will cooperate with the Department of Education in its exercise of monitoring and oversight of this

application, and any agreements entered into between the

Secretary of the Interior and other entities under this

part, and will fulfill its duties under this part.

‘‘(3) APPLICABILITY.—The Secretary shall withhold payments under this subsection with respect to the information

described in paragraph (2) in the same manner as the Secretary

withholds payments under section 616(e)(6).

‘‘(4) PAYMENTS FOR EDUCATION AND SERVICES FOR INDIAN

CHILDREN WITH DISABILITIES AGED 3 THROUGH 5.—

‘‘(A) IN GENERAL.—With funds appropriated under subsection (i), the Secretary of Education shall make payments

to the Secretary of the Interior to be distributed to tribes

or tribal organizations (as defined under section 4 of the

Indian Self-Determination and Education Assistance Act)

or consortia of tribes or tribal organizations to provide

for the coordination of assistance for special education and

related services for children with disabilities aged 3

through 5 on reservations served by elementary schools

and secondary schools for Indian children operated or

funded by the Department of the Interior. The amount

of such payments under subparagraph (B) for any fiscal

year shall be equal to 20 percent of the amount allotted

under subsection (b)(2).

‘‘(B) DISTRIBUTION OF FUNDS.—The Secretary of the

Interior shall distribute the total amount of the payment

under subparagraph (A) by allocating to each tribe, tribal

organization, or consortium an amount based on the

number of children with disabilities aged 3 through 5

residing on reservations as reported annually, divided by

the total of those children served by all tribes or tribal

organizations.

‘‘(C) SUBMISSION OF INFORMATION.—To receive a payment under this paragraph, the tribe or tribal organization

shall submit such figures to the Secretary of the Interior

as required to determine the amounts to be allocated under

subparagraph (B). This information shall be compiled and

submitted to the Secretary of Education.

‘‘(D) USE OF FUNDS.—The funds received by a tribe

or tribal organization shall be used to assist in child find,

screening, and other procedures for the early identification

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2675

of children aged 3 through 5, parent training, and the

provision of direct services. These activities may be carried

out directly or through contracts or cooperative agreements

with the BIA, local educational agencies, and other public

or private nonprofit organizations. The tribe or tribal

organization is encouraged to involve Indian parents in

the development and implementation of these activities.

The tribe or tribal organization shall, as appropriate, make

referrals to local, State, or Federal entities for the provision

of services or further diagnosis.

‘‘(E) BIENNIAL REPORT.—To be eligible to receive a

grant pursuant to subparagraph (A), the tribe or tribal

organization shall provide to the Secretary of the Interior

a biennial report of activities undertaken under this paragraph, including the number of contracts and cooperative

agreements entered into, the number of children contacted

and receiving services for each year, and the estimated

number of children needing services during the 2 years

following the year in which the report is made. The Secretary of the Interior shall include a summary of this

information on a biennial basis in the report to the Secretary of Education required under this subsection. The

Secretary of Education may require any additional information from the Secretary of the Interior.

‘‘(F) PROHIBITIONS.—None of the funds allocated under

this paragraph may be used by the Secretary of the Interior

for administrative purposes, including child count and the

provision of technical assistance.

‘‘(5) PLAN FOR COORDINATION OF SERVICES.—The Secretary

of the Interior shall develop and implement a plan for the

coordination of services for all Indian children with disabilities

residing on reservations covered under this title. Such plan

shall provide for the coordination of services benefiting those

children from whatever source, including tribes, the Indian

Health Service, other BIA divisions, and other Federal agencies.

In developing the plan, the Secretary of the Interior shall

consult with all interested and involved parties. The plan shall

be based on the needs of the children and the system best

suited for meeting those needs, and may involve the establishment of cooperative agreements between the BIA, other Federal

agencies, and other entities. The plan shall also be distributed

upon request to States, State educational agencies and local

educational agencies, and other agencies providing services to

infants, toddlers, and children with disabilities, to tribes, and

to other interested parties.

‘‘(6) ESTABLISHMENT OF ADVISORY BOARD.—To meet the

requirements of section 612(a)(21), the Secretary of the Interior

shall establish, under the BIA, an advisory board composed

of individuals involved in or concerned with the education and

provision of services to Indian infants, toddlers, children, and

youth with disabilities, including Indians with disabilities,

Indian parents or guardians of such children, teachers, service

providers, State and local educational officials, representatives

of tribes or tribal organizations, representatives from State

Interagency Coordinating Councils under section 641 in States

having reservations, and other members representing the various divisions and entities of the BIA. The chairperson shall

118 STAT. 2676 PUBLIC LAW 108–446—DEC. 3, 2004

be selected by the Secretary of the Interior. The advisory board

shall—

‘‘(A) assist in the coordination of services within the

BIA and with other local, State, and Federal agencies in

the provision of education for infants, toddlers, and children

with disabilities;

‘‘(B) advise and assist the Secretary of the Interior

in the performance of the Secretary of the Interior’s responsibilities described in this subsection;

‘‘(C) develop and recommend policies concerning effective inter- and intra-agency collaboration, including modifications to regulations, and the elimination of barriers

to inter- and intra-agency programs and activities;

‘‘(D) provide assistance and disseminate information

on best practices, effective program coordination strategies,

and recommendations for improved early intervention services or educational programming for Indian infants, toddlers, and children with disabilities; and

‘‘(E) provide assistance in the preparation of information required under paragraph (2)(D).

‘‘(7) ANNUAL REPORTS.—

‘‘(A) IN GENERAL.—The advisory board established

under paragraph (6) shall prepare and submit to the Secretary of the Interior and to Congress an annual report

containing a description of the activities of the advisory

board for the preceding year.

‘‘(B) AVAILABILITY.—The Secretary of the Interior shall

make available to the Secretary of Education the report

described in subparagraph (A).

‘‘(i) AUTHORIZATION OF APPROPRIATIONS.—For the purpose of

carrying out this part, other than section 619, there are authorized

to be appropriated—

‘‘(1) $12,358,376,571 for fiscal year 2005;

‘‘(2) $14,648,647,143 for fiscal year 2006;

‘‘(3) $16,938,917,714 for fiscal year 2007;

‘‘(4) $19,229,188,286 for fiscal year 2008;

‘‘(5) $21,519,458,857 for fiscal year 2009;

‘‘(6) $23,809,729,429 for fiscal year 2010;

‘‘(7) $26,100,000,000 for fiscal year 2011; and

‘‘(8) such sums as may be necessary for fiscal year 2012

and each succeeding fiscal year.

‘‘SEC. 612. STATE ELIGIBILITY.

‘‘(a) IN GENERAL.—A State is eligible for assistance under this

part for a fiscal year if the State submits a plan that provides

assurances to the Secretary that the State has in effect policies

and procedures to ensure that the State meets each of the following

conditions:

‘‘(1) FREE APPROPRIATE PUBLIC EDUCATION.—

‘‘(A) IN GENERAL.—A free appropriate public education

is available to all children with disabilities residing in

the State between the ages of 3 and 21, inclusive, including

children with disabilities who have been suspended or

expelled from school.

‘‘(B) LIMITATION.—The obligation to make a free appropriate public education available to all children with

disabilities does not apply with respect to children—

20 USC 1412.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2677

‘‘(i) aged 3 through 5 and 18 through 21 in a

State to the extent that its application to those children

would be inconsistent with State law or practice, or

the order of any court, respecting the provision of

public education to children in those age ranges; and

‘‘(ii) aged 18 through 21 to the extent that State

law does not require that special education and related

services under this part be provided to children with

disabilities who, in the educational placement prior

to their incarceration in an adult correctional facility—

‘‘(I) were not actually identified as being a

child with a disability under section 602; or

‘‘(II) did not have an individualized education

program under this part.

‘‘(C) STATE FLEXIBILITY.—A State that provides early

intervention services in accordance with part C to a child

who is eligible for services under section 619, is not

required to provide such child with a free appropriate public

education.

‘‘(2) FULL EDUCATIONAL OPPORTUNITY GOAL.—The State has

established a goal of providing full educational opportunity

to all children with disabilities and a detailed timetable for

accomplishing that goal.

‘‘(3) CHILD FIND.—

‘‘(A) IN GENERAL.—All children with disabilities

residing in the State, including children with disabilities

who are homeless children or are wards of the State and

children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in

need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with

disabilities are currently receiving needed special education

and related services.

‘‘(B) CONSTRUCTION.—Nothing in this title requires

that children be classified by their disability so long as

each child who has a disability listed in section 602 and

who, by reason of that disability, needs special education

and related services is regarded as a child with a disability

under this part.

‘‘(4) INDIVIDUALIZED EDUCATION PROGRAM.—An individualized education program, or an individualized family service

plan that meets the requirements of section 636(d), is developed,

reviewed, and revised for each child with a disability in accordance with section 614(d).

‘‘(5) LEAST RESTRICTIVE ENVIRONMENT.—

‘‘(A) IN GENERAL.—To the maximum extent appropriate, children with disabilities, including children in

public or private institutions or other care facilities, are

educated with children who are not disabled, and special

classes, separate schooling, or other removal of children

with disabilities from the regular educational environment

occurs only when the nature or severity of the disability

of a child is such that education in regular classes with

the use of supplementary aids and services cannot be

achieved satisfactorily.

‘‘(B) ADDITIONAL REQUIREMENT.—

118 STAT. 2678 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(i) IN GENERAL.—A State funding mechanism

shall not result in placements that violate the requirements of subparagraph (A), and a State shall not use

a funding mechanism by which the State distributes

funds on the basis of the type of setting in which

a child is served that will result in the failure to

provide a child with a disability a free appropriate

public education according to the unique needs of the

child as described in the child’s IEP.

‘‘(ii) ASSURANCE.—If the State does not have policies and procedures to ensure compliance with clause

(i), the State shall provide the Secretary an assurance

that the State will revise the funding mechanism as

soon as feasible to ensure that such mechanism does

not result in such placements.

‘‘(6) PROCEDURAL SAFEGUARDS.— ‘‘(A) IN GENERAL.—Children with disabilities and their

parents are afforded the procedural safeguards required

by section 615.

‘‘(B) ADDITIONAL PROCEDURAL SAFEGUARDS.—Procedures to ensure that testing and evaluation materials and

procedures utilized for the purposes of evaluation and

placement of children with disabilities for services under

this title will be selected and administered so as not to

be racially or culturally discriminatory. Such materials or

procedures shall be provided and administered in the

child’s native language or mode of communication, unless

it clearly is not feasible to do so, and no single procedure

shall be the sole criterion for determining an appropriate

educational program for a child.

‘‘(7) EVALUATION.—Children with disabilities are evaluated

in accordance with subsections (a) through (c) of section 614.

‘‘(8) CONFIDENTIALITY.—Agencies in the State comply with

section 617(c) (relating to the confidentiality of records and

information).

‘‘(9) TRANSITION FROM PART C TO PRESCHOOL PROGRAMS.—

Children participating in early intervention programs assisted

under part C, and who will participate in preschool programs

assisted under this part, experience a smooth and effective

transition to those preschool programs in a manner consistent

with section 637(a)(9). By the third birthday of such a child,

an individualized education program or, if consistent with sections 614(d)(2)(B) and 636(d), an individualized family service

plan, has been developed and is being implemented for the

child. The local educational agency will participate in transition

planning conferences arranged by the designated lead agency

under section 635(a)(10).

‘‘(10) CHILDREN IN PRIVATE SCHOOLS.—

‘‘(A) CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR

PARENTS.—

‘‘(i) IN GENERAL.—To the extent consistent with

the number and location of children with disabilities

in the State who are enrolled by their parents in private elementary schools and secondary schools in the

school district served by a local educational agency,

provision is made for the participation of those children

in the program assisted or carried out under this part

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2679

by providing for such children special education and

related services in accordance with the following

requirements, unless the Secretary has arranged for

services to those children under subsection (f):

‘‘(I) Amounts to be expended for the provision

of those services (including direct services to parentally placed private school children) by the local

educational agency shall be equal to a proportionate amount of Federal funds made available

under this part.

‘‘(II) In calculating the proportionate amount

of Federal funds, the local educational agency,

after timely and meaningful consultation with representatives of private schools as described in

clause (iii), shall conduct a thorough and complete

child find process to determine the number of

parentally placed children with disabilities

attending private schools located in the local educational agency.

‘‘(III) Such services to parentally placed private school children with disabilities may be provided to the children on the premises of private,

including religious, schools, to the extent consistent with law.

‘‘(IV) State and local funds may supplement

and in no case shall supplant the proportionate

amount of Federal funds required to be expended

under this subparagraph.

‘‘(V) Each local educational agency shall maintain in its records and provide to the State educational agency the number of children evaluated

under this subparagraph, the number of children

determined to be children with disabilities under

this paragraph, and the number of children served

under this paragraph.

‘‘(ii) CHILD FIND REQUIREMENT.—

‘‘(I) IN GENERAL.—The requirements of paragraph (3) (relating to child find) shall apply with

respect to children with disabilities in the State

who are enrolled in private, including religious,

elementary schools and secondary schools.

‘‘(II) EQUITABLE PARTICIPATION.—The child

find process shall be designed to ensure the equitable participation of parentally placed private

school children with disabilities and an accurate

count of such children.

‘‘(III) ACTIVITIES.—In carrying out this clause,

the local educational agency, or where applicable,

the State educational agency, shall undertake

activities similar to those activities undertaken for

the agency’s public school children.

‘‘(IV) COST.—The cost of carrying out this

clause, including individual evaluations, may not

be considered in determining whether a local educational agency has met its obligations under

clause (i).

118 STAT. 2680 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(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

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2681

forward the documentation of the consultation process

to the State educational agency.

‘‘(v) COMPLIANCE.—

‘‘(I) IN GENERAL.—A private school official

shall have the right to submit a complaint to the

State educational agency that the local educational

agency did not engage in consultation that was

meaningful and timely, or did not give due consideration to the views of the private school official.

‘‘(II) PROCEDURE.—If the private school official

wishes to submit a complaint, the official shall

provide the basis of the noncompliance with this

subparagraph by the local educational agency to

the State educational agency, and the local educational agency shall forward the appropriate documentation to the State educational agency. If the

private school official is dissatisfied with the decision of the State educational agency, such official

may submit a complaint to the Secretary by providing the basis of the noncompliance with this

subparagraph by the local educational agency to

the Secretary, and the State educational agency

shall forward the appropriate documentation to

the Secretary.

‘‘(vi) PROVISION OF EQUITABLE SERVICES.—

‘‘(I) DIRECTLY OR THROUGH CONTRACTS.—The

provision of services pursuant to this subparagraph shall be provided—

‘‘(aa) by employees of a public agency; or

‘‘(bb) through contract by the public

agency with an individual, association, agency,

organization, or other entity.

‘‘(II) SECULAR, NEUTRAL, NONIDEOLOGICAL.—

Special education and related services provided

to parentally placed private school children with

disabilities, including materials and equipment,

shall be secular, neutral, and nonideological.

‘‘(vii) PUBLIC CONTROL OF FUNDS.—The control of

funds used to provide special education and related

services under this subparagraph, and title to materials, equipment, and property purchased with those

funds, shall be in a public agency for the uses and

purposes provided in this title, and a public agency

shall administer the funds and property.

‘‘(B) CHILDREN PLACED IN, OR REFERRED TO, PRIVATE

SCHOOLS BY PUBLIC AGENCIES.—

‘‘(i) IN GENERAL.—Children with disabilities in private schools and facilities are provided special education and related services, in accordance with an

individualized education program, at no cost to their

parents, if such children are placed in, or referred

to, such schools or facilities by the State or appropriate

local educational agency as the means of carrying out

the requirements of this part or any other applicable

law requiring the provision of special education and

related services to all children with disabilities within

such State.

118 STAT. 2682 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(ii) STANDARDS.—In all cases described in clause

(i), the State educational agency shall determine

whether such schools and facilities meet standards

that apply to State educational agencies and local educational agencies and that children so served have

all the rights the children would have if served by

such agencies.

‘‘(C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED

IN PRIVATE SCHOOLS WITHOUT CONSENT OF OR REFERRAL

BY THE PUBLIC AGENCY.— ‘‘(i) IN GENERAL.—Subject to subparagraph (A), this

part does not require a local educational agency to

pay for the cost of education, including special education and related services, of a child with a disability

at a private school or facility if that agency made

a free appropriate public education available to the

child and the parents elected to place the child in

such private school or facility.

‘‘(ii) REIMBURSEMENT FOR PRIVATE SCHOOL PLACEMENT.—If the parents of a child with a disability, who

previously received special education and related services under the authority of a public agency, enroll

the child in a private elementary school or secondary

school without the consent of or referral by the public

agency, a court or a hearing officer may require the

agency to reimburse the parents for the cost of that

enrollment if the court or hearing officer finds that

the agency had not made a free appropriate public

education available to the child in a timely manner

prior to that enrollment.

‘‘(iii) LIMITATION ON REIMBURSEMENT.—The cost of

reimbursement described in clause (ii) may be reduced

or denied—

‘‘(I) if—

‘‘(aa) at the most recent IEP meeting that

the parents attended prior to removal of the

child from the public school, the parents did

not inform the IEP Team that they were

rejecting the placement proposed by the public

agency to provide a free appropriate public

education to their child, including stating their

concerns and their intent to enroll their child

in a private school at public expense; or

‘‘(bb) 10 business days (including any holidays that occur on a business day) prior to

the removal of the child from the public school,

the parents did not give written notice to the

public agency of the information described in

item (aa);

‘‘(II) if, prior to the parents’ removal of the

child from the public school, the public agency

informed the parents, through the notice requirements described in section 615(b)(3), of its intent

to evaluate the child (including a statement of

the purpose of the evaluation that was appropriate

and reasonable), but the parents did not make

the child available for such evaluation; or

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2683

‘‘(III) upon a judicial finding of

unreasonableness with respect to actions taken by

the parents.

‘‘(iv) EXCEPTION.—Notwithstanding the notice

requirement in clause (iii)(I), the cost of

reimbursement—

‘‘(I) shall not be reduced or denied for failure

to provide such notice if—

‘‘(aa) the school prevented the parent from

providing such notice;

‘‘(bb) the parents had not received notice,

pursuant to section 615, of the notice requirement in clause (iii)(I); or

‘‘(cc) compliance with clause (iii)(I) would

likely result in physical harm to the child;

and

‘‘(II) may, in the discretion of a court or a

hearing officer, not be reduced or denied for failure

to provide such notice if—

‘‘(aa) the parent is illiterate or cannot

write in English; or

‘‘(bb) compliance with clause (iii)(I) would

likely result in serious emotional harm to the

child.

‘‘(11) STATE EDUCATIONAL AGENCY RESPONSIBLE FOR GENERAL SUPERVISION.—

‘‘(A) IN GENERAL.—The State educational agency is

responsible for ensuring that—

‘‘(i) the requirements of this part are met;

‘‘(ii) all educational programs for children with

disabilities in the State, including all such programs

administered by any other State agency or local

agency—

‘‘(I) are under the general supervision of

individuals in the State who are responsible for

educational programs for children with disabilities;

and

‘‘(II) meet the educational standards of the

State educational agency; and

‘‘(iii) in carrying out this part with respect to homeless children, the requirements of subtitle B of title

VII of the McKinney-Vento Homeless Assistance Act

(42 U.S.C. 11431 et seq.) are met.

‘‘(B) LIMITATION.—Subparagraph (A) shall not limit the

responsibility of agencies in the State other than the State

educational agency to provide, or pay for some or all of

the costs of, a free appropriate public education for any

child with a disability in the State.

‘‘(C) EXCEPTION.—Notwithstanding subparagraphs (A)

and (B), the Governor (or another individual pursuant to

State law), consistent with State law, may assign to any

public agency in the State the responsibility of ensuring

that the requirements of this part are met with respect

to children with disabilities who are convicted as adults

under State law and incarcerated in adult prisons.

‘‘(12) OBLIGATIONS RELATED TO AND METHODS OF ENSURING

SERVICES.—

118 STAT. 2684 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(A) ESTABLISHING RESPONSIBILITY FOR SERVICES.—The

Chief Executive Officer of a State or designee of the officer

shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each

public agency described in subparagraph (B) and the State

educational agency, in order to ensure that all services

described in subparagraph (B)(i) that are needed to ensure

a free appropriate public education are provided, including

the provision of such services during the pendency of any

dispute under clause (iii). Such agreement or mechanism

shall include the following:

‘‘(i) AGENCY FINANCIAL RESPONSIBILITY.—An identification of, or a method for defining, the financial

responsibility of each agency for providing services

described in subparagraph (B)(i) to ensure a free appropriate public education to children with disabilities,

provided that the financial responsibility of each public

agency described in subparagraph (B), including the

State medicaid agency and other public insurers of

children with disabilities, shall precede the financial

responsibility of the local educational agency (or the

State agency responsible for developing the child’s

IEP).

‘‘(ii) CONDITIONS AND TERMS OF REIMBURSEMENT.—

The conditions, terms, and procedures under which

a local educational agency shall be reimbursed by other

agencies.

‘‘(iii) INTERAGENCY DISPUTES.—Procedures for

resolving interagency disputes (including procedures

under which local educational agencies may initiate

proceedings) under the agreement or other mechanism

to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or

mechanism.

‘‘(iv) COORDINATION OF SERVICES PROCEDURES.—

Policies and procedures for agencies to determine and

identify the interagency coordination responsibilities

of each agency to promote the coordination and timely

and appropriate delivery of services described in

subparagraph (B)(i).

‘‘(B) OBLIGATION OF PUBLIC AGENCY.—

‘‘(i) IN GENERAL.—If any public agency other than

an educational agency is otherwise obligated under

Federal or State law, or assigned responsibility under

State policy pursuant to subparagraph (A), to provide

or pay for any services that are also considered special

education or related services (such as, but not limited

to, services described in section 602(1) relating to

assistive technology devices, 602(2) relating to assistive

technology services, 602(26) relating to related services,

602(33) relating to supplementary aids and services,

and 602(34) relating to transition services) that are

necessary for ensuring a free appropriate public education to children with disabilities within the State,

such public agency shall fulfill that obligation or

responsibility, either directly or through contract or

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2685

other arrangement pursuant to subparagraph (A) or

an agreement pursuant to subparagraph (C).

‘‘(ii) REIMBURSEMENT FOR SERVICES BY PUBLIC

AGENCY.—If a public agency other than an educational

agency fails to provide or pay for the special education

and related services described in clause (i), the local

educational agency (or State agency responsible for

developing the child’s IEP) shall provide or pay for

such services to the child. Such local educational

agency or State agency is authorized to claim

reimbursement for the services from the public agency

that failed to provide or pay for such services and

such public agency shall reimburse the local educational agency or State agency pursuant to the terms

of the interagency agreement or other mechanism

described in subparagraph (A)(i) according to the procedures established in such agreement pursuant to

subparagraph (A)(ii).

‘‘(C) SPECIAL RULE.—The requirements of subparagraph (A) may be met through—

‘‘(i) State statute or regulation;

‘‘(ii) signed agreements between respective agency

officials that clearly identify the responsibilities of each

agency relating to the provision of services; or

‘‘(iii) other appropriate written methods as determined by the Chief Executive Officer of the State or

designee of the officer and approved by the Secretary.

‘‘(13) PROCEDURAL REQUIREMENTS RELATING TO LOCAL EDUCATIONAL AGENCY ELIGIBILITY.—The State educational agency

will not make a final determination that a local educational

agency is not eligible for assistance under this part without

first affording that agency reasonable notice and an opportunity

for a hearing.

‘‘(14) PERSONNEL QUALIFICATIONS.—

‘‘(A) IN GENERAL.—The State educational agency has

established and maintains qualifications to ensure that

personnel necessary to carry out this part are appropriately

and adequately prepared and trained, including that those

personnel have the content knowledge and skills to serve

children with disabilities.

‘‘(B) RELATED SERVICES PERSONNEL AND PARAPROFESSIONALS.—The qualifications under subparagraph (A)

include qualifications for related services personnel and

paraprofessionals that—

‘‘(i) are consistent with any State-approved or

State-recognized certification, licensing, registration, or

other comparable requirements that apply to the

professional discipline in which those personnel are

providing special education or related services;

‘‘(ii) ensure that related services personnel who

deliver services in their discipline or profession meet

the requirements of clause (i) and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

‘‘(iii) allow paraprofessionals and assistants who

are appropriately trained and supervised, in accordance with State law, regulation, or written policy, in

118 STAT. 2686 PUBLIC LAW 108–446—DEC. 3, 2004

meeting the requirements of this part to be used to

assist in the provision of special education and related

services under this part to children with disabilities.

‘‘(C) QUALIFICATIONS FOR SPECIAL EDUCATION

TEACHERS.—The qualifications described in subparagraph

(A) shall ensure that each person employed as a special

education teacher in the State who teaches elementary

school, middle school, or secondary school is highly qualified

by the deadline established in section 1119(a)(2) of the

Elementary and Secondary Education Act of 1965.

‘‘(D) POLICY.—In implementing this section, a State

shall adopt a policy that includes a requirement that local

educational agencies in the State take measurable steps

to recruit, hire, train, and retain highly qualified personnel

to provide special education and related services under

this part to children with disabilities.

‘‘(E) RULE OF CONSTRUCTION.—Notwithstanding any

other individual right of action that a parent or student

may maintain under this part, nothing in this paragraph

shall be construed to create a right of action on behalf

of an individual student for the failure of a particular

State educational agency or local educational agency staff

person to be highly qualified, or to prevent a parent from

filing a complaint about staff qualifications with the State

educational agency as provided for under this part.

‘‘(15) PERFORMANCE GOALS AND INDICATORS.—The State—

‘‘(A) has established goals for the performance of children with disabilities in the State that—

‘‘(i) promote the purposes of this title, as stated

in section 601(d);

‘‘(ii) are the same as the State’s definition of adequate yearly progress, including the State’s objectives

for progress by children with disabilities, under section

1111(b)(2)(C) of the Elementary and Secondary Education Act of 1965;

‘‘(iii) address graduation rates and dropout rates,

as well as such other factors as the State may determine; and

‘‘(iv) are consistent, to the extent appropriate, with

any other goals and standards for children established

by the State;

‘‘(B) has established performance indicators the State

will use to assess progress toward achieving the goals

described in subparagraph (A), including measurable

annual objectives for progress by children with disabilities

under section 1111(b)(2)(C)(v)(II)(cc) of the Elementary and

Secondary Education Act of 1965; and

‘‘(C) will annually report to the Secretary and the

public on the progress of the State, and of children with

disabilities in the State, toward meeting the goals established under subparagraph (A), which may include elements of the reports required under section 1111(h) of

the Elementary and Secondary Education Act of 1965.

‘‘(16) PARTICIPATION IN ASSESSMENTS.—

‘‘(A) IN GENERAL.—All children with disabilities are

included in all general State and districtwide assessment

programs, including assessments described under section

Reports.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2687

1111 of the Elementary and Secondary Education Act of

1965, with appropriate accommodations and alternate

assessments where necessary and as indicated in their

respective individualized education programs.

‘‘(B) ACCOMMODATION GUIDELINES.—The State (or, in

the case of a districtwide assessment, the local educational

agency) has developed guidelines for the provision of appropriate accommodations.

‘‘(C) ALTERNATE ASSESSMENTS.— ‘‘(i) IN GENERAL.—The State (or, in the case of

a districtwide assessment, the local educational agency)

has developed and implemented guidelines for the

participation of children with disabilities in alternate

assessments for those children who cannot participate

in regular assessments under subparagraph (A) with

accommodations as indicated in their respective

individualized education programs.

‘‘(ii) REQUIREMENTS FOR ALTERNATE ASSESSMENTS.—The guidelines under clause (i) shall provide

for alternate assessments that—

‘‘(I) are aligned with the State’s challenging

academic content standards and challenging student academic achievement standards; and

‘‘(II) if the State has adopted alternate academic achievement standards permitted under the

regulations promulgated to carry out section

1111(b)(1) of the Elementary and Secondary Education Act of 1965, measure the achievement of

children with disabilities against those standards.

‘‘(iii) CONDUCT OF ALTERNATE ASSESSMENTS.—The

State conducts the alternate assessments described in

this subparagraph.

‘‘(D) REPORTS.—The State educational agency (or, in

the case of a districtwide assessment, the local educational

agency) makes available to the public, and reports to the

public with the same frequency and in the same detail

as it reports on the assessment of nondisabled children,

the following:

‘‘(i) The number of children with disabilities

participating in regular assessments, and the number

of those children who were provided accommodations

in order to participate in those assessments.

‘‘(ii) The number of children with disabilities

participating in alternate assessments described in

subparagraph (C)(ii)(I).

‘‘(iii) The number of children with disabilities

participating in alternate assessments described in

subparagraph (C)(ii)(II).

‘‘(iv) The performance of children with disabilities

on regular assessments and on alternate assessments

(if the number of children with disabilities participating in those assessments is sufficient to yield statistically reliable information and reporting that information will not reveal personally identifiable information

about an individual student), compared with the

achievement of all children, including children with

disabilities, on those assessments.

118 STAT. 2688 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(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 FED- ERAL FUNDS.— ‘‘(A) EXPENDITURES.—Funds paid to a State under this

part will be expended in accordance with all the provisions

of this part.

‘‘(B) PROHIBITION AGAINST COMMINGLING.—Funds paid

to a State under this part will not be commingled with

State funds.

‘‘(C) PROHIBITION AGAINST SUPPLANTATION AND CONDI- TIONS FOR WAIVER BY SECRETARY.—Except as provided in

section 613, funds paid to a State under this part will

be used to supplement the level of Federal, State, and

local funds (including funds that are not under the direct

control of State or local educational agencies) expended

for special education and related services provided to children with disabilities under this part and in no case to

supplant such Federal, State, and local funds, except that,

where the State provides clear and convincing evidence

that all children with disabilities have available to them

a free appropriate public education, the Secretary may

waive, in whole or in part, the requirements of this

subparagraph if the Secretary concurs with the evidence

provided by the State.

‘‘(18) MAINTENANCE OF STATE FINANCIAL SUPPORT.—

‘‘(A) IN GENERAL.—The State does not reduce the

amount of State financial support for special education

and related services for children with disabilities, or otherwise made available because of the excess costs of educating

those children, below the amount of that support for the

preceding fiscal year.

‘‘(B) REDUCTION OF FUNDS FOR FAILURE TO MAINTAIN

SUPPORT.—The Secretary shall reduce the allocation of

funds under section 611 for any fiscal year following the

fiscal year in which the State fails to comply with the

requirement of subparagraph (A) by the same amount by

which the State fails to meet the requirement.

‘‘(C) WAIVERS FOR EXCEPTIONAL OR UNCONTROLLABLE

CIRCUMSTANCES.—The Secretary may waive the requirement of subparagraph (A) for a State, for 1 fiscal year

at a time, if the Secretary determines that—

‘‘(i) granting a waiver would be equitable due to

exceptional or uncontrollable circumstances such as

a natural disaster or a precipitous and unforeseen

decline in the financial resources of the State; or

‘‘(ii) the State meets the standard in paragraph

(17)(C) for a waiver of the requirement to supplement,

and not to supplant, funds received under this part.

‘‘(D) SUBSEQUENT YEARS.—If, for any year, a State

fails to meet the requirement of subparagraph (A),

including any year for which the State is granted a waiver

under subparagraph (C), the financial support required

of the State in future years under subparagraph (A) shall

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2689

be the amount that would have been required in the

absence of that failure and not the reduced level of the

State’s support.

‘‘(19) PUBLIC PARTICIPATION.—Prior to the adoption of any

policies and procedures needed to comply with this section

(including any amendments to such policies and procedures),

the State ensures that there are public hearings, adequate

notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities

and parents of children with disabilities.

‘‘(20) RULE OF CONSTRUCTION.—In complying with paragraphs (17) and (18), a State may not use funds paid to it

under this part to satisfy State-law mandated funding obligations to local educational agencies, including funding based

on student attendance or enrollment, or inflation.

‘‘(21) STATE ADVISORY PANEL.—

‘‘(A) IN GENERAL.—The State has established and maintains an advisory panel for the purpose of providing policy

guidance with respect to special education and related services for children with disabilities in the State.

‘‘(B) MEMBERSHIP.—Such advisory panel shall consist

of members appointed by the Governor, or any other official

authorized under State law to make such appointments,

be representative of the State population, and be composed

of individuals involved in, or concerned with, the education

of children with disabilities, including—

‘‘(i) parents of children with disabilities (ages birth

through 26);

‘‘(ii) individuals with disabilities;

‘‘(iii) teachers;

‘‘(iv) representatives of institutions of higher education that prepare special education and related services personnel;

‘‘(v) State and local education officials, including

officials who carry out activities under subtitle B of

title VII of the McKinney-Vento Homeless Assistance

Act (42 U.S.C. 11431 et seq.);

‘‘(vi) administrators of programs for children with

disabilities;

‘‘(vii) representatives of other State agencies

involved in the financing or delivery of related services

to children with disabilities;

‘‘(viii) representatives of private schools and public

charter schools;

‘‘(ix) not less than 1 representative of a vocational,

community, or business organization concerned with

the provision of transition services to children with

disabilities;

‘‘(x) a representative from the State child welfare

agency responsible for foster care; and

‘‘(xi) representatives from the State juvenile and

adult corrections agencies.

‘‘(C) SPECIAL RULE.—A majority of the members of

the panel shall be individuals with disabilities or parents

of children with disabilities (ages birth through 26).

‘‘(D) DUTIES.—The advisory panel shall—

118 STAT. 2690 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(i) advise the State educational agency of unmet

needs within the State in the education of children

with disabilities;

‘‘(ii) comment publicly on any rules or regulations

proposed by the State regarding the education of children with disabilities;

‘‘(iii) advise the State educational agency in developing evaluations and reporting on data to the Secretary under section 618;

‘‘(iv) advise the State educational agency in developing corrective action plans to address findings identified in Federal monitoring reports under this part;

and

‘‘(v) advise the State educational agency in developing and implementing policies relating to the

coordination of services for children with disabilities.

‘‘(22) SUSPENSION AND EXPULSION RATES.—

‘‘(A) IN GENERAL.—The State educational agency examines data, including data disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions

of children with disabilities—

‘‘(i) among local educational agencies in the State;

or

‘‘(ii) compared to such rates for nondisabled children within such agencies.

‘‘(B) REVIEW AND REVISION OF POLICIES.—If such

discrepancies are occurring, the State educational agency

reviews and, if appropriate, revises (or requires the affected

State or local educational agency to revise) its policies,

procedures, and practices relating to the development and

implementation of IEPs, the use of positive behavioral

interventions and supports, and procedural safeguards, to

ensure that such policies, procedures, and practices comply

with this title.

‘‘(23) ACCESS TO INSTRUCTIONAL MATERIALS.—

‘‘(A) IN GENERAL.—The State adopts the National

Instructional Materials Accessibility Standard for the purposes of providing instructional materials to blind persons

or other persons with print disabilities, in a timely manner

after the publication of the National Instructional Materials

Accessibility Standard in the Federal Register.

‘‘(B) RIGHTS OF STATE EDUCATIONAL AGENCY.—Nothing

in this paragraph shall be construed to require any State

educational agency to coordinate with the National Instructional Materials Access Center. If a State educational

agency chooses not to coordinate with the National Instructional Materials Access Center, such agency shall provide

an assurance to the Secretary that the agency will provide

instructional materials to blind persons or other persons

with print disabilities in a timely manner.

‘‘(C) PREPARATION AND DELIVERY OF FILES.—If a State

educational agency chooses to coordinate with the National

Instructional Materials Access Center, not later than 2

years after the date of enactment of the Individuals with

Disabilities Education Improvement Act of 2004, the

Deadline.

Contracts.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2691

agency, as part of any print instructional materials adoption process, procurement contract, or other practice or

instrument used for purchase of print instructional materials, shall enter into a written contract with the publisher

of the print instructional materials to—

‘‘(i) require the publisher to prepare and, on or

before delivery of the print instructional materials,

provide to the National Instructional Materials Access

Center electronic files containing the contents of the

print instructional materials using the National

Instructional Materials Accessibility Standard; or

‘‘(ii) purchase instructional materials from the publisher that are produced in, or may be rendered in,

specialized formats.

‘‘(D) ASSISTIVE TECHNOLOGY.—In carrying out this

paragraph, the State educational agency, to the maximum

extent possible, shall work collaboratively with the State

agency responsible for assistive technology programs.

‘‘(E) DEFINITIONS.—In this paragraph:

‘‘(i) NATIONAL INSTRUCTIONAL MATERIALS ACCESS

CENTER.—The term ‘National Instructional Materials

Access Center’ means the center established pursuant

to section 674(e).

‘‘(ii) NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY STANDARD.—The term ‘National Instructional

Materials Accessibility Standard’ has the meaning

given the term in section 674(e)(3)(A).

‘‘(iii) SPECIALIZED FORMATS.—The term ‘specialized

formats’ has the meaning given the term in section

674(e)(3)(D).

‘‘(24) OVERIDENTIFICATION AND DISPROPORTIONALITY.—The

State has in effect, consistent with the purposes of this title

and with section 618(d), policies and procedures designed to

prevent the inappropriate overidentification or disproportionate

representation by race and ethnicity of children as children

with disabilities, including children with disabilities with a

particular impairment described in section 602.

‘‘(25) PROHIBITION ON MANDATORY MEDICATION.—

‘‘(A) IN GENERAL.—The State educational agency shall

prohibit State and local educational agency personnel from

requiring a child to obtain a prescription for a substance

covered by the Controlled Substances Act (21 U.S.C. 801

et seq.) as a condition of attending school, receiving an

evaluation under subsection (a) or (c) of section 614, or

receiving services under this title.

‘‘(B) RULE OF CONSTRUCTION.—Nothing in subparagraph (A) shall be construed to create a Federal prohibition

against teachers and other school personnel consulting or

sharing classroom-based observations with parents or

guardians regarding a student’s academic and functional

performance, or behavior in the classroom or school, or

regarding the need for evaluation for special education

or related services under paragraph (3).

118 STAT. 2692 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(b) STATE EDUCATIONAL AGENCY AS PROVIDER OF FREE APPROPRIATE PUBLIC EDUCATION OR DIRECT SERVICES.—If the State educational agency provides free appropriate public education to children with disabilities, or provides direct services to such children,

such agency—

‘‘(1) shall comply with any additional requirements of section 613(a), as if such agency were a local educational agency;

and

‘‘(2) may use amounts that are otherwise available to such

agency under this part to serve those children without regard

to section 613(a)(2)(A)(i) (relating to excess costs).

‘‘(c) EXCEPTION FOR PRIOR STATE PLANS.—

‘‘(1) IN GENERAL.—If a State has on file with the Secretary

policies and procedures that demonstrate that such State meets

any requirement of subsection (a), including any policies and

procedures filed under this part as in effect before the effective

date of the Individuals with Disabilities Education Improvement Act of 2004, the Secretary shall consider such State

to have met such requirement for purposes of receiving a grant

under this part.

‘‘(2) MODIFICATIONS MADE BY STATE.—Subject 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 title are

amended (or the regulations developed to carry out this title

are amended), there is a new interpretation of this title by

a Federal court or a State’s highest court, or there is an

official finding of noncompliance with Federal law or regulations, then the Secretary may require a State to modify its

application only to the extent necessary to ensure the State’s

compliance with this part.

‘‘(d) APPROVAL BY THE SECRETARY.—

‘‘(1) IN GENERAL.—If the Secretary determines that a State

is eligible to receive a grant under this part, the Secretary

shall notify the State of that determination.

‘‘(2) NOTICE AND HEARING.—The Secretary shall not make

a final determination that a State is not eligible to receive

a grant under this part until after providing the State—

‘‘(A) with reasonable notice; and

‘‘(B) with an opportunity for a hearing.

‘‘(e) ASSISTANCE UNDER OTHER FEDERAL PROGRAMS.—Nothing

in this title permits a State to reduce medical and other assistance

available, or to alter eligibility, under titles V and XIX of the

Social Security Act with respect to the provision of a free appropriate public education for children with disabilities in the State.

‘‘(f) BY-PASS FOR CHILDREN IN PRIVATE SCHOOLS.—

‘‘(1) IN GENERAL.—If, on the date of enactment of the Education of the Handicapped Act Amendments of 1983, a State

educational agency was prohibited by law from providing for

the equitable participation in special programs of children with

Notification.

Applicability.

Termination

date.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2693

disabilities enrolled in private elementary schools and secondary schools as required by subsection (a)(10)(A), or if the

Secretary determines that a State educational agency, local

educational agency, or other entity has substantially failed

or is unwilling to provide for such equitable participation, then

the Secretary shall, notwithstanding such provision of law,

arrange for the provision of services to such children through

arrangements that shall be subject to the requirements of such

subsection.

‘‘(2) PAYMENTS.— ‘‘(A) DETERMINATION OF AMOUNTS.—If the Secretary

arranges for services pursuant to this subsection, the Secretary, after consultation with the appropriate public and

private school officials, shall pay to the provider of such

services for a fiscal year an amount per child that does

not exceed the amount determined by dividing—

‘‘(i) the total amount received by the State under

this part for such fiscal year; by

‘‘(ii) the number of children with disabilities served

in the prior year, as reported to the Secretary by

the State under section 618.

‘‘(B) WITHHOLDING OF CERTAIN AMOUNTS.—Pending

final resolution of any investigation or complaint that may

result in a determination under this subsection, the Secretary may withhold from the allocation of the affected

State educational agency the amount the Secretary estimates will be necessary to pay the cost of services described

in subparagraph (A).

‘‘(C) PERIOD OF PAYMENTS.—The period under which

payments are made under subparagraph (A) shall continue

until the Secretary determines that there will no longer

be any failure or inability on the part of the State educational agency to meet the requirements of subsection

(a)(10)(A).

‘‘(3) NOTICE AND HEARING.— ‘‘(A) IN GENERAL.—The Secretary shall not take any

final action under this subsection until the State educational agency affected by such action has had an opportunity, for not less than 45 days after receiving written

notice thereof, to submit written objections and to appear

before the Secretary or the Secretary’s designee to show

cause why such action should not be taken.

‘‘(B) REVIEW OF ACTION.—If a State educational agency

is dissatisfied with the Secretary’s final action after a proceeding under subparagraph (A), such agency may, not

later than 60 days after notice of such action, file with

the United States court of appeals for the circuit in which

such State is located a petition for review of that action.

A copy of the petition shall be forthwith transmitted by

the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings

on which the Secretary based the Secretary’s action, as

provided in section 2112 of title 28, United States Code.

‘‘(C) REVIEW OF FINDINGS OF FACT.—The findings of

fact by the Secretary, if supported by substantial evidence,

shall be conclusive, but the court, for good cause shown,

may remand the case to the Secretary to take further

Deadlines.

118 STAT. 2694 PUBLIC LAW 108–446—DEC. 3, 2004

evidence, and the Secretary may thereupon make new or

modified findings of fact and may modify the Secretary’s

previous action, and shall file in the court the record of

the further proceedings. Such new or modified findings

of fact shall likewise be conclusive if supported by substantial evidence.

‘‘(D) JURISDICTION OF COURT OF APPEALS; REVIEW BY

UNITED STATES SUPREME COURT.—Upon the filing of a petition under subparagraph (B), the United States court of

appeals shall have jurisdiction to affirm the action of the

Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme

Court of the United States upon certiorari or certification

as provided in section 1254 of title 28, United States Code.

‘‘SEC. 613. LOCAL EDUCATIONAL AGENCY ELIGIBILITY.

‘‘(a) IN GENERAL.—A local educational agency is eligible for

assistance under this part for a fiscal year if such agency submits

a plan that provides assurances to the State educational agency

that the local educational agency meets each of the following conditions:

‘‘(1) CONSISTENCY WITH STATE POLICIES.—The local educational agency, in providing for the education of children with

disabilities within its jurisdiction, has in effect policies, procedures, and programs that are consistent with the State policies

and procedures established under section 612.

‘‘(2) USE OF AMOUNTS.—

‘‘(A) IN GENERAL.—Amounts provided to the local educational agency under this part shall be expended in accordance with the applicable provisions of this part and—

‘‘(i) shall be used only to pay the excess costs

of providing special education and related services to

children with disabilities;

‘‘(ii) shall be used to supplement State, local, and

other Federal funds and not to supplant such funds;

and

‘‘(iii) shall not be used, except as provided in subparagraphs (B) and (C), to reduce the level of expenditures for the education of children with disabilities

made by the local educational agency from local funds

below the level of those expenditures for the preceding

fiscal year.

‘‘(B) EXCEPTION.—Notwithstanding the restriction in

subparagraph (A)(iii), a local educational agency may

reduce the level of expenditures where such reduction is

attributable to—

‘‘(i) the voluntary departure, by retirement or

otherwise, or departure for just cause, of special education personnel;

‘‘(ii) a decrease in the enrollment of children with

disabilities;

‘‘(iii) the termination of the obligation of the

agency, consistent with this part, to provide a program

of special education to a particular child with a disability that is an exceptionally costly program, as determined by the State educational agency, because the

child—

20 USC 1413.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2695

‘‘(I) has left the jurisdiction of the agency;

‘‘(II) has reached the age at which the obligation of the agency to provide a free appropriate

public education to the child has terminated; or

‘‘(III) no longer needs such program of special

education; or

‘‘(iv) the termination of costly expenditures for

long-term purchases, such as the acquisition of equipment or the construction of school facilities.

‘‘(C) ADJUSTMENT TO LOCAL FISCAL EFFORT IN CERTAIN

FISCAL YEARS.— ‘‘(i) AMOUNTS IN EXCESS.—Notwithstanding clauses

(ii) and (iii) of subparagraph (A), for any fiscal year

for which the allocation received by a local educational

agency under section 611(f) exceeds the amount the

local educational agency received for the previous fiscal

year, the local educational agency may reduce the level

of expenditures otherwise required by subparagraph

(A)(iii) by not more than 50 percent of the amount

of such excess.

‘‘(ii) USE OF AMOUNTS TO CARRY OUT ACTIVITIES

UNDER ESEA.—If a local educational agency exercises

the authority under clause (i), the agency shall use

an amount of local funds equal to the reduction in

expenditures under clause (i) to carry out activities

authorized under the Elementary and Secondary Education Act of 1965.

‘‘(iii) STATE PROHIBITION.—Notwithstanding clause

(i), if a State educational agency determines that a

local educational agency is unable to establish and

maintain programs of free appropriate public education

that meet the requirements of subsection (a) or the

State educational agency has taken action against the

local educational agency under section 616, the State

educational agency shall prohibit the local educational

agency from reducing the level of expenditures under

clause (i) for that fiscal year.

‘‘(iv) SPECIAL RULE.—The amount of funds

expended by a local educational agency under subsection (f) shall count toward the maximum amount

of expenditures such local educational agency may

reduce under clause (i).

‘‘(D) SCHOOLWIDE PROGRAMS UNDER TITLE I OF THE

ESEA.—Notwithstanding subparagraph (A) or any other

provision of this part, a local educational agency may use

funds received under this part for any fiscal year to carry

out a schoolwide program under section 1114 of the

Elementary and Secondary Education Act of 1965, except

that the amount so used in any such program shall not

exceed—

‘‘(i) the number of children with disabilities participating in the schoolwide program; multiplied by

‘‘(ii)(I) the amount received by the local educational

agency under this part for that fiscal year; divided

by

‘‘(II) the number of children with disabilities in

the jurisdiction of that agency.

118 STAT. 2696 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(3) PERSONNEL DEVELOPMENT.—The local educational

agency shall ensure that all personnel necessary to carry out

this part are appropriately and adequately prepared, subject

to the requirements of section 612(a)(14) and section 2122 of

the Elementary and Secondary Education Act of 1965.

‘‘(4) PERMISSIVE USE OF FUNDS.—

‘‘(A) USES.—Notwithstanding paragraph (2)(A) or section 612(a)(17)(B) (relating to commingled funds), funds

provided to the local educational agency under this part

may be used for the following activities:

‘‘(i) SERVICES AND AIDS THAT ALSO BENEFIT NONDISABLED CHILDREN.—For the costs of special education

and related services, and supplementary aids and services, provided in a regular class or other educationrelated setting to a child with a disability in accordance

with the individualized education program of the child,

even if 1 or more nondisabled children benefit from

such services.

‘‘(ii) EARLY INTERVENING SERVICES.—To develop

and implement coordinated, early intervening educational services in accordance with subsection (f).

‘‘(iii) HIGH COST EDUCATION AND RELATED SERVICES.—To establish and implement cost or risk sharing

funds, consortia, or cooperatives for the local educational agency itself, or for local educational agencies

working in a consortium of which the local educational

agency is a part, to pay for high cost special education

and related services.

‘‘(B) ADMINISTRATIVE CASE MANAGEMENT.—A local educational agency may use funds received under this part

to purchase appropriate technology for recordkeeping, data

collection, and related case management activities of

teachers and related services personnel providing services

described in the individualized education program of children with disabilities, that is needed for the implementation of such case management activities.

‘‘(5) TREATMENT OF CHARTER SCHOOLS AND THEIR STUDENTS.—In carrying out this part with respect to charter schools

that are public schools of the local educational agency, the

local educational agency—

‘‘(A) serves children with disabilities attending those

charter schools in the same manner as the local educational

agency serves children with disabilities in its other schools,

including providing supplementary and related services on

site at the charter school to the same extent to which

the local educational agency has a policy or practice of

providing such services on the site to its other public

schools; and

‘‘(B) provides funds under this part to those charter

schools—

‘‘(i) on the same basis as the local educational

agency provides funds to the local educational agency’s

other public schools, including proportional distribution

based on relative enrollment of children with disabilities; and

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2697

‘‘(ii) at the same time as the agency distributes

other Federal funds to the agency’s other public

schools, consistent with the State’s charter school law.

‘‘(6) PURCHASE OF INSTRUCTIONAL MATERIALS.— ‘‘(A) IN GENERAL.—Not later than 2 years after the

date of enactment of the Individuals with Disabilities Education Improvement Act of 2004, a local educational agency

that chooses to coordinate with the National Instructional

Materials Access Center, when purchasing print instructional materials, shall acquire the print instructional materials in the same manner and subject to the same conditions

as a State educational agency acquires print instructional

materials under section 612(a)(23).

‘‘(B) RIGHTS OF LOCAL EDUCATIONAL AGENCY.—Nothing

in this paragraph shall be construed to require a local

educational agency to coordinate with the National Instructional Materials Access Center. If a local educational

agency chooses not to coordinate with the National Instructional Materials Access Center, the local educational agency

shall provide an assurance to the State educational agency

that the local educational agency will provide instructional

materials to blind persons or other persons with print

disabilities in a timely manner.

‘‘(7) INFORMATION FOR STATE EDUCATIONAL AGENCY.—The

local educational agency shall provide the State educational

agency with information necessary to enable the State educational agency to carry out its duties under this part,

including, with respect to paragraphs (15) and (16) of section

612(a), information relating to the performance of children with

disabilities participating in programs carried out under this

part.

‘‘(8) PUBLIC INFORMATION.—The local educational agency

shall make available to parents of children with disabilities

and to the general public all documents relating to the eligibility

of such agency under this part.

‘‘(9) RECORDS REGARDING MIGRATORY CHILDREN WITH

DISABILITIES.—The local educational agency shall cooperate in

the Secretary’s efforts under section 1308 of the Elementary

and Secondary Education Act of 1965 to ensure the linkage

of records pertaining to migratory children with a disability

for the purpose of electronically exchanging, among the States,

health and educational information regarding such children.

‘‘(b) EXCEPTION FOR PRIOR LOCAL PLANS.—

‘‘(1) IN GENERAL.—If a local educational agency or State

agency has on file with the State educational agency policies

and procedures that demonstrate that such local educational

agency, or such State agency, as the case may be, meets any

requirement of subsection (a), including any policies and procedures filed under this part as in effect before the effective

date of the Individuals with Disabilities Education Improvement Act of 2004, the State educational agency shall consider

such local educational agency or State agency, as the case

may be, to have met such requirement for purposes of receiving

assistance under this part.

‘‘(2) MODIFICATION MADE BY LOCAL EDUCATIONAL AGENCY.— Subject to paragraph (3), an application submitted by a local

educational agency in accordance with this section shall remain

Deadline.

118 STAT. 2698 PUBLIC LAW 108–446—DEC. 3, 2004

in effect until the local educational agency submits to the

State educational agency such modifications as the local educational agency determines necessary.

‘‘(3) MODIFICATIONS REQUIRED BY STATE EDUCATIONAL

AGENCY.—If, after the effective date of the Individuals with

Disabilities Education Improvement Act of 2004, the provisions

of this title are amended (or the regulations developed to carry

out this title are amended), there is a new interpretation of

this title by Federal or State courts, or there is an official

finding of noncompliance with Federal or State law or regulations, then the State educational agency may require a local

educational agency to modify its application only to the extent

necessary to ensure the local educational agency’s compliance

with this part or State law.

‘‘(c) NOTIFICATION OF LOCAL EDUCATIONAL AGENCY OR STATE

AGENCY IN CASE OF INELIGIBILITY.—If the State educational agency

determines that a local educational agency or State agency is not

eligible under this section, then the State educational agency shall

notify the local educational agency or State agency, as the case

may be, of that determination and shall provide such local educational agency or State agency with reasonable notice and an

opportunity for a hearing.

‘‘(d) LOCAL EDUCATIONAL AGENCY COMPLIANCE.—

‘‘(1) IN GENERAL.—If the State educational agency, after

reasonable notice and an opportunity for a hearing, finds that

a local educational agency or State agency that has been determined to be eligible under this section is failing to comply

with any requirement described in subsection (a), the State

educational agency shall reduce or shall not provide any further

payments to the local educational agency or State agency until

the State educational agency is satisfied that the local educational agency or State agency, as the case may be, is complying with that requirement.

‘‘(2) ADDITIONAL REQUIREMENT.—Any State agency or local

educational agency in receipt of a notice described in paragraph

(1) shall, by means of public notice, take such measures as

may be necessary to bring the pendency of an action pursuant

to this subsection to the attention of the public within the

jurisdiction of such agency.

‘‘(3) CONSIDERATION.—In carrying out its responsibilities

under paragraph (1), the State educational agency shall consider any decision made in a hearing held under section 615

that is adverse to the local educational agency or State agency

involved in that decision.

‘‘(e) JOINT ESTABLISHMENT OF ELIGIBILITY.—

‘‘(1) JOINT ESTABLISHMENT.—

‘‘(A) IN GENERAL.—A State educational agency may

require a local educational agency to establish its eligibility

jointly with another local educational agency if the State

educational agency determines that the local educational

agency will be ineligible under this section because the

local educational agency will not be able to establish and

maintain programs of sufficient size and scope to effectively

meet the needs of children with disabilities.

‘‘(B) CHARTER SCHOOL EXCEPTION.—A State educational

agency may not require a charter school that is a local

educational agency to jointly establish its eligibility under

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2699

subparagraph (A) unless the charter school is explicitly

permitted to do so under the State’s charter school law.

‘‘(2) AMOUNT OF PAYMENTS.—If a State educational agency

requires the joint establishment of eligibility under paragraph

(1), the total amount of funds made available to the affected

local educational agencies shall be equal to the sum of the

payments that each such local educational agency would have

received under section 611(f) if such agencies were eligible

for such payments.

‘‘(3) REQUIREMENTS.—Local educational agencies that

establish joint eligibility under this subsection shall—

‘‘(A) adopt policies and procedures that are consistent

with the State’s policies and procedures under section

612(a); and

‘‘(B) be jointly responsible for implementing programs

that receive assistance under this part.

‘‘(4) REQUIREMENTS FOR EDUCATIONAL SERVICE AGENCIES.—

‘‘(A) IN GENERAL.—If an educational service agency

is required by State law to carry out programs under

this part, the joint responsibilities given to local educational

agencies under this subsection shall—

‘‘(i) not apply to the administration and disbursement of any payments received by that educational

service agency; and

‘‘(ii) be carried out only by that educational service

agency.

‘‘(B) ADDITIONAL REQUIREMENT.—Notwithstanding any

other provision of this subsection, an educational service

agency shall provide for the education of children with

disabilities in the least restrictive environment, as required

by section 612(a)(5).

‘‘(f) EARLY INTERVENING SERVICES.—

‘‘(1) IN GENERAL.—A local educational agency may not use

more than 15 percent of the amount such agency receives

under this part for any fiscal year, less any amount reduced

by the agency pursuant to subsection (a)(2)(C), if any, in combination with other amounts (which may include amounts other

than education funds), to develop and implement coordinated,

early intervening services, which may include interagency

financing structures, for students in kindergarten through

grade 12 (with a particular emphasis on students in kindergarten through grade 3) who have not been identified as

needing special education or related services but who need

additional academic and behavioral support to succeed in a

general education environment.

‘‘(2) ACTIVITIES.—In implementing coordinated, early intervening services under this subsection, a local educational

agency may carry out activities that include—

‘‘(A) professional development (which may be provided

by entities other than local educational agencies) for

teachers and other school staff to enable such personnel

to deliver scientifically based academic instruction and

behavioral interventions, including scientifically based literacy instruction, and, where appropriate, instruction on

the use of adaptive and instructional software; and

118 STAT. 2700 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(B) providing educational and behavioral evaluations,

services, and supports, including scientifically based literacy instruction.

‘‘(3) CONSTRUCTION.—Nothing in this subsection shall be

construed to limit or create a right to a free appropriate public

education under this part.

‘‘(4) REPORTING.—Each local educational agency that

develops and maintains coordinated, early intervening services

under this subsection shall annually report to the State educational agency on—

‘‘(A) the number of students served under this subsection; and

‘‘(B) the number of students served under this subsection who subsequently receive special education and

related services under this title during the preceding 2-

year period.

‘‘(5) COORDINATION WITH ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965.—Funds made available to carry out this

subsection may be used to carry out coordinated, early intervening services aligned with activities funded by, and carried

out under, the Elementary and Secondary Education Act of

1965 if such funds are used to supplement, and not supplant,

funds made available under the Elementary and Secondary

Education Act of 1965 for the activities and services assisted

under this subsection.

‘‘(g) DIRECT SERVICES BY THE STATE EDUCATIONAL AGENCY.—

‘‘(1) IN GENERAL.—A State educational agency shall use

the payments that would otherwise have been available to

a local educational agency or to a State agency to provide

special education and related services directly to children with

disabilities residing in the area served by that local educational

agency, or for whom that State agency is responsible, if the

State educational agency determines that the local educational

agency or State agency, as the case may be—

‘‘(A) has not provided the information needed to establish the eligibility of such local educational agency or State

agency under this section;

‘‘(B) is unable to establish and maintain programs of

free appropriate public education that meet the requirements of subsection (a);

‘‘(C) is unable or unwilling to be consolidated with

1 or more local educational agencies in order to establish

and maintain such programs; or

‘‘(D) has 1 or more children with disabilities who can

best be served by a regional or State program or service

delivery system designed to meet the needs of such children.

‘‘(2) MANNER AND LOCATION OF EDUCATION AND SERVICES.—

The State educational agency may provide special education

and related services under paragraph (1) in such manner and

at such locations (including regional or State centers) as the

State educational agency considers appropriate. Such education

and services shall be provided in accordance with this part.

‘‘(h) STATE AGENCY ELIGIBILITY.—Any State agency that desires

to receive a subgrant for any fiscal year under section 611(f) shall

demonstrate to the satisfaction of the State educational agency

that—

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2701

‘‘(1) all children with disabilities who are participating

in programs and projects funded under this part receive a

free appropriate public education, and that those children and

their parents are provided all the rights and procedural safeguards described in this part; and

‘‘(2) the agency meets such other conditions of this section

as the Secretary determines to be appropriate.

‘‘(i) DISCIPLINARY INFORMATION.—The State may require that

a local educational agency include in the records of a child with

a disability a statement of any current or previous disciplinary

action that has been taken against the child and transmit such

statement to the same extent that such disciplinary information

is included in, and transmitted with, the student records of nondisabled children. The statement may include a description of any

behavior engaged in by the child that required disciplinary action,

a description of the disciplinary action taken, and any other

information that is relevant to the safety of the child and other

individuals involved with the child. If the State adopts such a

policy, and the child transfers from 1 school to another, the transmission of any of the child’s records shall include both the child’s

current individualized education program and any such statement

of current or previous disciplinary action that has been taken

against the child.

‘‘(j) STATE AGENCY FLEXIBILITY.—

‘‘(1) ADJUSTMENT TO STATE FISCAL EFFORT IN CERTAIN

FISCAL YEARS.—For any fiscal year for which the allotment

received by a State under section 611 exceeds the amount

the State received for the previous fiscal year and if the State

in school year 2003–2004 or any subsequent school year pays

or reimburses all local educational agencies within the State

from State revenue 100 percent of the non-Federal share of

the costs of special education and related services, the State

educational agency, notwithstanding paragraphs (17) and (18)

of section 612(a) and section 612(b), may reduce the level of

expenditures from State sources for the education of children

with disabilities by not more than 50 percent of the amount

of such excess.

‘‘(2) PROHIBITION.—Notwithstanding paragraph (1), if the

Secretary determines that a State educational agency is unable

to establish, maintain, or oversee programs of free appropriate

public education that meet the requirements of this part, or

that the State needs assistance, intervention, or substantial

intervention under section 616(d)(2)(A), the Secretary shall prohibit the State educational agency from exercising the authority

in paragraph (1).

‘‘(3) EDUCATION ACTIVITIES.—If a State educational agency

exercises the authority under paragraph (1), the agency shall

use funds from State sources, in an amount equal to the amount

of the reduction under paragraph (1), to support activities

authorized under the Elementary and Secondary Education

Act of 1965 or to support need based student or teacher higher

education programs.

‘‘(4) REPORT.—For each fiscal year for which a State educational agency exercises the authority under paragraph (1),

the State educational agency shall report to the Secretary the

amount of expenditures reduced pursuant to such paragraph

118 STAT. 2702 PUBLIC LAW 108–446—DEC. 3, 2004

and the activities that were funded pursuant to paragraph

(3).

‘‘(5) LIMITATION.—Notwithstanding paragraph (1), a State

educational agency may not reduce the level of expenditures

described in paragraph (1) if any local educational agency in

the State would, as a result of such reduction, receive less

than 100 percent of the amount necessary to ensure that all

children with disabilities served by the local educational agency

receive a free appropriate public education from the combination of Federal funds received under this title and State funds

received from the State educational agency.

‘‘SEC. 614. EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL

PLACEMENTS.

‘‘(a) EVALUATIONS, PARENTAL CONSENT, AND REEVALUATIONS.— ‘‘(1) INITIAL EVALUATIONS.—

‘‘(A) IN GENERAL.—A State educational agency, other

State agency, or local educational agency shall conduct

a full and individual initial evaluation in accordance with

this paragraph and subsection (b), before the initial provision of special education and related services to a child

with a disability under this part.

‘‘(B) REQUEST FOR INITIAL EVALUATION.—Consistent

with subparagraph (D), either a parent of a child, or a

State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.

‘‘(C) PROCEDURES.—

‘‘(i) IN GENERAL.—Such initial evaluation shall consist of procedures—

‘‘(I) to determine whether a child is a child

with a disability (as defined in section 602) within

60 days of receiving parental consent for the

evaluation, or, if the State establishes a timeframe

within which the evaluation must be conducted,

within such timeframe; and

‘‘(II) to determine the educational needs of

such child.

‘‘(ii) EXCEPTION.—The relevant timeframe in clause

(i)(I) shall not apply to a local educational agency if—

‘‘(I) a child enrolls in a school served by the

local educational agency after the relevant timeframe in clause (i)(I) has begun and prior to a

determination by the child’s previous local educational agency as to whether the child is a child

with a disability (as defined in section 602), but

only if the subsequent local educational agency

is making sufficient progress to ensure a prompt

completion of the evaluation, and the parent and

subsequent local educational agency agree to a

specific time when the evaluation will be completed; or

‘‘(II) the parent of a child repeatedly fails or

refuses to produce the child for the evaluation.

‘‘(D) PARENTAL CONSENT.— ‘‘(i) IN GENERAL.—

Deadline.

20 USC 1414.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2703

‘‘(I) CONSENT FOR INITIAL EVALUATION.—The

agency proposing to conduct an initial evaluation

to determine if the child qualifies as a child with

a disability as defined in section 602 shall obtain

informed consent from the parent of such child

before conducting the evaluation. Parental consent

for evaluation shall not be construed as consent

for placement for receipt of special education and

related services.

‘‘(II) CONSENT FOR SERVICES.—An agency that

is responsible for making a free appropriate public

education available to a child with a disability

under this part shall seek to obtain informed consent from the parent of such child before providing

special education and related services to the child.

‘‘(ii) ABSENCE OF CONSENT.—

‘‘(I) FOR INITIAL EVALUATION.—If the parent

of such child does not provide consent for an initial

evaluation under clause (i)(I), or the parent fails

to respond to a request to provide the consent,

the local educational agency may pursue the initial

evaluation of the child by utilizing the procedures

described in section 615, except to the extent inconsistent with State law relating to such parental

consent.

‘‘(II) FOR SERVICES.—If the parent of such child

refuses to consent to services under clause (i)(II),

the local educational agency shall not provide special education and related services to the child

by utilizing the procedures described in section

615.

‘‘(III) EFFECT ON AGENCY OBLIGATIONS.—If the

parent of such child refuses to consent to the

receipt of special education and related services,

or the parent fails to respond to a request to provide such consent—

‘‘(aa) the local educational agency shall

not be considered to be in violation of the

requirement to make available a free appropriate public education to the child for the

failure to provide such child with the special

education and related services for which the

local educational agency requests such consent; and

‘‘(bb) the local educational agency shall

not be required to convene an IEP meeting

or develop an IEP under this section for the

child for the special education and related

services for which the local educational agency

requests such consent.

‘‘(iii) CONSENT FOR WARDS OF THE STATE.—

‘‘(I) IN GENERAL.—If the child is a ward of

the State and is not residing with the child’s

parent, the agency shall make reasonable efforts

to obtain the informed consent from the parent

(as defined in section 602) of the child for an

118 STAT. 2704 PUBLIC LAW 108–446—DEC. 3, 2004

initial evaluation to determine whether the child

is a child with a disability.

‘‘(II) EXCEPTION.—The agency shall not be

required to obtain informed consent from the

parent of a child for an initial evaluation to determine whether the child is a child with a disability

if—

‘‘(aa) despite reasonable efforts to do so,

the agency cannot discover the whereabouts

of the parent of the child;

‘‘(bb) the rights of the parents of the child

have been terminated in accordance with State

law; or

‘‘(cc) the rights of the parent to make educational decisions have been subrogated by a

judge in accordance with State law and consent for an initial evaluation has been given

by an individual appointed by the judge to

represent the child.

‘‘(E) RULE OF CONSTRUCTION.—The screening of a student by a teacher or specialist to determine appropriate

instructional strategies for curriculum implementation

shall not be considered to be an evaluation for eligibility

for special education and related services.

‘‘(2) REEVALUATIONS.—

‘‘(A) IN GENERAL.—A local educational agency shall

ensure that a reevaluation of each child with a disability

is conducted in accordance with subsections (b) and (c)—

‘‘(i) if the local educational agency determines that

the educational or related services needs, including

improved academic achievement and functional

performance, of the child warrant a reevaluation; or

‘‘(ii) if the child’s parents or teacher requests a

reevaluation.

‘‘(B) LIMITATION.—A reevaluation conducted under

subparagraph (A) shall occur—

‘‘(i) not more frequently than once a year, unless

the parent and the local educational agency agree

otherwise; and

‘‘(ii) at least once every 3 years, unless the parent

and the local educational agency agree that a reevaluation is unnecessary.

‘‘(b) EVALUATION PROCEDURES.—

‘‘(1) NOTICE.—The local educational agency shall provide

notice to the parents of a child with a disability, in accordance

with subsections (b)(3), (b)(4), and (c) of section 615, that

describes any evaluation procedures such agency proposes to

conduct.

‘‘(2) CONDUCT OF EVALUATION.—In conducting the evaluation, the local educational agency shall—

‘‘(A) use a variety of assessment tools and strategies

to gather relevant functional, developmental, and academic

information, including information provided by the parent,

that may assist in determining—

‘‘(i) whether the child is a child with a disability;

and

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2705

‘‘(ii) the content of the child’s individualized education program, including information related to

enabling the child to be involved in and progress in

the general education curriculum, or, for preschool children, to participate in appropriate activities;

‘‘(B) not use any single measure or assessment as

the sole criterion for determining whether a child is a

child with a disability or determining an appropriate educational program for the child; and

‘‘(C) use technically sound instruments that may assess

the relative contribution of cognitive and behavioral factors,

in addition to physical or developmental factors.

‘‘(3) ADDITIONAL REQUIREMENTS.—Each local educational

agency shall ensure that—

‘‘(A) assessments and other evaluation materials used

to assess a child under this section—

‘‘(i) are selected and administered so as not to

be discriminatory on a racial or cultural basis;

‘‘(ii) are provided and administered in the language

and form most likely to yield accurate information

on what the child knows and can do academically,

developmentally, and functionally, unless it is not feasible to so provide or administer;

‘‘(iii) are used for purposes for which the assessments or measures are valid and reliable;

‘‘(iv) are administered by trained and knowledgeable personnel; and

‘‘(v) are administered in accordance with any

instructions provided by the producer of such assessments;

‘‘(B) the child is assessed in all areas of suspected

disability;

‘‘(C) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided;

and

‘‘(D) assessments of children with disabilities who

transfer from 1 school district to another school district

in the same academic year are coordinated with such children’s prior and subsequent schools, as necessary and as

expeditiously as possible, to ensure prompt completion of

full evaluations.

‘‘(4) DETERMINATION OF ELIGIBILITY AND EDUCATIONAL

NEED.—Upon completion of the administration of assessments

and other evaluation measures—

‘‘(A) the determination of whether the child is a child

with a disability as defined in section 602(3) and the educational needs of the child shall be made by a team of

qualified professionals and the parent of the child in accordance with paragraph (5); and

‘‘(B) a copy of the evaluation report and the documentation of determination of eligibility shall be given to the

parent.

‘‘(5) SPECIAL RULE FOR ELIGIBILITY DETERMINATION.—In

making a determination of eligibility under paragraph (4)(A),

a child shall not be determined to be a child with a disability

if the determinant factor for such determination is—

118 STAT. 2706 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(A) lack of appropriate instruction in reading,

including in the essential components of reading instruction

(as defined in section 1208(3) of the Elementary and Secondary Education Act of 1965);

‘‘(B) lack of instruction in math; or

‘‘(C) limited English proficiency.

‘‘(6) SPECIFIC LEARNING DISABILITIES.—

‘‘(A) IN GENERAL.—Notwithstanding section 607(b),

when determining whether a child has a specific learning

disability as defined in section 602, a local educational

agency shall not be required to take into consideration

whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening

comprehension, written expression, basic reading skill,

reading comprehension, mathematical calculation, or

mathematical reasoning.

‘‘(B) ADDITIONAL AUTHORITY.—In determining whether

a child has a specific learning disability, a local educational

agency may use a process that determines if the child

responds to scientific, research-based intervention as a part

of the evaluation procedures described in paragraphs (2)

and (3).

‘‘(c) ADDITIONAL REQUIREMENTS FOR EVALUATION AND

REEVALUATIONS.—

‘‘(1) REVIEW OF EXISTING EVALUATION DATA.—As part of

an initial evaluation (if appropriate) and as part of any

reevaluation under this section, the IEP Team and other qualified professionals, as appropriate, shall—

‘‘(A) review existing evaluation data on the child,

including—

‘‘(i) evaluations and information provided by the

parents of the child;

‘‘(ii) current classroom-based, local, or State assessments, and classroom-based observations; and

‘‘(iii) observations by teachers and related services

providers; and

‘‘(B) on the basis of that review, and input from the

child’s parents, identify what additional data, if any, are

needed to determine—

‘‘(i) whether the child is a child with a disability

as defined in section 602(3), and the educational needs

of the child, or, in case of a reevaluation of a child,

whether the child continues to have such a disability

and such educational needs;

‘‘(ii) the present levels of academic achievement

and related developmental needs of the child;

‘‘(iii) whether the child needs special education

and related services, or in the case of a reevaluation

of a child, whether the child continues to need special

education and related services; and

‘‘(iv) whether any additions or modifications to the

special education and related services are needed to

enable the child to meet the measurable annual goals

set out in the individualized education program of the

child and to participate, as appropriate, in the general

education curriculum.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2707

‘‘(2) SOURCE OF DATA.—The local educational agency shall

administer such assessments and other evaluation measures

as may be needed to produce the data identified by the IEP

Team under paragraph (1)(B).

‘‘(3) PARENTAL CONSENT.—Each local educational agency

shall obtain informed parental consent, in accordance with

subsection (a)(1)(D), prior to conducting any reevaluation of

a child with a disability, except that such informed parental

consent need not be obtained if the local educational agency

can demonstrate that it had taken reasonable measures to

obtain such consent and the child’s parent has failed to respond.

‘‘(4) REQUIREMENTS IF ADDITIONAL DATA ARE NOT NEEDED.— If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability

and to determine the child’s educational needs, the local educational agency—

‘‘(A) shall notify the child’s parents of—

‘‘(i) that determination and the reasons for the

determination; and

‘‘(ii) the right of such parents to request an assessment to determine whether the child continues to be

a child with a disability and to determine the child’s

educational needs; and

‘‘(B) shall not be required to conduct such an assessment unless requested to by the child’s parents.

‘‘(5) EVALUATIONS BEFORE CHANGE IN ELIGIBILITY.—

‘‘(A) IN GENERAL.—Except as provided in subparagraph

(B), a local educational agency shall evaluate a child with

a disability in accordance with this section before determining that the child is no longer a child with a disability.

‘‘(B) EXCEPTION.—

‘‘(i) IN GENERAL.—The evaluation described in

subparagraph (A) shall not be required before the

termination of a child’s eligibility under this part due

to graduation from secondary school with a regular

diploma, or due to exceeding the age eligibility for

a free appropriate public education under State law.

‘‘(ii) SUMMARY OF PERFORMANCE.—For a child

whose eligibility under this part terminates under circumstances described in clause (i), a local educational

agency shall provide the child with a summary of the

child’s academic achievement and functional performance, which shall include recommendations on how

to assist the child in meeting the child’s postsecondary

goals.

‘‘(d) INDIVIDUALIZED EDUCATION PROGRAMS.—

‘‘(1) DEFINITIONS.—In this title:

‘‘(A) INDIVIDUALIZED EDUCATION PROGRAM.—

‘‘(i) IN GENERAL.—The term ‘individualized education program’ or ‘IEP’ means a written statement

for each child with a disability that is developed,

reviewed, and revised in accordance with this section

and that includes—

‘‘(I) a statement of the child’s present levels

of academic achievement and functional performance, including—

118 STAT. 2708 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(aa) how the child’s disability affects the

child’s involvement and progress in the general education curriculum;

‘‘(bb) for preschool children, as appropriate, how the disability affects the child’s

participation in appropriate activities; and

‘‘(cc) for children with disabilities who take

alternate assessments aligned to alternate

achievement standards, a description of benchmarks or short-term objectives;

‘‘(II) a statement of measurable annual goals,

including academic and functional goals, designed

to—

‘‘(aa) meet the child’s needs that result

from the child’s disability to enable the child

to be involved in and make progress in the

general education curriculum; and

‘‘(bb) meet each of the child’s other educational needs that result from the child’s disability;

‘‘(III) a description of how the child’s progress

toward meeting the annual goals described in subclause (II) will be measured and when periodic

reports on the progress the child is making toward

meeting the annual goals (such as through the

use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be

provided;

‘‘(IV) a statement of the special education and

related services and supplementary aids and services, based on peer-reviewed research to the extent

practicable, to be provided to the child, or on behalf

of the child, and a statement of the program modifications or supports for school personnel that will

be provided for the child—

‘‘(aa) to advance appropriately toward

attaining the annual goals;

‘‘(bb) to be involved in and make progress

in the general education curriculum in accordance with subclause (I) and to participate in

extracurricular and other nonacademic activities; and

‘‘(cc) to be educated and participate with

other children with disabilities and nondisabled children in the activities described

in this subparagraph;

‘‘(V) an explanation of the extent, if any, to

which the child will not participate with nondisabled children in the regular class and in the

activities described in subclause (IV)(cc);

‘‘(VI)(aa) a statement of any individual appropriate accommodations that are necessary to

measure the academic achievement and functional

performance of the child on State and districtwide

assessments consistent with section 612(a)(16)(A);

and

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2709

‘‘(bb) if the IEP Team determines that the

child shall take an alternate assessment on a particular State or districtwide assessment of student

achievement, a statement of why—

‘‘(AA) the child cannot participate in the

regular assessment; and

‘‘(BB) the particular alternate assessment

selected is appropriate for the child;

‘‘(VII) the projected date for the beginning of

the services and modifications described in subclause (IV), and the anticipated frequency, location,

and duration of those services and modifications;

and

‘‘(VIII) beginning not later than the first IEP

to be in effect when the child is 16, and updated

annually thereafter—

‘‘(aa) appropriate measurable postsecondary goals based upon age appropriate

transition assessments related to training,

education, employment, and, where appropriate, independent living skills;

‘‘(bb) the transition services (including

courses of study) needed to assist the child

in reaching those goals; and

‘‘(cc) beginning not later than 1 year before

the child reaches the age of majority under

State law, a statement that the child has been

informed of the child’s rights under this title,

if any, that will transfer to the child on

reaching the age of majority under section

615(m).

‘‘(ii) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to require—

‘‘(I) that additional information be included

in a child’s IEP beyond what is explicitly required

in this section; and

‘‘(II) the IEP Team to include information

under 1 component of a child’s IEP that is already

contained under another component of such IEP.

‘‘(B) INDIVIDUALIZED EDUCATION PROGRAM TEAM.—The

term ‘individualized education program team’ or ‘IEP Team’

means a group of individuals composed of—

‘‘(i) the parents of a child with a disability;

‘‘(ii) not less than 1 regular education teacher of

such child (if the child is, or may be, participating

in the regular education environment);

‘‘(iii) not less than 1 special education teacher,

or where appropriate, not less than 1 special education

provider of such child;

‘‘(iv) a representative of the local educational

agency who—

‘‘(I) is qualified to provide, or supervise the

provision of, specially designed instruction to meet

the unique needs of children with disabilities;

‘‘(II) is knowledgeable about the general education curriculum; and

118 STAT. 2710 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(III) is knowledgeable about the availability

of resources of the local educational agency;

‘‘(v) an individual who can interpret the instructional implications of evaluation results, who may be

a member of the team described in clauses (ii) through

(vi);

‘‘(vi) at the discretion of the parent or the agency,

other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

‘‘(vii) whenever appropriate, the child with a disability.

‘‘(C) IEP TEAM ATTENDANCE.— ‘‘(i) ATTENDANCE NOT NECESSARY.—A member of

the IEP Team shall not be required to attend an IEP

meeting, in whole or in part, if the parent of a child

with a disability and the local educational agency agree

that the attendance of such member is not necessary

because the member’s area of the curriculum or related

services is not being modified or discussed in the

meeting.

‘‘(ii) EXCUSAL.—A member of the IEP Team may

be excused from attending an IEP meeting, in whole

or in part, when the meeting involves a modification

to or discussion of the member’s area of the curriculum

or related services, if—

‘‘(I) the parent and the local educational

agency consent to the excusal; and

‘‘(II) the member submits, in writing to the

parent and the IEP Team, input into the development of the IEP prior to the meeting.

‘‘(iii) WRITTEN AGREEMENT AND CONSENT

REQUIRED.—A parent’s agreement under clause (i) and

consent under clause (ii) shall be in writing.

‘‘(D) IEP TEAM TRANSITION.—In the case of a child

who was previously served under part C, an invitation

to the initial IEP meeting shall, at the request of the

parent, be sent to the part C service coordinator or other

representatives of the part C system to assist with the

smooth transition of services.

‘‘(2) REQUIREMENT THAT PROGRAM BE IN EFFECT.—

‘‘(A) IN GENERAL.—At the beginning of each school

year, each local educational agency, State educational

agency, or other State agency, as the case may be, shall

have in effect, for each child with a disability in the

agency’s jurisdiction, an individualized education program,

as defined in paragraph (1)(A).

‘‘(B) PROGRAM FOR CHILD AGED 3 THROUGH 5.—In the

case of a child with a disability aged 3 through 5 (or,

at the discretion of the State educational agency, a 2-

year-old child with a disability who will turn age 3 during

the school year), the IEP Team shall consider the individualized family service plan that contains the material

described in section 636, and that is developed in accordance with this section, and the individualized family service

plan may serve as the IEP of the child if using that plan

as the IEP is—

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2711

‘‘(i) consistent with State policy; and

‘‘(ii) agreed to by the agency and the child’s parents.

‘‘(C) PROGRAM FOR CHILDREN WHO TRANSFER SCHOOL

DISTRICTS.—

‘‘(i) IN GENERAL.—

‘‘(I) TRANSFER WITHIN THE SAME STATE.—In

the case of a child with a disability who transfers

school districts within the same academic year,

who enrolls in a new school, and who had an

IEP that was in effect in the same State, the

local educational agency shall provide such child

with a free appropriate public education, including

services comparable to those described in the previously held IEP, in consultation with the parents

until such time as the local educational agency

adopts the previously held IEP or develops, adopts,

and implements a new IEP that is consistent with

Federal and State law.

‘‘(II) TRANSFER OUTSIDE STATE.—In the case

of a child with a disability who transfers school

districts within the same academic year, who

enrolls in a new school, and who had an IEP

that was in effect in another State, the local educational agency shall provide such child with a

free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents

until such time as the local educational agency

conducts an evaluation pursuant to subsection

(a)(1), if determined to be necessary by such

agency, and develops a new IEP, if appropriate,

that is consistent with Federal and State law.

‘‘(ii) TRANSMITTAL OF RECORDS.—To facilitate the

transition for a child described in clause (i)—

‘‘(I) the new school in which the child enrolls

shall take reasonable steps to promptly obtain the

child’s records, including the IEP and supporting

documents and any other records relating to the

provision of special education or related services

to the child, from the previous school in which

the child was enrolled, pursuant to section

99.31(a)(2) of title 34, Code of Federal Regulations;

and

‘‘(II) the previous school in which the child

was enrolled shall take reasonable steps to

promptly respond to such request from the new

school.

‘‘(3) DEVELOPMENT OF IEP.—

‘‘(A) IN GENERAL.—In developing each child’s IEP, the

IEP Team, subject to subparagraph (C), shall consider—

‘‘(i) the strengths of the child;

‘‘(ii) the concerns of the parents for enhancing the

education of their child;

‘‘(iii) the results of the initial evaluation or most

recent evaluation of the child; and

118 STAT. 2712 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(iv) the academic, developmental, and functional

needs of the child.

‘‘(B) CONSIDERATION OF SPECIAL FACTORS.—The IEP

Team shall—

‘‘(i) in the case of a child whose behavior impedes

the child’s learning or that of others, consider the

use of positive behavioral interventions and supports,

and other strategies, to address that behavior;

‘‘(ii) in the case of a child with limited English

proficiency, consider the language needs of the child

as such needs relate to the child’s IEP;

‘‘(iii) in the case of a child who is blind or visually

impaired, provide for instruction in Braille and the

use of Braille unless the IEP Team determines, after

an evaluation of the child’s reading and writing skills,

needs, and appropriate reading and writing media

(including an evaluation of the child’s future needs

for instruction in Braille or the use of Braille), that

instruction in Braille or the use of Braille is not appropriate for the child;

‘‘(iv) consider the communication needs of the child,

and in the case of a child who is deaf or hard of

hearing, consider the child’s language and communication needs, opportunities for direct communications

with peers and professional personnel in the child’s

language and communication mode, academic level,

and full range of needs, including opportunities for

direct instruction in the child’s language and communication mode; and

‘‘(v) consider whether the child needs assistive

technology devices and services.

‘‘(C) REQUIREMENT WITH RESPECT TO REGULAR EDUCATION TEACHER.—A regular education teacher of the child,

as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the

child, including the determination of appropriate positive

behavioral interventions and supports, and other strategies,

and the determination of supplementary aids and services,

program modifications, and support for school personnel

consistent with paragraph (1)(A)(i)(IV).

‘‘(D) AGREEMENT.—In making changes to a child’s IEP

after the annual IEP meeting for a school year, the parent

of a child with a disability and the local educational agency

may agree not to convene an IEP meeting for the purposes

of making such changes, and instead may develop a written

document to amend or modify the child’s current IEP.

‘‘(E) CONSOLIDATION OF IEP TEAM MEETINGS.—To the

extent possible, the local educational agency shall encourage the consolidation of reevaluation meetings for the child

and other IEP Team meetings for the child.

‘‘(F) AMENDMENTS.—Changes to the IEP may be made

either by the entire IEP Team or, as provided in subparagraph (D), by amending the IEP rather than by redrafting

the entire IEP. Upon request, a parent shall be provided

with a revised copy of the IEP with the amendments incorporated.

‘‘(4) REVIEW AND REVISION OF IEP.—

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2713

‘‘(A) IN GENERAL.—The local educational agency shall

ensure that, subject to subparagraph (B), the IEP Team—

‘‘(i) reviews the child’s IEP periodically, but not

less frequently than annually, to determine whether

the annual goals for the child are being achieved; and

‘‘(ii) revises the IEP as appropriate to address—

‘‘(I) any lack of expected progress toward the

annual goals and in the general education curriculum, where appropriate;

‘‘(II) the results of any reevaluation conducted

under this section;

‘‘(III) information about the child provided to,

or by, the parents, as described in subsection

(c)(1)(B);

‘‘(IV) the child’s anticipated needs; or

‘‘(V) other matters.

‘‘(B) REQUIREMENT WITH RESPECT TO REGULAR EDUCATION TEACHER.—A regular education teacher of the child,

as a member of the IEP Team, shall, consistent with paragraph (1)(C), participate in the review and revision of the

IEP of the child.

‘‘(5) MULTI-YEAR IEP DEMONSTRATION.—

‘‘(A) PILOT PROGRAM.—

‘‘(i) PURPOSE.—The purpose of this paragraph is

to provide an opportunity for States to allow parents

and local educational agencies the opportunity for longterm planning by offering the option of developing

a comprehensive multi-year IEP, not to exceed 3 years,

that is designed to coincide with the natural transition

points for the child.

‘‘(ii) AUTHORIZATION.—In order to carry out the

purpose of this paragraph, the Secretary is authorized

to approve not more than 15 proposals from States

to carry out the activity described in clause (i).

‘‘(iii) PROPOSAL.— ‘‘(I) IN GENERAL.—A State desiring to participate in the program under this paragraph shall

submit a proposal to the Secretary at such time

and in such manner as the Secretary may reasonably require.

‘‘(II) CONTENT.—The proposal shall include—

‘‘(aa) assurances that the development of

a multi-year IEP under this paragraph is

optional for parents;

‘‘(bb) assurances that the parent is

required to provide informed consent before

a comprehensive multi-year IEP is developed;

‘‘(cc) a list of required elements for each

multi-year IEP, including—

‘‘(AA) measurable goals pursuant to

paragraph (1)(A)(i)(II), coinciding with

natural transition points for the child,

that will enable the child to be involved

in and make progress in the general education curriculum and that will meet the

child’s other needs that result from the

child’s disability; and

118 STAT. 2714 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(BB) measurable annual goals for

determining progress toward meeting the

goals described in subitem (AA); and

‘‘(dd) a description of the process for the

review and revision of each multi-year IEP,

including—

‘‘(AA) a review by the IEP Team of

the child’s multi-year IEP at each of the

child’s natural transition points;

‘‘(BB) in years other than a child’s

natural transition points, an annual

review of the child’s IEP to determine the

child’s current levels of progress and

whether the annual goals for the child

are being achieved, and a requirement to

amend the IEP, as appropriate, to enable

the child to continue to meet the measurable goals set out in the IEP;

‘‘(CC) if the IEP Team determines on

the basis of a review that the child is

not making sufficient progress toward the

goals described in the multi-year IEP, a

requirement that the local educational

agency shall ensure that the IEP Team

carries out a more thorough review of the

IEP in accordance with paragraph (4)

within 30 calendar days; and

‘‘(DD) at the request of the parent,

a requirement that the IEP Team shall

conduct a review of the child’s multi-year

IEP rather than or subsequent to an

annual review.

‘‘(B) REPORT.—Beginning 2 years after the date of

enactment of the Individuals with Disabilities Education

Improvement Act of 2004, the Secretary shall submit an

annual report to the Committee on Education and the

Workforce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the

Senate regarding the effectiveness of the program under

this paragraph and any specific recommendations for

broader implementation of such program, including—

‘‘(i) reducing—

‘‘(I) the paperwork burden on teachers, principals, administrators, and related service providers; and

‘‘(II) noninstructional time spent by teachers

in complying with this part;

‘‘(ii) enhancing longer-term educational planning;

‘‘(iii) improving positive outcomes for children with

disabilities;

‘‘(iv) promoting collaboration between IEP Team

members; and

‘‘(v) ensuring satisfaction of family members.

‘‘(C) DEFINITION.—In this paragraph, the term ‘natural

transition points’ means those periods that are close in

time to the transition of a child with a disability from

preschool to elementary grades, from elementary grades

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2715

to middle or junior high school grades, from middle or

junior high school grades to secondary school grades, and

from secondary school grades to post-secondary activities,

but in no case a period longer than 3 years.

‘‘(6) FAILURE TO MEET TRANSITION OBJECTIVES.—If a participating agency, other than the local educational agency, fails

to provide the transition services described in the IEP in accordance with paragraph (1)(A)(i)(VIII), the local educational agency

shall reconvene the IEP Team to identify alternative strategies

to meet the transition objectives for the child set out in the

IEP.

‘‘(7) CHILDREN WITH DISABILITIES IN ADULT PRISONS.—

‘‘(A) IN GENERAL.—The following requirements shall

not apply to children with disabilities who are convicted

as adults under State law and incarcerated in adult prisons:

‘‘(i) The requirements contained in section

612(a)(16) and paragraph (1)(A)(i)(VI) (relating to

participation of children with disabilities in general

assessments).

‘‘(ii) The requirements of items (aa) and (bb) of

paragraph (1)(A)(i)(VIII) (relating to transition planning and transition services), do not apply with respect

to such children whose eligibility under this part will

end, because of such children’s age, before such children will be released from prison.

‘‘(B) ADDITIONAL REQUIREMENT.—If a child with a disability is convicted as an adult under State law and incarcerated in an adult prison, the child’s IEP Team may

modify the child’s IEP or placement notwithstanding the

requirements of sections 612(a)(5)(A) and paragraph (1)(A)

if the State has demonstrated a bona fide security or

compelling penological interest that cannot otherwise be

accommodated.

‘‘(e) EDUCATIONAL PLACEMENTS.—Each local educational agency

or State educational agency shall ensure that the parents of each

child with a disability are members of any group that makes

decisions on the educational placement of their child.

‘‘(f) ALTERNATIVE MEANS OF MEETING PARTICIPATION.—When

conducting IEP team meetings and placement meetings pursuant

to this section, section 615(e), and section 615(f)(1)(B), and carrying

out administrative matters under section 615 (such as scheduling,

exchange of witness lists, and status conferences), the parent of

a child with a disability and a local educational agency may agree

to use alternative means of meeting participation, such as video

conferences and conference calls.

‘‘SEC. 615. PROCEDURAL SAFEGUARDS.

‘‘(a) ESTABLISHMENT OF PROCEDURES.—Any State educational

agency, State agency, or local educational agency that receives

assistance under this part shall establish and maintain procedures

in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with

respect to the provision of a free appropriate public education

by such agencies.

‘‘(b) TYPES OF PROCEDURES.—The procedures required by this

section shall include the following:

20 USC 1415.

118 STAT. 2716 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(1) An opportunity for the parents of a child with a disability to examine all records relating to such child and to

participate in meetings with respect to the identification,

evaluation, and educational placement of the child, and the

provision of a free appropriate public education to such child,

and to obtain an independent educational evaluation of the

child.

‘‘(2)(A) Procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot,

after reasonable efforts, locate the parents, or the child is

a ward of the State, including the assignment of an individual

to act as a surrogate for the parents, which surrogate shall

not be an employee of the State educational agency, the local

educational agency, or any other agency that is involved in

the education or care of the child. In the case of—

‘‘(i) a child who is a ward of the State, such surrogate

may alternatively be appointed by the judge overseeing

the child’s care provided that the surrogate meets the

requirements of this paragraph; and

‘‘(ii) an unaccompanied homeless youth as defined in

section 725(6) of the McKinney-Vento Homeless Assistance

Act (42 U.S.C. 11434a(6)), the local educational agency

shall appoint a surrogate in accordance with this paragraph.

‘‘(B) The State shall make reasonable efforts to ensure

the assignment of a surrogate not more than 30 days after

there is a determination by the agency that the child needs

a surrogate.

‘‘(3) Written prior notice to the parents of the child, in

accordance with subsection (c)(1), whenever the local educational agency—

‘‘(A) proposes to initiate or change; or

‘‘(B) refuses to initiate or change,

the identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education

to the child.

‘‘(4) Procedures designed to ensure that the notice required

by paragraph (3) is in the native language of the parents,

unless it clearly is not feasible to do so.

‘‘(5) An opportunity for mediation, in accordance with subsection (e).

‘‘(6) An opportunity for any party to present a complaint—

‘‘(A) with respect to any matter relating to the identification, evaluation, or educational placement of the child,

or the provision of a free appropriate public education

to such child; and

‘‘(B) which sets forth an alleged violation that occurred

not more than 2 years before the date the parent or public

agency knew or should have known about the alleged action

that forms the basis of the complaint, or, if the State

has an explicit time limitation for presenting such a complaint under this part, in such time as the State law

allows, except that the exceptions to the timeline described

in subsection (f)(3)(D) shall apply to the timeline described

in this subparagraph.

‘‘(7)(A) Procedures that require either party, or the attorney

representing a party, to provide due process complaint notice

Applicability.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2717

in accordance with subsection (c)(2) (which shall remain confidential)—

‘‘(i) to the other party, in the complaint filed under

paragraph (6), and forward a copy of such notice to the

State educational agency; and

‘‘(ii) that shall include—

‘‘(I) the name of the child, the address of the residence of the child (or available contact information

in the case of a homeless child), and the name of

the school the child is attending;

‘‘(II) in the case of a homeless child or youth

(within the meaning of section 725(2) of the McKinneyVento Homeless Assistance Act (42 U.S.C. 11434a(2)),

available contact information for the child and the

name of the school the child is attending;

‘‘(III) a description of the nature of the problem

of the child relating to such proposed initiation or

change, including facts relating to such problem; and

‘‘(IV) a proposed resolution of the problem to the

extent known and available to the party at the time.

‘‘(B) A requirement that a party may not have a due

process hearing until the party, or the attorney representing

the party, files a notice that meets the requirements of subparagraph (A)(ii).

‘‘(8) Procedures that require the State educational agency

to develop a model form to assist parents in filing a complaint

and due process complaint notice in accordance with paragraphs

(6) and (7), respectively.

‘‘(c) NOTIFICATION REQUIREMENTS.—

‘‘(1) CONTENT OF PRIOR WRITTEN NOTICE.—The notice

required by subsection (b)(3) shall include—

‘‘(A) a description of the action proposed or refused

by the agency;

‘‘(B) an explanation of why the agency proposes or

refuses to take the action and a description of each evaluation procedure, assessment, record, or report the agency

used as a basis for the proposed or refused action;

‘‘(C) a statement that the parents of a child with a

disability have protection under the procedural safeguards

of this part and, if this notice is not an initial referral

for evaluation, the means by which a copy of a description

of the procedural safeguards can be obtained;

‘‘(D) sources for parents to contact to obtain assistance

in understanding the provisions of this part;

‘‘(E) a description of other options considered by the

IEP Team and the reason why those options were rejected;

and

‘‘(F) a description of the factors that are relevant to

the agency’s proposal or refusal.

‘‘(2) DUE PROCESS COMPLAINT NOTICE.—

‘‘(A) COMPLAINT.—The due process complaint notice

required under subsection (b)(7)(A) shall be deemed to be

sufficient unless the party receiving the notice notifies the

hearing officer and the other party in writing that the

receiving party believes the notice has not met the requirements of subsection (b)(7)(A).

‘‘(B) RESPONSE TO COMPLAINT.—

118 STAT. 2718 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(i) LOCAL EDUCATIONAL AGENCY RESPONSE.— ‘‘(I) IN GENERAL.—If the local educational

agency has not sent a prior written notice to the

parent regarding the subject matter contained in

the parent’s due process complaint notice, such

local educational agency shall, within 10 days of

receiving the complaint, send to the parent a

response that shall include—

‘‘(aa) an explanation of why the agency

proposed or refused to take the action raised

in the complaint;

‘‘(bb) a description of other options that

the IEP Team considered and the reasons why

those options were rejected;

‘‘(cc) a description of each evaluation

procedure, assessment, record, or report the

agency used as the basis for the proposed or

refused action; and

‘‘(dd) a description of the factors that are

relevant to the agency’s proposal or refusal.

‘‘(II) SUFFICIENCY.—A response filed by a local

educational agency pursuant to subclause (I) shall

not be construed to preclude such local educational

agency from asserting that the parent’s due

process complaint notice was insufficient where

appropriate.

‘‘(ii) OTHER PARTY RESPONSE.—Except as provided

in clause (i), the non-complaining party shall, within

10 days of receiving the complaint, send to the complaint a response that specifically addresses the issues

raised in the complaint.

‘‘(C) TIMING.—The party providing a hearing officer

notification under subparagraph (A) shall provide the

notification within 15 days of receiving the complaint.

‘‘(D) DETERMINATION.—Within 5 days of receipt of the

notification provided under subparagraph (C), the hearing

officer shall make a determination on the face of the notice

of whether the notification meets the requirements of subsection (b)(7)(A), and shall immediately notify the parties

in writing of such determination.

‘‘(E) AMENDED COMPLAINT NOTICE.—

‘‘(i) IN GENERAL.—A party may amend its due

process complaint notice only if—

‘‘(I) the other party consents in writing to such

amendment and is given the opportunity to resolve

the complaint through a meeting held pursuant

to subsection (f)(1)(B); or

‘‘(II) the hearing officer grants permission,

except that the hearing officer may only grant

such permission at any time not later than 5 days

before a due process hearing occurs.

‘‘(ii) APPLICABLE TIMELINE.—The applicable

timeline for a due process hearing under this part

shall recommence at the time the party files an

amended notice, including the timeline under subsection (f)(1)(B).

‘‘(d) PROCEDURAL SAFEGUARDS NOTICE.—

Deadline.

Deadline.

Deadline.

Deadline.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2719

‘‘(1) IN GENERAL.— ‘‘(A) COPY TO PARENTS.—A copy of the procedural safeguards available to the parents of a child with a disability

shall be given to the parents only 1 time a year, except

that a copy also shall be given to the parents—

‘‘(i) upon initial referral or parental request for

evaluation;

‘‘(ii) upon the first occurrence of the filing of a

complaint under subsection (b)(6); and

‘‘(iii) upon request by a parent.

‘‘(B) INTERNET WEBSITE.—A local educational agency

may place a current copy of the procedural safeguards

notice on its Internet website if such website exists.

‘‘(2) CONTENTS.—The procedural safeguards notice shall

include a full explanation of the procedural safeguards, written

in the native language of the parents (unless it clearly is

not feasible to do so) and written in an easily understandable

manner, available under this section and under regulations

promulgated by the Secretary relating to—

‘‘(A) independent educational evaluation;

‘‘(B) prior written notice;

‘‘(C) parental consent;

‘‘(D) access to educational records;

‘‘(E) the opportunity to present and resolve complaints,

including—

‘‘(i) the time period in which to make a complaint;

‘‘(ii) the opportunity for the agency to resolve the

complaint; and

‘‘(iii) the availability of mediation;

‘‘(F) the child’s placement during pendency of due

process proceedings;

‘‘(G) procedures for students who are subject to placement in an interim alternative educational setting;

‘‘(H) requirements for unilateral placement by parents

of children in private schools at public expense;

‘‘(I) due process hearings, including requirements for

disclosure of evaluation results and recommendations;

‘‘(J) State-level appeals (if applicable in that State);

‘‘(K) civil actions, including the time period in which

to file such actions; and

‘‘(L) attorneys’ fees.

‘‘(e) MEDIATION.—

‘‘(1) IN GENERAL.—Any State educational agency or local

educational agency that receives assistance under this part

shall ensure that procedures are established and implemented

to allow parties to disputes involving any matter, including

matters arising prior to the filing of a complaint pursuant

to subsection (b)(6), to resolve such disputes through a mediation process.

‘‘(2) REQUIREMENTS.—Such procedures shall meet the following requirements:

‘‘(A) The procedures shall ensure that the mediation

process—

‘‘(i) is voluntary on the part of the parties;

‘‘(ii) is not used to deny or delay a parent’s right

to a due process hearing under subsection (f), or to

deny any other rights afforded under this part; and

118 STAT. 2720 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(iii) is conducted by a qualified and impartial

mediator who is trained in effective mediation techniques.

‘‘(B) OPPORTUNITY TO MEET WITH A DISINTERESTED

PARTY.—A local educational agency or a State agency may

establish procedures to offer to parents and schools that

choose not to use the mediation process, an opportunity

to meet, at a time and location convenient to the parents,

with a disinterested party who is under contract with—

‘‘(i) a parent training and information center or

community parent resource center in the State established under section 671 or 672; or

‘‘(ii) an appropriate alternative dispute resolution

entity,

to encourage the use, and explain the benefits, of the

mediation process to the parents.

‘‘(C) LIST OF QUALIFIED MEDIATORS.—The State shall

maintain a list of individuals who are qualified mediators

and knowledgeable in laws and regulations relating to the

provision of special education and related services.

‘‘(D) COSTS.—The State shall bear the cost of the mediation process, including the costs of meetings described

in subparagraph (B).

‘‘(E) SCHEDULING AND LOCATION.—Each session in the

mediation process shall be scheduled in a timely manner

and shall be held in a location that is convenient to the

parties to the dispute.

‘‘(F) WRITTEN AGREEMENT.—In the case that a resolution is reached to resolve the complaint through the mediation process, the parties shall execute a legally binding

agreement that sets forth such resolution and that—

‘‘(i) states that all discussions that occurred during

the mediation process shall be confidential and may

not be used as evidence in any subsequent due process

hearing or civil proceeding;

‘‘(ii) is signed by both the parent and a representative of the agency who has the authority to bind such

agency; and

‘‘(iii) is enforceable in any State court of competent

jurisdiction or in a district court of the United States.

‘‘(G) MEDIATION DISCUSSIONS.—Discussions that occur

during the mediation process shall be confidential and may

not be used as evidence in any subsequent due process

hearing or civil proceeding.

‘‘(f) IMPARTIAL DUE PROCESS HEARING.—

‘‘(1) IN GENERAL.—

‘‘(A) HEARING.—Whenever a complaint has been

received under subsection (b)(6) or (k), the parents or the

local educational agency involved in such complaint shall

have an opportunity for an impartial due process hearing,

which shall be conducted by the State educational agency

or by the local educational agency, as determined by State

law or by the State educational agency.

‘‘(B) RESOLUTION SESSION.—

‘‘(i) PRELIMINARY MEETING.—Prior to the opportunity for an impartial due process hearing under

subparagraph (A), the local educational agency shall

Confidential

information.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2721

convene a meeting with the parents and the relevant

member or members of the IEP Team who have specific

knowledge of the facts identified in the complaint—

‘‘(I) within 15 days of receiving notice of the

parents’ complaint;

‘‘(II) which shall include a representative of

the agency who has decisionmaking authority on

behalf of such agency;

‘‘(III) which may not include an attorney of

the local educational agency unless the parent is

accompanied by an attorney; and

‘‘(IV) where the parents of the child discuss

their complaint, and the facts that form the basis

of the complaint, and the local educational agency

is provided the opportunity to resolve the complaint,

unless the parents and the local educational agency

agree in writing to waive such meeting, or agree to

use the mediation process described in subsection (e).

‘‘(ii) HEARING.—If the local educational agency has

not resolved the complaint to the satisfaction of the

parents within 30 days of the receipt of the complaint,

the due process hearing may occur, and all of the

applicable timelines for a due process hearing under

this part shall commence.

‘‘(iii) WRITTEN SETTLEMENT AGREEMENT.—In the

case that a resolution is reached to resolve the complaint at a meeting described in clause (i), the parties

shall execute a legally binding agreement that is—

‘‘(I) signed by both the parent and a representative of the agency who has the authority to bind

such agency; and

‘‘(II) enforceable in any State court of competent jurisdiction or in a district court of the

United States.

‘‘(iv) REVIEW PERIOD.—If the parties execute an

agreement pursuant to clause (iii), a party may void

such agreement within 3 business days of the agreement’s execution.

‘‘(2) DISCLOSURE OF EVALUATIONS AND RECOMMENDATIONS.—

‘‘(A) IN GENERAL.—Not less than 5 business days prior

to a hearing conducted pursuant to paragraph (1), each

party shall disclose to all other parties all evaluations

completed by that date, and recommendations based on

the offering party’s evaluations, that the party intends

to use at the hearing.

‘‘(B) FAILURE TO DISCLOSE.—A hearing officer may bar

any party that fails to comply with subparagraph (A) from

introducing the relevant evaluation or recommendation at

the hearing without the consent of the other party.

‘‘(3) LIMITATIONS ON HEARING.—

‘‘(A) PERSON CONDUCTING HEARING.—A hearing officer

conducting a hearing pursuant to paragraph (1)(A) shall,

at a minimum—

‘‘(i) not be—

Deadline.

Deadline.

Deadline.

118 STAT. 2722 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(I) an employee of the State educational

agency or the local educational agency involved

in the education or care of the child; or

‘‘(II) a person having a personal or professional

interest that conflicts with the person’s objectivity

in the hearing;

‘‘(ii) possess knowledge of, and the ability to understand, the provisions of this title, Federal and State

regulations pertaining to this title, and legal

interpretations of this title by Federal and State courts;

‘‘(iii) possess the knowledge and ability to conduct

hearings in accordance with appropriate, standard

legal practice; and

‘‘(iv) possess the knowledge and ability to render

and write decisions in accordance with appropriate,

standard legal practice.

‘‘(B) SUBJECT MATTER OF HEARING.—The party

requesting the due process hearing shall not be allowed

to raise issues at the due process hearing that were not

raised in the notice filed under subsection (b)(7), unless

the other party agrees otherwise.

‘‘(C) TIMELINE FOR REQUESTING HEARING.—A parent

or agency shall request an impartial due process hearing

within 2 years of the date the parent or agency knew

or should have known about the alleged action that forms

the basis of the complaint, or, if the State has an explicit

time limitation for requesting such a hearing under this

part, in such time as the State law allows.

‘‘(D) EXCEPTIONS TO THE TIMELINE.—The timeline

described in subparagraph (C) shall not apply to a parent

if the parent was prevented from requesting the hearing

due to—

‘‘(i) specific misrepresentations by the local educational agency that it had resolved the problem

forming the basis of the complaint; or

‘‘(ii) the local educational agency’s withholding of

information from the parent that was required under

this part to be provided to the parent.

‘‘(E) DECISION OF HEARING OFFICER.—

‘‘(i) IN GENERAL.—Subject to clause (ii), a decision

made by a hearing officer shall be made on substantive

grounds based on a determination of whether the child

received a free appropriate public education.

‘‘(ii) PROCEDURAL ISSUES.—In matters alleging a

procedural violation, a hearing officer may find that

a child did not receive a free appropriate public education only if the procedural inadequacies—

‘‘(I) impeded the child’s right to a free appropriate public education;

‘‘(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process

regarding the provision of a free appropriate public

education to the parents’ child; or

‘‘(III) caused a deprivation of educational benefits.

‘‘(iii) RULE OF CONSTRUCTION.—Nothing in this

subparagraph shall be construed to preclude a hearing

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2723

officer from ordering a local educational agency to

comply with procedural requirements under this section.

‘‘(F) RULE OF CONSTRUCTION.—Nothing in this paragraph shall be construed to affect the right of a parent

to file a complaint with the State educational agency.

‘‘(g) APPEAL.—

‘‘(1) IN GENERAL.—If the hearing required by subsection

(f) is conducted by a local educational agency, any party

aggrieved by the findings and decision rendered in such a

hearing may appeal such findings and decision to the State

educational agency.

‘‘(2) IMPARTIAL REVIEW AND INDEPENDENT DECISION.—The

State educational agency shall conduct an impartial review

of the findings and decision appealed under paragraph (1).

The officer conducting such review shall make an independent

decision upon completion of such review.

‘‘(h) SAFEGUARDS.—Any party to a hearing conducted pursuant

to subsection (f) or (k), or an appeal conducted pursuant to subsection (g), shall be accorded—

‘‘(1) the right to be accompanied and advised by counsel

and by individuals with special knowledge or training with

respect to the problems of children with disabilities;

‘‘(2) the right to present evidence and confront, crossexamine, and compel the attendance of witnesses;

‘‘(3) the right to a written, or, at the option of the parents,

electronic verbatim record of such hearing; and

‘‘(4) the right to written, or, at the option of the parents,

electronic findings of fact and decisions, which findings and

decisions—

‘‘(A) shall be made available to the public consistent

with the requirements of section 617(b) (relating to the

confidentiality of data, information, and records); and

‘‘(B) shall be transmitted to the advisory panel established pursuant to section 612(a)(21).

‘‘(i) ADMINISTRATIVE PROCEDURES.—

‘‘(1) IN GENERAL.—

‘‘(A) DECISION MADE IN HEARING.—A decision made

in a hearing conducted pursuant to subsection (f) or (k)

shall be final, except that any party involved in such

hearing may appeal such decision under the provisions

of subsection (g) and paragraph (2).

‘‘(B) DECISION MADE AT APPEAL.—A decision made

under subsection (g) shall be final, except that any party

may bring an action under paragraph (2).

‘‘(2) RIGHT TO BRING CIVIL ACTION.—

‘‘(A) IN GENERAL.—Any party aggrieved by the findings

and decision made under subsection (f) or (k) who does

not have the right to an appeal under subsection (g), and

any party aggrieved by the findings and decision made

under this subsection, shall have the right to bring a civil

action with respect to the complaint presented pursuant

to this section, which action may be brought in any State

court of competent jurisdiction or in a district court of

the United States, without regard to the amount in controversy.

118 STAT. 2724 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(B) LIMITATION.—The party bringing the action shall

have 90 days from the date of the decision of the hearing

officer to bring such an action, or, if the State has an

explicit time limitation for bringing such action under this

part, in such time as the State law allows.

‘‘(C) ADDITIONAL REQUIREMENTS.—In any action

brought under this paragraph, the court—

‘‘(i) shall receive the records of the administrative

proceedings;

‘‘(ii) shall hear additional evidence at the request

of a party; and

‘‘(iii) basing its decision on the preponderance of

the evidence, shall grant such relief as the court determines is appropriate.

‘‘(3) JURISDICTION OF DISTRICT COURTS; ATTORNEYS’ FEES.—

‘‘(A) IN GENERAL.—The district courts of the United

States shall have jurisdiction of actions brought under this

section without regard to the amount in controversy.

‘‘(B) AWARD OF ATTORNEYS’ FEES.—

‘‘(i) IN GENERAL.—In any action or proceeding

brought under this section, the court, in its discretion,

may award reasonable attorneys’ fees as part of the

costs—

‘‘(I) to a prevailing party who is the parent

of a child with a disability;

‘‘(II) to a prevailing party who is a State educational agency or local educational agency against

the attorney of a parent who files a complaint

or subsequent cause of action that is frivolous,

unreasonable, or without foundation, or against

the attorney of a parent who continued to litigate

after the litigation clearly became frivolous,

unreasonable, or without foundation; or

‘‘(III) to a prevailing State educational agency

or local educational agency against the attorney

of a parent, or against the parent, if the parent’s

complaint or subsequent cause of action was presented for any improper purpose, such as to harass,

to cause unnecessary delay, or to needlessly

increase the cost of litigation.

‘‘(ii) RULE OF CONSTRUCTION.—Nothing in this

subparagraph shall be construed to affect section 327

of the District of Columbia Appropriations Act, 2005.

‘‘(C) DETERMINATION OF AMOUNT OF ATTORNEYS’

FEES.—Fees awarded under this paragraph shall be based

on rates prevailing in the community in which the action

or proceeding arose for the kind and quality of services

furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection.

‘‘(D) PROHIBITION OF ATTORNEYS’ FEES AND RELATED

COSTS FOR CERTAIN SERVICES.—

‘‘(i) IN GENERAL.—Attorneys’ fees may not be

awarded and related costs may not be reimbursed in

any action or proceeding under this section for services

performed subsequent to the time of a written offer

of settlement to a parent if—

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2725

‘‘(I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil

Procedure or, in the case of an administrative proceeding, at any time more than 10 days before

the proceeding begins;

‘‘(II) the offer is not accepted within 10 days;

and

‘‘(III) the court or administrative hearing

officer finds that the relief finally obtained by the

parents is not more favorable to the parents than

the offer of settlement.

‘‘(ii) IEP TEAM MEETINGS.—Attorneys’ fees may not

be awarded relating to any meeting of the IEP Team

unless such meeting is convened as a result of an

administrative proceeding or judicial action, or, at the

discretion of the State, for a mediation described in

subsection (e).

‘‘(iii) OPPORTUNITY TO RESOLVE COMPLAINTS.—A

meeting conducted pursuant to subsection (f)(1)(B)(i)

shall not be considered—

‘‘(I) a meeting convened as a result of an

administrative hearing or judicial action; or

‘‘(II) an administrative hearing or judicial

action for purposes of this paragraph.

‘‘(E) EXCEPTION TO PROHIBITION ON ATTORNEYS’ FEES

AND RELATED COSTS.—Notwithstanding subparagraph (D),

an award of attorneys’ fees and related costs may be made

to a parent who is the prevailing party and who was

substantially justified in rejecting the settlement offer.

‘‘(F) REDUCTION IN AMOUNT OF ATTORNEYS’ FEES.—

Except as provided in subparagraph (G), whenever the

court finds that—

‘‘(i) the parent, or the parent’s attorney, during

the course of the action or proceeding, unreasonably

protracted the final resolution of the controversy;

‘‘(ii) the amount of the attorneys’ fees otherwise

authorized to be awarded unreasonably exceeds the

hourly rate prevailing in the community for similar

services by attorneys of reasonably comparable skill,

reputation, and experience;

‘‘(iii) the time spent and legal services furnished

were excessive considering the nature of the action

or proceeding; or

‘‘(iv) the attorney representing the parent did not

provide to the local educational agency the appropriate

information in the notice of the complaint described

in subsection (b)(7)(A),

the court shall reduce, accordingly, the amount of the attorneys’ fees awarded under this section.

‘‘(G) EXCEPTION TO REDUCTION IN AMOUNT OF ATTORNEYS’ FEES.—The provisions of subparagraph (F) shall not

apply in any action or proceeding if the court finds that

the State or local educational agency unreasonably protracted the final resolution of the action or proceeding

or there was a violation of this section.

‘‘(j) MAINTENANCE OF CURRENT EDUCATIONAL PLACEMENT.— Except as provided in subsection (k)(4), during the pendency of

118 STAT. 2726 PUBLIC LAW 108–446—DEC. 3, 2004

any proceedings conducted pursuant to this section, unless the

State or local educational agency and the parents otherwise agree,

the child shall remain in the then-current educational placement

of the child, or, if applying for initial admission to a public school,

shall, with the consent of the parents, be placed in the public

school program until all such proceedings have been completed.

‘‘(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING.—

‘‘(1) AUTHORITY OF SCHOOL PERSONNEL.—

‘‘(A) CASE-BY-CASE DETERMINATION.—School personnel

may consider any unique circumstances on a case-by-case

basis when determining whether to order a change in placement for a child with a disability who violates a code

of student conduct.

‘‘(B) AUTHORITY.—School personnel under this subsection may remove a child with a disability who violates

a code of student conduct from their current placement

to an appropriate interim alternative educational setting,

another setting, or suspension, for not more than 10 school

days (to the extent such alternatives are applied to children

without disabilities).

‘‘(C) ADDITIONAL AUTHORITY.—If school personnel seek

to order a change in placement that would exceed 10 school

days and the behavior that gave rise to the violation of

the school code is determined not to be a manifestation

of the child’s disability pursuant to subparagraph (E), the

relevant disciplinary procedures applicable to children

without disabilities may be applied to the child in the

same manner and for the same duration in which the

procedures would be applied to children without disabilities, except as provided in section 612(a)(1) although it

may be provided in an interim alternative educational setting.

‘‘(D) SERVICES.—A child with a disability who is

removed from the child’s current placement under subparagraph (G) (irrespective of whether the behavior is determined to be a manifestation of the child’s disability) or

subparagraph (C) shall—

‘‘(i) continue to receive educational services, as provided in section 612(a)(1), so as to enable the child

to continue to participate in the general education

curriculum, although in another setting, and to

progress toward meeting the goals set out in the child’s

IEP; and

‘‘(ii) receive, as appropriate, a functional behavioral

assessment, behavioral intervention services and modifications, that are designed to address the behavior

violation so that it does not recur.

‘‘(E) MANIFESTATION DETERMINATION.—

‘‘(i) IN GENERAL.—Except as provided in subparagraph (B), within 10 school days of any decision to

change the placement of a child with a disability

because of a violation of a code of student conduct,

the local educational agency, the parent, and relevant

members of the IEP Team (as determined by the parent

and the local educational agency) shall review all relevant information in the student’s file, including the

Deadline.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2727

child’s IEP, any teacher observations, and any relevant

information provided by the parents to determine—

‘‘(I) if the conduct in question was caused by,

or had a direct and substantial relationship to,

the child’s disability; or

‘‘(II) if the conduct in question was the direct

result of the local educational agency’s failure to

implement the IEP.

‘‘(ii) MANIFESTATION.—If the local educational

agency, the parent, and relevant members of the IEP

Team determine that either subclause (I) or (II) of

clause (i) is applicable for the child, the conduct shall

be determined to be a manifestation of the child’s

disability.

‘‘(F) DETERMINATION THAT BEHAVIOR WAS A MANIFESTATION.—If the local educational agency, the parent, and

relevant members of the IEP Team make the determination

that the conduct was a manifestation of the child’s disability, the IEP Team shall—

‘‘(i) conduct a functional behavioral assessment,

and implement a behavioral intervention plan for such

child, provided that the local educational agency had

not conducted such assessment prior to such determination before the behavior that resulted in a change

in placement described in subparagraph (C) or (G);

‘‘(ii) in the situation where a behavioral intervention plan has been developed, review the behavioral

intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary,

to address the behavior; and

‘‘(iii) except as provided in subparagraph (G),

return the child to the placement from which the child

was removed, unless the parent and the local educational agency agree to a change of placement as

part of the modification of the behavioral intervention

plan.

‘‘(G) SPECIAL CIRCUMSTANCES.—School personnel may

remove a student to an interim alternative educational

setting for not more than 45 school days without regard

to whether the behavior is determined to be a manifestation

of the child’s disability, in cases where a child—

‘‘(i) carries or possesses a weapon to or at school,

on school premises, or to or at a school function under

the jurisdiction of a State or local educational agency;

‘‘(ii) knowingly possesses or uses illegal drugs, or

sells or solicits the sale of a controlled substance, while

at school, on school premises, or at a school function

under the jurisdiction of a State or local educational

agency; or

‘‘(iii) has inflicted serious bodily injury upon

another person while at school, on school premises,

or at a school function under the jurisdiction of a

State or local educational agency.

‘‘(H) NOTIFICATION.—Not later than the date on which

the decision to take disciplinary action is made, the local

educational agency shall notify the parents of that decision,

118 STAT. 2728 PUBLIC LAW 108–446—DEC. 3, 2004

and of all procedural safeguards accorded under this section.

‘‘(2) DETERMINATION OF SETTING.—The interim alternative

educational setting in subparagraphs (C) and (G) of paragraph

(1) shall be determined by the IEP Team.

‘‘(3) APPEAL.—

‘‘(A) IN GENERAL.—The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination under this subsection, or a local educational agency that believes that

maintaining the current placement of the child is substantially likely to result in injury to the child or to others,

may request a hearing.

‘‘(B) AUTHORITY OF HEARING OFFICER.—

‘‘(i) IN GENERAL.—A hearing officer shall hear, and

make a determination regarding, an appeal requested

under subparagraph (A).

‘‘(ii) CHANGE OF PLACEMENT ORDER.—In making

the determination under clause (i), the hearing officer

may order a change in placement of a child with a

disability. In such situations, the hearing officer may—

‘‘(I) return a child with a disability to the

placement from which the child was removed; or

‘‘(II) order a change in placement of a child

with a disability to an appropriate interim alternative educational setting for not more than 45

school days if the hearing officer determines that

maintaining the current placement of such child

is substantially likely to result in injury to the

child or to others.

‘‘(4) PLACEMENT DURING APPEALS.—When an appeal under

paragraph (3) has been requested by either the parent or the

local educational agency—

‘‘(A) the child shall remain in the interim alternative

educational setting pending the decision of the hearing

officer or until the expiration of the time period provided

for in paragraph (1)(C), whichever occurs first, unless the

parent and the State or local educational agency agree

otherwise; and

‘‘(B) the State or local educational agency shall arrange

for an expedited hearing, which shall occur within 20 school

days of the date the hearing is requested and shall result

in a determination within 10 school days after the hearing.

‘‘(5) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR

SPECIAL EDUCATION AND RELATED SERVICES.—

‘‘(A) IN GENERAL.—A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior

that violates a code of student conduct, may assert any

of the protections provided for in this part if the local

educational agency had knowledge (as determined in

accordance with this paragraph) that the child was a child

with a disability before the behavior that precipitated the

disciplinary action occurred.

‘‘(B) BASIS OF KNOWLEDGE.—A local educational agency

shall be deemed to have knowledge that a child is a child

Deadlines.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2729

with a disability if, before the behavior that precipitated

the disciplinary action occurred—

‘‘(i) the parent of the child has expressed concern

in writing to supervisory or administrative personnel

of the appropriate educational agency, or a teacher

of the child, that the child is in need of special education and related services;

‘‘(ii) the parent of the child has requested an

evaluation of the child pursuant to section 614(a)(1)(B);

or

‘‘(iii) the teacher of the child, or other personnel

of the local educational agency, has expressed specific

concerns about a pattern of behavior demonstrated

by the child, directly to the director of special education

of such agency or to other supervisory personnel of

the agency.

‘‘(C) EXCEPTION.—A local educational agency shall not

be deemed to have knowledge that the child is a child

with a disability if the parent of the child has not allowed

an evaluation of the child pursuant to section 614 or has

refused services under this part or the child has been

evaluated and it was determined that the child was not

a child with a disability under this part.

‘‘(D) CONDITIONS THAT APPLY IF NO BASIS OF KNOWLEDGE.—

‘‘(i) IN GENERAL.—If a local educational agency does

not have knowledge that a child is a child with a

disability (in accordance with subparagraph (B) or (C))

prior to taking disciplinary measures against the child,

the child may be subjected to disciplinary measures

applied to children without disabilities who engaged

in comparable behaviors consistent with clause (ii).

‘‘(ii) LIMITATIONS.—If a request is made for an

evaluation of a child during the time period in which

the child is subjected to disciplinary measures under

this subsection, the evaluation shall be conducted in

an expedited manner. If the child is determined to

be a child with a disability, taking into consideration

information from the evaluation conducted by the

agency and information provided by the parents, the

agency shall provide special education and related services in accordance with this part, except that, pending

the results of the evaluation, the child shall remain

in the educational placement determined by school

authorities.

‘‘(6) REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND

JUDICIAL AUTHORITIES.—

‘‘(A) RULE OF CONSTRUCTION.—Nothing in this part

shall be construed to prohibit an agency from reporting

a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and

judicial authorities from exercising their responsibilities

with regard to the application of Federal and State law

to crimes committed by a child with a disability.

‘‘(B) TRANSMITTAL OF RECORDS.—An agency reporting

a crime committed by a child with a disability shall ensure

that copies of the special education and disciplinary records

118 STAT. 2730 PUBLIC LAW 108–446—DEC. 3, 2004

of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.

‘‘(7) DEFINITIONS.—In this subsection:

‘‘(A) CONTROLLED SUBSTANCE.—The term ‘controlled

substance’ means a drug or other substance identified

under schedule I, II, III, IV, or V in section 202(c) of

the Controlled Substances Act (21 U.S.C. 812(c)).

‘‘(B) ILLEGAL DRUG.—The term ‘illegal drug’ means a

controlled substance but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is

legally possessed or used under any other authority under

that Act or under any other provision of Federal law.

‘‘(C) WEAPON.—The term ‘weapon’ has the meaning

given the term ‘dangerous weapon’ under section 930(g)(2)

of title 18, United States Code.

‘‘(D) SERIOUS BODILY INJURY.—The term ‘serious bodily

injury’ has the meaning given the term ‘serious bodily

injury’ under paragraph (3) of subsection (h) of section

1365 of title 18, United States Code.

‘‘(l) RULE OF CONSTRUCTION.—Nothing in this title shall be

construed to restrict or limit the rights, procedures, and remedies

available under the Constitution, the Americans with Disabilities

Act of 1990, title V of the Rehabilitation Act of 1973, or other

Federal laws protecting the rights of children with disabilities,

except that before the filing of a civil action under such laws

seeking relief that is also available under this part, the procedures

under subsections (f) and (g) shall be exhausted to the same extent

as would be required had the action been brought under this part.

‘‘(m) TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY.—

‘‘(1) IN GENERAL.—A State that receives amounts from a

grant under this part may provide that, when a child with

a disability reaches the age of majority under State law (except

for a child with a disability who has been determined to be

incompetent under State law)—

‘‘(A) the agency shall provide any notice required by

this section to both the individual and the parents;

‘‘(B) all other rights accorded to parents under this

part transfer to the child;

‘‘(C) the agency shall notify the individual and the

parents of the transfer of rights; and

‘‘(D) all rights accorded to parents under this part

transfer to children who are incarcerated in an adult or

juvenile Federal, State, or local correctional institution.

‘‘(2) SPECIAL RULE.—If, under State law, a child with a

disability who has reached the age of majority under State

law, who has not been determined to be incompetent, but

who is determined not to have the ability to provide informed

consent with respect to the educational program of the child,

the State shall establish procedures for appointing the parent

of the child, or if the parent is not available, another appropriate individual, to represent the educational interests of the

child throughout the period of eligibility of the child under

this part.

‘‘(n) ELECTRONIC MAIL.—A parent of a child with a disability

may elect to receive notices required under this section by an

Notification.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2731

electronic mail (e-mail) communication, if the agency makes such

option available.

‘‘(o) SEPARATE COMPLAINT.—Nothing in this section shall be

construed to preclude a parent from filing a separate due process

complaint on an issue separate from a due process complaint

already filed.

‘‘SEC. 616. MONITORING, TECHNICAL ASSISTANCE, AND ENFORCEMENT.

‘‘(a) FEDERAL AND STATE MONITORING.—

‘‘(1) IN GENERAL.—The Secretary shall—

‘‘(A) monitor implementation of this part through—

‘‘(i) oversight of the exercise of general supervision

by the States, as required in section 612(a)(11); and

‘‘(ii) the State performance plans, described in subsection (b);

‘‘(B) enforce this part in accordance with subsection

(e); and

‘‘(C) require States to—

‘‘(i) monitor implementation of this part by local

educational agencies; and

‘‘(ii) enforce this part in accordance with paragraph

(3) and subsection (e).

‘‘(2) FOCUSED MONITORING.—The primary focus of Federal

and State monitoring activities described in paragraph (1) shall

be on—

‘‘(A) improving educational results and functional outcomes for all children with disabilities; and

‘‘(B) ensuring that States meet the program requirements under this part, with a particular emphasis on those

requirements that are most closely related to improving

educational results for children with disabilities.

‘‘(3) MONITORING PRIORITIES.—The Secretary shall monitor

the States, and shall require each State to monitor the local

educational agencies located in the State (except the State

exercise of general supervisory responsibility), using quantifiable indicators in each of the following priority areas, and

using such qualitative indicators as are needed to adequately

measure performance in the following priority areas:

‘‘(A) Provision of a free appropriate public education

in the least restrictive environment.

‘‘(B) State exercise of general supervisory authority,

including child find, effective monitoring, the use of resolution sessions, mediation, voluntary binding arbitration, and

a system of transition services as defined in sections

602(34) and 637(a)(9).

‘‘(C) Disproportionate representation of racial and

ethnic groups in special education and related services,

to the extent the representation is the result of inappropriate identification.

‘‘(4) PERMISSIVE AREAS OF REVIEW.—The Secretary shall

consider other relevant information and data, including data

provided by States under section 618.

‘‘(b) STATE PERFORMANCE PLANS.—

‘‘(1) PLAN.—

20 USC 1416.

118 STAT. 2732 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(A) IN GENERAL.—Not later than 1 year after the

date of enactment of the Individuals with Disabilities Education Improvement Act of 2004, each State shall have

in place a performance plan that evaluates that State’s

efforts to implement the requirements and purposes of

this part and describes how the State will improve such

implementation.

‘‘(B) SUBMISSION FOR APPROVAL.—Each State shall

submit the State’s performance plan to the Secretary for

approval in accordance with the approval process described

in subsection (c).

‘‘(C) REVIEW.—Each State shall review its State

performance plan at least once every 6 years and submit

any amendments to the Secretary.

‘‘(2) TARGETS.— ‘‘(A) IN GENERAL.—As a part of the State performance

plan described under paragraph (1), each State shall establish measurable and rigorous targets for the indicators

established under the priority areas described in subsection

(a)(3).

‘‘(B) DATA COLLECTION.—

‘‘(i) IN GENERAL.—Each State shall collect valid

and reliable information as needed to report annually

to the Secretary on the priority areas described in

subsection (a)(3).

‘‘(ii) RULE OF CONSTRUCTION.—Nothing in this title

shall be construed to authorize the development of

a nationwide database of personally identifiable

information on individuals involved in studies or other

collections of data under this part.

‘‘(C) PUBLIC REPORTING AND PRIVACY.—

‘‘(i) IN GENERAL.—The State shall use the targets

established in the plan and priority areas described

in subsection (a)(3) to analyze the performance of each

local educational agency in the State in implementing

this part.

‘‘(ii) REPORT.—

‘‘(I) PUBLIC REPORT.—The State shall report

annually to the public on the performance of each

local educational agency located in the State on

the targets in the State’s performance plan. The

State shall make the State’s performance plan

available through public means, including by

posting on the website of the State educational

agency, distribution to the media, and distribution

through public agencies.

‘‘(II) STATE PERFORMANCE REPORT.—The State

shall report annually to the Secretary on the

performance of the State under the State’s

performance plan.

‘‘(iii) PRIVACY.—The State shall not report to the

public or the Secretary any information on performance

that would result in the disclosure of personally identifiable information about individual children or where

the available data is insufficient to yield statistically

reliable information.

‘‘(c) APPROVAL PROCESS.—

Deadline.

Deadline.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2733

‘‘(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

part;

‘‘(ii) needs assistance in implementing the requirements of this part;

‘‘(iii) needs intervention in implementing the

requirements of this part; or

‘‘(iv) needs substantial intervention in implementing the requirements of this part.

Deadlines.

Deadline.

118 STAT. 2734 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(B) NOTICE AND OPPORTUNITY FOR A HEARING.—For

determinations made under clause (iii) or (iv) of subparagraph (A), the Secretary shall provide reasonable notice

and an opportunity for a hearing on such determination.

‘‘(e) ENFORCEMENT.— ‘‘(1) NEEDS ASSISTANCE.—If the Secretary determines, for

2 consecutive years, that a State needs assistance under subsection (d)(2)(A)(ii) in implementing the requirements of this

part, the Secretary shall take 1 or more of the following actions:

‘‘(A) Advise the State of available sources of technical

assistance that may help the State address the areas in

which the State needs assistance, which may include assistance from the Office of Special Education Programs, other

offices of the Department of Education, other Federal agencies, technical assistance providers approved by the Secretary, and other federally funded nonprofit agencies, and

require the State to work with appropriate entities. Such

technical assistance may include—

‘‘(i) the provision of advice by experts to address

the areas in which the State needs assistance,

including explicit plans for addressing the area for

concern within a specified period of time;

‘‘(ii) assistance in identifying and implementing

professional development, instructional strategies, and

methods of instruction that are based on scientifically

based research;

‘‘(iii) designating and using distinguished superintendents, principals, special education administrators, special education teachers, and other teachers

to provide advice, technical assistance, and support;

and

‘‘(iv) devising additional approaches to providing

technical assistance, such as collaborating with institutions of higher education, educational service agencies,

national centers of technical assistance supported

under part D, and private providers of scientifically

based technical assistance.

‘‘(B) Direct the use of State-level funds under section

611(e) on the area or areas in which the State needs

assistance.

‘‘(C) Identify the State as a high-risk grantee and

impose special conditions on the State’s grant under this

part.

‘‘(2) NEEDS INTERVENTION.—If the Secretary determines,

for 3 or more consecutive years, that a State needs intervention

under subsection (d)(2)(A)(iii) in implementing the requirements

of this part, the following shall apply:

‘‘(A) The Secretary may take any of the actions

described in paragraph (1).

‘‘(B) The Secretary shall take 1 or more of the following

actions:

‘‘(i) Require the State to prepare a corrective action

plan or improvement plan if the Secretary determines

that the State should be able to correct the problem

within 1 year.

‘‘(ii) Require the State to enter into a compliance

agreement under section 457 of the General Education

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2735

Provisions Act, if the Secretary has reason to believe

that the State cannot correct the problem within 1

year.

‘‘(iii) For each year of the determination, withhold

not less than 20 percent and not more than 50 percent

of the State’s funds under section 611(e), until the

Secretary determines the State has sufficiently

addressed the areas in which the State needs intervention.

‘‘(iv) Seek to recover funds under section 452 of

the General Education Provisions Act.

‘‘(v) Withhold, in whole or in part, any further

payments to the State under this part pursuant to

paragraph (5).

‘‘(vi) Refer the matter for appropriate enforcement

action, which may include referral to the Department

of Justice.

‘‘(3) NEEDS SUBSTANTIAL INTERVENTION.—Notwithstanding

paragraph (1) or (2), at any time that the Secretary determines

that a State needs substantial intervention in implementing

the requirements of this part or that there is a substantial

failure to comply with any condition of a State educational

agency’s or local educational agency’s eligibility under this part,

the Secretary shall take 1 or more of the following actions:

‘‘(A) Recover funds under section 452 of the General

Education Provisions Act.

‘‘(B) Withhold, in whole or in part, any further payments to the State under this part.

‘‘(C) Refer the case to the Office of the Inspector General at the Department of Education.

‘‘(D) Refer the matter for appropriate enforcement

action, which may include referral to the Department of

Justice.

‘‘(4) OPPORTUNITY FOR HEARING.—

‘‘(A) WITHHOLDING FUNDS.—Prior to withholding any

funds under this section, the Secretary shall provide

reasonable notice and an opportunity for a hearing to the

State educational agency involved.

‘‘(B) SUSPENSION.—Pending the outcome of any hearing

to withhold payments under subsection (b), the Secretary

may suspend payments to a recipient, suspend the

authority of the recipient to obligate funds under this part,

or both, after such recipient has been given reasonable

notice and an opportunity to show cause why future payments or authority to obligate funds under this part should

not be suspended.

‘‘(5) REPORT TO CONGRESS.—The Secretary shall report to

the Committee on Education and the Workforce of the House

of Representatives and the Committee on Health, Education,

Labor, and Pensions of the Senate within 30 days of taking

enforcement action pursuant to paragraph (1), (2), or (3), on

the specific action taken and the reasons why enforcement

action was taken.

‘‘(6) NATURE OF WITHHOLDING.—

‘‘(A) LIMITATION.—If the Secretary withholds further

payments pursuant to paragraph (2) or (3), the Secretary

may determine—

Notification.

118 STAT. 2736 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(i) that such withholding will be limited to programs or projects, or portions of programs or projects,

that affected the Secretary’s determination under subsection (d)(2); or

‘‘(ii) that the State educational agency shall not

make further payments under this part to specified

State agencies or local educational agencies that caused

or were involved in the Secretary’s determination

under subsection (d)(2).

‘‘(B) WITHHOLDING UNTIL RECTIFIED.—Until the Secretary is satisfied that the condition that caused the initial

withholding has been substantially rectified—

‘‘(i) payments to the State under this part shall

be withheld in whole or in part; and

‘‘(ii) payments by the State educational agency

under this part shall be limited to State agencies and

local educational agencies whose actions did not cause

or were not involved in the Secretary’s determination

under subsection (d)(2), as the case may be.

‘‘(7) PUBLIC ATTENTION.—Any State that has received notice

under subsection (d)(2) shall, by means of a public notice,

take such measures as may be necessary to bring the pendency

of an action pursuant to this subsection to the attention of

the public within the State.

‘‘(8) JUDICIAL REVIEW.—

‘‘(A) IN GENERAL.—If any State is dissatisfied with

the Secretary’s action with respect to the eligibility of the

State under section 612, such State may, not later than

60 days after notice of such action, file with the United

States court of appeals for the circuit in which such State

is located a petition for review of that action. A copy of

the petition shall be transmitted by the clerk of the court

to the Secretary. The Secretary thereupon shall file in

the court the record of the proceedings upon which the

Secretary’s action was based, as provided in section 2112

of title 28, United States Code.

‘‘(B) JURISDICTION; REVIEW BY UNITED STATES SUPREME

COURT.—Upon the filing of such petition, the court shall

have jurisdiction to affirm the action of the Secretary or

to set it aside, in whole or in part. The judgment of the

court shall be subject to review by the Supreme Court

of the United States upon certiorari or certification as

provided in section 1254 of title 28, United States Code.

‘‘(C) STANDARD OF REVIEW.—The findings of fact by

the Secretary, if supported by substantial evidence, shall

be conclusive, but the court, for good cause shown, may

remand the case to the Secretary to take further evidence,

and the Secretary may thereupon make new or modified

findings of fact and may modify the Secretary’s previous

action, and shall file in the court the record of the further

proceedings. Such new or modified findings of fact shall

be conclusive if supported by substantial evidence.

‘‘(f) STATE ENFORCEMENT.—If a State educational agency determines that a local educational agency is not meeting the requirements of this part, including the targets in the State’s performance

Records.

Records.

Deadline.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2737

plan, the State educational agency shall prohibit the local educational agency from reducing the local educational agency’s maintenance of effort under section 613(a)(2)(C) for any fiscal year.

‘‘(g) RULE OF CONSTRUCTION.—Nothing in this section shall

be construed to restrict the Secretary from utilizing any authority

under the General Education Provisions Act to monitor and enforce

the requirements of this title.

‘‘(h) DIVIDED STATE AGENCY RESPONSIBILITY.—For purposes of

this section, where responsibility for ensuring that the requirements

of this part are met with respect to children with disabilities who

are convicted as adults under State law and incarcerated in adult

prisons is assigned to a public agency other than the State educational agency pursuant to section 612(a)(11)(C), the Secretary,

in instances where the Secretary finds that the failure to comply

substantially with the provisions of this part are related to a failure

by the public agency, shall take appropriate corrective action to

ensure compliance with this part, except that—

‘‘(1) any reduction or withholding of payments to the State

shall be proportionate to the total funds allotted under section

611 to the State as the number of eligible children with disabilities in adult prisons under the supervision of the other public

agency is proportionate to the number of eligible individuals

with disabilities in the State under the supervision of the

State educational agency; and

‘‘(2) any withholding of funds under paragraph (1) shall

be limited to the specific agency responsible for the failure

to comply with this part.

‘‘(i) DATA CAPACITY AND TECHNICAL ASSISTANCE REVIEW.—The

Secretary shall—

‘‘(1) review the data collection and analysis capacity of

States to ensure that data and information determined necessary for implementation of this section is collected, analyzed,

and accurately reported to the Secretary; and

‘‘(2) provide technical assistance (from funds reserved under

section 611(c)), where needed, to improve the capacity of States

to meet the data collection requirements.

‘‘SEC. 617. ADMINISTRATION.

‘‘(a) RESPONSIBILITIES OF SECRETARY.—The Secretary shall—

‘‘(1) cooperate with, and (directly or by grant or contract)

furnish technical assistance necessary to, a State in matters

relating to—

‘‘(A) the education of children with disabilities; and

‘‘(B) carrying out this part; and

‘‘(2) provide short-term training programs and institutes.

‘‘(b) PROHIBITION AGAINST FEDERAL MANDATES, DIRECTION, OR

CONTROL.—Nothing in this title shall be construed to authorize

an officer or employee of the Federal Government to mandate,

direct, or control a State, local educational agency, or school’s specific instructional content, academic achievement standards and

assessments, curriculum, or program of instruction.

‘‘(c) CONFIDENTIALITY.—The Secretary shall take appropriate

action, in accordance with section 444 of the General Education

Provisions Act, to ensure the protection of the confidentiality of

any personally identifiable data, information, and records collected

or maintained by the Secretary and by State educational agencies

and local educational agencies pursuant to this part.

20 USC 1417.

118 STAT. 2738 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(d) PERSONNEL.—The Secretary is authorized to hire qualified

personnel necessary to carry out the Secretary’s duties under subsection (a), under section 618, and under subpart 4 of part D,

without regard to the provisions of title 5, United States Code,

relating to appointments in the competitive service and without

regard to chapter 51 and subchapter III of chapter 53 of such

title relating to classification and general schedule pay rates, except

that no more than 20 such personnel shall be employed at any

time.

‘‘(e) MODEL FORMS.—Not later than the date that the Secretary

publishes final regulations under this title, to implement amendments made by the Individuals with Disabilities Education Improvement Act of 2004, the Secretary shall publish and disseminate

widely to States, local educational agencies, and parent and community training and information centers—

‘‘(1) a model IEP form;

‘‘(2) a model individualized family service plan (IFSP) form;

‘‘(3) a model form of the notice of procedural safeguards

described in section 615(d); and

‘‘(4) a model form of the prior written notice described

in subsections (b)(3) and (c)(1) of section 615 that is consistent

with the requirements of this part and is sufficient to meet

such requirements.

‘‘SEC. 618. PROGRAM INFORMATION.

‘‘(a) IN GENERAL.—Each State that receives assistance under

this part, and the Secretary of the Interior, shall provide data

each year to the Secretary of Education and the public on the

following:

‘‘(1)(A) The number and percentage of children with disabilities, by race, ethnicity, limited English proficiency status,

gender, and disability category, who are in each of the following

separate categories:

‘‘(i) Receiving a free appropriate public education.

‘‘(ii) Participating in regular education.

‘‘(iii) In separate classes, separate schools or facilities,

or public or private residential facilities.

‘‘(iv) For each year of age from age 14 through 21,

stopped receiving special education and related services

because of program completion (including graduation with

a regular secondary school diploma), or other reasons, and

the reasons why those children stopped receiving special

education and related services.

‘‘(v)(I) Removed to an interim alternative educational

setting under section 615(k)(1).

‘‘(II) The acts or items precipitating those

removals.

‘‘(III) The number of children with disabilities who

are subject to long-term suspensions or expulsions.

‘‘(B) The number and percentage of children with disabilities, by race, gender, and ethnicity, who are receiving early

intervention services.

‘‘(C) The number and percentage of children with disabilities, by race, gender, and ethnicity, who, from birth through

age 2, stopped receiving early intervention services because

of program completion or for other reasons.

20 USC 1418.

Deadline.

Public

information.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2739

‘‘(D) The incidence and duration of disciplinary actions

by race, ethnicity, limited English proficiency status, gender,

and disability category, of children with disabilities, including

suspensions of 1 day or more.

‘‘(E) The number and percentage of children with disabilities who are removed to alternative educational settings or

expelled as compared to children without disabilities who are

removed to alternative educational settings or expelled.

‘‘(F) The number of due process complaints filed under

section 615 and the number of hearings conducted.

‘‘(G) The number of hearings requested under section 615(k)

and the number of changes in placements ordered as a result

of those hearings.

‘‘(H) The number of mediations held and the number of

settlement agreements reached through such mediations.

‘‘(2) The number and percentage of infants and toddlers,

by race, and ethnicity, who are at risk of having substantial

developmental delays (as defined in section 632), and who are

receiving early intervention services under part C.

‘‘(3) Any other information that may be required by the

Secretary.

‘‘(b) DATA REPORTING.—

‘‘(1) PROTECTION OF IDENTIFIABLE DATA.—The data

described in subsection (a) shall be publicly reported by each

State in a manner that does not result in the disclosure of

data identifiable to individual children.

‘‘(2) SAMPLING.—The Secretary may permit States and the

Secretary of the Interior to obtain the data described in subsection (a) through sampling.

‘‘(c) TECHNICAL ASSISTANCE.—The Secretary may provide technical assistance to States to ensure compliance with the data collection and reporting requirements under this title.

‘‘(d) DISPROPORTIONALITY.—

‘‘(1) IN GENERAL.—Each State that receives assistance

under this part, and the Secretary of the Interior, shall provide

for the collection and examination of data to determine if significant disproportionality based on race and ethnicity is occurring

in the State and the local educational agencies of the State

with respect to—

‘‘(A) the identification of children as children with

disabilities, including the identification of children as children with disabilities in accordance with a particular

impairment described in section 602(3);

‘‘(B) the placement in particular educational settings

of such children; and

‘‘(C) the incidence, duration, and type of disciplinary

actions, including suspensions and expulsions.

‘‘(2) REVIEW AND REVISION OF POLICIES, PRACTICES, AND

PROCEDURES.—In the case of a determination of significant

disproportionality with respect to the identification of children

as children with disabilities, or the placement in particular

educational settings of such children, in accordance with paragraph (1), the State or the Secretary of the Interior, as the

case may be, shall—

‘‘(A) provide for the review and, if appropriate, revision

of the policies, procedures, and practices used in such

identification or placement to ensure that such policies,

118 STAT. 2740 PUBLIC LAW 108–446—DEC. 3, 2004

procedures, and practices comply with the requirements

of this title;

‘‘(B) require any local educational agency identified

under paragraph (1) to reserve the maximum amount of

funds under section 613(f) to provide comprehensive coordinated early intervening services to serve children in the

local educational agency, particularly children in those

groups that were significantly overidentified under paragraph (1); and

‘‘(C) require the local educational agency to publicly

report on the revision of policies, practices, and procedures

described under subparagraph (A).

‘‘SEC. 619. PRESCHOOL GRANTS.

‘‘(a) IN GENERAL.—The Secretary shall provide grants under

this section to assist States to provide special education and related

services, in accordance with this part—

‘‘(1) to children with disabilities aged 3 through 5, inclusive;

and

‘‘(2) at the State’s discretion, to 2-year-old children with

disabilities who will turn 3 during the school year.

‘‘(b) ELIGIBILITY.—A State shall be eligible for a grant under

this section if such State—

‘‘(1) is eligible under section 612 to receive a grant under

this part; and

‘‘(2) makes a free appropriate public education available

to all children with disabilities, aged 3 through 5, residing

in the State.

‘‘(c) ALLOCATIONS TO STATES.—

‘‘(1) IN GENERAL.—The Secretary shall allocate the amount

made available to carry out this section for a fiscal year among

the States in accordance with paragraph (2) or (3), as the

case may be.

‘‘(2) INCREASE IN FUNDS.—If the amount available for allocations to States under paragraph (1) for a fiscal year is equal

to or greater than the amount allocated to the States under

this section for the preceding fiscal year, those allocations shall

be calculated as follows:

‘‘(A) ALLOCATION.—

‘‘(i) IN GENERAL.—Except as provided in subparagraph (B), the Secretary shall—

‘‘(I) allocate to each State the amount the State

received under this section for fiscal year 1997;

‘‘(II) allocate 85 percent of any remaining

funds to States on the basis of the States’ relative

populations of children aged 3 through 5; and

‘‘(III) allocate 15 percent of those remaining

funds to States on the basis of the States’ relative

populations of all children aged 3 through 5 who

are living in poverty.

‘‘(ii) DATA.—For the purpose of making grants

under this paragraph, the Secretary shall use the most

recent population data, including data on children

living in poverty, that are available and satisfactory

to the Secretary.

20 USC 1419.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2741

‘‘(B) LIMITATIONS.—Notwithstanding subparagraph (A),

allocations under this paragraph shall be subject to the

following:

‘‘(i) PRECEDING YEARS.—No State’s allocation shall

be less than its allocation under this section for the

preceding fiscal year.

‘‘(ii) MINIMUM.—No State’s allocation shall be less

than the greatest of—

‘‘(I) the sum of—

‘‘(aa) the amount the State received under

this section for fiscal year 1997; and

‘‘(bb) 1⁄3 of 1 percent of the amount by

which the amount appropriated under subsection (j) for the fiscal year exceeds the

amount appropriated for this section for fiscal

year 1997;

‘‘(II) the sum of—

‘‘(aa) the amount the State received under

this section for the preceding fiscal year; and

‘‘(bb) that amount multiplied by the

percentage by which the increase in the funds

appropriated under this section from the preceding fiscal year exceeds 1.5 percent; or

‘‘(III) the sum of—

‘‘(aa) the amount the State received under

this section for the preceding fiscal year; and

‘‘(bb) that amount multiplied by 90 percent

of the percentage increase in the amount

appropriated under this section from the preceding fiscal year.

‘‘(iii) MAXIMUM.—Notwithstanding clause (ii), no

State’s allocation under this paragraph shall exceed

the sum of—

‘‘(I) the amount the State received under this

section for the preceding fiscal year; and

‘‘(II) that amount multiplied by the sum of

1.5 percent and the percentage increase in the

amount appropriated under this section from the

preceding fiscal year.

‘‘(C) RATABLE REDUCTIONS.—If the amount available

for allocations under this paragraph is insufficient to pay

those allocations in full, those allocations shall be ratably

reduced, subject to subparagraph (B)(i).

‘‘(3) DECREASE IN FUNDS.—If the amount available for

allocations to States under paragraph (1) for a fiscal year

is less than the amount allocated to the States under this

section for the preceding fiscal year, those allocations shall

be calculated as follows:

‘‘(A) ALLOCATIONS.—If the amount available for allocations is greater than the amount allocated to the States

for fiscal year 1997, each State shall be allocated the sum

of—

‘‘(i) the amount the State received under this section for fiscal year 1997; and

‘‘(ii) an amount that bears the same relation to

any remaining funds as the increase the State received

under this section for the preceding fiscal year over

118 STAT. 2742 PUBLIC LAW 108–446—DEC. 3, 2004

fiscal year 1997 bears to the total of all such increases

for all States.

‘‘(B) RATABLE REDUCTIONS.—If the amount available

for allocations is equal to or less than the amount allocated

to the States for fiscal year 1997, each State shall be

allocated the amount the State received for fiscal year

1997, ratably reduced, if necessary.

‘‘(d) RESERVATION FOR STATE ACTIVITIES.— ‘‘(1) IN GENERAL.—Each State may reserve not more than

the amount described in paragraph (2) for administration and

other State-level activities in accordance with subsections (e)

and (f).

‘‘(2) AMOUNT DESCRIBED.—For each fiscal year, the Secretary shall determine and report to the State educational

agency an amount that is 25 percent of the amount the State

received under this section for fiscal year 1997, cumulatively

adjusted by the Secretary for each succeeding fiscal year by

the lesser of—

‘‘(A) the percentage increase, if any, from the preceding

fiscal year in the State’s allocation under this section;

or

‘‘(B) the percentage increase, if any, from the preceding

fiscal year in the Consumer Price Index For All Urban

Consumers published by the Bureau of Labor Statistics

of the Department of Labor.

‘‘(e) STATE ADMINISTRATION.—

‘‘(1) IN GENERAL.—For the purpose of administering this

section (including the coordination of activities under this part

with, and providing technical assistance to, other programs

that provide services to children with disabilities) a State may

use not more than 20 percent of the maximum amount the

State may reserve under subsection (d) for any fiscal year.

‘‘(2) ADMINISTRATION OF PART C.—Funds described in paragraph (1) may also be used for the administration of part

C.

‘‘(f) OTHER STATE-LEVEL ACTIVITIES.—Each State shall use any

funds the State reserves under subsection (d) and does not use

for administration under subsection (e)—

‘‘(1) for support services (including establishing and implementing the mediation process required by section 615(e)),

which may benefit children with disabilities younger than 3

or older than 5 as long as those services also benefit children

with disabilities aged 3 through 5;

‘‘(2) for direct services for children eligible for services

under this section;

‘‘(3) for activities at the State and local levels to meet

the performance goals established by the State under section

612(a)(15);

‘‘(4) to supplement other funds used to develop and implement a statewide coordinated services system designed to

improve results for children and families, including children

with disabilities and their families, but not more than 1 percent

of the amount received by the State under this section for

a fiscal year;

‘‘(5) to provide early intervention services (which shall

include an educational component that promotes school readiness and incorporates preliteracy, language, and numeracy

Reports.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2743

skills) in accordance with part C to children with disabilities

who are eligible for services under this section and who previously received services under part C until such children enter,

or are eligible under State law to enter, kindergarten; or

‘‘(6) at the State’s discretion, to continue service coordination or case management for families who receive services under

part C.

‘‘(g) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—

‘‘(1) SUBGRANTS REQUIRED.—Each State that receives a

grant under this section for any fiscal year shall distribute

all of the grant funds that the State does not reserve under

subsection (d) to local educational agencies in the State that

have established their eligibility under section 613, as follows:

‘‘(A) BASE PAYMENTS.—The State shall first award each

local educational agency described in paragraph (1) the

amount that agency would have received under this section

for fiscal year 1997 if the State had distributed 75 percent

of its grant for that year under section 619(c)(3), as such

section was then in effect.

‘‘(B) ALLOCATION OF REMAINING FUNDS.—After making

allocations under subparagraph (A), the State shall—

‘‘(i) allocate 85 percent of any remaining funds

to those local educational agencies on the basis of

the relative numbers of children enrolled in public

and private elementary schools and secondary schools

within the local educational agency’s jurisdiction; and

‘‘(ii) allocate 15 percent of those remaining funds

to those local educational agencies in accordance with

their relative numbers of children living in poverty,

as determined by the State educational agency.

‘‘(2) REALLOCATION OF FUNDS.—If a State educational

agency determines that a local educational agency is adequately

providing a free appropriate public education to all children

with disabilities aged 3 through 5 residing in the area served

by the local educational agency with State and local funds,

the State educational agency may reallocate any portion of

the funds under this section that are not needed by that local

educational agency to provide a free appropriate public education to other local educational agencies in the State that

are not adequately providing special education and related

services to all children with disabilities aged 3 through 5

residing in the areas the other local educational agencies serve.

‘‘(h) PART C INAPPLICABLE.—Part C does not apply to any

child with a disability receiving a free appropriate public education,

in accordance with this part, with funds received under this section.

‘‘(i) STATE DEFINED.—In this section, the term ‘State’ means

each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.

‘‘(j) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated to carry out this section such sums as may

be necessary.

118 STAT. 2744 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘PART C—INFANTS AND TODDLERS WITH

DISABILITIES

‘‘SEC. 631. FINDINGS AND POLICY.

‘‘(a) FINDINGS.—Congress finds that there is an urgent and

substantial need—

‘‘(1) to enhance the development of infants and toddlers

with disabilities, to minimize their potential for developmental

delay, and to recognize the significant brain development that

occurs during a child’s first 3 years of life;

‘‘(2) to reduce the educational costs to our society, including

our Nation’s schools, by minimizing the need for special education and related services after infants and toddlers with

disabilities reach school age;

‘‘(3) to maximize the potential for individuals with disabilities to live independently in society;

‘‘(4) to enhance the capacity of families to meet the special

needs of their infants and toddlers with disabilities; and

‘‘(5) to enhance the capacity of State and local agencies

and service providers to identify, evaluate, and meet the needs

of all children, particularly minority, low-income, inner city,

and rural children, and infants and toddlers in foster care.

‘‘(b) POLICY.—It is the policy of the United States to provide

financial assistance to States—

‘‘(1) to develop and implement a statewide, comprehensive,

coordinated, multidisciplinary, interagency system that provides early intervention services for infants and toddlers with

disabilities and their families;

‘‘(2) to facilitate the coordination of payment for early intervention services from Federal, State, local, and private sources

(including public and private insurance coverage);

‘‘(3) to enhance State capacity to provide quality early

intervention services and expand and improve existing early

intervention services being provided to infants and toddlers

with disabilities and their families; and

‘‘(4) to encourage States to expand opportunities for children under 3 years of age who would be at risk of having

substantial developmental delay if they did not receive early

intervention services.

‘‘SEC. 632. DEFINITIONS.

‘‘In this part:

‘‘(1) AT-RISK INFANT OR TODDLER.—The term ‘at-risk infant

or toddler’ means an individual under 3 years of age who

would be at risk of experiencing a substantial developmental

delay if early intervention services were not provided to the

individual.

‘‘(2) COUNCIL.—The term ‘council’ means a State interagency coordinating council established under section 641.

‘‘(3) DEVELOPMENTAL DELAY.—The term ‘developmental

delay’, when used with respect to an individual residing in

a State, has the meaning given such term by the State under

section 635(a)(1).

‘‘(4) EARLY INTERVENTION SERVICES.—The term ‘early intervention services’ means developmental services that—

‘‘(A) are provided under public supervision;

20 USC 1432.

20 USC 1431.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2745

‘‘(B) are provided at no cost except where Federal or

State law provides for a system of payments by families,

including a schedule of sliding fees;

‘‘(C) are designed to meet the developmental needs

of an infant or toddler with a disability, as identified by

the individualized family service plan team, in any 1 or

more of the following areas:

‘‘(i) physical development;

‘‘(ii) cognitive development;

‘‘(iii) communication development;

‘‘(iv) social or emotional development; or

‘‘(v) adaptive development;

‘‘(D) meet the standards of the State in which the

services are provided, including the requirements of this

part;

‘‘(E) include—

‘‘(i) family training, counseling, and home visits;

‘‘(ii) special instruction;

‘‘(iii) speech-language pathology and audiology

services, and sign language and cued language services;

‘‘(iv) occupational therapy;

‘‘(v) physical therapy;

‘‘(vi) psychological services;

‘‘(vii) service coordination services;

‘‘(viii) medical services only for diagnostic or

evaluation purposes;

‘‘(ix) early identification, screening, and assessment services;

‘‘(x) health services necessary to enable the infant

or toddler to benefit from the other early intervention

services;

‘‘(xi) social work services;

‘‘(xii) vision services;

‘‘(xiii) assistive technology devices and assistive

technology services; and

‘‘(xiv) transportation and related costs that are

necessary to enable an infant or toddler and the

infant’s or toddler’s family to receive another service

described in this paragraph;

‘‘(F) are provided by qualified personnel, including—

‘‘(i) special educators;

‘‘(ii) speech-language pathologists and audiologists;

‘‘(iii) occupational therapists;

‘‘(iv) physical therapists;

‘‘(v) psychologists;

‘‘(vi) social workers;

‘‘(vii) nurses;

‘‘(viii) registered dietitians;

‘‘(ix) family therapists;

‘‘(x) vision specialists, including ophthalmologists

and optometrists;

‘‘(xi) orientation and mobility specialists; and

‘‘(xii) pediatricians and other physicians;

‘‘(G) to the maximum extent appropriate, are provided

in natural environments, including the home, and community settings in which children without disabilities participate; and

118 STAT. 2746 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(H) are provided in conformity with an individualized

family service plan adopted in accordance with section

636.

‘‘(5) INFANT OR TODDLER WITH A DISABILITY.—The term

‘infant or toddler with a disability’—

‘‘(A) means an individual under 3 years of age who

needs early intervention services because the individual—

‘‘(i) is experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures in 1 or more of the areas of cognitive development, physical development, communication development, social or emotional development, and adaptive

development; or

‘‘(ii) has a diagnosed physical or mental condition

that has a high probability of resulting in developmental delay; and

‘‘(B) may also include, at a State’s discretion—

‘‘(i) at-risk infants and toddlers; and

‘‘(ii) children with disabilities who are eligible for

services under section 619 and who previously received

services under this part until such children enter, or

are eligible under State law to enter, kindergarten

or elementary school, as appropriate, provided that

any programs under this part serving such children

shall include—

‘‘(I) an educational component that promotes

school readiness and incorporates pre-literacy, language, and numeracy skills; and

‘‘(II) a written notification to parents of their

rights and responsibilities in determining whether

their child will continue to receive services under

this part or participate in preschool programs

under section 619.

‘‘SEC. 633. GENERAL AUTHORITY.

‘‘The Secretary shall, in accordance with this part, make grants

to States (from their allotments under section 643) to assist each

State to maintain and implement a statewide, comprehensive,

coordinated, multidisciplinary, interagency system to provide early

intervention services for infants and toddlers with disabilities and

their families.

‘‘SEC. 634. ELIGIBILITY.

‘‘In order to be eligible for a grant under section 633, a State

shall provide assurances to the Secretary that the State—

‘‘(1) has adopted a policy that appropriate early intervention services are available to all infants and toddlers with

disabilities in the State and their families, including Indian

infants and toddlers with disabilities and their families residing

on a reservation geographically located in the State, infants

and toddlers with disabilities who are homeless children and

their families, and infants and toddlers with disabilities who

are wards of the State; and

‘‘(2) has in effect a statewide system that meets the requirements of section 635.

20 USC 1434.

Grants.

20 USC 1433.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2747

‘‘SEC. 635. REQUIREMENTS FOR STATEWIDE SYSTEM.

‘‘(a) IN GENERAL.—A statewide system described in section

633 shall include, at a minimum, the following components:

‘‘(1) A rigorous definition of the term ‘developmental delay’

that will be used by the State in carrying out programs under

this part in order to appropriately identify infants and toddlers

with disabilities that are in need of services under this part.

‘‘(2) A State policy that is in effect and that ensures that

appropriate early intervention services based on scientifically

based research, to the extent practicable, are available to all

infants and toddlers with disabilities and their families,

including Indian infants and toddlers with disabilities and their

families residing on a reservation geographically located in

the State and infants and toddlers with disabilities who are

homeless children and their families.

‘‘(3) A timely, comprehensive, multidisciplinary evaluation

of the functioning of each infant or toddler with a disability

in the State, and a family-directed identification of the needs

of each family of such an infant or toddler, to assist appropriately in the development of the infant or toddler.

‘‘(4) For each infant or toddler with a disability in the

State, an individualized family service plan in accordance with

section 636, including service coordination services in accordance with such service plan.

‘‘(5) A comprehensive child find system, consistent with

part B, including a system for making referrals to service

providers that includes timelines and provides for participation

by primary referral sources and that ensures rigorous standards

for appropriately identifying infants and toddlers with disabilities for services under this part that will reduce the need

for future services.

‘‘(6) A public awareness program focusing on early identification of infants and toddlers with disabilities, including the

preparation and dissemination by the lead agency designated

or established under paragraph (10) to all primary referral

sources, especially hospitals and physicians, of information to

be given to parents, especially to inform parents with premature

infants, or infants with other physical risk factors associated

with learning or developmental complications, on the availability of early intervention services under this part and of

services under section 619, and procedures for assisting such

sources in disseminating such information to parents of infants

and toddlers with disabilities.

‘‘(7) A central directory that includes information on early

intervention services, resources, and experts available in the

State and research and demonstration projects being conducted

in the State.

‘‘(8) A comprehensive system of personnel development,

including the training of paraprofessionals and the training

of primary referral sources with respect to the basic components

of early intervention services available in the State that—

‘‘(A) shall include—

‘‘(i) implementing innovative strategies and activities for the recruitment and retention of early education service providers;

‘‘(ii) promoting the preparation of early intervention providers who are fully and appropriately qualified

20 USC 1435.

118 STAT. 2748 PUBLIC LAW 108–446—DEC. 3, 2004

to provide early intervention services under this part;

and

‘‘(iii) training personnel to coordinate transition

services for infants and toddlers served under this

part from a program providing early intervention services under this part and under part B (other than

section 619), to a preschool program receiving funds

under section 619, or another appropriate program;

and

‘‘(B) may include—

‘‘(i) training personnel to work in rural and innercity areas; and

‘‘(ii) training personnel in the emotional and social

development of young children.

‘‘(9) Policies and procedures relating to the establishment

and maintenance of qualifications to ensure that personnel

necessary to carry out this part are appropriately and adequately prepared and trained, including the establishment and

maintenance of qualifications that are consistent with any

State-approved or recognized certification, licensing, registration, or other comparable requirements that apply to the area

in which such personnel are providing early intervention services, except that nothing in this part (including this paragraph)

shall be construed to prohibit the use of paraprofessionals and

assistants who are appropriately trained and supervised in

accordance with State law, regulation, or written policy, to

assist in the provision of early intervention services under

this part to infants and toddlers with disabilities.

‘‘(10) A single line of responsibility in a lead agency designated or established by the Governor for carrying out—

‘‘(A) the general administration and supervision of programs and activities receiving assistance under section 633,

and the monitoring of programs and activities used by

the State to carry out this part, whether or not such programs or activities are receiving assistance made available

under section 633, to ensure that the State complies with

this part;

‘‘(B) the identification and coordination of all available

resources within the State from Federal, State, local, and

private sources;

‘‘(C) the assignment of financial responsibility in

accordance with section 637(a)(2) to the appropriate agencies;

‘‘(D) the development of procedures to ensure that services are provided to infants and toddlers with disabilities

and their families under this part in a timely manner

pending the resolution of any disputes among public agencies or service providers;

‘‘(E) the resolution of intra- and interagency disputes;

and

‘‘(F) the entry into formal interagency agreements that

define the financial responsibility of each agency for paying

for early intervention services (consistent with State law)

and procedures for resolving disputes and that include

all additional components necessary to ensure meaningful

cooperation and coordination.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2749

‘‘(11) A policy pertaining to the contracting or making of

other arrangements with service providers to provide early

intervention services in the State, consistent with the provisions

of this part, including the contents of the application used

and the conditions of the contract or other arrangements.

‘‘(12) A procedure for securing timely reimbursements of

funds used under this part in accordance with section 640(a).

‘‘(13) Procedural safeguards with respect to programs under

this part, as required by section 639.

‘‘(14) A system for compiling data requested by the Secretary under section 618 that relates to this part.

‘‘(15) A State interagency coordinating council that meets

the requirements of section 641.

‘‘(16) Policies and procedures to ensure that, consistent

with section 636(d)(5)—

‘‘(A) to the maximum extent appropriate, early intervention services are provided in natural environments; and

‘‘(B) the provision of early intervention services for

any infant or toddler with a disability occurs in a setting

other than a natural environment that is most appropriate,

as determined by the parent and the individualized family

service plan team, only when early intervention cannot

be achieved satisfactorily for the infant or toddler in a

natural environment.

‘‘(b) POLICY.—In implementing subsection (a)(9), a State may

adopt a policy that includes making ongoing good-faith efforts to

recruit and hire appropriately and adequately trained personnel

to provide early intervention services to infants and toddlers with

disabilities, including, in a geographic area of the State where

there is a shortage of such personnel, the most qualified individuals

available who are making satisfactory progress toward completing

applicable course work necessary to meet the standards described

in subsection (a)(9).

‘‘(c) FLEXIBILITY TO SERVE CHILDREN 3 YEARS OF AGE UNTIL

ENTRANCE INTO ELEMENTARY SCHOOL.—

‘‘(1) IN GENERAL.—A statewide system described in section

633 may include a State policy, developed and implemented

jointly by the lead agency and the State educational agency,

under which parents of children with disabilities who are

eligible for services under section 619 and previously received

services under this part, may choose the continuation of early

intervention services (which shall include an educational

component that promotes school readiness and incorporates

preliteracy, language, and numeracy skills) for such children

under this part until such children enter, or are eligible under

State law to enter, kindergarten.

‘‘(2) REQUIREMENTS.—If a statewide system includes a State

policy described in paragraph (1), the statewide system shall

ensure that—

‘‘(A) parents of children with disabilities served pursuant to this subsection are provided annual notice that

contains—

‘‘(i) a description of the rights of such parents

to elect to receive services pursuant to this subsection

or under part B; and

118 STAT. 2750 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(ii) an explanation of the differences between services provided pursuant to this subsection and services

provided under part B, including—

‘‘(I) types of services and the locations at which

the services are provided;

‘‘(II) applicable procedural safeguards; and

‘‘(III) possible costs (including any fees to be

charged to families as described in section

632(4)(B)), if any, to parents of infants or toddlers

with disabilities;

‘‘(B) services provided pursuant to this subsection

include an educational component that promotes school

readiness and incorporates preliteracy, language, and

numeracy skills;

‘‘(C) the State policy will not affect the right of any

child served pursuant to this subsection to instead receive

a free appropriate public education under part B;

‘‘(D) all early intervention services outlined in the

child’s individualized family service plan under section 636

are continued while any eligibility determination is being

made for services under this subsection;

‘‘(E) the parents of infants or toddlers with disabilities

(as defined in section 632(5)(A)) provide informed written

consent to the State, before such infants or toddlers reach

3 years of age, as to whether such parents intend to choose

the continuation of early intervention services pursuant

to this subsection for such infants or toddlers;

‘‘(F) the requirements under section 637(a)(9) shall not

apply with respect to a child who is receiving services

in accordance with this subsection until not less than 90

days (and at the discretion of the parties to the conference,

not more than 9 months) before the time the child will

no longer receive those services; and

‘‘(G) there will be a referral for evaluation for early

intervention services of a child who experiences a substantiated case of trauma due to exposure to family violence

(as defined in section 320 of the Family Violence Prevention

and Services Act).

‘‘(3) REPORTING REQUIREMENT.—If a statewide system

includes a State policy described in paragraph (1), the State

shall submit to the Secretary, in the State’s report under section

637(b)(4)(A), a report on the number and percentage of children

with disabilities who are eligible for services under section

619 but whose parents choose for such children to continue

to receive early intervention services under this part.

‘‘(4) AVAILABLE FUNDS.—If a statewide system includes a

State policy described in paragraph (1), the policy shall describe

the funds (including an identification as Federal, State, or

local funds) that will be used to ensure that the option described

in paragraph (1) is available to eligible children and families

who provide the consent described in paragraph (2)(E),

including fees (if any) to be charged to families as described

in section 632(4)(B).

‘‘(5) RULES OF CONSTRUCTION.—

‘‘(A) SERVICES UNDER PART B.—If a statewide system

includes a State policy described in paragraph (1), a State

that provides services in accordance with this subsection

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2751

to a child with a disability who is eligible for services

under section 619 shall not be required to provide the

child with a free appropriate public education under part

B for the period of time in which the child is receiving

services under this part.

‘‘(B) SERVICES UNDER THIS PART.—Nothing in this subsection shall be construed to require a provider of services

under this part to provide a child served under this part

with a free appropriate public education.

‘‘SEC. 636. INDIVIDUALIZED FAMILY SERVICE PLAN.

‘‘(a) ASSESSMENT AND PROGRAM DEVELOPMENT.—A statewide

system described in section 633 shall provide, at a minimum, for

each infant or toddler with a disability, and the infant’s or toddler’s

family, to receive—

‘‘(1) a multidisciplinary assessment of the unique strengths

and needs of the infant or toddler and the identification of

services appropriate to meet such needs;

‘‘(2) a family-directed assessment of the resources, priorities, and concerns of the family and the identification of the

supports and services necessary to enhance the family’s capacity

to meet the developmental needs of the infant or toddler; and

‘‘(3) a written individualized family service plan developed

by a multidisciplinary team, including the parents, as required

by subsection (e), including a description of the appropriate

transition services for the infant or toddler.

‘‘(b) PERIODIC REVIEW.—The individualized family service plan

shall be evaluated once a year and the family shall be provided

a review of the plan at 6-month intervals (or more often where

appropriate based on infant or toddler and family needs).

‘‘(c) PROMPTNESS AFTER ASSESSMENT.—The individualized

family service plan shall be developed within a reasonable time

after the assessment required by subsection (a)(1) is completed.

With the parents’ consent, early intervention services may commence prior to the completion of the assessment.

‘‘(d) CONTENT OF PLAN.—The individualized family service plan

shall be in writing and contain—

‘‘(1) a statement of the infant’s or toddler’s present levels

of physical development, cognitive development, communication

development, social or emotional development, and adaptive

development, based on objective criteria;

‘‘(2) a statement of the family’s resources, priorities, and

concerns relating to enhancing the development of the family’s

infant or toddler with a disability;

‘‘(3) a statement of the measurable results or outcomes

expected to be achieved for the infant or toddler and the family,

including pre-literacy and language skills, as developmentally

appropriate for the child, and the criteria, procedures, and

timelines used to determine the degree to which progress

toward achieving the results or outcomes is being made and

whether modifications or revisions of the results or outcomes

or services are necessary;

‘‘(4) a statement of specific early intervention services based

on peer-reviewed research, to the extent practicable, necessary

to meet the unique needs of the infant or toddler and the

family, including the frequency, intensity, and method of delivering services;

20 USC 1436.

118 STAT. 2752 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(5) a statement of the natural environments in which

early intervention services will appropriately be provided,

including a justification of the extent, if any, to which the

services will not be provided in a natural environment;

‘‘(6) the projected dates for initiation of services and the

anticipated length, duration, and frequency of the services;

‘‘(7) the identification of the service coordinator from the

profession most immediately relevant to the infant’s or toddler’s

or family’s needs (or who is otherwise qualified to carry out

all applicable responsibilities under this part) who will be

responsible for the implementation of the plan and coordination

with other agencies and persons, including transition services;

and

‘‘(8) the steps to be taken to support the transition of

the toddler with a disability to preschool or other appropriate

services.

‘‘(e) PARENTAL CONSENT.—The contents of the individualized

family service plan shall be fully explained to the parents and

informed written consent from the parents shall be obtained prior

to the provision of early intervention services described in such

plan. If the parents do not provide consent with respect to a particular early intervention service, then only the early intervention

services to which consent is obtained shall be provided.

‘‘SEC. 637. STATE APPLICATION AND ASSURANCES.

‘‘(a) APPLICATION.—A State desiring to receive a grant under

section 633 shall submit an application to the Secretary at such

time and in such manner as the Secretary may reasonably require.

The application shall contain—

‘‘(1) a designation of the lead agency in the State that

will be responsible for the administration of funds provided

under section 633;

‘‘(2) a certification to the Secretary that the arrangements

to establish financial responsibility for services provided under

this part pursuant to section 640(b) are current as of the

date of submission of the certification;

‘‘(3) information demonstrating eligibility of the State under

section 634, including—

‘‘(A) information demonstrating to the Secretary’s satisfaction that the State has in effect the statewide system

required by section 633; and

‘‘(B) a description of services to be provided to infants

and toddlers with disabilities and their families through

the system;

‘‘(4) if the State provides services to at-risk infants and

toddlers through the statewide system, a description of such

services;

‘‘(5) a description of the uses for which funds will be

expended in accordance with this part;

‘‘(6) a description of the State policies and procedures that

require the referral for early intervention services under this

part of a child under the age of 3 who—

‘‘(A) is involved in a substantiated case of child abuse

or neglect; or

‘‘(B) is identified as affected by illegal substance abuse,

or withdrawal symptoms resulting from prenatal drug exposure;

20 USC 1437.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2753

‘‘(7) a description of the procedure used to ensure that

resources are made available under this part for all geographic

areas within the State;

‘‘(8) a description of State policies and procedures that

ensure that, prior to the adoption by the State of any other

policy or procedure necessary to meet the requirements of this

part, there are public hearings, adequate notice of the hearings,

and an opportunity for comment available to the general public,

including individuals with disabilities and parents of infants

and toddlers with disabilities;

‘‘(9) a description of the policies and procedures to be used—

‘‘(A) to ensure a smooth transition for toddlers receiving

early intervention services under this part (and children

receiving those services under section 635(c)) to preschool,

school, other appropriate services, or exiting the program,

including a description of how—

‘‘(i) the families of such toddlers and children will

be included in the transition plans required by

subparagraph (C); and

‘‘(ii) the lead agency designated or established

under section 635(a)(10) will—

‘‘(I) notify the local educational agency for the

area in which such a child resides that the child

will shortly reach the age of eligibility for preschool

services under part B, as determined in accordance

with State law;

‘‘(II) in the case of a child who may be eligible

for such preschool services, with the approval of

the family of the child, convene a conference among

the lead agency, the family, and the local educational agency not less than 90 days (and at

the discretion of all such parties, not more than

9 months) before the child is eligible for the preschool services, to discuss any such services that

the child may receive; and

‘‘(III) in the case of a child who may not be

eligible for such preschool services, with the

approval of the family, make reasonable efforts

to convene a conference among the lead agency,

the family, and providers of other appropriate services for children who are not eligible for preschool

services under part B, to discuss the appropriate

services that the child may receive;

‘‘(B) to review the child’s program options for the period

from the child’s third birthday through the remainder of

the school year; and

‘‘(C) to establish a transition plan, including, as appropriate, steps to exit from the program;

‘‘(10) a description of State efforts to promote collaboration

among Early Head Start programs under section 645A of the

Head Start Act, early education and child care programs, and

services under part C; and

‘‘(11) such other information and assurances as the Secretary may reasonably require.

‘‘(b) ASSURANCES.—The application described in subsection (a)—

118 STAT. 2754 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(1) shall provide satisfactory assurance that Federal funds

made available under section 643 to the State will be expended

in accordance with this part;

‘‘(2) shall contain an assurance that the State will comply

with the requirements of section 640;

‘‘(3) shall provide satisfactory assurance that the control

of funds provided under section 643, and title to property

derived from those funds, will be in a public agency for the

uses and purposes provided in this part and that a public

agency will administer such funds and property;

‘‘(4) shall provide for—

‘‘(A) making such reports in such form and containing

such information as the Secretary may require to carry

out the Secretary’s functions under this part; and

‘‘(B) keeping such reports and affording such access

to the reports as the Secretary may find necessary to

ensure the correctness and verification of those reports

and proper disbursement of Federal funds under this part;

‘‘(5) provide satisfactory assurance that Federal funds made

available under section 643 to the State—

‘‘(A) will not be commingled with State funds; and

‘‘(B) will be used so as to supplement the level of

State and local funds expended for infants and toddlers

with disabilities and their families and in no case to supplant those State and local funds;

‘‘(6) shall provide satisfactory assurance that such fiscal

control and fund accounting procedures will be adopted as

may be necessary to ensure proper disbursement of, and

accounting for, Federal funds paid under section 643 to the

State;

‘‘(7) shall provide satisfactory assurance that policies and

procedures have been adopted to ensure meaningful involvement of underserved groups, including minority, low-income,

homeless, and rural families and children with disabilities who

are wards of the State, in the planning and implementation

of all the requirements of this part; and

‘‘(8) shall contain such other information and assurances

as the Secretary may reasonably require by regulation.

‘‘(c) STANDARD FOR DISAPPROVAL OF APPLICATION.—The Secretary may not disapprove such an application unless the Secretary

determines, after notice and opportunity for a hearing, that the

application fails to comply with the requirements of this section.

‘‘(d) SUBSEQUENT STATE APPLICATION.—If a State has on file

with the Secretary a policy, procedure, or assurance that demonstrates that the State meets a requirement of this section,

including any policy or procedure filed under this part (as in effect

before the date of enactment of the Individuals with Disabilities

Education Improvement Act of 2004), the Secretary shall consider

the State to have met the requirement for purposes of receiving

a grant under this part.

‘‘(e) MODIFICATION OF APPLICATION.—An application submitted

by a State in accordance with this section shall remain in effect

until the State submits to the Secretary such modifications as

the State determines necessary. This section shall apply to a modification of an application to the same extent and in the same

manner as this section applies to the original application.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2755

‘‘(f) MODIFICATIONS REQUIRED BY THE SECRETARY.—The Secretary may require a State to modify its application under this

section, but only to the extent necessary to ensure the State’s

compliance with this part, if—

‘‘(1) an amendment is made to this title, or a Federal

regulation issued under this title;

‘‘(2) a new interpretation of this title is made by a Federal

court or the State’s highest court; or

‘‘(3) an official finding of noncompliance with Federal law

or regulations is made with respect to the State.

‘‘SEC. 638. USES OF FUNDS.

‘‘In addition to using funds provided under section 633 to maintain and implement the statewide system required by such section,

a State may use such funds—

‘‘(1) for direct early intervention services for infants and

toddlers with disabilities, and their families, under this part

that are not otherwise funded through other public or private

sources;

‘‘(2) to expand and improve on services for infants and

toddlers and their families under this part that are otherwise

available;

‘‘(3) to provide a free appropriate public education, in

accordance with part B, to children with disabilities from their

third birthday to the beginning of the following school year;

‘‘(4) with the written consent of the parents, to continue

to provide early intervention services under this part to children

with disabilities from their 3rd birthday until such children

enter, or are eligible under State law to enter, kindergarten,

in lieu of a free appropriate public education provided in accordance with part B; and

‘‘(5) in any State that does not provide services for atrisk infants and toddlers under section 637(a)(4), to strengthen

the statewide system by initiating, expanding, or improving

collaborative efforts related to at-risk infants and toddlers,

including establishing linkages with appropriate public or private community-based organizations, services, and personnel

for the purposes of—

‘‘(A) identifying and evaluating at-risk infants and toddlers;

‘‘(B) making referrals of the infants and toddlers identified and evaluated under subparagraph (A); and

‘‘(C) conducting periodic follow-up on each such referral

to determine if the status of the infant or toddler involved

has changed with respect to the eligibility of the infant

or toddler for services under this part.

‘‘SEC. 639. PROCEDURAL SAFEGUARDS.

‘‘(a) MINIMUM PROCEDURES.—The procedural safeguards

required to be included in a statewide system under section

635(a)(13) shall provide, at a minimum, the following:

‘‘(1) The timely administrative resolution of complaints by

parents. Any party aggrieved by the findings and decision

regarding an administrative complaint shall have the right

to bring a civil action with respect to the complaint in any

State court of competent jurisdiction or in a district court

of the United States without regard to the amount in controversy. In any action brought under this paragraph, the court

20 USC 1439.

20 USC 1438.

118 STAT. 2756 PUBLIC LAW 108–446—DEC. 3, 2004

shall receive the records of the administrative proceedings,

shall hear additional evidence at the request of a party, and,

basing its decision on the preponderance of the evidence, shall

grant such relief as the court determines is appropriate.

‘‘(2) The right to confidentiality of personally identifiable

information, including the right of parents to written notice

of and written consent to the exchange of such information

among agencies consistent with Federal and State law.

‘‘(3) The right of the parents to determine whether they,

their infant or toddler, or other family members will accept

or decline any early intervention service under this part in

accordance with State law without jeopardizing other early

intervention services under this part.

‘‘(4) The opportunity for parents to examine records relating

to assessment, screening, eligibility determinations, and the

development and implementation of the individualized family

service plan.

‘‘(5) Procedures to protect the rights of the infant or toddler

whenever the parents of the infant or toddler are not known

or cannot be found or the infant or toddler is a ward of the

State, including the assignment of an individual (who shall

not be an employee of the State lead agency, or other State

agency, and who shall not be any person, or any employee

of a person, providing early intervention services to the infant

or toddler or any family member of the infant or toddler)

to act as a surrogate for the parents.

‘‘(6) Written prior notice to the parents of the infant or

toddler with a disability whenever the State agency or service

provider proposes to initiate or change, or refuses to initiate

or change, the identification, evaluation, or placement of the

infant or toddler with a disability, or the provision of appropriate early intervention services to the infant or toddler.

‘‘(7) Procedures designed to ensure that the notice required

by paragraph (6) fully informs the parents, in the parents’

native language, unless it clearly is not feasible to do so,

of all procedures available pursuant to this section.

‘‘(8) The right of parents to use mediation in accordance

with section 615, except that—

‘‘(A) any reference in the section to a State educational

agency shall be considered to be a reference to a State’s

lead agency established or designated under section

635(a)(10);

‘‘(B) any reference in the section to a local educational

agency shall be considered to be a reference to a local

service provider or the State’s lead agency under this part,

as the case may be; and

‘‘(C) any reference in the section to the provision of

a free appropriate public education to children with disabilities shall be considered to be a reference to the provision

of appropriate early intervention services to infants and

toddlers with disabilities.

‘‘(b) SERVICES DURING PENDENCY OF PROCEEDINGS.—During

the pendency of any proceeding or action involving a complaint

by the parents of an infant or toddler with a disability, unless

the State agency and the parents otherwise agree, the infant or

toddler shall continue to receive the appropriate early intervention

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2757

services currently being provided or, if applying for initial services,

shall receive the services not in dispute.

‘‘SEC. 640. PAYOR OF LAST RESORT.

‘‘(a) NONSUBSTITUTION.—Funds provided under section 643 may

not be used to satisfy a financial commitment for services that

would have been paid for from another public or private source,

including any medical program administered by the Secretary of

Defense, but for the enactment of this part, except that whenever

considered necessary to prevent a delay in the receipt of appropriate

early intervention services by an infant, toddler, or family in a

timely fashion, funds provided under section 643 may be used

to pay the provider of services pending reimbursement from the

agency that has ultimate responsibility for the payment.

‘‘(b) OBLIGATIONS RELATED TO AND METHODS OF ENSURING

SERVICES.—

‘‘(1) ESTABLISHING FINANCIAL RESPONSIBILITY FOR SERVICES.—

‘‘(A) IN GENERAL.—The Chief Executive Officer of a

State or designee of the officer shall ensure that an interagency agreement or other mechanism for interagency

coordination is in effect between each public agency and

the designated lead agency, in order to ensure—

‘‘(i) the provision of, and financial responsibility

for, services provided under this part; and

‘‘(ii) such services are consistent with the requirements of section 635 and the State’s application pursuant to section 637, including the provision of such

services during the pendency of any such dispute.

‘‘(B) CONSISTENCY BETWEEN AGREEMENTS OR MECHANISMS UNDER PART B.—The Chief Executive Officer of a

State or designee of the officer shall ensure that the terms

and conditions of such agreement or mechanism are consistent with the terms and conditions of the State’s agreement or mechanism under section 612(a)(12), where appropriate.

‘‘(2) REIMBURSEMENT FOR SERVICES BY PUBLIC AGENCY.—

‘‘(A) IN GENERAL.—If a public agency other than an

educational agency fails to provide or pay for the services

pursuant to an agreement required under paragraph (1),

the local educational agency or State agency (as determined

by the Chief Executive Officer or designee) shall provide

or pay for the provision of such services to the child.

‘‘(B) REIMBURSEMENT.—Such local educational agency

or State agency is authorized to claim reimbursement for

the services from the public agency that failed to provide

or pay for such services and such public agency shall

reimburse the local educational agency or State agency

pursuant to the terms of the interagency agreement or

other mechanism required under paragraph (1).

‘‘(3) SPECIAL RULE.—The requirements of paragraph (1)

may be met through—

‘‘(A) State statute or regulation;

‘‘(B) signed agreements between respective agency officials that clearly identify the responsibilities of each agency

relating to the provision of services; or

20 USC 1440.

118 STAT. 2758 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(C) other appropriate written methods as determined

by the Chief Executive Officer of the State or designee

of the officer and approved by the Secretary through the

review and approval of the State’s application pursuant

to section 637.

‘‘(c) REDUCTION OF OTHER BENEFITS.—Nothing in this part

shall be construed to permit the State to reduce medical or other

assistance available or to alter eligibility under title V of the Social

Security Act (relating to maternal and child health) or title XIX

of the Social Security Act (relating to medicaid for infants or toddlers with disabilities) within the State.

‘‘SEC. 641. STATE INTERAGENCY COORDINATING COUNCIL.

‘‘(a) ESTABLISHMENT.—

‘‘(1) IN GENERAL.—A State that desires to receive financial

assistance under this part shall establish a State interagency

coordinating council.

‘‘(2) APPOINTMENT.—The council shall be appointed by the

Governor. In making appointments to the council, the Governor

shall ensure that the membership of the council reasonably

represents the population of the State.

‘‘(3) CHAIRPERSON.—The Governor shall designate a

member of the council to serve as the chairperson of the council,

or shall require the council to so designate such a member.

Any member of the council who is a representative of the

lead agency designated under section 635(a)(10) may not serve

as the chairperson of the council.

‘‘(b) COMPOSITION.—

‘‘(1) IN GENERAL.—The council shall be composed as follows:

‘‘(A) PARENTS.—Not less than 20 percent of the members shall be parents of infants or toddlers with disabilities

or children with disabilities aged 12 or younger, with

knowledge of, or experience with, programs for infants

and toddlers with disabilities. Not less than 1 such member

shall be a parent of an infant or toddler with a disability

or a child with a disability aged 6 or younger.

‘‘(B) SERVICE PROVIDERS.—Not less than 20 percent

of the members shall be public or private providers of

early intervention services.

‘‘(C) STATE LEGISLATURE.—Not less than 1 member

shall be from the State legislature.

‘‘(D) PERSONNEL PREPARATION.—Not less than 1

member shall be involved in personnel preparation.

‘‘(E) AGENCY FOR EARLY INTERVENTION SERVICES.—Not

less than 1 member shall be from each of the State agencies

involved in the provision of, or payment for, early intervention services to infants and toddlers with disabilities and

their families and shall have sufficient authority to engage

in policy planning and implementation on behalf of such

agencies.

‘‘(F) AGENCY FOR PRESCHOOL SERVICES.—Not less than

1 member shall be from the State educational agency

responsible for preschool services to children with disabilities and shall have sufficient authority to engage in policy

planning and implementation on behalf of such agency.

20 USC 1441.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2759

‘‘(G) STATE MEDICAID AGENCY.—Not less than 1 member

shall be from the agency responsible for the State medicaid

program.

‘‘(H) HEAD START AGENCY.—Not less than 1 member

shall be a representative from a Head Start agency or

program in the State.

‘‘(I) CHILD CARE AGENCY.—Not less than 1 member

shall be a representative from a State agency responsible

for child care.

‘‘(J) AGENCY FOR HEALTH INSURANCE.—Not less than

1 member shall be from the agency responsible for the

State regulation of health insurance.

‘‘(K) OFFICE OF THE COORDINATOR OF EDUCATION OF

HOMELESS CHILDREN AND YOUTH.—Not less than 1 member

shall be a representative designated by the Office of Coordinator for Education of Homeless Children and Youths.

‘‘(L) STATE FOSTER CARE REPRESENTATIVE.—Not less

than 1 member shall be a representative from the State

child welfare agency responsible for foster care.

‘‘(M) MENTAL HEALTH AGENCY.—Not less than 1

member shall be a representative from the State agency

responsible for children’s mental health.

‘‘(2) OTHER MEMBERS.—The council may include other members selected by the Governor, including a representative from

the Bureau of Indian Affairs (BIA), or where there is no BIAoperated or BIA-funded school, from the Indian Health Service

or the tribe or tribal council.

‘‘(c) MEETINGS.—The council shall meet, at a minimum, on

a quarterly basis, and in such places as the council determines

necessary. The meetings shall be publicly announced, and, to the

extent appropriate, open and accessible to the general public.

‘‘(d) MANAGEMENT AUTHORITY.—Subject to the approval of the

Governor, the council may prepare and approve a budget using

funds under this part to conduct hearings and forums, to reimburse

members of the council for reasonable and necessary expenses for

attending council meetings and performing council duties (including

child care for parent representatives), to pay compensation to a

member of the council if the member is not employed or must

forfeit wages from other employment when performing official

council business, to hire staff, and to obtain the services of such

professional, technical, and clerical personnel as may be necessary

to carry out its functions under this part.

‘‘(e) FUNCTIONS OF COUNCIL.—

‘‘(1) DUTIES.—The council shall—

‘‘(A) advise and assist the lead agency designated or

established under section 635(a)(10) in the performance

of the responsibilities set forth in such section, particularly

the identification of the sources of fiscal and other support

for services for early intervention programs, assignment

of financial responsibility to the appropriate agency, and

the promotion of the interagency agreements;

‘‘(B) advise and assist the lead agency in the preparation of applications and amendments thereto;

‘‘(C) advise and assist the State educational agency

regarding the transition of toddlers with disabilities to

preschool and other appropriate services; and

118 STAT. 2760 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(D) prepare and submit an annual report to the Governor and to the Secretary on the status of early intervention programs for infants and toddlers with disabilities

and their families operated within the State.

‘‘(2) AUTHORIZED ACTIVITY.—The council may advise and

assist the lead agency and the State educational agency

regarding the provision of appropriate services for children

from birth through age 5. The council may advise appropriate

agencies in the State with respect to the integration of services

for infants and toddlers with disabilities and at-risk infants

and toddlers and their families, regardless of whether at-risk

infants and toddlers are eligible for early intervention services

in the State.

‘‘(f) CONFLICT OF INTEREST.—No member of the council shall

cast a vote on any matter that is likely to provide a direct financial

benefit to that member or otherwise give the appearance of a

conflict of interest under State law.

‘‘SEC. 642. FEDERAL ADMINISTRATION.

‘‘Sections 616, 617, and 618 shall, to the extent not inconsistent

with this part, apply to the program authorized by this part, except

that—

‘‘(1) any reference in such sections to a State educational

agency shall be considered to be a reference to a State’s lead

agency established or designated under section 635(a)(10);

‘‘(2) any reference in such sections to a local educational

agency, educational service agency, or a State agency shall

be considered to be a reference to an early intervention service

provider under this part; and

‘‘(3) any reference to the education of children with disabilities or the education of all children with disabilities shall

be considered to be a reference to the provision of appropriate

early intervention services to infants and toddlers with disabilities.

‘‘SEC. 643. ALLOCATION OF FUNDS.

‘‘(a) RESERVATION OF FUNDS FOR OUTLYING AREAS.— ‘‘(1) IN GENERAL.—From the sums appropriated to carry

out this part for any fiscal year, the Secretary may reserve

not more than 1 percent for payments to Guam, American

Samoa, the United States Virgin Islands, and the Commonwealth of the Northern Mariana Islands in accordance with

their respective needs for assistance under this part.

‘‘(2) CONSOLIDATION OF FUNDS.—The provisions of Public

Law 95–134, permitting the consolidation of grants to the outlying areas, shall not apply to funds those areas receive under

this part.

‘‘(b) PAYMENTS TO INDIANS.— ‘‘(1) IN GENERAL.—The Secretary shall, subject to this subsection, make payments to the Secretary of the Interior to

be distributed to tribes, tribal organizations (as defined under

section 4 of the Indian Self-Determination and Education

Assistance Act), or consortia of the above entities for the

coordination of assistance in the provision of early intervention

services by the States to infants and toddlers with disabilities

and their families on reservations served by elementary schools

and secondary schools for Indian children operated or funded

by the Department of the Interior. The amount of such payment

20 USC 1443.

Applicability.

20 USC 1442.

Reports.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2761

for any fiscal year shall be 1.25 percent of the aggregate of

the amount available to all States under this part for such

fiscal year.

‘‘(2) ALLOCATION.—For each fiscal year, the Secretary of

the Interior shall distribute the entire payment received under

paragraph (1) by providing to each tribe, tribal organization,

or consortium an amount based on the number of infants and

toddlers residing on the reservation, as determined annually,

divided by the total of such children served by all tribes, tribal

organizations, or consortia.

‘‘(3) INFORMATION.—To receive a payment under this subsection, the tribe, tribal organization, or consortium shall

submit such information to the Secretary of the Interior as

is needed to determine the amounts to be distributed under

paragraph (2).

‘‘(4) USE OF FUNDS.—The funds received by a tribe, tribal

organization, or consortium shall be used to assist States in

child find, screening, and other procedures for the early identification of Indian children under 3 years of age and for parent

training. Such funds may also be used to provide early intervention services in accordance with this part. Such activities may

be carried out directly or through contracts or cooperative agreements with the Bureau of Indian Affairs, local educational

agencies, and other public or private nonprofit organizations.

The tribe, tribal organization, or consortium is encouraged to

involve Indian parents in the development and implementation

of these activities. The above entities shall, as appropriate,

make referrals to local, State, or Federal entities for the provision of services or further diagnosis.

‘‘(5) REPORTS.—To be eligible to receive a payment under

paragraph (2), a tribe, tribal organization, or consortium shall

make a biennial report to the Secretary of the Interior of

activities undertaken under this subsection, including the

number of contracts and cooperative agreements entered into,

the number of infants and toddlers contacted and receiving

services for each year, and the estimated number of infants

and toddlers needing services during the 2 years following

the year in which the report is made. The Secretary of the

Interior shall include a summary of this information on a

biennial basis to the Secretary of Education along with such

other information as required under section 611(h)(3)(E). The

Secretary of Education may require any additional information

from the Secretary of the Interior.

‘‘(6) PROHIBITED USES OF FUNDS.—None of the funds under

this subsection may be used by the Secretary of the Interior

for administrative purposes, including child count, and the

provision of technical assistance.

‘‘(c) STATE ALLOTMENTS.—

‘‘(1) IN GENERAL.—Except as provided in paragraphs (2)

and (3), from the funds remaining for each fiscal year after

the reservation and payments under subsections (a), (b), and

(e), the Secretary shall first allot to each State an amount

that bears the same ratio to the amount of such remainder

as the number of infants and toddlers in the State bears to

the number of infants and toddlers in all States.

118 STAT. 2762 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(2) MINIMUM ALLOTMENTS.—Except as provided in paragraph (3), no State shall receive an amount under this section

for any fiscal year that is less than the greater of—

‘‘(A) 1⁄2 of 1 percent of the remaining amount described

in paragraph (1); or

‘‘(B) $500,000.

‘‘(3) RATABLE REDUCTION.—

‘‘(A) IN GENERAL.—If the sums made available under

this part for any fiscal year are insufficient to pay the

full amounts that all States are eligible to receive under

this subsection for such year, the Secretary shall ratably

reduce the allotments to such States for such year.

‘‘(B) ADDITIONAL FUNDS.—If additional funds become

available for making payments under this subsection for

a fiscal year, allotments that were reduced under subparagraph (A) shall be increased on the same basis the allotments were reduced.

‘‘(4) DEFINITIONS.—In this subsection—

‘‘(A) the terms ‘infants’ and ‘toddlers’ mean children

under 3 years of age; and

‘‘(B) the term ‘State’ means each of the 50 States,

the District of Columbia, and the Commonwealth of Puerto

Rico.

‘‘(d) REALLOTMENT OF FUNDS.—If a State elects not to receive

its allotment under subsection (c), the Secretary shall reallot, among

the remaining States, amounts from such State in accordance with

such subsection.

‘‘(e) RESERVATION FOR STATE INCENTIVE GRANTS.—

‘‘(1) IN GENERAL.—For any fiscal year for which the amount

appropriated pursuant to the authorization of appropriations

under section 644 exceeds $460,000,000, the Secretary shall

reserve 15 percent of such appropriated amount to provide

grants to States that are carrying out the policy described

in section 635(c) in order to facilitate the implementation of

such policy.

‘‘(2) AMOUNT OF GRANT.—

‘‘(A) IN GENERAL.—Notwithstanding paragraphs (2) and

(3) of subsection (c), the Secretary shall provide a grant

to each State under paragraph (1) in an amount that

bears the same ratio to the amount reserved under such

paragraph as the number of infants and toddlers in the

State bears to the number of infants and toddlers in all

States receiving grants under such paragraph.

‘‘(B) MAXIMUM AMOUNT.—No State shall receive a grant

under paragraph (1) for any fiscal year in an amount

that is greater than 20 percent of the amount reserved

under such paragraph for the fiscal year.

‘‘(3) CARRYOVER OF AMOUNTS.—

‘‘(A) FIRST SUCCEEDING FISCAL YEAR.—Pursuant to section 421(b) of the General Education Provisions Act,

amounts under a grant provided under paragraph (1) that

are not obligated and expended prior to the beginning

of the first fiscal year succeeding the fiscal year for which

such amounts were appropriated shall remain available

for obligation and expenditure during such first succeeding

fiscal year.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2763

‘‘(B) SECOND SUCCEEDING FISCAL YEAR.—Amounts

under a grant provided under paragraph (1) that are not

obligated and expended prior to the beginning of the second

fiscal year succeeding the fiscal year for which such

amounts were appropriated shall be returned to the Secretary and used to make grants to States under section

633 (from their allotments under this section) during such

second succeeding fiscal year.

‘‘SEC. 644. AUTHORIZATION OF APPROPRIATIONS.

‘‘For the purpose of carrying out this part, there are authorized

to be appropriated such sums as may be necessary for each of

the fiscal years 2005 through 2010.

‘‘PART D—NATIONAL ACTIVITIES TO IMPROVE

EDUCATION OF CHILDREN WITH DISABILITIES

‘‘SEC. 650. FINDINGS.

‘‘Congress finds the following:

‘‘(1) The Federal Government has an ongoing obligation

to support activities that contribute to positive results for children with disabilities, enabling those children to lead productive

and independent adult lives.

‘‘(2) Systemic change benefiting all students, including children with disabilities, requires the involvement of States, local

educational agencies, parents, individuals with disabilities and

their families, teachers and other service providers, and other

interested individuals and organizations to develop and implement comprehensive strategies that improve educational results

for children with disabilities.

‘‘(3) State educational agencies, in partnership with local

educational agencies, parents of children with disabilities, and

other individuals and organizations, are in the best position

to improve education for children with disabilities and to

address their special needs.

‘‘(4) An effective educational system serving students with

disabilities should—

‘‘(A) maintain high academic achievement standards

and clear performance goals for children with disabilities,

consistent with the standards and expectations for all students in the educational system, and provide for appropriate and effective strategies and methods to ensure that

all children with disabilities have the opportunity to

achieve those standards and goals;

‘‘(B) clearly define, in objective, measurable terms, the

school and post-school results that children with disabilities

are expected to achieve; and

‘‘(C) promote transition services and coordinate State

and local education, social, health, mental health, and other

services, in addressing the full range of student needs,

particularly the needs of children with disabilities who

need significant levels of support to participate and learn

in school and the community.

‘‘(5) The availability of an adequate number of qualified

personnel is critical—

‘‘(A) to serve effectively children with disabilities;

20 USC 1450.

20 USC 1444.

118 STAT. 2764 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(B) to assume leadership positions in administration

and direct services;

‘‘(C) to provide teacher training; and

‘‘(D) to conduct high quality research to improve special

education.

‘‘(6) High quality, comprehensive professional development

programs are essential to ensure that the persons responsible

for the education or transition of children with disabilities

possess the skills and knowledge necessary to address the educational and related needs of those children.

‘‘(7) Models of professional development should be scientifically based and reflect successful practices, including strategies

for recruiting, preparing, and retaining personnel.

‘‘(8) Continued support is essential for the development

and maintenance of a coordinated and high quality program

of research to inform successful teaching practices and model

curricula for educating children with disabilities.

‘‘(9) Training, technical assistance, support, and dissemination activities are necessary to ensure that parts B and C

are fully implemented and achieve high quality early intervention, educational, and transitional results for children with

disabilities and their families.

‘‘(10) Parents, teachers, administrators, and related services

personnel need technical assistance and information in a timely,

coordinated, and accessible manner in order to improve early

intervention, educational, and transitional services and results

at the State and local levels for children with disabilities and

their families.

‘‘(11) Parent training and information activities assist parents of a child with a disability in dealing with the multiple

pressures of parenting such a child and are of particular importance in—

‘‘(A) playing a vital role in creating and preserving

constructive relationships between parents of children with

disabilities and schools by facilitating open communication

between the parents and schools; encouraging dispute resolution at the earliest possible point in time; and discouraging the escalation of an adversarial process between

the parents and schools;

‘‘(B) ensuring the involvement of parents in planning

and decisionmaking with respect to early intervention, educational, and transitional services;

‘‘(C) achieving high quality early intervention, educational, and transitional results for children with disabilities;

‘‘(D) providing such parents information on their rights,

protections, and responsibilities under this title to ensure

improved early intervention, educational, and transitional

results for children with disabilities;

‘‘(E) assisting such parents in the development of skills

to participate effectively in the education and development

of their children and in the transitions described in section

673(b)(6);

‘‘(F) supporting the roles of such parents as participants within partnerships seeking to improve early intervention, educational, and transitional services and results

for children with disabilities and their families; and

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2765

‘‘(G) supporting such parents who may have limited

access to services and supports, due to economic, cultural,

or linguistic barriers.

‘‘(12) Support is needed to improve technological resources

and integrate technology, including universally designed technologies, into the lives of children with disabilities, parents

of children with disabilities, school personnel, and others

through curricula, services, and assistive technologies.

‘‘Subpart 1—State Personnel Development Grants

‘‘SEC. 651. PURPOSE; DEFINITION OF PERSONNEL; PROGRAM

AUTHORITY.

‘‘(a) PURPOSE.—The purpose of this subpart is to assist State

educational agencies in reforming and improving their systems

for personnel preparation and professional development in early

intervention, educational, and transition services in order to

improve results for children with disabilities.

‘‘(b) DEFINITION OF PERSONNEL.—In this subpart the term ‘personnel’ means special education teachers, regular education

teachers, principals, administrators, related services personnel,

paraprofessionals, and early intervention personnel serving infants,

toddlers, preschoolers, or children with disabilities, except where

a particular category of personnel, such as related services personnel, is identified.

‘‘(c) COMPETITIVE GRANTS.—

‘‘(1) IN GENERAL.—Except as provided in subsection (d),

for any fiscal year for which the amount appropriated under

section 655, that remains after the Secretary reserves funds

under subsection (e) for the fiscal year, is less than

$100,000,000, the Secretary shall award grants, on a competitive basis, to State educational agencies to carry out the activities described in the State plan submitted under section 653.

‘‘(2) PRIORITY.—In awarding grants under paragraph (1),

the Secretary may give priority to State educational agencies

that—

‘‘(A) are in States with the greatest personnel shortages; or

‘‘(B) demonstrate the greatest difficulty meeting the

requirements of section 612(a)(14).

‘‘(3) MINIMUM AMOUNT.—The Secretary shall make a grant

to each State educational agency selected under paragraph

(1) in an amount for each fiscal year that is—

‘‘(A) not less than $500,000, nor more than $4,000,000,

in the case of the 50 States, the District of Columbia,

and the Commonwealth of Puerto Rico; and

‘‘(B) not less than $80,000 in the case of an outlying

area.

‘‘(4) INCREASE IN AMOUNT.—The Secretary may increase

the amounts of grants under paragraph (4) to account for

inflation.

‘‘(5) FACTORS.—The Secretary shall determine the amount

of a grant under paragraph (1) after considering—

‘‘(A) the amount of funds available for making the

grants;

‘‘(B) the relative population of the State or outlying

area;

20 USC 1451.

118 STAT. 2766 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(C) the types of activities proposed by the State or

outlying area;

‘‘(D) the alignment of proposed activities with section

612(a)(14);

‘‘(E) the alignment of proposed activities with the State

plans and applications submitted under sections 1111 and

2112, respectively, of the Elementary and Secondary Education Act of 1965; and

‘‘(F) the use, as appropriate, of scientifically based

research activities.

‘‘(d) FORMULA GRANTS.—

‘‘(1) IN GENERAL.—Except as provided in paragraphs (2)

and (3), for the first fiscal year for which the amount appropriated under section 655, that remains after the Secretary

reserves funds under subsection (e) for the fiscal year, is equal

to or greater than $100,000,000, and for each fiscal year thereafter, the Secretary shall allot to each State educational agency,

whose application meets the requirements of this subpart, an

amount that bears the same relation to the amount remaining

as the amount the State received under section 611(d) for

that fiscal year bears to the amount of funds received by all

States (whose applications meet the requirements of this subpart) under section 611(d) for that fiscal year.

‘‘(2) MINIMUM ALLOTMENTS FOR STATES THAT RECEIVED

COMPETITIVE GRANTS.—

‘‘(A) IN GENERAL.—The amount allotted under this subsection to any State educational agency that received a

competitive multi-year grant under subsection (c) for which

the grant period has not expired shall be not less than

the amount specified for that fiscal year in the State educational agency’s grant award document under that subsection.

‘‘(B) SPECIAL RULE.—Each such State educational

agency shall use the minimum amount described in

subparagraph (A) for the activities described in the State

educational agency’s competitive grant award document

for that year, unless the Secretary approves a request

from the State educational agency to spend the funds on

other activities.

‘‘(3) MINIMUM ALLOTMENT.—The amount of any State educational agency’s allotment under this subsection for any fiscal

year shall not be less than—

‘‘(A) the greater of $500,000 or 1⁄2 of 1 percent of

the total amount available under this subsection for that

year, in the case of each of the 50 States, the District

of Columbia, and the Commonwealth of Puerto Rico; and

‘‘(B) $80,000, in the case of an outlying area.

‘‘(4) DIRECT BENEFIT.—In using grant funds allotted under

paragraph (1), a State educational agency shall, through grants,

contracts, or cooperative agreements, undertake activities that

significantly and directly benefit the local educational agencies

in the State.

‘‘(e) CONTINUATION AWARDS.—

‘‘(1) IN GENERAL.—Notwithstanding any other provision of

this subpart, from funds appropriated under section 655 for

each fiscal year, the Secretary shall reserve the amount that

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2767

is necessary to make a continuation award to any State educational agency (at the request of the State educational agency)

that received a multi-year award under this part (as this part

was in effect on the day before the date of enactment of the

Individuals with Disabilities Education Improvement Act of

2004), to enable the State educational agency to carry out

activities in accordance with the terms of the multi-year award.

‘‘(2) PROHIBITION.—A State educational agency that

receives a continuation award under paragraph (1) for any

fiscal year may not receive any other award under this subpart

for that fiscal year.

‘‘SEC. 652. ELIGIBILITY AND COLLABORATIVE PROCESS.

‘‘(a) ELIGIBLE APPLICANTS.—A State educational agency may

apply for a grant under this subpart for a grant period of not

less than 1 year and not more than 5 years.

‘‘(b) PARTNERS.—

‘‘(1) IN GENERAL.—In order to be considered for a grant

under this subpart, a State educational agency shall establish

a partnership with local educational agencies and other State

agencies involved in, or concerned with, the education of children with disabilities, including—

‘‘(A) not less than 1 institution of higher education;

and

‘‘(B) the State agencies responsible for administering

part C, early education, child care, and vocational

rehabilitation programs.

‘‘(2) OTHER PARTNERS.—In order to be considered for a

grant under this subpart, a State educational agency shall

work in partnership with other persons and organizations

involved in, and concerned with, the education of children with

disabilities, which may include—

‘‘(A) the Governor;

‘‘(B) parents of children with disabilities ages birth

through 26;

‘‘(C) parents of nondisabled children ages birth through

26;

‘‘(D) individuals with disabilities;

‘‘(E) parent training and information centers or community parent resource centers funded under sections 671

and 672, respectively;

‘‘(F) community based and other nonprofit organizations involved in the education and employment of individuals with disabilities;

‘‘(G) personnel as defined in section 651(b);

‘‘(H) the State advisory panel established under part

B;

‘‘(I) the State interagency coordinating council established under part C;

‘‘(J) individuals knowledgeable about vocational education;

‘‘(K) the State agency for higher education;

‘‘(L) public agencies with jurisdiction in the areas of

health, mental health, social services, and juvenile justice;

‘‘(M) other providers of professional development that

work with infants, toddlers, preschoolers, and children with

disabilities; and

20 USC 1452.

118 STAT. 2768 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(N) other individuals.

‘‘(3) REQUIRED PARTNER.—If State law assigns responsibility for teacher preparation and certification to an individual,

entity, or agency other than the State educational agency,

the State educational agency shall—

‘‘(A) include that individual, entity, or agency as a

partner in the partnership under this subsection; and

‘‘(B) ensure that any activities the State educational

agency will carry out under this subpart that are within

that partner’s jurisdiction (which may include activities

described in section 654(b)) are carried out by that partner.

‘‘SEC. 653. APPLICATIONS.

‘‘(a) IN GENERAL.— ‘‘(1) SUBMISSION.—A State educational agency that desires

to receive a grant under this subpart shall submit to the

Secretary an application at such time, in such manner, and

including such information as the Secretary may require.

‘‘(2) STATE PLAN.—The application shall include a plan

that identifies and addresses the State and local needs for

the personnel preparation and professional development of personnel, as well as individuals who provide direct supplementary

aids and services to children with disabilities, and that—

‘‘(A) is designed to enable the State to meet the requirements of section 612(a)(14) and section 635(a) (8) and (9);

‘‘(B) is based on an assessment of State and local

needs that identifies critical aspects and areas in need

of improvement related to the preparation, ongoing

training, and professional development of personnel who

serve infants, toddlers, preschoolers, and children with

disabilities within the State, including—

‘‘(i) current and anticipated personnel vacancies

and shortages; and

‘‘(ii) the number of preservice and inservice programs; and

‘‘(C) is integrated and aligned, to the maximum extent

possible, with State plans and activities under the

Elementary and Secondary Education Act of 1965, the

Rehabilitation Act of 1973, and the Higher Education Act

of 1965.

‘‘(3) REQUIREMENT.—The State application shall contain

an assurance that the State educational agency will carry out

each of the strategies described in subsection (b)(4).

‘‘(b) ELEMENTS OF STATE PERSONNEL DEVELOPMENT PLAN.—

Each State personnel development plan under subsection (a)(2)

shall—

‘‘(1) describe a partnership agreement that is in effect

for the period of the grant, which agreement shall specify—

‘‘(A) the nature and extent of the partnership described

in section 652(b) and the respective roles of each member

of the partnership, including the partner described in section 652(b)(3) if applicable; and

‘‘(B) how the State educational agency will work with

other persons and organizations involved in, and concerned

with, the education of children with disabilities, including

the respective roles of each of the persons and organizations;

20 USC 1453.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2769

‘‘(2) describe how the strategies and activities described

in paragraph (4) will be coordinated with activities supported

with other public resources (including part B and part C funds

retained for use at the State level for personnel and professional

development purposes) and private resources;

‘‘(3) describe how the State educational agency will align

its personnel development plan under this subpart with the

plan and application submitted under sections 1111 and 2112,

respectively, of the Elementary and Secondary Education Act

of 1965;

‘‘(4) describe those strategies the State educational agency

will use to address the professional development and personnel

needs identified under subsection (a)(2) and how such strategies

will be implemented, including—

‘‘(A) a description of the programs and activities to

be supported under this subpart that will provide personnel

with the knowledge and skills to meet the needs of, and

improve the performance and achievement of, infants, toddlers, preschoolers, and children with disabilities; and

‘‘(B) how such strategies will be integrated, to the

maximum extent possible, with other activities supported

by grants funded under section 662;

‘‘(5) provide an assurance that the State educational agency

will provide technical assistance to local educational agencies

to improve the quality of professional development available

to meet the needs of personnel who serve children with disabilities;

‘‘(6) provide an assurance that the State educational agency

will provide technical assistance to entities that provide services

to infants and toddlers with disabilities to improve the quality

of professional development available to meet the needs of

personnel serving such children;

‘‘(7) describe how the State educational agency will recruit

and retain highly qualified teachers and other qualified personnel in geographic areas of greatest need;

‘‘(8) describe the steps the State educational agency will

take to ensure that poor and minority children are not taught

at higher rates by teachers who are not highly qualified; and

‘‘(9) describe how the State educational agency will assess,

on a regular basis, the extent to which the strategies implemented under this subpart have been effective in meeting the

performance goals described in section 612(a)(15).

‘‘(c) PEER REVIEW.—

‘‘(1) IN GENERAL.—The Secretary shall use a panel of

experts who are competent, by virtue of their training, expertise, or experience, to evaluate applications for grants under

section 651(c)(1).

‘‘(2) COMPOSITION OF PANEL.—A majority of a panel

described in paragraph (1) shall be composed of individuals

who are not employees of the Federal Government.

‘‘(3) PAYMENT OF FEES AND EXPENSES OF CERTAIN MEMBERS.—The Secretary may use available funds appropriated

to carry out this subpart to pay the expenses and fees of

panel members who are not employees of the Federal Government.

118 STAT. 2770 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(d) REPORTING PROCEDURES.—Each State educational agency

that receives a grant under this subpart shall submit annual

performance reports to the Secretary. The reports shall—

‘‘(1) describe the progress of the State educational agency

in implementing its plan;

‘‘(2) analyze the effectiveness of the State educational

agency’s activities under this subpart and of the State educational agency’s strategies for meeting its goals under section

612(a)(15); and

‘‘(3) identify changes in the strategies used by the State

educational agency and described in subsection (b)(4), if any,

to improve the State educational agency’s performance.

‘‘SEC. 654. USE OF FUNDS.

‘‘(a) PROFESSIONAL DEVELOPMENT ACTIVITIES.—A State educational agency that receives a grant under this subpart shall

use the grant funds to support activities in accordance with the

State’s plan described in section 653, including 1 or more of the

following:

‘‘(1) Carrying out programs that provide support to both

special education and regular education teachers of children

with disabilities and principals, such as programs that—

‘‘(A) provide teacher mentoring, team teaching, reduced

class schedules and case loads, and intensive professional

development;

‘‘(B) use standards or assessments for guiding beginning teachers that are consistent with challenging State

student academic achievement and functional standards

and with the requirements for professional development,

as defined in section 9101 of the Elementary and Secondary

Education Act of 1965; and

‘‘(C) encourage collaborative and consultative models

of providing early intervention, special education, and

related services.

‘‘(2) Encouraging and supporting the training of special

education and regular education teachers and administrators

to effectively use and integrate technology—

‘‘(A) into curricula and instruction, including training

to improve the ability to collect, manage, and analyze data

to improve teaching, decisionmaking, school improvement

efforts, and accountability;

‘‘(B) to enhance learning by children with disabilities;

and

‘‘(C) to effectively communicate with parents.

‘‘(3) Providing professional development activities that—

‘‘(A) improve the knowledge of special education and

regular education teachers concerning—

‘‘(i) the academic and developmental or functional

needs of students with disabilities; or

‘‘(ii) effective instructional strategies, methods, and

skills, and the use of State academic content standards

and student academic achievement and functional

standards, and State assessments, to improve teaching

practices and student academic achievement;

20 USC 1454.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2771

‘‘(B) improve the knowledge of special education and

regular education teachers and principals and, in appropriate cases, paraprofessionals, concerning effective instructional practices, and that—

‘‘(i) provide training in how to teach and address

the needs of children with different learning styles

and children who are limited English proficient;

‘‘(ii) involve collaborative groups of teachers,

administrators, and, in appropriate cases, related services personnel;

‘‘(iii) provide training in methods of—

‘‘(I) positive behavioral interventions and supports to improve student behavior in the classroom;

‘‘(II) scientifically based reading instruction,

including early literacy instruction;

‘‘(III) early and appropriate interventions to

identify and help children with disabilities;

‘‘(IV) effective instruction for children with low

incidence disabilities;

‘‘(V) successful transitioning to postsecondary

opportunities; and

‘‘(VI) using classroom-based techniques to

assist children prior to referral for special education;

‘‘(iv) provide training to enable personnel to work

with and involve parents in their child’s education,

including parents of low income and limited English

proficient children with disabilities;

‘‘(v) provide training for special education personnel and regular education personnel in planning,

developing, and implementing effective and appropriate IEPs; and

‘‘(vi) provide training to meet the needs of students

with significant health, mobility, or behavioral needs

prior to serving such students;

‘‘(C) train administrators, principals, and other relevant school personnel in conducting effective IEP

meetings; and

‘‘(D) train early intervention, preschool, and related

services providers, and other relevant school personnel,

in conducting effective individualized family service plan

(IFSP) meetings.

‘‘(4) Developing and implementing initiatives to promote

the recruitment and retention of highly qualified special education teachers, particularly initiatives that have been proven

effective in recruiting and retaining highly qualified teachers,

including programs that provide—

‘‘(A) teacher mentoring from exemplary special education teachers, principals, or superintendents;

‘‘(B) induction and support for special education

teachers during their first 3 years of employment as

teachers; or

‘‘(C) incentives, including financial incentives, to retain

special education teachers who have a record of success

in helping students with disabilities.

118 STAT. 2772 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(5) Carrying out programs and activities that are designed

to improve the quality of personnel who serve children with

disabilities, such as—

‘‘(A) innovative professional development programs

(which may be provided through partnerships that include

institutions of higher education), including programs that

train teachers and principals to integrate technology into

curricula and instruction to improve teaching, learning,

and technology literacy, which professional development

shall be consistent with the definition of professional

development in section 9101 of the Elementary and Secondary Education Act of 1965; and

‘‘(B) the development and use of proven, cost effective

strategies for the implementation of professional development activities, such as through the use of technology

and distance learning.

‘‘(6) Carrying out programs and activities that are designed

to improve the quality of early intervention personnel, including

paraprofessionals and primary referral sources, such as—

‘‘(A) professional development programs to improve the

delivery of early intervention services;

‘‘(B) initiatives to promote the recruitment and retention of early intervention personnel; and

‘‘(C) interagency activities to ensure that early intervention personnel are adequately prepared and trained.

‘‘(b) OTHER ACTIVITIES.—A State educational agency that

receives a grant under this subpart shall use the grant funds

to support activities in accordance with the State’s plan described

in section 653, including 1 or more of the following:

‘‘(1) Reforming special education and regular education

teacher certification (including recertification) or licensing

requirements to ensure that—

‘‘(A) special education and regular education teachers

have—

‘‘(i) the training and information necessary to

address the full range of needs of children with disabilities across disability categories; and

‘‘(ii) the necessary subject matter knowledge and

teaching skills in the academic subjects that the

teachers teach;

‘‘(B) special education and regular education teacher

certification (including recertification) or licensing requirements are aligned with challenging State academic content

standards; and

‘‘(C) special education and regular education teachers

have the subject matter knowledge and teaching skills,

including technology literacy, necessary to help students

with disabilities meet challenging State student academic

achievement and functional standards.

‘‘(2) Programs that establish, expand, or improve alternative routes for State certification of special education teachers

for highly qualified individuals with a baccalaureate or master’s

degree, including mid-career professionals from other occupations, paraprofessionals, and recent college or university graduates with records of academic distinction who demonstrate

the potential to become highly effective special education

teachers.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2773

‘‘(3) Teacher advancement initiatives for special education

teachers that promote professional growth and emphasize multiple career paths (such as paths to becoming a career teacher,

mentor teacher, or exemplary teacher) and pay differentiation.

‘‘(4) Developing and implementing mechanisms to assist

local educational agencies and schools in effectively recruiting

and retaining highly qualified special education teachers.

‘‘(5) Reforming tenure systems, implementing teacher

testing for subject matter knowledge, and implementing teacher

testing for State certification or licensing, consistent with title

II of the Higher Education Act of 1965.

‘‘(6) Funding projects to promote reciprocity of teacher certification or licensing between or among States for special education teachers, except that no reciprocity agreement developed

under this paragraph or developed using funds provided under

this subpart may lead to the weakening of any State teaching

certification or licensing requirement.

‘‘(7) Assisting local educational agencies to serve children

with disabilities through the development and use of proven,

innovative strategies to deliver intensive professional development programs that are both cost effective and easily accessible,

such as strategies that involve delivery through the use of

technology, peer networks, and distance learning.

‘‘(8) Developing, or assisting local educational agencies in

developing, merit based performance systems, and strategies

that provide differential and bonus pay for special education

teachers.

‘‘(9) Supporting activities that ensure that teachers are

able to use challenging State academic content standards and

student academic achievement and functional standards, and

State assessments for all children with disabilities, to improve

instructional practices and improve the academic achievement

of children with disabilities.

‘‘(10) When applicable, coordinating with, and expanding

centers established under, section 2113(c)(18) of the Elementary

and Secondary Education Act of 1965 to benefit special education teachers.

‘‘(c) CONTRACTS AND SUBGRANTS.—A State educational agency

that receives a grant under this subpart—

‘‘(1) shall award contracts or subgrants to local educational

agencies, institutions of higher education, parent training and

information centers, or community parent resource centers, as

appropriate, to carry out its State plan under this subpart;

and

‘‘(2) may award contracts and subgrants to other public

and private entities, including the lead agency under part C,

to carry out the State plan.

‘‘(d) USE OF FUNDS FOR PROFESSIONAL DEVELOPMENT.—A State

educational agency that receives a grant under this subpart shall

use—

‘‘(1) not less than 90 percent of the funds the State educational agency receives under the grant for any fiscal year

for activities under subsection (a); and

‘‘(2) not more than 10 percent of the funds the State educational agency receives under the grant for any fiscal year

for activities under subsection (b).

118 STAT. 2774 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(e) GRANTS TO OUTLYING AREAS.—Public Law 95–134, permitting the consolidation of grants to the outlying areas, shall not

apply to funds received under this subpart.

‘‘SEC. 655. AUTHORIZATION OF APPROPRIATIONS.

‘‘There are authorized to be appropriated to carry out this

subpart such sums as may be necessary for each of the fiscal

years 2005 through 2010.

‘‘Subpart 2—Personnel Preparation, Technical Assistance, Model Demonstration Projects, and

Dissemination of Information

‘‘SEC. 661. PURPOSE; DEFINITION OF ELIGIBLE ENTITY.

‘‘(a) PURPOSE.—The purpose of this subpart is—

‘‘(1) to provide Federal funding for personnel preparation,

technical assistance, model demonstration projects, information

dissemination, and studies and evaluations, in order to improve

early intervention, educational, and transitional results for children with disabilities; and

‘‘(2) to assist State educational agencies and local educational agencies in improving their education systems for children with disabilities.

‘‘(b) DEFINITION OF ELIGIBLE ENTITY.— ‘‘(1) IN GENERAL.—In this subpart, the term ‘eligible entity’

means—

‘‘(A) a State educational agency;

‘‘(B) a local educational agency;

‘‘(C) a public charter school that is a local educational

agency under State law;

‘‘(D) an institution of higher education;

‘‘(E) a public agency not described in subparagraphs

(A) through (D);

‘‘(F) a private nonprofit organization;

‘‘(G) an outlying area;

‘‘(H) an Indian tribe or a tribal organization (as defined

under section 4 of the Indian Self-Determination and Education Assistance Act); or

‘‘(I) a for-profit organization, if the Secretary finds

it appropriate in light of the purposes of a particular competition for a grant, contract, or cooperative agreement

under this subpart.

‘‘(2) SPECIAL RULE.—The Secretary may limit which eligible

entities described in paragraph (1) are eligible for a grant,

contract, or cooperative agreement under this subpart to 1

or more of the categories of eligible entities described in paragraph (1).

‘‘SEC. 662. PERSONNEL DEVELOPMENT TO IMPROVE SERVICES AND

RESULTS FOR CHILDREN WITH DISABILITIES.

‘‘(a) IN GENERAL.—The Secretary, on a competitive basis, shall

award grants to, or enter into contracts or cooperative agreements

with, eligible entities to carry out 1 or more of the following objectives:

‘‘(1) To help address the needs identified in the State plan

described in section 653(a)(2) for highly qualified personnel,

as defined in section 651(b), to work with infants or toddlers

20 USC 1462.

20 USC 1461.

20 USC 1455.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2775

with disabilities, or children with disabilities, consistent with

the qualifications described in section 612(a)(14).

‘‘(2) To ensure that those personnel have the necessary

skills and knowledge, derived from practices that have been

determined, through scientifically based research, to be successful in serving those children.

‘‘(3) To encourage increased focus on academics and core

content areas in special education personnel preparation programs.

‘‘(4) To ensure that regular education teachers have the

necessary skills and knowledge to provide instruction to students with disabilities in the regular education classroom.

‘‘(5) To ensure that all special education teachers are highly

qualified.

‘‘(6) To ensure that preservice and in-service personnel

preparation programs include training in—

‘‘(A) the use of new technologies;

‘‘(B) the area of early intervention, educational, and

transition services;

‘‘(C) effectively involving parents; and

‘‘(D) positive behavioral supports.

‘‘(7) To provide high-quality professional development for

principals, superintendents, and other administrators, including

training in—

‘‘(A) instructional leadership;

‘‘(B) behavioral supports in the school and classroom;

‘‘(C) paperwork reduction;

‘‘(D) promoting improved collaboration between special

education and general education teachers;

‘‘(E) assessment and accountability;

‘‘(F) ensuring effective learning environments; and

‘‘(G) fostering positive relationships with parents.

‘‘(b) PERSONNEL DEVELOPMENT; ENHANCED SUPPORT FOR BEGINNING SPECIAL EDUCATORS.—

‘‘(1) IN GENERAL.—In carrying out this section, the Secretary shall support activities—

‘‘(A) for personnel development, including activities for

the preparation of personnel who will serve children with

high incidence and low incidence disabilities, to prepare

special education and general education teachers, principals, administrators, and related services personnel (and

school board members, when appropriate) to meet the

diverse and individualized instructional needs of children

with disabilities and improve early intervention, educational, and transitional services and results for children

with disabilities, consistent with the objectives described

in subsection (a); and

‘‘(B) for enhanced support for beginning special educators, consistent with the objectives described in subsection (a).

‘‘(2) PERSONNEL DEVELOPMENT.—In carrying out paragraph

(1)(A), the Secretary shall support not less than 1 of the following activities:

‘‘(A) Assisting effective existing, improving existing,

or developing new, collaborative personnel preparation

activities undertaken by institutions of higher education,

local educational agencies, and other local entities that

118 STAT. 2776 PUBLIC LAW 108–446—DEC. 3, 2004

incorporate best practices and scientifically based research,

where applicable, in providing special education and general education teachers, principals, administrators, and

related services personnel with the knowledge and skills

to effectively support students with disabilities, including—

‘‘(i) working collaboratively in regular classroom

settings;

‘‘(ii) using appropriate supports, accommodations,

and curriculum modifications;

‘‘(iii) implementing effective teaching strategies,

classroom-based techniques, and interventions to

ensure appropriate identification of students who may

be eligible for special education services, and to prevent

the misidentification, inappropriate overidentification,

or underidentification of children as having a disability,

especially minority and limited English proficient children;

‘‘(iv) effectively working with and involving parents

in the education of their children;

‘‘(v) utilizing strategies, including positive behavioral interventions, for addressing the conduct of children with disabilities that impedes their learning and

that of others in the classroom;

‘‘(vi) effectively constructing IEPs, participating in

IEP meetings, and implementing IEPs;

‘‘(vii) preparing children with disabilities to participate in statewide assessments (with or without accommodations) and alternate assessments, as appropriate,

and to ensure that all children with disabilities are

a part of all accountability systems under the

Elementary and Secondary Education Act of 1965; and

‘‘(viii) working in high need elementary schools

and secondary schools, including urban schools, rural

schools, and schools operated by an entity described

in section 7113(d)(1)(A)(ii) of the Elementary and Secondary Education Act of 1965, and schools that serve

high numbers or percentages of limited English proficient children.

‘‘(B) Developing, evaluating, and disseminating innovative models for the recruitment, induction, retention, and

assessment of new, highly qualified teachers to reduce

teacher shortages, especially from groups that are underrepresented in the teaching profession, including individuals with disabilities.

‘‘(C) Providing continuous personnel preparation,

training, and professional development designed to provide

support and ensure retention of special education and general education teachers and personnel who teach and provide related services to children with disabilities.

‘‘(D) Developing and improving programs for paraprofessionals to become special education teachers, related

services personnel, and early intervention personnel,

including interdisciplinary training to enable the paraprofessionals to improve early intervention, educational,

and transitional results for children with disabilities.

‘‘(E) In the case of principals and superintendents,

providing activities to promote instructional leadership and

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2777

improved collaboration between general educators, special

education teachers, and related services personnel.

‘‘(F) Supporting institutions of higher education with

minority enrollments of not less than 25 percent for the

purpose of preparing personnel to work with children with

disabilities.

‘‘(G) Developing and improving programs to train special education teachers to develop an expertise in autism

spectrum disorders.

‘‘(H) Providing continuous personnel preparation,

training, and professional development designed to provide

support and improve the qualifications of personnel who

provide related services to children with disabilities,

including to enable such personnel to obtain advanced

degrees.

‘‘(3) ENHANCED SUPPORT FOR BEGINNING SPECIAL EDUCATORS.—In carrying out paragraph (1)(B), the Secretary shall

support not less than 1 of the following activities:

‘‘(A) Enhancing and restructuring existing programs

or developing preservice teacher education programs to

prepare special education teachers, at colleges or departments of education within institutions of higher education,

by incorporating an extended (such as an additional 5th

year) clinical learning opportunity, field experience, or

supervised practicum into such programs.

‘‘(B) Creating or supporting teacher-faculty partnerships (such as professional development schools) that—

‘‘(i) consist of not less than—

‘‘(I) 1 or more institutions of higher education

with special education personnel preparation programs;

‘‘(II) 1 or more local educational agencies that

serve high numbers or percentages of low-income

students; or

‘‘(III) 1 or more elementary schools or secondary schools, particularly schools that have

failed to make adequate yearly progress on the

basis, in whole and in part, of the assessment

results of the disaggregated subgroup of students

with disabilities;

‘‘(ii) may include other entities eligible for assistance under this part; and

‘‘(iii) provide—

‘‘(I) high-quality mentoring and induction

opportunities with ongoing support for beginning

special education teachers; or

‘‘(II) inservice professional development to

beginning and veteran special education teachers

through the ongoing exchange of information and

instructional strategies with faculty.

‘‘(c) LOW INCIDENCE DISABILITIES; AUTHORIZED ACTIVITIES.—

‘‘(1) IN GENERAL.—In carrying out this section, the Secretary shall support activities, consistent with the objectives

described in subsection (a), that benefit children with low

incidence disabilities.

118 STAT. 2778 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(2) AUTHORIZED ACTIVITIES.—Activities that may be carried out under this subsection include activities such as the

following:

‘‘(A) Preparing persons who—

‘‘(i) have prior training in educational and other

related service fields; and

‘‘(ii) are studying to obtain degrees, certificates,

or licensure that will enable the persons to assist children with low incidence disabilities to achieve the

objectives set out in their individualized education programs described in section 614(d), or to assist infants

and toddlers with low incidence disabilities to achieve

the outcomes described in their individualized family

service plans described in section 636.

‘‘(B) Providing personnel from various disciplines with

interdisciplinary training that will contribute to improvement in early intervention, educational, and transitional

results for children with low incidence disabilities.

‘‘(C) Preparing personnel in the innovative uses and

application of technology, including universally designed

technologies, assistive technology devices, and assistive

technology services—

‘‘(i) to enhance learning by children with low

incidence disabilities through early intervention, educational, and transitional services; and

‘‘(ii) to improve communication with parents.

‘‘(D) Preparing personnel who provide services to visually impaired or blind children to teach and use Braille

in the provision of services to such children.

‘‘(E) Preparing personnel to be qualified educational

interpreters, to assist children with low incidence disabilities, particularly deaf and hard of hearing children in

school and school related activities, and deaf and hard

of hearing infants and toddlers and preschool children in

early intervention and preschool programs.

‘‘(F) Preparing personnel who provide services to children with significant cognitive disabilities and children

with multiple disabilities.

‘‘(G) Preparing personnel who provide services to children with low incidence disabilities and limited English

proficient children.

‘‘(3) DEFINITION.—In this section, the term ‘low incidence

disability’ means—

‘‘(A) a visual or hearing impairment, or simultaneous

visual and hearing impairments;

‘‘(B) a significant cognitive impairment; or

‘‘(C) any impairment for which a small number of

personnel with highly specialized skills and knowledge are

needed in order for children with that impairment to

receive early intervention services or a free appropriate

public education.

‘‘(4) SELECTION OF RECIPIENTS.—In selecting eligible entities for assistance under this subsection, the Secretary may

give preference to eligible entities submitting applications that

include 1 or more of the following:

‘‘(A) A proposal to prepare personnel in more than

1 low incidence disability, such as deafness and blindness.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2779

‘‘(B) A demonstration of an effective collaboration

between an eligible entity and a local educational agency

that promotes recruitment and subsequent retention of

highly qualified personnel to serve children with low

incidence disabilities.

‘‘(5) PREPARATION IN USE OF BRAILLE.—The Secretary shall

ensure that all recipients of awards under this subsection who

will use that assistance to prepare personnel to provide services

to visually impaired or blind children that can appropriately

be provided in Braille, will prepare those individuals to provide

those services in Braille.

‘‘(d) LEADERSHIP PREPARATION; AUTHORIZED ACTIVITIES.— ‘‘(1) IN GENERAL.—In carrying out this section, the Secretary shall support leadership preparation activities that are

consistent with the objectives described in subsection (a).

‘‘(2) AUTHORIZED ACTIVITIES.—Activities that may be carried out under this subsection include activities such as the

following:

‘‘(A) Preparing personnel at the graduate, doctoral,

and postdoctoral levels of training to administer, enhance,

or provide services to improve results for children with

disabilities.

‘‘(B) Providing interdisciplinary training for various

types of leadership personnel, including teacher preparation faculty, related services faculty, administrators,

researchers, supervisors, principals, and other persons

whose work affects early intervention, educational, and

transitional services for children with disabilities, including

children with disabilities who are limited English proficient

children.

‘‘(e) APPLICATIONS.—

‘‘(1) IN GENERAL.—An eligible entity that wishes to receive

a grant, or enter into a contract or cooperative agreement,

under this section shall submit an application to the Secretary

at such time, in such manner, and containing such information

as the Secretary may require.

‘‘(2) IDENTIFIED STATE NEEDS.—

‘‘(A) REQUIREMENT TO ADDRESS IDENTIFIED NEEDS.—

An application for assistance under subsection (b), (c), or

(d) shall include information demonstrating to the satisfaction of the Secretary that the activities described in the

application will address needs identified by the State or

States the eligible entity proposes to serve.

‘‘(B) COOPERATION WITH STATE EDUCATIONAL AGENCIES.—An eligible entity that is not a local educational

agency or a State educational agency shall include in the

eligible entity’s application information demonstrating to

the satisfaction of the Secretary that the eligible entity

and 1 or more State educational agencies or local educational agencies will cooperate in carrying out and monitoring the proposed project.

‘‘(3) ACCEPTANCE BY STATES OF PERSONNEL PREPARATION

REQUIREMENTS.—The Secretary may require eligible entities

to provide in the eligible entities’ applications assurances from

1 or more States that such States intend to accept successful

completion of the proposed personnel preparation program as

meeting State personnel standards or other requirements in

118 STAT. 2780 PUBLIC LAW 108–446—DEC. 3, 2004

State law or regulation for serving children with disabilities

or serving infants and toddlers with disabilities.

‘‘(f) SELECTION OF RECIPIENTS.—

‘‘(1) IMPACT OF PROJECT.—In selecting eligible entities for

assistance under this section, the Secretary shall consider the

impact of the proposed project described in the application

in meeting the need for personnel identified by the States.

‘‘(2) REQUIREMENT FOR ELIGIBLE ENTITIES TO MEET STATE

AND PROFESSIONAL QUALIFICATIONS.—The Secretary shall make

grants and enter into contracts and cooperative agreements

under this section only to eligible entities that meet State

and professionally recognized qualifications for the preparation

of special education and related services personnel, if the purpose of the project is to assist personnel in obtaining degrees.

‘‘(3) PREFERENCES.—In selecting eligible entities for assistance under this section, the Secretary may give preference

to eligible entities that are institutions of higher education

that are—

‘‘(A) educating regular education personnel to meet

the needs of children with disabilities in integrated settings;

‘‘(B) educating special education personnel to work in

collaboration with regular educators in integrated settings;

and

‘‘(C) successfully recruiting and preparing individuals

with disabilities and individuals from groups that are

underrepresented in the profession for which the institution

of higher education is preparing individuals.

‘‘(g) SCHOLARSHIPS.—The Secretary may include funds for scholarships, with necessary stipends and allowances, in awards under

subsections (b), (c), and (d).

‘‘(h) SERVICE OBLIGATION.—

‘‘(1) IN GENERAL.—Each application for assistance under

subsections (b), (c), and (d) shall include an assurance that

the eligible entity will ensure that individuals who receive

a scholarship under the proposed project agree to subsequently

provide special education and related services to children with

disabilities, or in the case of leadership personnel to subsequently work in the appropriate field, for a period of 2 years

for every year for which the scholarship was received or repay

all or part of the amount of the scholarship, in accordance

with regulations issued by the Secretary.

‘‘(2) SPECIAL RULE.—Notwithstanding paragraph (1), the

Secretary may reduce or waive the service obligation requirement under paragraph (1) if the Secretary determines that

the service obligation is acting as a deterrent to the recruitment

of students into special education or a related field.

‘‘(3) SECRETARY’S RESPONSIBILITY.—The Secretary—

‘‘(A) shall ensure that individuals described in paragraph (1) comply with the requirements of that paragraph;

and

‘‘(B) may use not more than 0.5 percent of the funds

appropriated under subsection (i) for each fiscal year, to

carry out subparagraph (A), in addition to any other funds

that are available for that purpose.

Grants.

Contracts.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2781

‘‘(i) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated to carry out this section such sums as may

be necessary for each of the fiscal years 2005 through 2010.

‘‘SEC. 663. TECHNICAL ASSISTANCE, DEMONSTRATION PROJECTS,

DISSEMINATION OF INFORMATION, AND IMPLEMENTATION OF SCIENTIFICALLY BASED RESEARCH.

‘‘(a) IN GENERAL.—The Secretary shall make competitive grants

to, or enter into contracts or cooperative agreements with, eligible

entities to provide technical assistance, support model demonstration projects, disseminate useful information, and implement activities that are supported by scientifically based research.

‘‘(b) REQUIRED ACTIVITIES.—Funds received under this section

shall be used to support activities to improve services provided

under this title, including the practices of professionals and others

involved in providing such services to children with disabilities,

that promote academic achievement and improve results for children with disabilities through—

‘‘(1) implementing effective strategies for addressing

inappropriate behavior of students with disabilities in schools,

including strategies to prevent children with emotional and

behavioral problems from developing emotional disturbances

that require the provision of special education and related

services;

‘‘(2) improving the alignment, compatibility, and development of valid and reliable assessments and alternate assessments for assessing adequate yearly progress, as described

under section 1111(b)(2)(B) of the Elementary and Secondary

Education Act of 1965;

‘‘(3) providing training for both regular education teachers

and special education teachers to address the needs of students

with different learning styles;

‘‘(4) disseminating information about innovative, effective,

and efficient curricula designs, instructional approaches, and

strategies, and identifying positive academic and social learning

opportunities, that—

‘‘(A) provide effective transitions between educational

settings or from school to post school settings; and

‘‘(B) improve educational and transitional results at

all levels of the educational system in which the activities

are carried out and, in particular, that improve the progress

of children with disabilities, as measured by assessments

within the general education curriculum involved; and

‘‘(5) applying scientifically based findings to facilitate systemic changes, related to the provision of services to children

with disabilities, in policy, procedure, practice, and the training

and use of personnel.

‘‘(c) AUTHORIZED ACTIVITIES.—Activities that may be carried

out under this section include activities to improve services provided

under this title, including the practices of professionals and others

involved in providing such services to children with disabilities,

that promote academic achievement and improve results for children with disabilities through—

‘‘(1) applying and testing research findings in typical settings where children with disabilities receive services to determine the usefulness, effectiveness, and general applicability

Grants.

Contracts.

20 USC 1463.

118 STAT. 2782 PUBLIC LAW 108–446—DEC. 3, 2004

of such research findings in such areas as improving instructional methods, curricula, and tools, such as textbooks and

media;

‘‘(2) supporting and promoting the coordination of early

intervention and educational services for children with disabilities with services provided by health, rehabilitation, and social

service agencies;

‘‘(3) promoting improved alignment and compatibility of

general and special education reforms concerned with curricular

and instructional reform, and evaluation of such reforms;

‘‘(4) enabling professionals, parents of children with disabilities, and other persons to learn about, and implement, the

findings of scientifically based research, and successful practices

developed in model demonstration projects, relating to the

provision of services to children with disabilities;

‘‘(5) conducting outreach, and disseminating information,

relating to successful approaches to overcoming systemic barriers to the effective and efficient delivery of early intervention,

educational, and transitional services to personnel who provide

services to children with disabilities;

‘‘(6) assisting States and local educational agencies with

the process of planning systemic changes that will promote

improved early intervention, educational, and transitional

results for children with disabilities;

‘‘(7) promoting change through a multistate or regional

framework that benefits States, local educational agencies, and

other participants in partnerships that are in the process of

achieving systemic-change outcomes;

‘‘(8) focusing on the needs and issues that are specific

to a population of children with disabilities, such as providing

single-State and multi-State technical assistance and in-service

training—

‘‘(A) to schools and agencies serving deaf-blind children

and their families;

‘‘(B) to programs and agencies serving other groups

of children with low incidence disabilities and their families;

‘‘(C) addressing the postsecondary education needs of

individuals who are deaf or hard-of-hearing; and

‘‘(D) to schools and personnel providing special education and related services for children with autism spectrum disorders;

‘‘(9) demonstrating models of personnel preparation to

ensure appropriate placements and services for all students

and to reduce disproportionality in eligibility, placement, and

disciplinary actions for minority and limited English proficient

children; and

‘‘(10) disseminating information on how to reduce inappropriate racial and ethnic disproportionalities identified under

section 618.

‘‘(d) BALANCE AMONG ACTIVITIES AND AGE RANGES.—In carrying

out this section, the Secretary shall ensure that there is an appropriate balance across all age ranges of children with disabilities.

‘‘(e) LINKING STATES TO INFORMATION SOURCES.—In carrying

out this section, the Secretary shall support projects that link

States to technical assistance resources, including special education

and general education resources, and shall make research and

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2783

related products available through libraries, electronic networks,

parent training projects, and other information sources, including

through the activities of the National Center for Education Evaluation and Regional Assistance established under part D of the Education Sciences Reform Act of 2002.

‘‘(f) APPLICATIONS.— ‘‘(1) IN GENERAL.—An eligible entity that wishes to receive

a grant, or enter into a contract or cooperative agreement,

under this section shall submit an application to the Secretary

at such time, in such manner, and containing such information

as the Secretary may require.

‘‘(2) STANDARDS.—To the maximum extent feasible, each

eligible entity shall demonstrate that the project described in

the eligible entity’s application is supported by scientifically

valid research that has been carried out in accordance with

the standards for the conduct and evaluation of all relevant

research and development established by the National Center

for Education Research.

‘‘(3) PRIORITY.—As appropriate, the Secretary shall give

priority to applications that propose to serve teachers and school

personnel directly in the school environment.

‘‘SEC. 664. STUDIES AND EVALUATIONS.

‘‘(a) STUDIES AND EVALUATIONS.—

‘‘(1) DELEGATION.—The Secretary shall delegate to the

Director of the Institute of Education Sciences responsibility

to carry out this section, other than subsections (d) and (f).

‘‘(2) ASSESSMENT.—The Secretary shall, directly or through

grants, contracts, or cooperative agreements awarded to eligible

entities on a competitive basis, assess the progress in the

implementation of this title, including the effectiveness of State

and local efforts to provide—

‘‘(A) a free appropriate public education to children

with disabilities; and

‘‘(B) early intervention services to infants and toddlers

with disabilities, and infants and toddlers who would be

at risk of having substantial developmental delays if early

intervention services were not provided to the infants and

toddlers.

‘‘(b) ASSESSMENT OF NATIONAL ACTIVITIES.—

‘‘(1) IN GENERAL.—The Secretary shall carry out a national

assessment of activities carried out with Federal funds under

this title in order—

‘‘(A) to determine the effectiveness of this title in

achieving the purposes of this title;

‘‘(B) to provide timely information to the President,

Congress, the States, local educational agencies, and the

public on how to implement this title more effectively;

and

‘‘(C) to provide the President and Congress with

information that will be useful in developing legislation

to achieve the purposes of this title more effectively.

‘‘(2) SCOPE OF ASSESSMENT.—The national assessment shall

assess activities supported under this title, including—

‘‘(A) the implementation of programs assisted under

this title and the impact of such programs on addressing

the developmental needs of, and improving the academic

20 USC 1464.

118 STAT. 2784 PUBLIC LAW 108–446—DEC. 3, 2004

achievement of, children with disabilities to enable the

children to reach challenging developmental goals and challenging State academic content standards based on State

academic assessments;

‘‘(B) the types of programs and services that have

demonstrated the greatest likelihood of helping students

reach the challenging State academic content standards

and developmental goals;

‘‘(C) the implementation of the professional development activities assisted under this title and the impact

on instruction, student academic achievement, and teacher

qualifications to enhance the ability of special education

teachers and regular education teachers to improve results

for children with disabilities; and

‘‘(D) the effectiveness of schools, local educational agencies, States, other recipients of assistance under this title,

and the Secretary in achieving the purposes of this title

by—

‘‘(i) improving the academic achievement of children with disabilities and their performance on regular

statewide assessments as compared to nondisabled

children, and the performance of children with disabilities on alternate assessments;

‘‘(ii) improving the participation of children with

disabilities in the general education curriculum;

‘‘(iii) improving the transitions of children with

disabilities at natural transition points;

‘‘(iv) placing and serving children with disabilities,

including minority children, in the least restrictive

environment appropriate;

‘‘(v) preventing children with disabilities, especially

children with emotional disturbances and specific

learning disabilities, from dropping out of school;

‘‘(vi) addressing the reading and literacy needs

of children with disabilities;

‘‘(vii) reducing the inappropriate overidentification

of children, especially minority and limited English

proficient children, as having a disability;

‘‘(viii) improving the participation of parents of

children with disabilities in the education of their children; and

‘‘(ix) resolving disagreements between education

personnel and parents through alternate dispute resolution activities, including mediation.

‘‘(3) INTERIM AND FINAL REPORTS.—The Secretary shall

submit to the President and Congress—

‘‘(A) an interim report that summarizes the preliminary

findings of the assessment not later than 3 years after

the date of enactment of the Individuals with Disabilities

Education Improvement Act of 2004; and

‘‘(B) a final report of the findings of the assessment

not later than 5 years after the date of enactment of

such Act.

‘‘(c) STUDY ON ENSURING ACCOUNTABILITY FOR STUDENTS WHO

ARE HELD TO ALTERNATIVE ACHIEVEMENT STANDARDS.—The Secretary shall carry out a national study or studies to examine—

‘‘(1) the criteria that States use to determine—

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2785

‘‘(A) eligibility for alternate assessments; and

‘‘(B) the number and type of children who take those

assessments and are held accountable to alternative

achievement standards;

‘‘(2) the validity and reliability of alternate assessment

instruments and procedures;

‘‘(3) the alignment of alternate assessments and alternative

achievement standards to State academic content standards

in reading, mathematics, and science; and

‘‘(4) the use and effectiveness of alternate assessments

in appropriately measuring student progress and outcomes specific to individualized instructional need.

‘‘(d) ANNUAL REPORT.—The Secretary shall provide an annual

report to Congress that—

‘‘(1) summarizes the research conducted under part E of

the Education Sciences Reform Act of 2002;

‘‘(2) analyzes and summarizes the data reported by the

States and the Secretary of the Interior under section 618;

‘‘(3) summarizes the studies and evaluations conducted

under this section and the timeline for their completion;

‘‘(4) describes the extent and progress of the assessment

of national activities; and

‘‘(5) describes the findings and determinations resulting

from reviews of State implementation of this title.

‘‘(e) AUTHORIZED ACTIVITIES.—In carrying out this section, the

Secretary may support objective studies, evaluations, and assessments, including studies that—

‘‘(1) analyze measurable impact, outcomes, and results

achieved by State educational agencies and local educational

agencies through their activities to reform policies, procedures,

and practices designed to improve educational and transitional

services and results for children with disabilities;

‘‘(2) analyze State and local needs for professional development, parent training, and other appropriate activities that

can reduce the need for disciplinary actions involving children

with disabilities;

‘‘(3) assess educational and transitional services and results

for children with disabilities from minority backgrounds,

including—

‘‘(A) data on—

‘‘(i) the number of minority children who are

referred for special education evaluation;

‘‘(ii) the number of minority children who are

receiving special education and related services and

their educational or other service placement;

‘‘(iii) the number of minority children who graduated from secondary programs with a regular diploma

in the standard number of years; and

‘‘(iv) the number of minority children who drop

out of the educational system; and

‘‘(B) the performance of children with disabilities from

minority backgrounds on State assessments and other

performance indicators established for all students;

‘‘(4) measure educational and transitional services and

results for children with disabilities served under this title,

including longitudinal studies that—

118 STAT. 2786 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(A) examine educational and transitional services and

results for children with disabilities who are 3 through

17 years of age and are receiving special education and

related services under this title, using a national, representative sample of distinct age cohorts and disability

categories; and

‘‘(B) examine educational results, transition services,

postsecondary placement, and employment status for

individuals with disabilities, 18 through 21 years of age,

who are receiving or have received special education and

related services under this title; and

‘‘(5) identify and report on the placement of children with

disabilities by disability category.

‘‘(f) STUDY.—The Secretary shall study, and report to Congress

regarding, the extent to which States adopt policies described in

section 635(c)(1) and on the effects of those policies.

‘‘SEC. 665. INTERIM ALTERNATIVE EDUCATIONAL SETTINGS, BEHAVIORAL SUPPORTS, AND SYSTEMIC SCHOOL INTERVENTIONS.

‘‘(a) PROGRAM AUTHORIZED.—The Secretary may award grants,

and enter into contracts and cooperative agreements, to support

safe learning environments that support academic achievement for

all students by—

‘‘(1) improving the quality of interim alternative educational settings; and

‘‘(2) providing increased behavioral supports and researchbased, systemic interventions in schools.

‘‘(b) AUTHORIZED ACTIVITIES.—In carrying out this section, the

Secretary may support activities to—

‘‘(1) establish, expand, or increase the scope of behavioral

supports and systemic interventions by providing for effective,

research-based practices, including—

‘‘(A) training for school staff on early identification,

prereferral, and referral procedures;

‘‘(B) training for administrators, teachers, related services personnel, behavioral specialists, and other school staff

in positive behavioral interventions and supports, behavioral intervention planning, and classroom and student

management techniques;

‘‘(C) joint training for administrators, parents, teachers,

related services personnel, behavioral specialists, and other

school staff on effective strategies for positive behavioral

interventions and behavior management strategies that

focus on the prevention of behavior problems;

‘‘(D) developing or implementing specific curricula, programs, or interventions aimed at addressing behavioral

problems;

‘‘(E) stronger linkages between school-based services

and community-based resources, such as community mental

health and primary care providers; or

‘‘(F) using behavioral specialists, related services personnel, and other staff necessary to implement behavioral

supports; or

‘‘(2) improve interim alternative educational settings by—

‘‘(A) improving the training of administrators, teachers,

related services personnel, behavioral specialists, and other

20 USC 1465.

Reports.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2787

school staff (including ongoing mentoring of new teachers)

in behavioral supports and interventions;

‘‘(B) attracting and retaining a high quality, diverse

staff;

‘‘(C) providing for referral to counseling services;

‘‘(D) utilizing research-based interventions, curriculum,

and practices;

‘‘(E) allowing students to use instructional technology

that provides individualized instruction;

‘‘(F) ensuring that the services are fully consistent

with the goals of the individual student’s IEP;

‘‘(G) promoting effective case management and

collaboration among parents, teachers, physicians, related

services personnel, behavioral specialists, principals,

administrators, and other school staff;

‘‘(H) promoting interagency coordination and coordinated service delivery among schools, juvenile courts, child

welfare agencies, community mental health providers, primary care providers, public recreation agencies, and

community-based organizations; or

‘‘(I) providing for behavioral specialists to help students

transitioning from interim alternative educational settings

reintegrate into their regular classrooms.

‘‘(c) DEFINITION OF ELIGIBLE ENTITY.—In this section, the term

‘‘eligible entity’’ means—

‘‘(1) a local educational agency; or

‘‘(2) a consortium consisting of a local educational agency

and 1 or more of the following entities:

‘‘(A) Another local educational agency.

‘‘(B) A community-based organization with a demonstrated record of effectiveness in helping children with

disabilities who have behavioral challenges succeed.

‘‘(C) An institution of higher education.

‘‘(D) A community mental health provider.

‘‘(E) An educational service agency.

‘‘(d) APPLICATIONS.—Any eligible entity that wishes to receive

a grant, or enter into a contract or cooperative agreement, under

this section shall—

‘‘(1) submit an application to the Secretary at such time,

in such manner, and containing such information as the Secretary may require; and

‘‘(2) involve parents of participating students in the design

and implementation of the activities funded under this section.

‘‘(e) REPORT AND EVALUATION.—Each eligible entity receiving

a grant under this section shall prepare and submit annually to

the Secretary a report on the outcomes of the activities assisted

under the grant.

‘‘SEC. 667. AUTHORIZATION OF APPROPRIATIONS.

‘‘(a) IN GENERAL.—There are authorized to be appropriated

to carry out this subpart (other than section 662) such sums as

may be necessary for each of the fiscal years 2005 through 2010.

‘‘(b) RESERVATION.—From amounts appropriated under subsection (a) for fiscal year 2005, the Secretary shall reserve

$1,000,000 to carry out the study authorized in section 664(c).

From amounts appropriated under subsection (a) for a succeeding

fiscal year, the Secretary may reserve an additional amount to

20 USC 1466.

118 STAT. 2788 PUBLIC LAW 108–446—DEC. 3, 2004

carry out such study if the Secretary determines the additional

amount is necessary.

‘‘Subpart 3—Supports To Improve Results for

Children With Disabilities

‘‘SEC. 670. PURPOSES.

‘‘The purposes of this subpart are to ensure that—

‘‘(1) children with disabilities and their parents receive

training and information designed to assist the children in

meeting developmental and functional goals and challenging

academic achievement goals, and in preparing to lead productive independent adult lives;

‘‘(2) children with disabilities and their parents receive

training and information on their rights, responsibilities, and

protections under this title, in order to develop the skills necessary to cooperatively and effectively participate in planning

and decision making relating to early intervention, educational,

and transitional services;

‘‘(3) parents, teachers, administrators, early intervention

personnel, related services personnel, and transition personnel

receive coordinated and accessible technical assistance and

information to assist such personnel in improving early intervention, educational, and transitional services and results for

children with disabilities and their families; and

‘‘(4) appropriate technology and media are researched,

developed, and demonstrated, to improve and implement early

intervention, educational, and transitional services and results

for children with disabilities and their families.

‘‘SEC. 671. PARENT TRAINING AND INFORMATION CENTERS.

‘‘(a) PROGRAM AUTHORIZED.—

‘‘(1) IN GENERAL.—The Secretary may award grants to,

and enter into contracts and cooperative agreements with,

parent organizations to support parent training and information

centers to carry out activities under this section.

‘‘(2) DEFINITION OF PARENT ORGANIZATION.—In this section,

the term ‘parent organization’ means a private nonprofit

organization (other than an institution of higher education)

that—

‘‘(A) has a board of directors—

‘‘(i) the majority of whom are parents of children

with disabilities ages birth through 26;

‘‘(ii) that includes—

‘‘(I) individuals working in the fields of special

education, related services, and early intervention;

and

‘‘(II) individuals with disabilities; and

‘‘(iii) the parent and professional members of which

are broadly representative of the population to be

served, including low-income parents and parents of

limited English proficient children; and

‘‘(B) has as its mission serving families of children

with disabilities who—

‘‘(i) are ages birth through 26; and

‘‘(ii) have the full range of disabilities described

in section 602(3).

20 USC 1471.

20 USC 1470.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2789

‘‘(b) REQUIRED ACTIVITIES.—Each parent training and information center that receives assistance under this section shall—

‘‘(1) provide training and information that meets the needs

of parents of children with disabilities living in the area served

by the center, particularly underserved parents and parents

of children who may be inappropriately identified, to enable

their children with disabilities to—

‘‘(A) meet developmental and functional goals, and

challenging academic achievement goals that have been

established for all children; and

‘‘(B) be prepared to lead productive independent adult

lives, to the maximum extent possible;

‘‘(2) serve the parents of infants, toddlers, and children

with the full range of disabilities described in section 602(3);

‘‘(3) ensure that the training and information provided

meets the needs of low-income parents and parents of limited

English proficient children;

‘‘(4) assist parents to—

‘‘(A) better understand the nature of their children’s

disabilities and their educational, developmental, and

transitional needs;

‘‘(B) communicate effectively and work collaboratively

with personnel responsible for providing special education,

early intervention services, transition services, and related

services;

‘‘(C) participate in decisionmaking processes and the

development of individualized education programs under

part B and individualized family service plans under part

C;

‘‘(D) obtain appropriate information about the range,

type, and quality of—

‘‘(i) options, programs, services, technologies, practices and interventions based on scientifically based

research, to the extent practicable; and

‘‘(ii) resources available to assist children with

disabilities and their families in school and at home;

‘‘(E) understand the provisions of this title for the

education of, and the provision of early intervention services to, children with disabilities;

‘‘(F) participate in activities at the school level that

benefit their children; and

‘‘(G) participate in school reform activities;

‘‘(5) in States where the State elects to contract with the

parent training and information center, contract with State

educational agencies to provide, consistent with subparagraphs

(B) and (D) of section 615(e)(2), individuals who meet with

parents to explain the mediation process to the parents;

‘‘(6) assist parents in resolving disputes in the most expeditious and effective way possible, including encouraging the

use, and explaining the benefits, of alternative methods of

dispute resolution, such as the mediation process described

in section 615(e);

‘‘(7) assist parents and students with disabilities to understand their rights and responsibilities under this title, including

those under section 615(m) upon the student’s reaching the

age of majority (as appropriate under State law);

118 STAT. 2790 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(8) assist parents to understand the availability of, and

how to effectively use, procedural safeguards under this title,

including the resolution session described in section 615(e);

‘‘(9) assist parents in understanding, preparing for, and

participating in, the process described in section 615(f)(1)(B);

‘‘(10) establish cooperative partnerships with community

parent resource centers funded under section 672;

‘‘(11) network with appropriate clearinghouses, including

organizations conducting national dissemination activities

under section 663 and the Institute of Education Sciences,

and with other national, State, and local organizations and

agencies, such as protection and advocacy agencies, that serve

parents and families of children with the full range of disabilities described in section 602(3); and

‘‘(12) annually report to the Secretary on—

‘‘(A) the number and demographics of parents to whom

the center provided information and training in the most

recently concluded fiscal year;

‘‘(B) the effectiveness of strategies used to reach and

serve parents, including underserved parents of children

with disabilities; and

‘‘(C) the number of parents served who have resolved

disputes through alternative methods of dispute resolution.

‘‘(c) OPTIONAL ACTIVITIES.—A parent training and information

center that receives assistance under this section may provide

information to teachers and other professionals to assist the

teachers and professionals in improving results for children with

disabilities.

‘‘(d) APPLICATION REQUIREMENTS.—Each application for assistance under this section shall identify with specificity the special

efforts that the parent organization will undertake—

‘‘(1) to ensure that the needs for training and information

of underserved parents of children with disabilities in the area

to be served are effectively met; and

‘‘(2) to work with community based organizations, including

community based organizations that work with low-income parents and parents of limited English proficient children.

‘‘(e) DISTRIBUTION OF FUNDS.—

‘‘(1) IN GENERAL.—The Secretary shall—

‘‘(A) make not less than 1 award to a parent organization in each State for a parent training and information

center that is designated as the statewide parent training

and information center; or

‘‘(B) in the case of a large State, make awards to

multiple parent training and information centers, but only

if the centers demonstrate that coordinated services and

supports will occur among the multiple centers.

‘‘(2) SELECTION REQUIREMENT.—The Secretary shall select

among applications submitted by parent organizations in a

State in a manner that ensures the most effective assistance

to parents, including parents in urban and rural areas, in

the State.

‘‘(f) QUARTERLY REVIEW.—

‘‘(1) MEETINGS.—The board of directors of each parent

organization that receives an award under this section shall

meet not less than once in each calendar quarter to review

the activities for which the award was made.

Reports.

Deadlines.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2791

‘‘(2) CONTINUATION AWARD.—When a parent organization

requests a continuation award under this section, the board

of directors shall submit to the Secretary a written review

of the parent training and information program conducted by

the parent organization during the preceding fiscal year.

‘‘SEC. 672. COMMUNITY PARENT RESOURCE CENTERS.

‘‘(a) PROGRAM AUTHORIZED.— ‘‘(1) IN GENERAL.—The Secretary may award grants to,

and enter into contracts and cooperative agreements with, local

parent organizations to support community parent resource

centers that will help ensure that underserved parents of children with disabilities, including low income parents, parents

of limited English proficient children, and parents with disabilities, have the training and information the parents need to

enable the parents to participate effectively in helping their

children with disabilities—

‘‘(A) to meet developmental and functional goals, and

challenging academic achievement goals that have been

established for all children; and

‘‘(B) to be prepared to lead productive independent

adult lives, to the maximum extent possible.

‘‘(2) DEFINITION OF LOCAL PARENT ORGANIZATION.—In this

section, the term ‘local parent organization’ means a parent

organization, as defined in section 671(a)(2), that—

‘‘(A) has a board of directors the majority of whom

are parents of children with disabilities ages birth through

26 from the community to be served; and

‘‘(B) has as its mission serving parents of children

with disabilities who—

‘‘(i) are ages birth through 26; and

‘‘(ii) have the full range of disabilities described

in section 602(3).

‘‘(b) REQUIRED ACTIVITIES.—Each community parent resource

center assisted under this section shall—

‘‘(1) provide training and information that meets the

training and information needs of parents of children with

disabilities proposed to be served by the grant, contract, or

cooperative agreement;

‘‘(2) carry out the activities required of parent training

and information centers under paragraphs (2) through (9) of

section 671(b);

‘‘(3) establish cooperative partnerships with the parent

training and information centers funded under section 671;

and

‘‘(4) be designed to meet the specific needs of families

who experience significant isolation from available sources of

information and support.

‘‘SEC. 673. TECHNICAL ASSISTANCE FOR PARENT TRAINING AND

INFORMATION CENTERS.

‘‘(a) PROGRAM AUTHORIZED.—

‘‘(1) IN GENERAL.—The Secretary may, directly or through

awards to eligible entities, provide technical assistance for

developing, assisting, and coordinating parent training and

information programs carried out by parent training and

information centers receiving assistance under section 671 and

20 USC 1473.

20 USC 1472.

118 STAT. 2792 PUBLIC LAW 108–446—DEC. 3, 2004

community parent resource centers receiving assistance under

section 672.

‘‘(2) DEFINITION OF ELIGIBLE ENTITY.—In this section, the

term ‘eligible entity’ has the meaning given the term in section

661(b).

‘‘(b) AUTHORIZED ACTIVITIES.—The Secretary may provide technical assistance to a parent training and information center or

a community parent resource center under this section in areas

such as—

‘‘(1) effective coordination of parent training efforts;

‘‘(2) dissemination of scientifically based research and

information;

‘‘(3) promotion of the use of technology, including assistive

technology devices and assistive technology services;

‘‘(4) reaching underserved populations, including parents

of low-income and limited English proficient children with

disabilities;

‘‘(5) including children with disabilities in general education

programs;

‘‘(6) facilitation of transitions from—

‘‘(A) early intervention services to preschool;

‘‘(B) preschool to elementary school;

‘‘(C) elementary school to secondary school; and

‘‘(D) secondary school to postsecondary environments;

and

‘‘(7) promotion of alternative methods of dispute resolution,

including mediation.

‘‘(c) COLLABORATION WITH THE RESOURCE CENTERS.—Each

eligible entity receiving an award under subsection (a) shall develop

collaborative agreements with the geographically appropriate

regional resource center and, as appropriate, the regional educational laboratory supported under section 174 of the Education

Sciences Reform Act of 2002, to further parent and professional

collaboration.

‘‘SEC. 674. TECHNOLOGY DEVELOPMENT, DEMONSTRATION, AND UTILIZATION; MEDIA SERVICES; AND INSTRUCTIONAL MATERIALS.

‘‘(a) PROGRAM AUTHORIZED.—

‘‘(1) IN GENERAL.—The Secretary, on a competitive basis,

shall award grants to, and enter into contracts and cooperative

agreements with, eligible entities to support activities described

in subsections (b) and (c).

‘‘(2) DEFINITION OF ELIGIBLE ENTITY.—In this section, the

term ‘eligible entity’ has the meaning given the term in section

661(b).

‘‘(b) TECHNOLOGY DEVELOPMENT, DEMONSTRATION, AND USE.—

‘‘(1) IN GENERAL.—In carrying out this section, the Secretary shall support activities to promote the development,

demonstration, and use of technology.

‘‘(2) AUTHORIZED ACTIVITIES.—The following activities may

be carried out under this subsection:

‘‘(A) Conducting research on and promoting the demonstration and use of innovative, emerging, and universally

designed technologies for children with disabilities, by

improving the transfer of technology from research and

development to practice.

Grants.

Contracts.

20 USC 1474.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2793

‘‘(B) Supporting research, development, and dissemination of technology with universal design features, so that

the technology is accessible to the broadest range of individuals with disabilities without further modification or

adaptation.

‘‘(C) Demonstrating the use of systems to provide parents and teachers with information and training concerning

early diagnosis of, intervention for, and effective teaching

strategies for, young children with reading disabilities.

‘‘(D) Supporting the use of Internet-based communications for students with cognitive disabilities in order to

maximize their academic and functional skills.

‘‘(c) EDUCATIONAL MEDIA SERVICES.—

‘‘(1) IN GENERAL.—In carrying out this section, the Secretary shall support—

‘‘(A) educational media activities that are designed to

be of educational value in the classroom setting to children

with disabilities;

‘‘(B) providing video description, open captioning, or

closed captioning, that is appropriate for use in the classroom setting, of—

‘‘(i) television programs;

‘‘(ii) videos;

‘‘(iii) other materials, including programs and

materials associated with new and emerging technologies, such as CDs, DVDs, video streaming, and

other forms of multimedia; or

‘‘(iv) news (but only until September 30, 2006);

‘‘(C) distributing materials described in subparagraphs

(A) and (B) through such mechanisms as a loan service;

and

‘‘(D) providing free educational materials, including

textbooks, in accessible media for visually impaired and

print disabled students in elementary schools and secondary schools, postsecondary schools, and graduate

schools.

‘‘(2) LIMITATION.—The video description, open captioning,

or closed captioning described in paragraph (1)(B) shall be

provided only when the description or captioning has not been

previously provided by the producer or distributor, or has not

been fully funded by other sources.

‘‘(d) APPLICATIONS.—

‘‘(1) IN GENERAL.—Any eligible entity that wishes to receive

a grant, or enter into a contract or cooperative agreement,

under subsection (b) or (c) shall submit an application to the

Secretary at such time, in such manner, and containing such

information as the Secretary may require.

‘‘(2) SPECIAL RULE.—For the purpose of an application for

an award to carry out activities described in subsection (c)(1)(D),

such eligible entity shall—

‘‘(A) be a national, nonprofit entity with a proven track

record of meeting the needs of students with print disabilities through services described in subsection (c)(1)(D);

‘‘(B) have the capacity to produce, maintain, and distribute in a timely fashion, up-to-date textbooks in digital

audio formats to qualified students; and

118 STAT. 2794 PUBLIC LAW 108–446—DEC. 3, 2004

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

‘‘(e) NATIONAL INSTRUCTIONAL MATERIALS ACCESS CENTER.— ‘‘(1) IN GENERAL.—The Secretary shall establish and support, through the American Printing House for the Blind, a

center to be known as the ‘National Instructional Materials

Access Center’ not later than 1 year after the date of enactment

of the Individuals with Disabilities Education Improvement

Act of 2004.

‘‘(2) DUTIES.—The duties of the National Instructional

Materials Access Center are the following:

‘‘(A) To receive and maintain a catalog of print instructional materials prepared in the National Instructional

Materials Accessibility Standard, as established by the Secretary, made available to such center by the textbook publishing industry, State educational agencies, and local educational agencies.

‘‘(B) To provide access to print instructional materials,

including textbooks, in accessible media, free of charge,

to blind or other persons with print disabilities in

elementary schools and secondary schools, in accordance

with such terms and procedures as the National Instructional Materials Access Center may prescribe.

‘‘(C) To develop, adopt and publish procedures to protect against copyright infringement, with respect to the

print instructional materials provided under sections

612(a)(23) and 613(a)(6).

‘‘(3) DEFINITIONS.—In this subsection:

‘‘(A) BLIND OR OTHER PERSONS WITH PRINT DISABILITIES.—The term ‘blind or other persons with print disabilities’ means children served under this Act and who may

qualify in accordance with the Act entitled ‘An Act to

provide books for the adult blind’, approved March 3, 1931

(2 U.S.C. 135a; 46 Stat. 1487) to receive books and other

publications produced in specialized formats.

‘‘(B) NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY STANDARD.—The term ‘National Instructional Materials Accessibility Standard’ means the standard established by the Secretary to be used in the preparation of

electronic files suitable and used solely for efficient conversion into specialized formats.

‘‘(C) PRINT INSTRUCTIONAL MATERIALS.—The term ‘print

instructional materials’ means printed textbooks and

related printed core materials that are written and published primarily for use in elementary school and secondary

school instruction and are required by a State educational

agency or local educational agency for use by students

in the classroom.

‘‘(D) SPECIALIZED FORMATS.—The term ‘specialized formats’ has the meaning given the term in section 121(d)(3)

of title 17, United States Code.

‘‘(4) APPLICABILITY.—This subsection shall apply to print

instructional materials published after the date on which the

final rule establishing the National Instructional Materials

Accessibility Standard was published in the Federal Register.

Establishment.

Deadline.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2795

‘‘(5) LIABILITY OF THE SECRETARY.—Nothing in this subsection shall be construed to establish a private right of action

against the Secretary for failure to provide instructional materials directly, or for failure by the National Instructional Materials Access Center to perform the duties of such center, or

to otherwise authorize a private right of action related to the

performance by such center, including through the application

of the rights of children and parents established under this

Act.

‘‘(6) INAPPLICABILITY.—Subsections (a) through (d) shall not

apply to this subsection.

‘‘SEC. 675. AUTHORIZATION OF APPROPRIATIONS.

‘‘There are authorized to be appropriated to carry out this

subpart such sums as may be necessary for each of the fiscal

years 2005 through 2010.

‘‘Subpart 4—General Provisions

‘‘SEC. 681. COMPREHENSIVE PLAN FOR SUBPARTS 2 AND 3.

‘‘(a) COMPREHENSIVE PLAN.—

‘‘(1) IN GENERAL.—After receiving input from interested

individuals with relevant expertise, the Secretary shall develop

and implement a comprehensive plan for activities carried out

under subparts 2 and 3 in order to enhance the provision

of early intervention services, educational services, related services, and transitional services to children with disabilities under

parts B and C. To the extent practicable, the plan shall be

coordinated with the plan developed pursuant to section 178(c)

of the Education Sciences Reform Act of 2002 and shall include

mechanisms to address early intervention, educational, related

service and transitional needs identified by State educational

agencies in applications submitted for State personnel development grants under subpart 1 and for grants under subparts

2 and 3.

‘‘(2) PUBLIC COMMENT.—The Secretary shall provide a

public comment period of not less than 45 days on the plan.

‘‘(3) DISTRIBUTION OF FUNDS.—In implementing the plan,

the Secretary shall, to the extent appropriate, ensure that

funds awarded under subparts 2 and 3 are used to carry out

activities that benefit, directly or indirectly, children with the

full range of disabilities and of all ages.

‘‘(4) REPORTS TO CONGRESS.—The Secretary shall annually

report to Congress on the Secretary’s activities under subparts

2 and 3, including an initial report not later than 12 months

after the date of enactment of the Individuals with Disabilities

Education Improvement Act of 2004.

‘‘(b) ASSISTANCE AUTHORIZED.—The Secretary is authorized to

award grants to, or enter into contracts or cooperative agreements

with, eligible entities to enable the eligible entities to carry out

the purposes of such subparts in accordance with the comprehensive

plan described in subsection (a).

‘‘(c) SPECIAL POPULATIONS.—

‘‘(1) APPLICATION REQUIREMENT.—In making an award of

a grant, contract, or cooperative agreement under subpart 2

or 3, the Secretary shall, as appropriate, require an eligible

20 USC 1481.

20 USC 1475.

118 STAT. 2796 PUBLIC LAW 108–446—DEC. 3, 2004

entity to demonstrate how the eligible entity will address the

needs of children with disabilities from minority backgrounds.

‘‘(2) REQUIRED OUTREACH AND TECHNICAL ASSISTANCE.—

Notwithstanding any other provision of this title, the Secretary

shall reserve not less than 2 percent of the total amount of

funds appropriated to carry out subparts 2 and 3 for either

or both of the following activities:

‘‘(A) Providing outreach and technical assistance to

historically Black colleges and universities, and to institutions of higher education with minority enrollments of not

less than 25 percent, to promote the participation of such

colleges, universities, and institutions in activities under

this subpart.

‘‘(B) Enabling historically Black colleges and universities, and the institutions described in subparagraph (A),

to assist other colleges, universities, institutions, and agencies in improving educational and transitional results for

children with disabilities, if the historically Black colleges

and universities and the institutions of higher education

described in subparagraph (A) meet the criteria established

by the Secretary under this subpart.

‘‘(d) PRIORITIES.—The Secretary, in making an award of a grant,

contract, or cooperative agreement under subpart 2 or 3, may,

without regard to the rulemaking procedures under section 553

of title 5, United States Code, limit competitions to, or otherwise

give priority to—

‘‘(1) projects that address 1 or more—

‘‘(A) age ranges;

‘‘(B) disabilities;

‘‘(C) school grades;

‘‘(D) types of educational placements or early intervention environments;

‘‘(E) types of services;

‘‘(F) content areas, such as reading; or

‘‘(G) effective strategies for helping children with

disabilities learn appropriate behavior in the school and

other community based educational settings;

‘‘(2) projects that address the needs of children based on

the severity or incidence of their disability;

‘‘(3) projects that address the needs of—

‘‘(A) low achieving students;

‘‘(B) underserved populations;

‘‘(C) children from low income families;

‘‘(D) limited English proficient children;

‘‘(E) unserved and underserved areas;

‘‘(F) rural or urban areas;

‘‘(G) children whose behavior interferes with their

learning and socialization;

‘‘(H) children with reading difficulties;

‘‘(I) children in public charter schools;

‘‘(J) children who are gifted and talented; or

‘‘(K) children with disabilities served by local educational agencies that receive payments under title VIII

of the Elementary and Secondary Education Act of 1965;

‘‘(4) projects to reduce inappropriate identification of children as children with disabilities, particularly among minority

children;

Historically

Black colleges

and universities.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2797

‘‘(5) projects that are carried out in particular areas of

the country, to ensure broad geographic coverage;

‘‘(6) projects that promote the development and use of technologies with universal design, assistive technology devices,

and assistive technology services to maximize children with

disabilities’ access to and participation in the general education

curriculum; and

‘‘(7) any activity that is authorized in subpart 2 or 3.

‘‘(e) ELIGIBILITY FOR FINANCIAL ASSISTANCE.—No State or local

educational agency, or other public institution or agency, may

receive a grant or enter into a contract or cooperative agreement

under subpart 2 or 3 that relates exclusively to programs, projects,

and activities pertaining to children aged 3 through 5, inclusive,

unless the State is eligible to receive a grant under section 619(b).

‘‘SEC. 682. ADMINISTRATIVE PROVISIONS.

‘‘(a) APPLICANT AND RECIPIENT RESPONSIBILITIES.—

‘‘(1) DEVELOPMENT AND ASSESSMENT OF PROJECTS.—The

Secretary shall require that an applicant for, and a recipient

of, a grant, contract, or cooperative agreement for a project

under subpart 2 or 3—

‘‘(A) involve individuals with disabilities or parents

of individuals with disabilities ages birth through 26 in

planning, implementing, and evaluating the project; and

‘‘(B) where appropriate, determine whether the project

has any potential for replication and adoption by other

entities.

‘‘(2) ADDITIONAL RESPONSIBILITIES.—The Secretary may

require a recipient of a grant, contract, or cooperative agreement under subpart 2 or 3 to—

‘‘(A) share in the cost of the project;

‘‘(B) prepare any findings and products from the project

in formats that are useful for specific audiences, including

parents, administrators, teachers, early intervention personnel, related services personnel, and individuals with

disabilities;

‘‘(C) disseminate such findings and products; and

‘‘(D) collaborate with other such recipients in carrying

out subparagraphs (B) and (C).

‘‘(b) APPLICATION MANAGEMENT.—

‘‘(1) STANDING PANEL.—

‘‘(A) IN GENERAL.—The Secretary shall establish and

use a standing panel of experts who are qualified, by virtue

of their training, expertise, or experience, to evaluate each

application under subpart 2 or 3 that requests more than

$75,000 per year in Federal financial assistance.

‘‘(B) MEMBERSHIP.—The standing panel shall include,

at a minimum—

‘‘(i) individuals who are representatives of institutions of higher education that plan, develop, and carry

out high quality programs of personnel preparation;

‘‘(ii) individuals who design and carry out scientifically based research targeted to the improvement of

special education programs and services;

20 USC 1482.

118 STAT. 2798 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(iii) individuals who have recognized experience

and knowledge necessary to integrate and apply scientifically based research findings to improve educational and transitional results for children with

disabilities;

‘‘(iv) individuals who administer programs at the

State or local level in which children with disabilities

participate;

‘‘(v) individuals who prepare parents of children

with disabilities to participate in making decisions

about the education of their children;

‘‘(vi) individuals who establish policies that affect

the delivery of services to children with disabilities;

‘‘(vii) individuals who are parents of children with

disabilities ages birth through 26 who are benefiting,

or have benefited, from coordinated research, personnel

preparation, and technical assistance; and

‘‘(viii) individuals with disabilities.

‘‘(C) TERM.—No individual shall serve on the standing

panel for more than 3 consecutive years.

‘‘(2) PEER-REVIEW PANELS FOR PARTICULAR COMPETITIONS.—

‘‘(A) COMPOSITION.—The Secretary shall ensure that

each subpanel selected from the standing panel that

reviews an application under subpart 2 or 3 includes—

‘‘(i) individuals with knowledge and expertise on

the issues addressed by the activities described in the

application; and

‘‘(ii) to the extent practicable, parents of children

with disabilities ages birth through 26, individuals

with disabilities, and persons from diverse backgrounds.

‘‘(B) FEDERAL EMPLOYMENT LIMITATION.—A majority of

the individuals on each subpanel that reviews an application under subpart 2 or 3 shall be individuals who are

not employees of the Federal Government.

‘‘(3) USE OF DISCRETIONARY FUNDS FOR ADMINISTRATIVE

PURPOSES.—

‘‘(A) EXPENSES AND FEES OF NON-FEDERAL PANEL MEMBERS.—The Secretary may use funds available under subpart 2 or 3 to pay the expenses and fees of the panel

members who are not officers or employees of the Federal

Government.

‘‘(B) ADMINISTRATIVE SUPPORT.—The Secretary may use

not more than 1 percent of the funds appropriated to carry

out subpart 2 or 3 to pay non-Federal entities for administrative support related to management of applications submitted under subpart 2 or 3, respectively.

‘‘(c) PROGRAM EVALUATION.—The Secretary may use funds made

available to carry out subpart 2 or 3 to evaluate activities carried

out under subpart 2 or 3, respectively.

‘‘(d) MINIMUM FUNDING REQUIRED.—

‘‘(1) IN GENERAL.—Subject to paragraph (2), the Secretary

shall ensure that, for each fiscal year, not less than the following amounts are provided under subparts 2 and 3 to address

the following needs:

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2799

‘‘(A) $12,832,000 to address the educational, related

services, transitional, and early intervention needs of children with deaf-blindness.

‘‘(B) $4,000,000 to address the postsecondary, vocational, technical, continuing, and adult education needs

of individuals with deafness.

‘‘(C) $4,000,000 to address the educational, related

services, and transitional needs of children with an emotional disturbance and those who are at risk of developing

an emotional disturbance.

‘‘(2) RATABLE REDUCTION.—If the sum of the amount appropriated to carry out subparts 2 and 3, and part E of the

Education Sciences Reform Act of 2002 for any fiscal year

is less than $130,000,000, the amounts listed in paragraph

(1) shall be ratably reduced for the fiscal year.’’.

TITLE II—NATIONAL CENTER FOR

SPECIAL EDUCATION RESEARCH

SEC. 201. NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH.

(a) AMENDMENT.—The Education Sciences Reform Act of 2002

(20 U.S.C. 9501 et seq.) is amended—

(1) by redesignating part E as part F; and

(2) by inserting after part D the following:

‘‘PART E—NATIONAL CENTER FOR SPECIAL

EDUCATION RESEARCH

‘‘SEC. 175. ESTABLISHMENT.

‘‘(a) ESTABLISHMENT.—There is established in the Institute a

National Center for Special Education Research (in this part

referred to as the ‘Special Education Research Center’).

‘‘(b) MISSION.—The mission of the Special Education Research

Center is—

‘‘(1) to sponsor research to expand knowledge and understanding of the needs of infants, toddlers, and children with

disabilities in order to improve the developmental, educational,

and transitional results of such individuals;

‘‘(2) to sponsor research to improve services provided under,

and support the implementation of, the Individuals with

Disabilities Education Act (20 U.S.C. 1400 et seq.); and

‘‘(3) to evaluate the implementation and effectiveness of

the Individuals with Disabilities Education Act in coordination

with the National Center for Education Evaluation and

Regional Assistance.

‘‘(c) APPLICABILITY OF EDUCATION SCIENCES REFORM ACT OF

2002.—Parts A and F, and the standards for peer review of applications and for the conduct and evaluation of research under sections

133(a) and 134, respectively, shall apply to the Secretary, the

Director, and the Commissioner in carrying out this part.

‘‘SEC. 176. COMMISSIONER FOR SPECIAL EDUCATION RESEARCH.

‘‘The Special Education Research Center shall be headed by

a Commissioner for Special Education Research (in this part

referred to as the ‘Special Education Research Commissioner’) who

20 USC 9567a.

20 USC 9567.

118 STAT. 2800 PUBLIC LAW 108–446—DEC. 3, 2004

shall have substantial knowledge of the Special Education Research

Center’s activities, including a high level of expertise in the fields

of research, research management, and the education of children

with disabilities.

‘‘SEC. 177. DUTIES.

‘‘(a) GENERAL DUTIES.—The Special Education Research Center

shall carry out research activities under this part consistent with

the mission described in section 175(b), such as activities that—

‘‘(1) improve services provided under the Individuals with

Disabilities Education Act in order to improve—

‘‘(A) academic achievement, functional outcomes, and

educational results for children with disabilities; and

‘‘(B) developmental outcomes for infants or toddlers

with disabilities;

‘‘(2) identify scientifically based educational practices that

support learning and improve academic achievement, functional

outcomes, and educational results for all students with disabilities;

‘‘(3) examine the special needs of preschool aged children,

infants, and toddlers with disabilities, including factors that

may result in developmental delays;

‘‘(4) identify scientifically based related services and interventions that promote participation and progress in the general

education curriculum and general education settings;

‘‘(5) improve the alignment, compatibility, and development

of valid and reliable assessments, including alternate assessments, as required by section 1111(b) of the Elementary and

Secondary Education Act of 1965 (20 U.S.C. 6311(b));

‘‘(6) examine State content standards and alternate assessments for students with significant cognitive impairment in

terms of academic achievement, individualized instructional

need, appropriate education settings, and improved post-school

results;

‘‘(7) examine the educational, developmental, and transitional needs of children with high incidence and low incidence

disabilities;

‘‘(8) examine the extent to which overidentification and

underidentification of children with disabilities occurs, and the

causes thereof;

‘‘(9) improve reading and literacy skills of children with

disabilities;

‘‘(10) examine and improve secondary and postsecondary

education and transitional outcomes and results for children

with disabilities;

‘‘(11) examine methods of early intervention for children

with disabilities, including children with multiple or complex

developmental delays;

‘‘(12) examine and incorporate universal design concepts

in the development of standards, assessments, curricula, and

instructional methods to improve educational and transitional

results for children with disabilities;

‘‘(13) improve the preparation of personnel, including early

intervention personnel, who provide educational and related

services to children with disabilities to increase the academic

achievement and functional performance of students with

disabilities;

20 USC 9567b.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2801

‘‘(14) examine the excess costs of educating a child with

a disability and expenses associated with high cost special

education and related services;

‘‘(15) help parents improve educational results for their

children, particularly related to transition issues;

‘‘(16) address the unique needs of children with significant

cognitive disabilities; and

‘‘(17) examine the special needs of limited English proficient

children with disabilities.

‘‘(b) STANDARDS.—The Special Education Research Commissioner shall ensure that activities assisted under this section—

‘‘(1) conform to high standards of quality, integrity,

accuracy, validity, and reliability;

‘‘(2) are carried out in accordance with the standards for

the conduct and evaluation of all research and development

established by the National Center for Education Research;

and

‘‘(3) are objective, secular, neutral, and nonideological, and

are free of partisan political influence, and racial, cultural,

gender, regional, or disability bias.

‘‘(c) PLAN.—The Special Education Research Commissioner

shall propose to the Director a research plan, developed in collaboration with the Assistant Secretary for Special Education and

Rehabilitative Services, that—

‘‘(1) is consistent with the priorities and mission of the

Institute and the mission of the Special Education Research

Center;

‘‘(2) is carried out, updated, and modified, as appropriate;

‘‘(3) is consistent with the purposes of the Individuals with

Disabilities Education Act;

‘‘(4) contains an appropriate balance across all age ranges

and types of children with disabilities;

‘‘(5) provides for research that is objective and uses measurable indicators to assess its progress and results; and

‘‘(6) is coordinated with the comprehensive plan developed

under section 681 of the Individuals with Disabilities Education

Act.

‘‘(d) GRANTS, CONTRACTS, AND COOPERATIVE AGREEMENTS.—

‘‘(1) IN GENERAL.—In carrying out the duties under this

section, the Director may award grants to, or enter into contracts or cooperative agreements with, eligible applicants.

‘‘(2) ELIGIBLE APPLICANTS.—Activities carried out under

this subsection through contracts, grants, or cooperative agreements shall be carried out only by recipients with the ability

and capacity to conduct scientifically valid research.

‘‘(3) APPLICATIONS.—An eligible applicant that wishes to

receive a grant, or enter into a contract or cooperative agreement, under this section shall submit an application to the

Director at such time, in such manner, and containing such

information as the Director may require.

‘‘(e) DISSEMINATION.—The Special Education Research Center

shall—

‘‘(1) synthesize and disseminate, through the National

Center for Education Evaluation and Regional Assistance, the

findings and results of special education research conducted

or supported by the Special Education Research Center; and

118 STAT. 2802 PUBLIC LAW 108–446—DEC. 3, 2004

‘‘(2) assist the Director in the preparation of a biennial

report, as described in section 119.

‘‘(f) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated to carry out this part such sums as may be

necessary for each of fiscal years 2005 through 2010.’’.

(b) CONFORMING AMENDMENTS.— (1) AMENDMENTS TO THE TABLE OF CONTENTS.—The table

of contents in section 1 of the Act entitled ‘‘An Act to provide

for improvement of Federal education research, statistics,

evaluation, information, and dissemination, and for other purposes’’, approved November 5, 2002 (116 Stat. 1940; Public

Law 107–279), is amended—

(A) by redesignating the item relating to part E as

the item relating to part F; and

(B) by inserting after the item relating to section 174

the following:

‘‘PART E—NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH

‘‘Sec. 175. Establishment.

‘‘Sec. 176. Commissioner for Special Education Research.

‘‘Sec. 177. Duties.’’.

(2) EDUCATION SCIENCES REFORM ACT OF 2002.—The Education Sciences Reform Act of 2002 (20 U.S.C. 9501 et seq.)

is amended—

(A) in section 111(b)(1)(A) (20 U.S.C. 9511(b)(1)(A)),

by inserting ‘‘and special education’’ after ‘‘early childhood

education’’;

(B) in section 111(c)(3) (20 U.S.C. 9511(c)(3))—

(i) in subparagraph (B), by striking ‘‘and’’ after

the semicolon;

(ii) in subparagraph (C), by striking the period

and inserting ‘‘; and’’; and

(iii) by adding at the end the following:

‘‘(D) the National Center for Special Education

Research (as described in part E).’’;

(C) in section 115(a) (20 U.S.C. 9515(a)), by striking

‘‘including those’’ and all that follows through ‘‘such as’’

and inserting ‘‘including those associated with the goals

and requirements of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.), the Individuals

with Disabilities Education Act (20 U.S.C. 1400 et seq.),

and the Higher Education Act of 1965 (20 U.S.C. 1001

et seq.), such as’’; and

(D) in section 116(c)(4)(A)(ii) (20 U.S.C.

9516(c)(4)(A)(ii), by inserting ‘‘special education experts,’’

after ‘‘early childhood experts,’’.

(3) ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965.— Section 1117(a)(3) of the Elementary and Secondary Education

Act of 1965 (20 U.S.C. 6317(a)(3)) is amended by striking ‘‘part

E’’ and inserting ‘‘part D’’.

SEC. 202. NATIONAL BOARD FOR EDUCATION SCIENCES.

Section 116(c)(9) of the Education Sciences Reform Act of 2002

(20 U.S.C. 9516(c)(9)) is amended by striking the third sentence

and inserting the following: ‘‘Meetings of the Board are subject

to section 552b of title 5, United States Code (commonly referred

to as the Government in the Sunshine Act).’’.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2803

SEC. 203. REGIONAL ADVISORY COMMITTEES.

Section 206(d)(3) of the Educational Technical Assistance Act

of 2002 (20 U.S.C. 9605(d)(3)) is amended by striking ‘‘Academy’’

and inserting ‘‘Institute’’.

TITLE III—MISCELLANEOUS

PROVISIONS

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

Section 1004 of the Children’s Health Act of 2000 (42 U.S.C.

285g note) is amended—

(1) in subsection (b), by striking ‘‘Agency’’ and inserting

‘‘Agency, and the Department of Education’’; and

(2) in subsection (c)—

(A) in paragraph (2), by striking ‘‘and’’ after the semicolon;

(B) in paragraph (3), by striking the period at the

end and inserting ‘‘; and’’; and

(C) by adding at the end the following:

‘‘(4) be conducted in compliance with section 444 of the

General Education Provisions Act (20 U.S.C. 1232g), including

the requirement of prior parental consent for the disclosure

of any education records, except without the use of authority

or exceptions granted to authorized representatives of the Secretary of Education for the evaluation of Federally-supported

education programs or in connection with the enforcement of

the Federal legal requirements that relate to such programs.’’.

SEC. 302. EFFECTIVE DATES.

(a) PARTS A, B, AND C, AND SUBPART 1 OF PART D.—

(1) IN GENERAL.—Except as provided in paragraph (2), parts

A, B, and C, and subpart 1 of part D, of the Individuals

with Disabilities Education Act, as amended by title I, shall

take effect on July 1, 2005.

(2) HIGHLY QUALIFIED DEFINITION.—Subparagraph (A), and

subparagraphs (C) through (F), of section 602(10) of the Individuals with Disabilities Education Act, as amended by title I,

shall take effect on the date of enactment of this Act for

purposes of the Elementary and Secondary Education Act of

1965.

(b) SUBPARTS 2, 3, AND 4 OF PART D.—Subparts 2, 3, and

4 of part D of the Individuals with Disabilities Education Act,

as amended by title I, shall take effect on the date of enactment

of this Act.

(c) EDUCATION SCIENCES REFORM ACT OF 2002.—

(1) NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH.— Sections 175, 176, and 177 (other than section 177(c)) of the

Education Sciences Reform Act of 2002, as enacted by section

201(a)(2) of this Act, shall take effect on the date of enactment

of this Act.

(2) PLAN.—Section 177(c) of the Education Sciences Reform

Act of 2002, as enacted by section 201(a)(2) of this Act, shall

take effect on October 1, 2005.

SEC. 303. TRANSITION.

(a) ORDERLY TRANSITION.—

20 USC 1400

note.

20 USC 9567b

note.

20 USC 1400

note.

118 STAT. 2804 PUBLIC LAW 108–446—DEC. 3, 2004

(1) IN GENERAL.—The Secretary of Education (in this section referred to as ‘‘the Secretary’’) shall take such steps as

are necessary to provide for the orderly transition from the

Individuals with Disabilities Education Act, as such Act was

in effect on the day preceding the date of enactment of this

Act, to the Individuals with Disabilities Education Act and

part E of the Education Sciences Reform Act of 2002, as

amended by this Act.

(2) LIMITATION.—The Secretary’s authority in paragraph

(1) shall terminate 1 year after the date of enactment of this

Act.

(b) MULTI-YEAR AWARDS.—Notwithstanding any other provision

of law, the Secretary may use funds appropriated under part D

of the Individuals with Disabilities Education Act to make continuation awards for projects that were funded under section 618,

and part D, of the Individuals with Disabilities Education Act

(as such section and part were in effect on September 30, 2004),

in accordance with the terms of the original awards.

(c) RESEARCH.—Notwithstanding section 302(b) or any other

provision of law, the Secretary may award funds that are appropriated under the Department of Education Appropriations Act,

2005 for special education research under either of the headings

‘‘SPECIAL EDUCATION’’ or ‘‘INSTITUTE OF EDUCATION SCIENCES’’ in

accordance with sections 672 and 674 of the Individuals with

Disabilities Education Act, as such sections were in effect on October

1, 2004.

SEC. 304. REPEALER.

Section 644 of the Individuals with Disabilities Education Act,

as such section was in effect on the day before the enactment

of this Act, is repealed.

SEC. 305. IDEA TECHNICAL AMENDMENTS TO OTHER LAWS.

(a) TITLE 10.—Section 2164(f) of title 10, United States Code

is amended—

(1) in paragraph (1)(B)—

(A) by striking ‘‘infants and toddlers’’ each place the

term appears and inserting ‘‘infants or toddlers’’;

(B) by striking ‘‘part H’’ and inserting ‘‘part C’’; and

(C) by striking ‘‘1471’’ and inserting ‘‘1431’’; and

(2) in paragraph (3)—

(A) in subparagraph (A)—

(i) by striking ‘‘602(a)(1)’’ and inserting ‘‘602’’; and

(ii) by striking ‘‘1401(a)(1)’’ and inserting ‘‘1401’’;

(B) by striking subparagraph (B);

(C) by redesignating subparagraph (C) as subparagraph (B); and

(D) in subparagraph (B) (as so redesignated)—

(i) by striking ‘‘and toddlers’’ and inserting ‘‘or

toddlers’’;

(ii) by striking ‘‘672(1)’’ and inserting ‘‘632’’; and

(iii) by striking ‘‘1472(1)’’ and inserting ‘‘1432’’.

(b) DEFENSE DEPENDENTS EDUCATION ACT OF 1978.—Section

1409(c)(2) of the Defense Dependents Education Act of 1978 (20

U.S.C. 927(c)(2)) is amended—

(1) by striking ‘‘677’’ and inserting ‘‘636’’; and

(2) by striking ‘‘part H’’ and inserting ‘‘part C’’.

20 USC 1444.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2805

(c) HIGHER EDUCATION ACT OF 1965.—The Higher Education

Act of 1965 (20 U.S.C. 1001 et seq.) is amended—

(1) in section 465(a)(2)(C) (20 U.S.C. 1087ee(a)(2)(C), by

striking ‘‘Individuals With’’ and inserting ‘‘Individuals with’’

and;

(2) in section 469(c) (20 U.S.C. 1087ii(c)), by striking

‘‘602(a)(1) and 672(1)’’ and inserting ‘‘602 and 632’’.

(d) EDUCATION OF THE DEAF ACT.—The matter preceding

subparagraph (A) of section 104(b)(2) of the Education of the Deaf

Act (20 U.S.C. 4304(b)(2)) is amended by striking ‘‘618(a)(1)(A)’’

and inserting ‘‘618(a)(1)’’.

(e) GOALS 2000: EDUCATE AMERICA ACT.—Section 3(a)(9) of

the Goals 2000: Educate America Act (20 U.S.C. 5802(a)(9)) is

amended by striking ‘‘602(a)(17)’’ and inserting ‘‘602’’.

(f) SCHOOL-TO-WORK OPPORTUNITIES ACT OF 1994.—Section

4(15) of the School-to-Work Opportunities Act of 1994 (20 U.S.C.

6103(15)) is amended—

(1) by striking ‘‘602(a)(17)’’ and inserting ‘‘602’’; and

(2) by striking ‘‘1401(17)’’ and inserting ‘‘1401’’.

(g) ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965.—

The Elementary and Secondary Education Act of 1965 (20 U.S.C.

6301 et seq.) is amended—

(1) in section 1111(b)(2)(I)(ii) (20 U.S.C. 6311(b)(2)(I)(ii)),

by striking ‘‘612(a)(17)(A)’’ and inserting ‘‘612(a)(16)(A)’’;

(2) in section 5208 (20 U.S.C. 7221g), by striking ‘‘602(11)’’

and inserting ‘‘602’’; and

(3) in section 5563(b)(8)(C) (20 U.S.C. 7273b(b)(8)(C)), by

striking ‘‘682’’ and inserting ‘‘671’’.

(h) REHABILITATION ACT OF 1973.—The Rehabilitation Act of

1973 (29 U.S.C. 701 et seq.) is amended—

(1) in section 101(a)(11)(D)(ii) (29 U.S.C. 721(a)(11)(D)(ii)),

by striking ‘‘(as added by section 101 of Public Law 105–

17)’’;

(2) in section 105(b)(1)(A)(ii) (29 U.S.C. 725(b)(1)(A)(ii)),

by striking ‘‘682(a) of the Individuals with Disabilities Education Act (as added by section 101 of the Individuals with

Disabilities Education Act Amendments of 1997; Public Law

105–17)’’ and inserting ‘‘671 of the Individuals with Disabilities

Education Act’’;

(3) in section 105(c)(6) (29 U.S.C. 725(c)(6))—

(A) by striking ‘‘612(a)(21)’’ and inserting ‘‘612(a)(20)’’;

(B) by striking ‘‘Individual with’’ and inserting ‘‘Individuals with’’; and

(C) by striking ‘‘(as amended by section 101 of the

Individuals with Disabilities Education Act Amendments

of 1997; Public Law 105–17)’’;

(4) in section 302(f)(1)(D)(ii) (29 U.S.C. 772 (f)(1)(D)(ii)),

by striking ‘‘(as amended by section 101 of the Individuals

with Disabilities Education Act Amendments of 1997 (Public

Law 105–17))’’;

(5) in section 303(c)(6) (29 U.S.C. 773(c)(6))—

(A) by striking ‘‘682(a)’’ and inserting ‘‘671’’; and

(B) by striking ‘‘(as added by section 101 of the Individuals with Disabilities Education Act Amendments of 1997;

Public Law 105–17)’’; and

(6) in section 303(c)(4)(A)(ii) (29 U.S.C. 773(c)(4)(A)(ii)), by

striking ‘‘682(a) of the Individuals with Disabilities Education

118 STAT. 2806 PUBLIC LAW 108–446—DEC. 3, 2004

Act (as added by section 101 of the Individuals with Disabilities

Education Act Amendments of 1997; Public Law 105–17)’’ and

inserting ‘‘671 of the Individuals with Disabilities Education

Act’’.

(i) PUBLIC HEALTH SERVICE ACT.—The Public Health Service

Act (42 U.S.C. 201 et seq.) is amended—

(1) in section 399A(f) (42 U.S.C. 280d(f), by striking ‘‘part

H’’ and inserting ‘‘part C’’;

(2) in section 399(n)(3) (42 U.S.C. 280c–6(n)(3)), by striking

‘‘part H’’ and inserting ‘‘part C’’;

(3) in section 399A(b)(8) (42 U.S.C. 280d(b)(8)), by striking

‘‘part H’’ and inserting ‘‘part C’’;

(4) in section 562(d)(3)(B) (42 U.S.C. 290ff–1(d)(3)(B)), by

striking ‘‘and H’’ and inserting ‘‘and C’’; and

(5) in section 563(d)(2) (42 U.S.C. 290ff–2(d)(2)), by striking

‘‘602(a)(19)’’ and inserting ‘‘602’’.

(j) SOCIAL SECURITY ACT.—The Social Security Act (42 U.S.C.

301 et seq.) is amended—

(1) in section 1903(c) (42 U.S.C. 1396b(c)), by striking ‘‘part

H’’ and inserting ‘‘part C’’; and

(2) in section 1915(c)(5)(C)(i) (42 U.S.C. 1396n(c)(5)(C)(i)),

by striking ‘‘(as defined in section 602(16) and (17) of the

Education of the Handicapped Act (20 U.S.C. 1401(16), (17))’’

and inserting ‘‘(as such terms are defined in section 602 of

the Individuals with Disabilities Education Act (20 U.S.C.

1401))’’.

(k) DOMESTIC VOLUNTEER SERVICE ACT OF 1973.—Section

211(a) of the Domestic Volunteer Service Act of 1973 (42 U.S.C.

5011(a)) is amended—

(1) by striking ‘‘part H’’ and inserting ‘‘part C’’; and

(2) by striking ‘‘1471’’ and inserting ‘‘1431’’.

(l) HEAD START ACT.—The Head Start Act (42 U.S.C. 9831

et seq.) is amended—

(1) in section 640(a)(5)(C)(iv) (42 U.S.C. 9835(a)(5)(C)(iv)),

by striking ‘‘1445’’ and inserting ‘‘1444’’;

(2) in section 640(d) (42 U.S.C. 9835(d))—

(A) by striking ‘‘U.S.C’’ and inserting ‘‘U.S.C.’’; and

(B) by striking ‘‘1445’’ and inserting ‘‘1444’’;

(3) in section 641(d)(3) (42 U.S.C. 9836(d)(3)), by striking

‘‘U.S.C 1431–1445’’ and inserting ‘‘U.S.C. 1431–1444’’; and

(4) in section 642(c) (42 U.S.C. 9837(c)), by striking ‘‘1445’’

and inserting ‘‘1444’’.

(m) NATIONAL AND COMMUNITY SERVICE ACT OF 1990.—Section

101(21)(B) of the National and Community Service Act of 1990

(42 U.S.C. 12511(21)(B)) is amended—

(1) by striking ‘‘602(a)(1)’’ and inserting ‘‘602’’; and

(2) by striking ‘‘1401(a)(1)’’ and inserting ‘‘1401’’.

(n) DEVELOPMENTAL DISABILITIES ASSISTANCE AND BILL OF

RIGHTS ACT OF 2000.—The Developmental Disabilities Assistance

and Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.) is amended—

(1) in section 125(c)(5)(G)(i) (42 U.S.C. 15025(c)(5)(G)(i)),

by striking ‘‘subtitle C’’ and inserting ‘‘part C’’; and

(2) in section 154(a)(3)(E)(ii)(VI) (42 U.S.C.

15064(a)(3)(E)(ii)(VI))—

(A) by striking ‘‘682 or 683’’ and inserting ‘‘671 or

672’’; and

(B) by striking ‘‘(20 U.S.C. 1482, 1483)’’.

42 USC

290bb–25.

42 USC

290bb–25.

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2807

(o) DISTRICT OF COLUMBIA SCHOOL REFORM ACT OF 1995.—

The District of Columbia School Reform Act of 1995 (Public Law

104–134) is amended—

(1) in section 2002(32)—

(A) by striking ‘‘602(a)(1)’’ and inserting ‘‘602’’; and

(B) by striking ‘‘1401(a)(1)’’ and inserting ‘‘1401’’;

(2) in section 2202(19), by striking ‘‘Individuals With’’ and

inserting ‘‘Individuals with’’; and

(3) in section 2210—

(A) in the heading for subsection (c), by striking ‘‘WITH

DISABILITIES’’ and inserting ‘‘WITH DISABILITIES’’; and

(B) in subsection (c), by striking ‘‘Individuals With’’

and inserting ‘‘Individuals with’’.

SEC. 306. COPYRIGHT.

Section 121 of title 17, United States Code, is amended—

(1) by redesignating subsection (c) as subsection (d);

(2) by inserting after subsection (b) the following:

‘‘(c) Notwithstanding the provisions of section 106, it is not

an infringement of copyright for a publisher of print instructional

materials for use in elementary or secondary schools to create

and distribute to the National Instructional Materials Access Center

copies of the electronic files described in sections 612(a)(23)(C),

613(a)(6), and section 674(e) of the Individuals with Disabilities

Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility

Standard (as defined in section 674(e)(3) of that Act), if—

‘‘(1) the inclusion of the contents of such print instructional

materials is required by any State educational agency or local

educational agency;

‘‘(2) the publisher had the right to publish such print

instructional materials in print formats; and

‘‘(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in

specialized formats.’’; and

(3) in subsection (d), as redesignated by this section—

(A) in paragraph (2), by striking ‘‘and’’ after the semicolon; and

(B) by striking paragraph (3) and inserting the following:

‘‘(3) ‘print instructional materials’ has the meaning given

under section 674(e)(3)(C) of the Individuals with Disabilities

Education Act; and

‘‘(4) ‘specialized formats’ means—

‘‘(A) braille, audio, or digital text which is exclusively

for use by blind or other persons with disabilities; and

‘‘(B) with respect to print instructional materials,

includes large print formats when such materials are

110 Stat.

1321–125.

110 Stat.

1321–116.

110 Stat.

1321–107.

118 STAT. 2808 PUBLIC LAW 108–446—DEC. 3, 2004

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

HOUSE REPORTS: Nos. 108–77 (Comm. on Education and the Workforce) and

108–779 (Comm. of Conference).

SENATE REPORTS: No. 108–185 accompanying S. 1248 (Comm. on Health,

Education, Labor, and Pensions).

CONGRESSIONAL RECORD:

Vol. 149 (2003): Apr. 30, considered and passed House.

Vol. 150 (2004): May 13, considered and passed Senate, amended, in lieu of

S. 1248.

Nov. 19, House and Senate agreed to conference report.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 40 (2004):

Dec. 3, Presidential statement and remarks.

Æ

distributed exclusively for use by blind or other persons

with disabilities.’’.

Approved December 3, 2004.