105TH CONGRESS
1ST SESSION
H. R. 5
AN ACT
To amend the Individuals with Disabilities Edu-
cation Act, to reauthorize and make improve-
ments to that Act, and for other purposes.
105TH CONGRESS
1ST SESSION
H. R. 5
AN ACT
To amend the Individuals with Disabilities Education Act,
to reauthorize and make improvements to that Act, and
for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Individuals with Dis-
abilities Education Act Amendments of 1997’’.
TITLE I—AMENDMENTS TO THE
INDIVIDUALS WITH DISABIL-
ITIES EDUCATION ACT
SEC. 101. AMENDMENTS TO THE INDIVIDUALS WITH DIS-
ABILITIES EDUCATION ACT.
Parts A through D of the Individuals with Disabil-
ities 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 Act may be cited as the
‘Individuals with Disabilities Education Act’.
‘‘(b) TABLE OF CONTENTS.—The table of contents
for this Act 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.
‘‘PART B—ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH
DISABILITIES
‘‘Sec. 611. Authorization; allotment; use of funds; authorization of appropria-
tions.
‘‘Sec. 612. State eligibility.
‘‘Sec. 613. Local educational agency eligibility.
‘‘Sec. 614. Evaluations, eligibility determinations, individualized education pro-
grams, and educational placements.
‘‘Sec. 615. Procedural safeguards.
‘‘Sec. 616. Withholding and judicial review.
‘‘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. Federal Interagency Coordinating Council.
‘‘Sec. 645. Authorization of appropriations.
‘‘PART D—NATIONAL ACTIVITIES TO IMPROVE EDUCATION OF CHILDREN
WITH DISABILITIES
‘‘SUBPART 1—STATE PROGRAM IMPROVEMENT GRANTS FOR CHILDREN WITH
DISABILITIES
‘‘Sec. 651. Findings and purpose.
‘‘Sec. 652. Eligibility and collaborative process.
‘‘Sec. 653. Applications.
‘‘Sec. 654. Use of funds.
‘‘Sec. 655. Minimum State grant amounts.
‘‘Sec. 656. Authorization of appropriations.
‘‘SUBPART 2—COORDINATED RESEARCH, PERSONNEL PREPARATION,
TECHNICAL ASSISTANCE, SUPPORT, AND DISSEMINATION OF INFORMATION
‘‘Sec. 661. Administrative provisions.
‘‘CHAPTER 1—IMPROVING EARLY INTERVENTION, EDUCATIONAL, AND TRANSI-
TIONAL
SERVICES
AND
RESULTS
FOR
CHILDREN
WITH
DISABILITIES
THROUGH COORDINATED RESEARCH AND PERSONNEL PREPARATION
‘‘Sec. 671. Findings and purpose.
‘‘Sec. 672. Research and innovation to improve services and results for children
with disabilities.
‘‘Sec. 673. Personnel preparation to improve services and results for children
with disabilities.
‘‘Sec. 674. Studies and evaluations.
‘‘CHAPTER 2—IMPROVING EARLY INTERVENTION, EDUCATIONAL, AND TRANSI-
TIONAL
SERVICES
AND
RESULTS
FOR
CHILDREN
WITH
DISABILITIES
THROUGH COORDINATED TECHNICAL ASSISTANCE, SUPPORT, AND DISSEMI-
NATION OF INFORMATION
‘‘Sec. 681. Findings and purposes.
‘‘Sec. 682. Parent training and information centers.
‘‘Sec. 683. Community parent resource centers.
‘‘Sec. 684. Technical assistance for parent training and information centers.
‘‘Sec. 685. Coordinated technical assistance and dissemination.
‘‘Sec. 686. Authorization of appropriations.
‘‘Sec. 687. Technology development, demonstration, and utilization, and media
services.
‘‘(c) FINDINGS.—The Congress finds the following:
‘‘(1) Disability is a natural part of the human
experience and in no way diminishes the right of in-
dividuals to participate in or contribute to society.
Improving educational results for children with dis-
abilities is an essential element of our national policy
of ensuring equality of opportunity, full participa-
tion, independent living, and economic self-suffi-
ciency for individuals with disabilities.
‘‘(2) Before the date of the enactment of the
Education for All Handicapped Children Act of
1975 (Public Law 94–142)—
‘‘(A) the special educational needs of chil-
dren with disabilities were not being fully met;
‘‘(B) more than one-half of the children
with disabilities in the United States did not re-
ceive appropriate educational services that
would enable such children to have full equality
of opportunity;
‘‘(C) 1,000,000 of the children with dis-
abilities in the United States were excluded en-
tirely from the public school system and did not
go through the educational process with their
peers;
‘‘(D) there were many children with dis-
abilities throughout the United States partici-
pating in regular school programs whose dis-
abilities prevented such children from having a
successful educational experience because their
disabilities were undetected; and
‘‘(E) because of the lack of adequate serv-
ices within the public school system, families
were often forced to find services outside the
public school system, often at great distance
from their residence and at their own expense.
‘‘(3) Since the enactment and implementation
of the Education for All Handicapped Children Act
of 1975, this Act has been successful in ensuring
children with disabilities and the families of such
children access to a free appropriate public edu-
cation and in improving educational results for chil-
dren with disabilities.
‘‘(4) However, the implementation of this Act
has been impeded by low expectations, and an insuf-
ficient focus on applying replicable research on prov-
en methods of teaching and learning for children
with disabilities.
‘‘(5) Over 20 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 in the gen-
eral curriculum to the maximum extent pos-
sible;
‘‘(B) strengthening the role 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 Act with other local,
educational service agency, State, and Federal
school improvement efforts 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 they
are sent;
‘‘(D) providing appropriate special edu-
cation and related services and aids and sup-
ports in the regular classroom to such children,
whenever appropriate;
‘‘(E) supporting high-quality, intensive
professional development for all personnel who
work with such children in order to ensure that
they have the skills and knowledge necessary to
enable them—
‘‘(i) to meet developmental goals and,
to the maximum extent possible, those
challenging expectations that have been es-
tablished for all children; and
‘‘(ii) to be prepared to lead produc-
tive, independent, adult lives, to the maxi-
mum extent possible;
‘‘(F) providing incentives for whole-school
approaches and pre-referral intervention to re-
duce the need to label children as disabled in
order to address their learning needs; and
‘‘(G) focusing resources on teaching and
learning while reducing paperwork and require-
ments that do not assist in improving edu-
cational results.
‘‘(6) While States, local educational agencies,
and educational service agencies are responsible for
providing an education for all children with disabil-
ities, it is in the national interest that the Federal
Government have a 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) The Federal Government must be re-
sponsive to the growing needs of an increasingly
more diverse society. A more equitable allocation of
resources is essential for the Federal Government to
meet its responsibility to provide an equal edu-
cational opportunity for all individuals.
‘‘(B) America’s racial profile is rapidly chang-
ing. Between 1980 and 1990, the rate of increase in
the population for white Americans was 6 percent,
while the rate of increase for racial and ethnic mi-
norities was much higher: 53 percent for Hispanics,
13.2 percent for African-Americans, and 107.8 per-
cent for Asians.
‘‘(C) By the year 2000, this Nation will have
275,000,000 people, nearly one of every three of
whom will be either African-American, Hispanic,
Asian-American, or American Indian.
‘‘(D) Taken together as a group, minority chil-
dren are comprising an ever larger percentage of
public school students. Large-city school populations
are overwhelmingly minority, for example: for fall
1993, the figure for Miami was 84 percent; Chicago,
89 percent; Philadelphia, 78 percent; Baltimore, 84
percent; Houston, 88 percent; and Los Angeles, 88
percent.
‘‘(E) Recruitment efforts within special edu-
cation must focus on bringing larger numbers of mi-
norities into the profession in order to provide ap-
propriate practitioner knowledge, role models, and
sufficient manpower to address the clearly changing
demography of special education.
‘‘(F) The limited English proficient population
is the fastest growing in our Nation, and the growth
is occurring in many parts of our Nation. In the Na-
tion’s 2 largest school districts, limited English stu-
dents make up almost half of all students initially
entering school at the kindergarten level. Studies
have documented apparent discrepancies in the levels
of referral and placement of limited English pro-
ficient children in special education. The Depart-
ment of Education has found that services provided
to limited English proficient students often do not
respond primarily to the pupil’s academic needs.
These trends pose special challenges for special edu-
cation in the referral, assessment, and services for
our Nation’s students from non-English language
backgrounds.
‘‘(8)(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 gen-
eral school population.
‘‘(C) Poor African-American children are 2.3
times more likely to be identified by their teacher as
having mental retardation than their white counter-
part.
‘‘(D) Although African-Americans represent 16
percent of elementary and secondary enrollments,
they constitute 21 percent of total enrollments in
special education.
‘‘(E) The drop-out rate is 68 percent higher for
minorities than for whites.
‘‘(F) More than 50 percent of minority students
in large cities drop out of school.
‘‘(9)(A) The opportunity for full participation
in awards for grants and contracts; boards of orga-
nizations receiving funds under this Act; and peer
review panels; and training of professionals in the
area of special education by minority individuals, or-
ganizations, and historically black colleges and uni-
versities is essential if we are to obtain greater suc-
cess in the education of minority children with dis-
abilities.
‘‘(B) In 1993, of the 915,000 college and uni-
versity professors, 4.9 percent were African-Amer-
ican and 2.4 percent were Hispanic. Of the
2,940,000 teachers, prekindergarten through high
school, 6.8 percent were African-American and 4.1
percent were Hispanic.
‘‘(C) Students from minority groups comprise
more than 50 percent of K–12 public school enroll-
ment in seven States yet minority enrollment in
teacher training programs is less than 15 percent in
all but six States.
‘‘(D) As the number of African-American and
Hispanic students in special education increases, the
number of minority teachers and related service per-
sonnel produced in our colleges and universities con-
tinues to decrease.
‘‘(E) Ten years ago, 12 percent of the United
States teaching force in public elementary and sec-
ondary schools were members of a minority group.
Minorities comprised 21 percent of the national pop-
ulation at that time and were clearly underrep-
resented then among employed teachers. Today, the
elementary and secondary teaching force is 13 per-
cent minority, while one-third of the students in
public schools are minority children.
‘‘(F) As recently as 1991, historically black col-
leges and universities enrolled 44 percent of the Af-
rican-American teacher trainees in the Nation. How-
ever, in 1993, historically black colleges and univer-
sities received only 4 percent of the discretionary
funds for special education and related services per-
sonnel training under this Act.
‘‘(G) While African-American students con-
stitute 28 percent of total enrollment in special edu-
cation, only 11.2 percent of individuals enrolled in
preservice training programs for special education
are African-American.
‘‘(H) In 1986–87, of the degrees conferred in
education at the B.A., M.A., and Ph.D. levels, only
6, 8, and 8 percent, respectively, were awarded to
African-American or Hispanic students.
‘‘(10) Minorities and underserved persons are
socially disadvantaged because of the lack of oppor-
tunities in training and educational programs,
undergirded by the practices in the private sector
that impede their full participation in the main-
stream of society.
‘‘(d) PURPOSES.—The purposes of this title are—
‘‘(1)(A) to ensure that all children with disabil-
ities have available to them a free appropriate public
education that emphasizes special education and re-
lated services designed to meet their unique needs
and prepare them for employment and independent
living;
‘‘(B) to ensure that the rights of children with
disabilities and parents of such children are pro-
tected; 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, multidisci-
plinary, 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 systemic-
change activities; coordinated research and personnel
preparation; coordinated technical assistance, dis-
semination, and support; and technology develop-
ment and media services; and
‘‘(4) to assess, and ensure the effectiveness of,
efforts to educate children with disabilities.
‘‘SEC. 602. DEFINITIONS.
‘‘Except as otherwise provided, as used in this Act:
‘‘(1) ASSISTIVE
TECHNOLOGY
DEVICE.—The
term ‘assistive technology device’ means any item,
piece of equipment, or product system, whether ac-
quired commercially off the shelf, modified, or cus-
tomized, that is used to increase, maintain, or im-
prove functional capabilities of a child with a disabil-
ity.
‘‘(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 tech-
nology 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 pro-
viding for the acquisition of assistive technology
devices by such child;
‘‘(C) selecting, designing, fitting, customiz-
ing, adapting, applying, maintaining, repairing,
or replacing of assistive technology devices;
‘‘(D) coordinating and using other thera-
pies, 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), employ-
ers, 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 impair-
ments (including blindness), serious emo-
tional disturbance (hereinafter referred to
as ‘emotional disturbance’), orthopedic im-
pairments, autism, traumatic brain injury,
other health impairments, or specific learn-
ing disabilities; and
‘‘(ii) who, by reason thereof, needs
special education and related services.
‘‘(B) CHILD
AGED
THROUGH
9.—The
term ‘child with a disability’ for a child aged 3
through 9 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 instru-
ments and procedures, in one or more of
the following areas: physical development,
cognitive development, communication de-
velopment, social or emotional develop-
ment, or adaptive development; and
‘‘(ii) who, by reason thereof, needs
special education and related services.
‘‘(4) EDUCATIONAL
SERVICE
AGENCY.—The
term ‘educational service agency’—
‘‘(A) means a regional public multiservice
agency—
‘‘(i) authorized by State law to de-
velop, manage, and provide services or pro-
grams to local educational agencies; and
‘‘(ii) recognized as an administrative
agency for purposes of the provision of
special education and related services pro-
vided within public elementary and second-
ary schools of the State; and
‘‘(B) includes any other public institution
or agency having administrative control and di-
rection over a public elementary or secondary
school.
‘‘(5) ELEMENTARY
SCHOOL.—The term ‘ele-
mentary school’ means a nonprofit institutional day
or residential school that provides elementary edu-
cation, as determined under State law.
‘‘(6) EQUIPMENT.—The term ‘equipment’ in-
cludes—
‘‘(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, includ-
ing items such as instructional equipment and
necessary furniture; printed, published, and
audio-visual 
instructional 
materials; 
tele-
communications, sensory, and other techno-
logical aids and devices; and books, periodicals,
documents, and other related materials.
‘‘(7) EXCESS COSTS.—The term ‘excess costs’
means those costs that are in excess of the average
annual per-student expenditure in a local edu-
cational agency during the preceding school year for
an elementary or secondary school student, as may
be appropriate, and which shall be computed after
deducting—
‘‘(A) amounts received—
‘‘(i) under part B of this title;
‘‘(ii) under part A of title I of the El-
ementary and Secondary Education Act of
1965; or
‘‘(iii) under part A of title VII of that
Act; and
‘‘(B) any State or local funds expended for
programs that would qualify for assistance
under any of those parts.
‘‘(8) 
FREE
APPROPRIATE
PUBLIC
EDU-
CATION.—The term ‘free appropriate public edu-
cation’ means special education and related services
that—
‘‘(A) have been provided at public expense,
under public supervision and direction, and
without charge;
‘‘(B) meet the standards of the State edu-
cational agency;
‘‘(C) include an appropriate preschool, ele-
mentary, or secondary school education in the
State involved; and
‘‘(D) are provided in conformity with the
individualized 
education 
program 
required
under section 614(d).
‘‘(9) INDIAN.—The term ‘Indian’ means an in-
dividual who is a member of an Indian tribe.
‘‘(10) 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 corpora-
tion (as defined in or established under the Alaska
Native Claims Settlement Act).
‘‘(11) 
INDIVIDUALIZED
EDUCATION
PRO-
GRAM.—The term ‘individualized education program’
or ‘IEP’ means a written statement for each child
with a disability that is developed, reviewed, and re-
vised in accordance with section 614(d).
‘‘(12) 
INDIVIDUALIZED
FAMILY
SERVICE
PLAN.—The term ‘individualized family service plan’
has the meaning given such term in section 636.
‘‘(13) INFANT OR TODDLER WITH A DISABIL-
ITY.—The term ‘infant or toddler with a disability’
has the meaning given such term in section 632.
‘‘(14) INSTITUTION OF HIGHER EDUCATION.—
The term ‘institution of higher education’—
‘‘(A) has the meaning given that term in
section 1201(a) of the Higher Education Act of
1965; and
‘‘(B) also includes any community college
receiving funding from the Secretary of the In-
terior under the Tribally Controlled Community
College Assistance Act of 1978.
‘‘(15) LOCAL EDUCATIONAL AGENCY.—
‘‘(A) The term ‘local educational agency’
means a public board of education or other pub-
lic authority legally constituted within a State
for either administrative control or direction of,
or to perform a service function for, public ele-
mentary or secondary schools in a city, county,
township, school district, or other political sub-
division of a State, or for such combination of
school districts or counties as are recognized in
a State as an administrative agency for its pub-
lic elementary or secondary schools.
‘‘(B) The term includes—
‘‘(i) an educational service agency, as
defined in paragraph (4); and
‘‘(ii) any other public institution or
agency having administrative control and
direction of a public elementary or second-
ary school.
‘‘(C) The term includes an elementary or
secondary school funded by the Bureau of In-
dian 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 Act with the smallest student popu-
lation, except that the school shall not be sub-
ject to the jurisdiction of any State educational
agency other than the Bureau of Indian Affairs.
‘‘(16) NATIVE
LANGUAGE.—The term ‘native
language’, when used with reference to an individual
of limited English proficiency, 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.
‘‘(17) NONPROFIT.—The term ‘nonprofit’, as
applied to a school, agency, organization, or institu-
tion, means a school, agency, organization, or insti-
tution owned and operated by one or more nonprofit
corporations or associations no part of the net earn-
ings of which inures, or may lawfully inure, to the
benefit of any private shareholder or individual.
‘‘(18) OUTLYING
AREA.—The term ‘outlying
area’ means the United States Virgin Islands,
Guam, American Samoa, and the Commonwealth of
the Northern Mariana Islands.
‘‘(19) PARENT.—The term ‘parent’—
‘‘(A) includes a legal guardian; and
‘‘(B) except as used in sections 615(b)(2)
and 639(a)(5), includes an individual assigned
under either of those sections to be a surrogate
parent.
‘‘(20) PARENT ORGANIZATION.—The term ‘par-
ent organization’ has the meaning given that term in
section 682(g).
‘‘(21) PARENT
TRAINING
AND
INFORMATION
CENTER.—The term ‘parent training and informa-
tion center’ means a center assisted under section
682 or 683.
‘‘(22) RELATED SERVICES.—The term ‘related
services’ means transportation, and such devel-
opmental, corrective, and other supportive services
(including speech-language pathology and audiology
services, psychological services, physical and occupa-
tional therapy, recreation, including therapeutic
recreation, social work services, 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 as-
sist a child with a disability to benefit from special
education, and includes the early identification and
assessment of disabling conditions in children.
‘‘(23) SECONDARY SCHOOL.—The term ‘second-
ary school’ means a nonprofit institutional day or
residential school that provides secondary education,
as determined under State law, except that it does
not include any education beyond grade 12.
‘‘(24) 
SECRETARY.—The 
term 
‘Secretary’
means the Secretary of Education.
‘‘(25) 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 class-
room, in the home, in hospitals and institutions,
and in other settings; and
‘‘(B) instruction in physical education.
‘‘(26) SPECIFIC LEARNING DISABILITY.—
‘‘(A) IN
GENERAL.—The term ‘specific
learning disability’ means a disorder in one or
more of the basic psychological processes in-
volved in understanding or in using language,
spoken or written, which disorder may manifest
itself in imperfect ability to listen, think, speak,
read, write, spell, or do mathematical calcula-
tions.
‘‘(B) DISORDERS INCLUDED.—Such term
includes such conditions as perceptual disabil-
ities, 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, cul-
tural, or economic disadvantage.
‘‘(27) STATE.—The term ‘State’ means each of
the 50 States, the District of Columbia, the Com-
monwealth of Puerto Rico, and each of the outlying
areas.
‘‘(28) STATE
EDUCATIONAL
AGENCY.—The
term ‘State educational agency’ means the State
board of education or other agency or officer pri-
marily responsible for the State supervision of public
elementary and secondary schools, or, if there is no
such officer or agency, an officer or agency des-
ignated by the Governor or by State law.
‘‘(29) 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-relat-
ed settings to enable children with disabilities to be
educated with nondisabled children to the maximum
extent appropriate in accordance with section
612(a)(5).
‘‘(30) TRANSITION SERVICES.—The term ‘tran-
sition services’ means a coordinated set of activities
for a student with a disability that—
‘‘(A) is designed within an outcome-ori-
ented process, which promotes movement from
school to post-school activities, including post-
secondary education, vocational training, inte-
grated employment (including supported em-
ployment), continuing and adult education,
adult services, independent living, or community
participation;
‘‘(B) is based upon the individual student’s
needs, taking into account the student’s pref-
erences and interests; and
‘‘(C) includes instruction, related services,
community experiences, the development of em-
ployment and other post-school adult living ob-
jectives, and, when appropriate, acquisition of
daily living skills and functional vocational eval-
uation.
‘‘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 Edu-
cation Programs, which shall be the principal agency in
such Department for administering and carrying out this
Act and other programs and activities concerning the edu-
cation of children with disabilities.
‘‘(b) DIRECTOR.—The Office established under sub-
section (a) shall be headed by a Director who shall be se-
lected by the Secretary and shall report directly to the As-
sistant Secretary for Special Education and Rehabilitative
Services.
‘‘(c) VOLUNTARY
AND
UNCOMPENSATED
SERV-
ICES.—Notwithstanding section 1342 of title 31, United
States Code, the Secretary is authorized to accept vol-
untary and uncompensated services in furtherance of the
purposes of this Act.
‘‘SEC. 604. ABROGATION OF STATE SOVEREIGN IMMUNITY.
‘‘(a) IN GENERAL.—A State shall not be immune
under the eleventh amendment to the Constitution of the
United States from suit in Federal court for a violation
of this Act.
‘‘(b) REMEDIES.—In a suit against a State for a vio-
lation of this Act, 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 the 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 Act would be improved
by permitting program funds to be used to acquire appro-
priate 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 re-
quirements 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 part 101-19.6 of title 41,
Code of Federal Regulations (commonly known as
the ‘Uniform Federal Accessibility Standards’).
‘‘SEC. 606. EMPLOYMENT OF INDIVIDUALS WITH DISABIL-
ITIES.
‘‘The Secretary shall ensure that each recipient of as-
sistance under this Act makes positive efforts to employ
and advance in employment qualified individuals with dis-
abilities in programs assisted under this Act.
‘‘SEC. 607. REQUIREMENTS FOR PRESCRIBING REGULA-
TIONS.
‘‘(a) PUBLIC COMMENT PERIOD.—The Secretary
shall provide a public comment period of at least 90 days
on any regulation proposed under part B or part C of this
Act on which an opportunity for public comment is other-
wise required by law.
‘‘(b) PROTECTIONS PROVIDED TO CHILDREN.—The
Secretary may not implement, or publish in final form,
any regulation prescribed pursuant to this Act that would
procedurally or substantively lessen the protections pro-
vided to children with disabilities under this Act, as em-
bodied in regulations in effect on July 20, 1983 (particu-
larly as such protections relate to parental consent to ini-
tial evaluation or initial placement in special education,
least restrictive environment, related services, timelines,
attendance of evaluation personnel at individualized edu-
cation program meetings, or qualifications of personnel),
except to the extent that such regulation reflects the clear
and unequivocal intent of the Congress in legislation.
‘‘(c) POLICY LETTERS AND STATEMENTS.—The Sec-
retary may not, through policy letters or other statements,
establish a rule that is required for compliance with, and
eligibility under, this part without following the require-
ments of section 553 of title 5, United States Code.
‘‘(d) CORRESPONDENCE FROM DEPARTMENT
OF
EDUCATION DESCRIBING INTERPRETATIONS
OF THIS
PART.—
‘‘(1) IN GENERAL.—The Secretary shall, on a
quarterly basis, publish in the Federal Register, and
widely disseminate to interested entities through var-
ious 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 Act or the regulations imple-
mented pursuant to this Act.
‘‘(2) ADDITIONAL
INFORMATION.—For each
item of correspondence published in a list under
paragraph (1), the Secretary shall identify the topic
addressed by the correspondence and shall include
such other summary information as the Secretary
determines to be appropriate.
‘‘(e) ISSUES OF NATIONAL SIGNIFICANCE.—If the
Secretary receives a written request regarding a policy,
question, or interpretation under part B of this Act, and
determines that it raises an issue of general interest or
applicability of national significance to the implementation
of part B, the Secretary shall—
‘‘(1) include a statement to that effect in any
written response;
‘‘(2) widely disseminate that response to State
educational agencies, local educational agencies, par-
ent and advocacy organizations, and other interested
organizations, subject to applicable laws relating to
confidentiality of information; and
‘‘(3) not later than one year after the date on
which the Secretary responds to the written request,
issue written guidance on such policy, question, or
interpretation through such means as the Secretary
determines to be appropriate and consistent with
law, such as a policy memorandum, notice of inter-
pretation, or notice of proposed rulemaking.
‘‘(f) EXPLANATION.—Any written response by the
Secretary under subsection (e) regarding a policy, ques-
tion, or interpretation under part B of this Act shall in-
clude an explanation that the written response—
‘‘(1) is provided as informal guidance and is not
legally binding; and
‘‘(2) represents the interpretation by the De-
partment of Education of the applicable statutory or
regulatory requirements in the context of the specific
facts presented.
‘‘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 and the outlying areas,
and provide funds to the Secretary of the Interior,
to assist them to provide special education and relat-
ed services to children with disabilities in accordance
with this part.
‘‘(2) 
MAXIMUM
AMOUNTS.—The 
maximum
amount of the grant a State may receive under this
section for any fiscal year is—
‘‘(A) the number of children with disabil-
ities in the State who are receiving special edu-
cation and related services—
‘‘(i) aged three through five if the
State is eligible for a grant under section
619; and
‘‘(ii) aged six through 21; multiplied
by
‘‘(B) 40 percent of the average per-pupil
expenditure in public elementary and secondary
schools in the United States.
‘‘(b) OUTLYING AREAS AND FREELY ASSOCIATED
STATES.—
‘‘(1) FUNDS RESERVED.—From the amount ap-
propriated for any fiscal year under subsection (j),
the Secretary shall reserve not more than one per-
cent, which shall be used—
‘‘(A) to provide assistance to the outlying
areas in accordance with their respective popu-
lations of individuals aged three through 21;
and
‘‘(B) for fiscal years 1998 through 2001,
to carry out the competition described in para-
graph (2), except that the amount reserved to
carry out that competition shall not exceed the
amount reserved for fiscal year 1996 for the
competition under part B of this Act described
under the heading ‘‘SPECIAL EDUCATION’’
in Public Law 104–134.
‘‘(2) LIMITATION
FOR
FREELY
ASSOCIATED
STATES.—
‘‘(A) COMPETITIVE
GRANTS.—The Sec-
retary shall use funds described in paragraph
(1)(B) to award grants, on a competitive basis,
to Guam, American Samoa, the Commonwealth
of the Northern Mariana Islands, and the freely
associated States to carry out the purposes of
this part.
‘‘(B) AWARD BASIS.—The Secretary shall
award grants under subparagraph (A) on a
competitive basis, pursuant to the recommenda-
tions of the Pacific Region Educational Labora-
tory in Honolulu, Hawaii. Those recommenda-
tions shall be made by experts in the field of
special education and related services.
‘‘(C) ASSISTANCE
REQUIREMENTS.—Any
freely associated State that wishes to receive
funds under this part shall include, in its appli-
cation for assistance—
‘‘(i) information demonstrating that it
will meet all conditions that apply to
States under this part;
‘‘(ii) an assurance that, notwithstand-
ing any other provision of this part, it will
use those funds only for the direct provi-
sion of special education and related serv-
ices to children with disabilities and to en-
hance its capacity to make a free appro-
priate public education available to all chil-
dren with disabilities;
‘‘(iii) the identity of the source and
amount of funds, in addition to funds
under this part, that it will make available
to ensure that a free appropriate public
education is available to all children with
disabilities within its jurisdiction; and
‘‘(iv) such other information and as-
surances as the Secretary may require.
‘‘(D) TERMINATION
OF
ELIGIBILITY.—
Notwithstanding any other provision of law, the
freely associated States shall not receive any
funds under this part for any program year
that begins after September 30, 2001.
‘‘(E) ADMINISTRATIVE COSTS.—The Sec-
retary may provide not more than five percent
of the amount reserved for grants under this
paragraph to pay the administrative costs of
the Pacific Region Educational Laboratory
under subparagraph (B).
‘‘(3) LIMITATION.—An outlying area is not eli-
gible for a competitive award under paragraph (2)
unless it receives assistance under paragraph (1)(A).
‘‘(4) SPECIAL RULE.—The provisions of Public
Law 95–134, permitting the consolidation of grants
by the outlying areas, shall not apply to funds pro-
vided to those areas or to the freely associated
States under this section.
‘‘(5) ELIGIBILITY
FOR
DISCRETIONARY
PRO-
GRAMS.—The freely associated States shall be eligi-
ble to receive assistance under subpart 2 of part D
of this Act until September 30, 2001.
‘‘(6) DEFINITION.—As used in this subsection,
the term ‘freely associated States’ means the Repub-
lic of the Marshall Islands, the Federated States of
Micronesia, and the Republic of Palau.
‘‘(c) SECRETARY
OF
THE INTERIOR.—From the
amount appropriated for any fiscal year under subsection
(j), the Secretary shall reserve 1.226 percent to provide
assistance to the Secretary of the Interior in accordance
with subsection (i).
‘‘(d) ALLOCATIONS TO STATES.—
‘‘(1) IN GENERAL.—After reserving funds for
studies and evaluations under section 674(e), and
for payments to the outlying areas and the Secretary
of the Interior under subsections (b) and (c), the
Secretary shall allocate the remaining amount
among the States in accordance with paragraph (2)
or subsection (e), as the case may be.
‘‘(2) INTERIM FORMULA.—Except as provided
in subsection (e), the Secretary shall allocate the
amount described in paragraph (1) among the
States in accordance with section 611(a)(3), (4), and
(5) and (b)(1), (2), and (3) of this Act, as in effect
prior to the enactment of the Individuals with Dis-
abilities Education Act Amendments of 1997, except
that the determination of the number of children
with disabilities receiving special education and re-
lated services under such section 611(a)(3) may, at
the State’s discretion, be calculated as of the last
Friday in October or as of December 1 of the fiscal
year for which the funds are appropriated.
‘‘(e) PERMANENT FORMULA.—
‘‘(1) ESTABLISHMENT
OF
BASE
YEAR.—The
Secretary shall allocate the amount described in sub-
section (d)(1) among the States in accordance with
this subsection for each fiscal year beginning with
the first fiscal year for which the amount appro-
priated 
under 
subsection 
(j) 
is 
more 
than
$4,924,672,200.
‘‘(2) USE OF BASE YEAR.—
‘‘(A) DEFINITION.—As used in this sub-
section, the term ‘base year’ means the fiscal
year preceding the first fiscal year in which this
subsection applies.
‘‘(B) SPECIAL
RULE
FOR
USE
OF
BASE
YEAR AMOUNT.—If a State received any funds
under this section for the base year on the basis
of children aged three through five, but does
not make a free appropriate public education
available to all children with disabilities aged
three through five in the State in any subse-
quent fiscal year, the Secretary shall compute
the State’s base year amount, 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 the base year on the basis of those
children.
‘‘(3) INCREASE
IN
FUNDS.—If the amount
available for allocations to States under paragraph
(1) 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)(i) Except as provided in subpara-
graph (B), the Secretary shall—
‘‘(I) allocate to each State the amount
it received for the base year;
‘‘(II) allocate 85 percent of any re-
maining funds to States on the basis of
their 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 ap-
propriate public education under this part;
and
‘‘(III) allocate 15 percent of those re-
maining funds to States on the basis of
their relative populations of children de-
scribed in subclause (II) who are living in
poverty.
‘‘(ii) 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) Notwithstanding subparagraph (A),
allocations under this paragraph shall be sub-
ject to the following:
‘‘(i) No State’s allocation shall be less
than its allocation for the preceding fiscal
year.
‘‘(ii) No State’s allocation shall be less
than the greatest of—
‘‘(I) the sum of—
‘‘(aa) the amount it received
for the base year; and
‘‘(bb) one third of one per-
cent of the amount by which the
amount appropriated under sub-
section (j) exceeds the amount
appropriated under this section
for the base year;
‘‘(II) the sum of—
‘‘(aa) the amount it received
for the preceding fiscal year; and
‘‘(bb) that amount multi-
plied by the percentage by which
the increase in the funds appro-
priated from the preceding fiscal
year exceeds 1.5 percent; or
‘‘(III) the sum of—
‘‘(aa) the amount it received
for the preceding fiscal year; and
‘‘(bb) that amount multi-
plied by 90 percent of the per-
centage increase in the amount
appropriated from the preceding
fiscal year.
‘‘(iii) Notwithstanding clause (ii), no
State’s allocation under this paragraph
shall exceed the sum of—
‘‘(I) the amount it received for
the preceding fiscal year; and
‘‘(II) that amount multiplied by
the sum of 1.5 percent and the per-
centage increase in the amount appro-
priated.
‘‘(C) 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) 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) If the amount available for allocations
is greater than the amount allocated to the
States for the base year, each State shall be al-
located the sum of—
‘‘(i) the amount it received for the
base year; and
‘‘(ii) an amount that bears the same
relation to any remaining funds as the in-
crease the State received for the preceding
fiscal year over the base year bears to the
total of all such increases for all States.
‘‘(B)(i) If the amount available for alloca-
tions is equal to or less than the amount allo-
cated to the States for the base year, each
State shall be allocated the amount it received
for the base year.
‘‘(ii) If the amount available is insufficient
to make the allocations described in clause (i),
those allocations shall be ratably reduced.
‘‘(f) STATE-LEVEL ACTIVITIES.—
‘‘(1) GENERAL.—
‘‘(A) Each State may retain not more than
the amount described in subparagraph (B) for
administration and other State-level activities in
accordance with paragraphs (2) and (3).
‘‘(B) For each fiscal year, the Secretary
shall determine and report to the State edu-
cational agency an amount that is 25 percent of
the amount the State received under this sec-
tion for fiscal year 1997, cumulatively adjusted
by the Secretary for each succeeding fiscal year
by the lesser of—
‘‘(i) the percentage increase, if any,
from the preceding fiscal year in the
State’s allocation under this section; or
‘‘(ii) 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 Statis-
tics of the Department of Labor.
‘‘(C) A State may use funds it retains
under subparagraph (A) without regard to—
‘‘(i) the prohibition on commingling of
funds in section 612(a)(18)(B); and
‘‘(ii) the prohibition on supplanting
other funds in section 612(a)(18)(C).
‘‘(2) STATE ADMINISTRATION.—
‘‘(A) For the purpose of administering this
part, including section 619 (including the co-
ordination of activities under this part with,
and providing technical assistance to, other pro-
grams that provide services to children with dis-
abilities)—
‘‘(i) each State may use not more
than twenty percent of the maximum
amount it may retain under paragraph
(1)(A) for any fiscal year or $500,000 (ad-
justed by the cumulative rate of inflation
since fiscal year 1998, as measured by the
percentage 
increase, 
if 
any, 
in 
the
Consumer Price Index For All Urban Con-
sumers, published by the Bureau of Labor
Statistics of the Department of Labor),
whichever is greater; and
‘‘(ii) each outlying area may use up to
five percent of the amount it receives
under this section for any fiscal year or
$35,000, whichever is greater.
‘‘(B) Funds described in subparagraph (A)
may also be used for the administration of part
C of this Act, if the State educational agency
is the lead agency for the State under that
part.
‘‘(3) OTHER STATE-LEVEL ACTIVITIES.—Each
State shall use any funds it retains under paragraph
(1) and does not use for administration under para-
graph (2) for any of the following:
‘‘(A) Support and direct services, including
technical assistance and personnel development
and training.
‘‘(B) Administrative costs of monitoring
and complaint investigation, but only to the ex-
tent that those costs exceed the costs incurred
for those activities during fiscal year 1985.
‘‘(C) To establish and implement the medi-
ation process required by section 615(e), includ-
ing providing for the costs of mediators and
support personnel.
‘‘(D) To assist local educational agencies
in meeting personnel shortages.
‘‘(E) To develop a State Improvement Plan
under subpart 1 of part D.
‘‘(F) Activities at the State and local levels
to meet the performance goals established by
the State under section 612(a)(16) and to sup-
port implementation of the State Improvement
Plan under subpart 1 of part D if the State re-
ceives funds under that subpart.
‘‘(G) To supplement other amounts 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 to exceed
one percent of the amount received by the State
under this section. This system shall be coordi-
nated with and, to the extent appropriate, build
on the system of coordinated services developed
by the State under part C of this Act.
‘‘(H) For subgrants to local educational
agencies for the purposes described in para-
graph (4)(A).
‘‘(4)(A) SUBGRANTS TO LOCAL EDUCATIONAL
AGENCIES FOR CAPACITY-BUILDING AND IMPROVE-
MENT.—In any fiscal year in which the percentage
increase in the State’s allocation under this section
exceeds 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 Sta-
tistics of the Department of Labor), each State shall
reserve, from its allocation under this section, the
amount described in subparagraph (B) to make sub-
grants to local educational agencies, unless that
amount is less than $100,000, to assist them in pro-
viding direct services and in making systemic change
to improve results for children with disabilities
through one or more of the following:
‘‘(i) Direct services, including alternative
programming for children who have been ex-
pelled from school, and services for children in
correctional facilities, children enrolled in State-
operated or State-supported schools, and chil-
dren in charter schools.
‘‘(ii) Addressing needs or carrying out im-
provement strategies identified in the State’s
Improvement Plan under subpart 1 of part D.
‘‘(iii) Adopting promising practices, mate-
rials, and technology, based on knowledge de-
rived from education research and other
sources.
‘‘(iv) Establishing, expanding, or imple-
menting interagency agreements and arrange-
ments between local educational agencies and
other agencies or organizations concerning the
provision of services to children with disabilities
and their families.
‘‘(v) Increasing cooperative problem-solving
between parents and school personnel and pro-
moting the use of alternative dispute resolution.
‘‘(B) MAXIMUM
SUBGRANT.—For each fiscal
year, the amount referred to in subparagraph (A)
is—
‘‘(i) the maximum amount the State was
allowed to retain under paragraph (1)(A) for
the prior fiscal year, or for fiscal year 1998, 25
percent of the State’s allocation for fiscal year
1997 under this section; multiplied by
‘‘(ii) the difference between the percentage
increase in the State’s allocation under this sec-
tion and the rate of inflation, as measured by
the percentage increase, if any, from the pre-
ceding fiscal year in the Consumer Price Index
For All Urban Consumers, published by the
Bureau of Labor Statistics of the Department
of Labor.
‘‘(5) REPORT ON USE OF FUNDS.—As part of
the information required to be submitted to the Sec-
retary under section 612, each State shall annually
describe—
‘‘(A) how amounts retained under para-
graph (1) will be used to meet the requirements
of this part;
‘‘(B) how those amounts will be allocated
among the activities described in paragraphs
(2) and (3) to meet State priorities based on
input from local educational agencies; and
‘‘(C) the percentage of those amounts, if
any, that will be distributed to local educational
agencies by formula.
‘‘(g) SUBGRANTS TO LOCAL EDUCATIONAL AGEN-
CIES.—
‘‘(1) SUBGRANTS REQUIRED.—Each State that
receives a grant under this section for any fiscal
year shall distribute any funds it does not retain
under subsection (f) (at least 75 percent of the
grant funds) to local educational agencies in the
State that have established their eligibility under
section 613, and to State agencies that received
funds under section 614A(a) of this Act for fiscal
year 1997, as then in effect, and have established
their eligibility under section 613, for use in accord-
ance with this part.
‘‘(2) ALLOCATIONS
TO
LOCAL
EDUCATIONAL
AGENCIES.—
‘‘(A) INTERIM PROCEDURE.—For each fis-
cal year for which funds are allocated to States
under subsection (d)(2), each State shall allo-
cate funds under paragraph (1) in accordance
with section 611(d) of this Act, as in effect
prior to the enactment of the Individuals with
Disabilities Education Act Amendments of
1997.
‘‘(B) PERMANENT PROCEDURE.—For each
fiscal year for which funds are allocated to
States under subsection (e), each State shall al-
locate funds under paragraph (1) as follows:
‘‘(i) BASE
PAYMENTS.—The State
shall first award each agency described in
paragraph (1) the amount that agency
would have received under this section for
the base year, as defined in subsection
(e)(2)(A), if the State had distributed 75
percent of its grant for that year under
section 611(d), as then in effect.
‘‘(ii) 
ALLOCATION
OF
REMAINING
FUNDS.—After making allocations under
clause (i), the State shall—
‘‘(I) allocate 85 percent of any
remaining funds to those agencies on
the basis of the relative numbers of
children enrolled in public and private
elementary and secondary schools
within the agency’s jurisdiction; and
‘‘(II) allocate 15 percent of those
remaining funds to those agencies in
accordance with their relative num-
bers of children living in poverty, as
determined by the State educational
agency.
‘‘(3) FORMER CHAPTER 1 STATE AGENCIES.—
‘‘(A) To the extent necessary, the State—
‘‘(i) shall use funds that are available
under subsection (f)(1)(A) to ensure that
each State agency that received fiscal year
1994 funds under subpart 2 of part D of
chapter 1 of title I of the Elementary and
Secondary Education Act of 1965 receives,
from the combination of funds under sub-
section (f)(1)(A) and funds provided under
paragraph (1) of this subsection, an
amount equal to—
‘‘(I) the number of children with
disabilities, aged 6 through 21, to
whom the agency was providing spe-
cial education and related services on
December 1 of the fiscal year for
which the funds were appropriated,
subject to the limitation in subpara-
graph (B); multiplied by
‘‘(II) the per-child amount pro-
vided under such subpart for fiscal
year 1994; and
‘‘(ii) may use those funds to ensure
that each local educational agency that re-
ceived fiscal year 1994 funds under that
subpart for children who had transferred
from a State-operated or State-supported
school or program assisted under that sub-
part receives, from the combination of
funds available under subsection (f)(1)(A)
and funds provided under paragraph (1) of
this subsection, an amount for each such
child, aged 3 through 21 to whom the
agency was providing special education and
related services on December 1 of the fis-
cal year for which the funds were appro-
priated, equal to the per-child amount the
agency received under that subpart for fis-
cal year 1994.
‘‘(B) The number of children counted
under subparagraph (A)(i)(I) shall not exceed
the number of children aged 3 through 21 for
whom the agency received fiscal year 1994
funds under subpart 2 of part D of chapter 1
of title I of the Elementary and Secondary
Education Act of 1965.
‘‘(4) REALLOCATION
OF
FUNDS.—If a State
educational agency determines that a local edu-
cational agency is adequately providing a free appro-
priate public education to all children with disabil-
ities residing in the area served by that 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 agency to pro-
vide 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 they serve.
‘‘(h) DEFINITIONS.—For the purpose of this sec-
tion—
‘‘(1) the term ‘average per-pupil expenditure in
public elementary and secondary schools in the Unit-
ed States’ means—
‘‘(A) without regard to the source of
funds—
‘‘(i) the aggregate current expendi-
tures, during the second fiscal year preced-
ing the fiscal year for which the determina-
tion 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 agen-
cies provided free public education during that
preceding year; and
‘‘(2) the term ‘State’ means each of the 50
States, the District of Columbia, and the Common-
wealth of Puerto Rico.
‘‘(i) USE OF AMOUNTS BY SECRETARY OF THE INTE-
RIOR.—
‘‘(1) PROVISION
OF
AMOUNTS
FOR
ASSIST-
ANCE.—
‘‘(A) IN GENERAL.—The Secretary of Edu-
cation 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 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 (c) for
that fiscal year.
‘‘(B) CALCULATION OF NUMBER OF CHIL-
DREN.—In the case of Indian students aged 3
to 5, inclusive, who are enrolled in programs af-
filiated with the Bureau of Indian Affairs (here-
after in this subsection referred to as ‘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 en-
actment 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 these children, in accordance
with paragraph (2).
‘‘(C) ADDITIONAL
REQUIREMENT.—With
respect to all other children aged 3 to 21, inclu-
sive, on reservations, the State educational
agency shall be responsible for ensuring that all
of the requirements of this part are imple-
mented.
‘‘(2) SUBMISSION OF INFORMATION.—The Sec-
retary of Education may provide the Secretary of
the Interior amounts under paragraph (1) for a fis-
cal 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 require-
ments, as determined by the Secretary of Edu-
cation, of sections 612 (including monitoring
and evaluation activities) and 613;
‘‘(B) includes a description of how the Sec-
retary of the Interior will coordinate the provi-
sion of services under this part with local edu-
cational agencies, tribes and tribal organiza-
tions, and other private and Federal service
providers;
‘‘(C) includes an assurance that there are
public hearings, adequate notice of such hear-
ings, 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 proce-
dures described in subparagraph (A);
‘‘(D) includes an assurance that the Sec-
retary of the Interior will provide such informa-
tion as the Secretary of Education may require
to comply with section 618;
‘‘(E) includes an assurance that the Sec-
retary 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 re-
siding on or near reservations (such agreement
shall provide for the apportionment of respon-
sibilities and costs including, but not limited to,
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 pro-
gram); and
‘‘(F) includes an assurance that the De-
partment 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.
Section 616(a) shall apply to the information de-
scribed in this paragraph.
‘‘(3) PAYMENTS FOR EDUCATION AND SERVICES
FOR INDIAN CHILDREN WITH DISABILITIES AGED 3
THROUGH 5.—
‘‘(A) IN
GENERAL.—With funds appro-
priated under subsection (j), the Secretary of
Education shall make payments to the Sec-
retary of the Interior to be distributed to tribes
or tribal organizations (as defined under section
4 of the Indian Self-Determination and Edu-
cation Assistance Act) or consortia of the above
to provide for the coordination of assistance for
special education and related services for chil-
dren with disabilities aged 3 through 5 on res-
ervations served by elementary 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 (c).
‘‘(B) DISTRIBUTION OF FUNDS.—The Sec-
retary of the Interior shall distribute the total
amount of the payment under subparagraph
(A) by allocating to each tribe or tribal organi-
zation an amount based on the number of chil-
dren with disabilities ages 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 re-
quired 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 pro-
cedures for the early identification of children
aged 3 through 5, parent training, and the pro-
vision of direct services. These activities may be
carried out directly or through contracts or co-
operative agreements with the BIA, local edu-
cational agencies, and other public or private
nonprofit organizations. The tribe or tribal or-
ganization is encouraged to involve Indian par-
ents in the development and implementation of
these activities. The above entities shall, as ap-
propriate, 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 coopera-
tive agreements entered into, the number of
children contacted and receiving services for
each year, and the estimated number of chil-
dren needing services during the 2 years follow-
ing the one in which the report is made. The
Secretary of the Interior shall include a sum-
mary of this information on a biennial basis in
the report to the Secretary of Education re-
quired under this subsection. The Secretary of
Education may require any additional informa-
tion 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 provi-
sion of technical assistance.
‘‘(4) PLAN FOR COORDINATION OF SERVICES.—
The Secretary of the Interior shall develop and im-
plement a plan for the coordination of services for
all Indian children with disabilities residing on res-
ervations covered under this Act. Such plan shall
provide for the coordination of services benefiting
these children from whatever source, including
tribes, the Indian Health Service, other BIA divi-
sions, and other Federal agencies. In developing the
plan, the Secretary of the Interior shall consult with
all interested and involved parties. It 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 and local educational agencies, and other
agencies providing services to infants, toddlers, and
children with disabilities, to tribes, and to other in-
terested parties.
‘‘(5) ESTABLISHMENT OF ADVISORY BOARD.—
To meet the requirements of section 612(a)(21), the
Secretary of the Interior shall establish, not later
than 6 months after the date of the enactment of
the Individuals with Disabilities Education Act
Amendments of 1997, under the BIA, an advisory
board composed of individuals involved in or con-
cerned with the education and provision of services
to Indian infants, toddlers, children, and youth with
disabilities, including Indians with disabilities, In-
dian parents or guardians of such children, teachers,
service providers, State and local educational offi-
cials, representatives of tribes or tribal organiza-
tions, representatives from State Interagency Co-
ordinating Councils under section 641 in States hav-
ing reservations, and other members representing
the various divisions and entities of the BIA. The
chairperson shall 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 disabil-
ities;
‘‘(B) advise and assist the Secretary of the
Interior in the performance of the Secretary’s
responsibilities described in this subsection;
‘‘(C) develop and recommend policies con-
cerning effective inter- and intra-agency collabo-
ration, 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 educational programming for In-
dian infants, toddlers, and children with disabil-
ities; and
‘‘(E) provide assistance in the preparation
of 
information 
required 
under 
paragraph
(2)(D).
‘‘(6) ANNUAL REPORTS.—
‘‘(A) IN
GENERAL.—The advisory board
established under paragraph (5) shall prepare
and submit to the Secretary of the Interior and
to the 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).
‘‘(j) AUTHORIZATION OF APPROPRIATIONS.—For the
purpose of carrying out this part, other than section 619,
there are authorized to be appropriated such sums as may
be necessary.
‘‘SEC. 612. STATE ELIGIBILITY.
‘‘(a) IN GENERAL.—A State is eligible for assistance
under this part for a fiscal year if the State demonstrates
to the satisfaction of the Secretary that the State has in
effect policies and procedures to ensure that it meets each
of the following conditions:
‘‘(1) 
FREE
APPROPRIATE
PUBLIC
EDU-
CATION.—
‘‘(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 ex-
pelled from school.
‘‘(B) 
LIMITATION.—The 
obligation 
to
make a free appropriate public education avail-
able to all children with disabilities does not
apply with respect to children:
‘‘(i) aged 3 through 5 and 18 through
21 in a State to the extent that its applica-
tion to those children would be inconsistent
with State law or practice, or the order of
any court, respecting the provision of pub-
lic 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 disabil-
ities who, in the educational placement
prior to their incarceration in an adult cor-
rectional facility:
‘‘(I) were not actually identified
as being a child with a disability
under section 602(3) of this Act; or
‘‘(II) did not have an Individual-
ized Education Program under this
part.
‘‘(2) 
FULL
EDUCATIONAL
OPPORTUNITY
GOAL.—The State has established a goal of provid-
ing full educational opportunity to all children with
disabilities and a detailed timetable for accomplish-
ing that goal.
‘‘(3) CHILD FIND.—
‘‘(A) IN GENERAL.—All children with dis-
abilities residing in the State, including children
with disabilities attending private schools, re-
gardless 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 imple-
mented to determine which children with dis-
abilities are currently receiving needed special
education and related services.
‘‘(B) CONSTRUCTION.—Nothing in this
Act requires that children be classified by their
disability so long as each child who has a dis-
ability 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 individ-
ualized family service plan that meets the require-
ments 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 ex-
tent appropriate, children with disabilities, in-
cluding children in public or private institutions
or other care facilities, are educated with chil-
dren 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 se-
verity of the disability of a child is such that
education in regular classes with the use of sup-
plementary aids and services cannot be achieved
satisfactorily.
‘‘(B) ADDITIONAL REQUIREMENT.—
‘‘(i) IN GENERAL.—If the State uses a
funding mechanism by which the State dis-
tributes State funds on the basis of the
type of setting in which a child is served,
the funding mechanism does not result in
placements that violate the requirements of
subparagraph (A).
‘‘(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 it
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 disabil-
ities and their parents are afforded the proce-
dural safeguards required by section 615.
‘‘(B) ADDITIONAL
PROCEDURAL
SAFE-
GUARDS.—Procedures to ensure that testing
and evaluation materials and procedures uti-
lized for the purposes of evaluation and place-
ment of children with disabilities will be se-
lected 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 com-
munication, unless it clearly is not feasible to
do so, and no single procedure shall be the sole
criterion for determining an appropriate edu-
cational 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 confiden-
tiality of records and information).
‘‘(9) TRANSITION FROM PART C TO PRESCHOOL
PROGRAMS.—Children participating in early-inter-
vention programs assisted under part C, and who
will participate in preschool programs assisted under
this part, experience a smooth and effective transi-
tion to those preschool programs in a manner con-
sistent with section 637(a)(8). 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 des-
ignated lead agency under section 637(a)(8).
‘‘(10) CHILDREN IN PRIVATE SCHOOLS.—
‘‘(A) CHILDREN
ENROLLED
IN
PRIVATE
SCHOOLS BY THEIR PARENTS.—
‘‘(i) IN GENERAL.—To the extent con-
sistent with the number and location of
children with disabilities in the State who
are enrolled by their parents in private ele-
mentary and secondary schools, provision
is made for the participation of those chil-
dren in the program assisted or carried out
under this part by providing for such chil-
dren special education and related services
in accordance with the following require-
ments, unless the Secretary has arranged
for services to those children under sub-
section (f):
‘‘(I) Amounts expended for the
provision of those services by a local
educational agency shall be equal to a
proportionate 
amount 
of 
Federal
funds made available under this part.
‘‘(II) Such services may be pro-
vided to children with disabilities on
the premises of private, including pa-
rochial, schools, to the extent consist-
ent with law.
‘‘(ii) CHILD-FIND
REQUIREMENT.—
The requirements of paragraph (3) of this
subsection (relating to child find) shall
apply with respect to children with disabil-
ities in the State who are enrolled in pri-
vate, including parochial, elementary and
secondary schools.
‘‘(B) CHILDREN PLACED IN, OR REFERRED
TO, PRIVATE SCHOOLS BY PUBLIC AGENCIES.—
‘‘(i) IN GENERAL.—Children with dis-
abilities in private schools and facilities are
provided special education and related
services, in accordance with an individual-
ized 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 ap-
plicable law requiring the provision of spe-
cial education and related services to all
children with disabilities within such State.
‘‘(ii) STANDARDS.—In all cases de-
scribed in clause (i), the State educational
agency shall determine whether such
schools and facilities meet standards that
apply to State and local educational agen-
cies and that children so served have all
the rights they would have if served by
such agencies.
‘‘(C) PAYMENT FOR EDUCATION OF CHIL-
DREN ENROLLED IN PRIVATE SCHOOLS WITH-
OUT CONSENT OF OR REFERRAL BY THE PUB-
LIC AGENCY.—
‘‘(i) IN
GENERAL.—Subject to sub-
paragraph (A), this part does not require
a local educational agency to pay for the
cost of education, including special edu-
cation 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 re-
ceived special education and related serv-
ices under the authority of a public agency,
enroll the child in a private elementary 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
REIMBURSE-
MENT.—The cost of reimbursement de-
scribed in clause (ii) may be reduced or de-
nied—
‘‘(I) if—
‘‘(aa) at the most recent
IEP meeting that the parents at-
tended 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 en-
roll their child in a private school
at public expense; or
‘‘(bb) 10 business days (in-
cluding 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 de-
scribed in division (aa);
‘‘(II) if, prior to the parents’ re-
moval of the child from the public
school, the public agency informed the
parents, through the notice require-
ments described in section 615(b)(7),
of its intent to evaluate the child (in-
cluding a statement of the purpose of
the evaluation that was appropriate
and reasonable), but the parents did
not make the child available for such
evaluation; or
‘‘(III) upon a judicial finding of
unreasonableness with respect to ac-
tions taken by the parents.
‘‘(iv) 
EXCEPTION.—Notwithstanding
the notice requirement in clause (iii)(I),
the cost of reimbursement may not be re-
duced or denied for failure to provide such
notice if—
‘‘(I) the parent is illiterate and
cannot write in English;
‘‘(II) 
compliance 
with 
clause
(iii)(I) would likely result in physical
or serious emotional harm to the
child;
‘‘(III) the school prevented the
parent from providing such notice; or
‘‘(IV) the parents had not re-
ceived notice, pursuant to section 615,
of the notice requirement in clause
(iii)(I).
‘‘(11) STATE EDUCATIONAL AGENCY RESPON-
SIBLE FOR GENERAL SUPERVISION.—
‘‘(A) IN GENERAL.—The State educational
agency is responsible for ensuring that—
‘‘(i) the requirements of this part are
met; and
‘‘(ii) all educational programs for chil-
dren with disabilities in the State, includ-
ing all such programs administered by any
other State or local agency—
‘‘(I) are under the general super-
vision of individuals in the State who
are responsible for educational pro-
grams for children with disabilities;
and
‘‘(II) meet the educational stand-
ards of the State educational agency.
‘‘(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 sub-
paragraphs (A) and (B), the Governor (or an-
other individual pursuant to State law), consist-
ent with State law, may assign to any public
agency in the State the responsibility of ensur-
ing that the requirements of this part are met
with respect to children with disabilities who
are convicted as adults under State law and in-
carcerated in adult prisons.
‘‘(12) OBLIGATIONS RELATED TO AND METH-
ODS OF ENSURING SERVICES.—
‘‘(A) ESTABLISHING RESPONSIBILITY FOR
SERVICES.—The Chief Executive Officer or des-
ignee of the officer shall ensure that an inter-
agency agreement or other mechanism for inter-
agency 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 subpara-
graph (B)(i) that are needed to ensure a free
appropriate public education are provided, in-
cluding the provision of such services during the
pendency of any dispute under clause (iii). Such
agreement or mechanism shall include the fol-
lowing:
‘‘(i) AGENCY
FINANCIAL
RESPON-
SIBILITY.—An identification of, or a meth-
od for defining, the financial responsibility
of each agency for providing services de-
scribed in subparagraph (B)(i) to ensure a
free appropriate public education to chil-
dren with disabilities, provided that the fi-
nancial 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 RE-
IMBURSEMENT.—The conditions, terms,
and procedures under which a local edu-
cational agency shall be reimbursed by
other agencies.
‘‘(iii) INTERAGENCY DISPUTES.—Pro-
cedures for resolving interagency disputes
(including procedures under which local
educational agencies may initiate proceed-
ings) under the agreement or other mecha-
nism to secure reimbursement from other
agencies or otherwise implement the provi-
sions 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 or 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, serv-
ices described in sections 602(1) relating
to assistive technology devices, 602(2) re-
lating to assistive technology services,
602(22) 
relating 
to 
related 
services,
602(29) relating to supplementary aids
and services, and 602(30) relating to tran-
sition services) that are necessary for en-
suring a free appropriate public education
to children with disabilities within the
State, such public agency shall fulfill that
obligation or responsibility, either directly
or through contract or other arrangement.
‘‘(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 may then claim re-
imbursement for the services from the pub-
lic 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 re-
spective agency officials that clearly iden-
tify the responsibilities of each agency re-
lating to the provision of services; or
‘‘(iii) other appropriate written meth-
ods as determined by the Chief Executive
Officer of the State or designee of the offi-
cer.
‘‘(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 op-
portunity for a hearing.
‘‘(14) COMPREHENSIVE SYSTEM OF PERSONNEL
DEVELOPMENT.—The State has in effect, consistent
with the purposes of this Act and with section
635(a)(8), a comprehensive system of personnel de-
velopment that is designed to ensure an adequate
supply of qualified special education, regular edu-
cation, and related services personnel that meets the
requirements for a State improvement plan relating
to personnel development in subsections (b)(2)(B)
and (c)(3)(D) of section 653.
‘‘(15) PERSONNEL STANDARDS.—
‘‘(A) IN GENERAL.—The State educational
agency has established and maintains standards
to ensure that personnel necessary to carry out
this part are appropriately and adequately pre-
pared and trained.
‘‘(B) 
STANDARDS
DESCRIBED.—Such
standards shall—
‘‘(i) be consistent with any State-ap-
proved or State-recognized certification, li-
censing, registration, or other comparable
requirements that apply to the professional
discipline in which those personnel are pro-
viding special education or related services;
‘‘(ii) to the extent the standards de-
scribed in subparagraph (A) are not based
on the highest requirements in the State
applicable to a specific profession or dis-
cipline, the State is taking steps to require
retraining or hiring of personnel that meet
appropriate professional requirements in
the State; and
‘‘(iii) allow paraprofessionals and as-
sistants who are appropriately trained and
supervised, in accordance with State law,
regulations, or written policy, in meeting
the requirements of this part to be used to
assist in the provision of special education
and related services to children with dis-
abilities under this part.
‘‘(C) POLICY.—In implementing this para-
graph, a State may adopt a policy that includes
a requirement that local educational agencies in
the State make an ongoing good-faith effort to
recruit and hire appropriately and adequately
trained personnel to provide special education
and related services to children 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 subparagraph (B)(i),
consistent with State law, and the steps de-
scribed in subparagraph (B)(ii) within three
years.
‘‘(16) PERFORMANCE
GOALS
AND
INDICA-
TORS.—The State—
‘‘(A) has established goals for the perform-
ance of children with disabilities in the State
that—
‘‘(i) will promote the purposes of this
Act, as stated in section 601(d); and
‘‘(ii) are consistent, to the maximum
extent appropriate, with other goals and
standards for children established by the
State;
‘‘(B) has established performance indica-
tors the State will use to assess progress toward
achieving those goals that, at a minimum, ad-
dress the performance of children with disabil-
ities on assessments, drop-out rates, and grad-
uation rates;
‘‘(C) will, every two years, 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); and
‘‘(D) based on its assessment of that
progress, will revise its State improvement plan
under subpart 1 of part D as may be needed
to improve its performance, if the State receives
assistance under that subpart.
‘‘(17) PARTICIPATION IN ASSESSMENTS.—
‘‘(A) IN GENERAL.—Children with disabil-
ities are included in general State and district-
wide assessment programs, with appropriate ac-
commodations, where necessary. As appro-
priate, the State or local educational agency—
‘‘(i) develops guidelines for the par-
ticipation of children with disabilities in al-
ternate assessments for those children who
cannot participate in State and district-
wide assessment programs; and
‘‘(ii) develops and, beginning not later
than July 1, 2000, conducts those alter-
nate assessments.
‘‘(B) REPORTS.—The State educational
agency makes available to the public, and re-
ports to the public with the same frequency and
in the same detail as it reports on the assess-
ment of nondisabled children, the following:
‘‘(i) The number of children with dis-
abilities participating in regular assess-
ments.
‘‘(ii) The number of those children
participating in alternate assessments.
‘‘(iii)(I) The performance of those
children on regular assessments (beginning
not later than July 1, 1998) and on alter-
nate assessments (not later than July 1,
2000), if doing so would be statistically
sound and would not result in the disclo-
sure of performance results identifiable to
individual children.
‘‘(II) Data relating to the perform-
ance of children described under subclause
(I) shall be disaggregated—
‘‘(aa) for assessments conducted
after July 1, 1998; and
‘‘(bb) for assessments conducted
before July 1, 1998, if the State is re-
quired to disaggregate such data prior
to July 1, 1998.
‘‘(18) SUPPLEMENTATION
OF
STATE, LOCAL,
AND OTHER FEDERAL FUNDS.—
‘‘(A) EXPENDITURES.—Funds paid to a
State under this part will be expended in ac-
cordance with all the provisions of this part.
‘‘(B) 
PROHIBITION
AGAINST
COMMIN-
GLING.—Funds paid to a State under this part
will not be commingled with State funds.
‘‘(C) PROHIBITION
AGAINST
SUPPLAN-
TATION AND CONDITIONS FOR WAIVER BY SEC-
RETARY.—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 edu-
cational agencies) expended for special edu-
cation 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.
‘‘(19) MAINTENANCE
OF
STATE
FINANCIAL
SUPPORT.—
‘‘(A) IN GENERAL.—The State does not re-
duce the amount of State financial support for
special education and related services for chil-
dren with disabilities, or otherwise made avail-
able because of the excess costs of educating
those children, below the amount of that sup-
port 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 re-
quirement of subparagraph (A) by the same
amount by which the State fails to meet the re-
quirement.
‘‘(C) WAIVERS FOR EXCEPTIONAL OR UN-
CONTROLLABLE
CIRCUMSTANCES.—The Sec-
retary may waive the requirement of subpara-
graph (A) for a State, for one fiscal year at a
time, if the Secretary determines that—
‘‘(i) granting a waiver would be equi-
table 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 (18)(C) of this section 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 subpara-
graph (C), the financial support required of the
State in future years under subparagraph (A)
shall be the amount that would have been re-
quired in the absence of that failure and not
the reduced level of the State’s support.
‘‘(E) REGULATIONS.—
(i) The Secretary shall, by regulation,
establish procedures (including objective
criteria and consideration of the results of
compliance reviews of the State conducted
by the Secretary) for determining whether
to grant a waiver under subparagraph
(C)(ii).
‘‘(ii) The Secretary shall publish pro-
posed regulations under clause (i) not later
than 6 months after the date of the enact-
ment of the Individuals with Disabilities
Education Act Amendments of 1997, and
shall issue final regulations under clause
(i) not later than 1 year after such date of
enactment.
‘‘(20) 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 avail-
able to the general public, including individuals with
disabilities and parents of children with disabilities.
‘‘(21) STATE ADVISORY PANEL.—
‘‘(A) IN GENERAL.—The State has estab-
lished and maintains an advisory panel for the
purpose of providing policy guidance with re-
spect 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 Gov-
ernor, or any other official authorized under
State law to make such appointments, that is
representative of the State population and that
is composed of individuals involved in, or con-
cerned with, the education of children with dis-
abilities, including—
‘‘(i) parents of children with disabil-
ities;
‘‘(ii) individuals with disabilities;
‘‘(iii) teachers;
‘‘(iv) representatives of institutions of
higher education that prepare special edu-
cation and related services personnel;
‘‘(v) State and local education offi-
cials;
‘‘(vi) administrators of programs for
children with disabilities;
‘‘(vii) representatives of other State
agencies involved in the financing or deliv-
ery of related services to children with dis-
abilities;
‘‘(viii) 
representatives 
of 
private
schools and public charter schools;
‘‘(ix) at least one representative of a
vocational, community, or business organi-
zation concerned with the provision of
transition services to children with disabil-
ities; and
‘‘(x) 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 disabil-
ities.
‘‘(D) DUTIES.—The advisory panel shall—
‘‘(i) advise the State educational agen-
cy 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 regard-
ing the education of children with disabil-
ities;
‘‘(iii) advise the State educational
agency in developing evaluations and re-
porting on data to the Secretary under sec-
tion 618;
‘‘(iv) advise the State educational
agency in developing corrective action
plans to address findings identified in Fed-
eral monitoring reports under this part;
and
‘‘(v) advise the State educational
agency in developing and implementing
policies relating to the coordination of serv-
ices for children with disabilities.
‘‘(22) SUSPENSION AND EXPULSION RATES.—
‘‘(A) IN GENERAL.—The State educational
agency examines data to determine if signifi-
cant discrepancies are occurring in the rate of
long-term suspensions and expulsions of chil-
dren with disabilities—
‘‘(i) among local educational agencies
in the State; or
‘‘(ii) compared to such rates for non-
disabled children within such agencies.
‘‘(B) REVIEW
AND
REVISION
OF
POLI-
CIES.—If such discrepancies are occurring, the
State educational agency reviews and, if appro-
priate, revises (or requires the affected State or
local educational agency to revise) its policies,
procedures, and practices relating to the devel-
opment and implementation of IEPs, the use of
behavioral interventions, and procedural safe-
guards, to ensure that such policies, procedures,
and practices comply with this Act.
‘‘(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 require-
ments of section 613(a), as if such agency were a
local educational agency; and
‘‘(2) may use amounts that are otherwise avail-
able 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 dem-
onstrate 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
Act Amendments of 1997, the Secretary shall con-
sider such State to have met such requirement for
purposes of receiving a grant under this part.
‘‘(2) MODIFICATIONS MADE BY STATE.—Sub-
ject 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 deems necessary. This
section shall apply to a modification to an applica-
tion to the same extent and in the same manner as
this section applies to the original plan.
‘‘(3) MODIFICATIONS REQUIRED BY THE SEC-
RETARY.—If, after the effective date of the Individ-
uals with Disabilities Education Act Amendments of
1997, the provisions of this Act are amended (or the
regulations developed to carry out this Act are
amended), or there is a new interpretation of this
Act by a Federal court or a State’s highest court,
or there is an official finding of noncompliance with
Federal law or regulations, the Secretary may re-
quire 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 de-
termination.
‘‘(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 PRO-
GRAMS.—Nothing in this title permits a State to reduce
medical and other assistance available, or to alter eligi-
bility, 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 enact-
ment of the Education of the Handicapped Act
Amendments of 1983, a State educational agency is
prohibited by law from providing for the participa-
tion in special programs of children with disabilities
enrolled in private elementary and secondary schools
as required by subsection (a)(10)(A), the Secretary
shall, notwithstanding such provision of law, arrange
for the provision of services to such children through
arrangements which shall be subject to the require-
ments of such subsection.
‘‘(2) PAYMENTS.—
‘‘(A) DETERMINATION
OF
AMOUNTS.—If
the Secretary arranges for services pursuant to
this subsection, the Secretary, after consulta-
tion 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 dis-
abilities served in the prior year, as re-
ported to the Secretary by the State under
section 618.
‘‘(B) 
WITHHOLDING
OF
CERTAIN
AMOUNTS.—Pending final resolution of any in-
vestigation or complaint that could result in a
determination under this subsection, the Sec-
retary may withhold from the allocation of the
affected State educational agency the amount
the Secretary estimates would be necessary to
pay the cost of services described in subpara-
graph (A).
‘‘(C) PERIOD OF PAYMENTS.—The period
under which payments are made under sub-
paragraph (A) shall continue until the Sec-
retary 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 at least
45 days after receiving written notice thereof,
to submit written objections and to appear be-
fore the Secretary or the Secretary’s designee
to show cause why such action should not be
taken.
‘‘(B) REVIEW OF ACTION.—If a State edu-
cational agency is dissatisfied with the Sec-
retary’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 there-
upon 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 evi-
dence, and the Secretary may thereupon make
new or modified findings of fact and may mod-
ify the Secretary’s previous action, and shall file
in the court the record of the further proceed-
ings. Such new or modified findings of fact
shall likewise be conclusive if supported by sub-
stantial evidence.
‘‘(D) JURISDICTION
OF
COURT
OF
AP-
PEALS; 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 ac-
tion 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.
100
‘‘SEC. 613. LOCAL EDUCATIONAL AGENCY ELIGIBILITY.
‘‘(a) IN GENERAL.—A local educational agency is eli-
gible for assistance under this part for a fiscal year if such
agency demonstrates to the satisfaction of the State edu-
cational agency that it meets each of the following condi-
tions:
‘‘(1) CONSISTENCY
WITH
STATE
POLICIES.—
The local educational agency, in providing for the
education of children with disabilities within its ju-
risdiction, has in effect policies, procedures, and pro-
grams 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 appli-
cable provisions of this part and—
‘‘(i) shall be used only to pay the ex-
cess costs of providing special education
and related services to children with dis-
abilities;
‘‘(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 pro-
vided in subparagraphs (B) and (C), to re-
101
duce the level of expenditures for the edu-
cation 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 edu-
cational agency may reduce the level of expendi-
tures where such reduction is attributable to—
‘‘(i) the voluntary departure, by re-
tirement 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 deter-
mined by the State educational agency, be-
cause the child—
‘‘(I) has left the jurisdiction of
the agency;
‘‘(II) has reached the age at
which the obligation of the agency to
102
provide a free appropriate public edu-
cation to the child has terminated; or
‘‘(III) no longer needs such pro-
gram of special education; or
‘‘(iv) the termination of costly expend-
itures for long-term purchases, such as the
acquisition of equipment or the construc-
tion of school facilities.
‘‘(C) TREATMENT OF FEDERAL FUNDS IN
CERTAIN FISCAL YEARS.—
‘‘(i) Notwithstanding clauses (ii) and
(iii) of subparagraph (A), for any fiscal
year for which amounts appropriated to
carry 
out 
section 
611 
exceeds
$4,100,000,000, a local educational agency
may treat as local funds, for the purpose
of such clauses, up to 20 percent of the
amount of funds it receives under this part
that exceeds the amount it received under
this part for the previous fiscal year.
‘‘(ii) Notwithstanding clause (i), if a
State educational agency determines that a
local educational agency is not meeting the
requirements of this part, the State edu-
cational agency may prohibit the local edu-
103
cational agency from treating funds re-
ceived under this part as local funds under
clause (i) for any fiscal year, only if it is
authorized to do so by the State constitu-
tion or a State statute.
‘‘(D) 
SCHOOLWIDE
PROGRAMS
UNDER
TITLE I OF THE ESEA.—Notwithstanding sub-
paragraph (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 Edu-
cation Act of 1965, except that the amount so
used in any such program shall not exceed—
‘‘(i) the number of children with dis-
abilities 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 dis-
abilities in the jurisdiction of that agency.
‘‘(3) PERSONNEL
DEVELOPMENT.—The local
educational agency—
104
‘‘(A) shall ensure that all personnel nec-
essary to carry out this part are appropriately
and adequately prepared, consistent with the re-
quirements of section 653(c)(3)(D); and
‘‘(B) to the extent such agency determines
appropriate, shall contribute to and use the
comprehensive system of personnel development
of 
the 
State 
established 
under 
section
612(a)(14).
‘‘(4) PERMISSIVE
USE
OF
FUNDS.—Notwith-
standing paragraph (2)(A) or section 612(a)(18)(B)
(relating to commingled funds), funds provided to
the local educational agency under this part may be
used for the following activities:
‘‘(A) SERVICES AND AIDS THAT ALSO BEN-
EFIT NONDISABLED CHILDREN.—For the costs
of special education and related services and
supplementary aids and services provided in a
regular class or other education-related setting
to a child with a disability in accordance with
the individualized education program of the
child, even if one or more nondisabled children
benefit from such services.
‘‘(B) INTEGRATED
AND
COORDINATED
SERVICES SYSTEM.—To develop and implement
105
a fully integrated and coordinated services sys-
tem in accordance with subsection (f).
‘‘(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 at-
tending those schools in the same manner as it
serves children with disabilities in its other
schools; and
‘‘(B) provides funds under this part to
those schools in the same manner as it provides
those funds to its other schools.
‘‘(6) INFORMATION FOR STATE EDUCATIONAL
AGENCY.—The local educational agency shall provide
the State educational agency with information nec-
essary to enable the State educational agency to
carry out its duties under this part, including, with
respect to paragraphs (16) and (17) of section
612(a), information relating to the performance of
children with disabilities participating in programs
carried out under this part.
‘‘(7) PUBLIC
INFORMATION.—The local edu-
cational agency shall make available to parents of
108
for a hearing, finds that a local educational agency
or State agency that has been determined to be eligi-
ble 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 no-
tice described in paragraph (1) shall, by means of
public notice, take such measures as may be nec-
essary to bring the pendency of an action pursuant
to this subsection to the attention of the public with-
in the jurisdiction of such agency.
‘‘(3) CONSIDERATION.—In carrying out its re-
sponsibilities under paragraph (1), the State edu-
cational 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.—
109
‘‘(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 would be ineligible under this section be-
cause the local educational agency would not be
able to establish and maintain programs of suf-
ficient 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 subpara-
graph (A) unless it is explicitly permitted to do
so under the State’s charter school statute.
‘‘(2) AMOUNT OF PAYMENTS.—If a State edu-
cational agency requires the joint establishment of
eligibility under paragraph (1), the total amount of
funds made available to the affected local edu-
cational agencies shall be equal to the sum of the
payments that each such local educational agency
would have received under section 611(g) if such
agencies were eligible for such payments.
110
‘‘(3) REQUIREMENTS.—Local educational agen-
cies that establish joint eligibility under this sub-
section shall—
‘‘(A) adopt policies and procedures that
are consistent with the State’s policies and pro-
cedures under section 612(a); and
‘‘(B) be jointly responsible for implement-
ing programs that receive assistance under this
part.
‘‘(4) REQUIREMENTS FOR EDUCATIONAL SERV-
ICE AGENCIES.—
‘‘(A) IN GENERAL.—If an educational serv-
ice agency is required by State law to carry out
programs under this part, the joint responsibil-
ities given to local educational agencies under
this subsection shall—
‘‘(i) not apply to the administration
and disbursement of any payments re-
ceived by that educational service agency;
and
‘‘(ii) be carried out only by that edu-
cational service agency.
‘‘(B) ADDITIONAL
REQUIREMENT.—Not-
withstanding any other provision of this sub-
section, an educational service agency shall pro-
111
vide for the education of children with disabil-
ities in the least restrictive environment, as re-
quired by section 612(a)(5).
‘‘(f) COORDINATED SERVICES SYSTEM.—
‘‘(1) IN GENERAL.—A local educational agency
may not use more than 5 percent of the amount
such agency receives under this part for any fiscal
year, in combination with other amounts (which
shall include amounts other than education funds),
to develop and implement a coordinated services sys-
tem designed to improve results for children and
families, including children with disabilities and their
families.
‘‘(2) ACTIVITIES.—In implementing a coordi-
nated services system under this subsection, a local
educational agency may carry out activities that in-
clude—
‘‘(A) improving the effectiveness and effi-
ciency of service delivery, including developing
strategies that promote accountability for re-
sults;
‘‘(B) service coordination and case man-
agement that facilitates the linkage of individ-
ualized education programs under this part and
individualized family service plans under part C
112
with individualized service plans under multiple
Federal and State programs, such as title I of
the Rehabilitation Act of 1973 (vocational reha-
bilitation), title XIX of the Social Security Act
(Medicaid), and title XVI of the Social Security
Act (supplemental security income);
‘‘(C) developing and implementing inter-
agency financing strategies for the provision of
education, health, mental health, and social
services, including transition services and relat-
ed services under this Act; and
‘‘(D) interagency personnel development
for individuals working on coordinated services.
‘‘(3) COORDINATION WITH CERTAIN PROJECTS
UNDER ELEMENTARY AND SECONDARY EDUCATION
ACT OF 1965.—If a local educational agency is carry-
ing out a coordinated services project under title XI
of the Elementary and Secondary Education Act of
1965 and a coordinated services project under this
part in the same schools, such agency shall use
amounts under this subsection in accordance with
the requirements of that title.
‘‘(g) SCHOOL-BASED IMPROVEMENT PLAN.—
‘‘(1) IN
GENERAL.—Each local educational
agency may, in accordance with paragraph (2), use
113
funds made available under this part to permit a
public school within the jurisdiction of the local edu-
cational agency to design, implement, and evaluate
a school-based improvement plan that is consistent
with the purposes described in section 651(b) and
that is designed to improve educational and transi-
tional results for all children with disabilities and, as
appropriate, for other children consistent with sub-
paragraphs (A) and (B) of subsection (a)(4) in that
public school.
‘‘(2) AUTHORITY.—
‘‘(A) IN
GENERAL.—A State educational
agency may grant authority to a local edu-
cational agency to permit a public school de-
scribed in paragraph (1) (through a school-
based standing panel established under para-
graph (4)(B)) to design, implement, and evalu-
ate a school-based improvement plan described
in paragraph (1) for a period not to exceed 3
years.
‘‘(B) RESPONSIBILITY
OF
LOCAL
EDU-
CATIONAL
AGENCY.—If a State educational
agency grants the authority described in sub-
paragraph (A), a local educational agency that
is granted such authority shall have the sole re-
115
‘‘(4) RESPONSIBILITIES OF THE LOCAL EDU-
CATIONAL AGENCY.—A local educational agency that
is granted authority under paragraph (2) to permit
a public school to design, implement, and evaluate a
school-based improvement plan shall—
‘‘(A) select each school under the jurisdic-
tion of such agency that is eligible to design,
implement, and evaluate such a plan;
‘‘(B) require each school selected under
subparagraph (A), in accordance with criteria
established by such local educational agency
under subparagraph (C), to establish a school-
based standing panel to carry out the duties de-
scribed in paragraph (3)(B);
‘‘(C) establish—
‘‘(i) criteria that shall be used by such
local educational agency in the selection of
an eligible school under subparagraph (A);
‘‘(ii) criteria that shall be used by a
public school selected under subparagraph
(A) in the establishment of a school-based
standing panel to carry out the duties de-
scribed in paragraph (3)(B) and that shall
ensure that the membership of such panel
reflects the diversity of the community in
116
which the public school is located and in-
cludes, at a minimum—
‘‘(I) parents of children with dis-
abilities 
who 
attend 
such 
public
school, including parents of children
with disabilities from unserved and
underserved populations, as appro-
priate;
‘‘(II) special education and gen-
eral education teachers of such public
school;
‘‘(III) special education and gen-
eral education administrators, or the
designee of such administrators, of
such public school; and
‘‘(IV) related services providers
who are responsible for providing
services to the children with disabil-
ities who attend such public school;
and
‘‘(iii) criteria that shall be used by
such local educational agency with respect
to the distribution of funds under this part
to carry out this subsection;
117
‘‘(D) disseminate the criteria established
under subparagraph (C) to local school district
personnel and local parent organizations within
the jurisdiction of such local educational agen-
cy;
‘‘(E) require a public school that desires to
design, implement, and evaluate a school-based
improvement plan to submit an application at
such time, in such manner, and accompanied by
such information as such local educational
agency shall reasonably require; and
‘‘(F) establish procedures for approval by
such local educational agency of a school-based
improvement plan designed under this sub-
section.
‘‘(5) LIMITATION.—A school-based improve-
ment plan described in paragraph (1) may be sub-
mitted to a local educational agency for approval
only if a consensus with respect to any matter relat-
ing to the design, implementation, or evaluation of
the goals of such plan is reached by the school-based
standing panel that designed such plan.
‘‘(6) ADDITIONAL REQUIREMENTS.—
‘‘(A) PARENTAL INVOLVEMENT.—In carry-
ing out the requirements of this subsection, a
118
local educational agency shall ensure that the
parents of children with disabilities are involved
in the design, evaluation, and, where appro-
priate, implementation of school-based improve-
ment plans in accordance with this subsection.
‘‘(B) PLAN
APPROVAL.—A local edu-
cational agency may approve a school-based im-
provement plan of a public school within the ju-
risdiction of such agency for a period of 3
years, if—
‘‘(i) the approval is consistent with
the policies, procedures, and practices es-
tablished by such local educational agency
and in accordance with this subsection;
and
‘‘(ii) a majority of parents of children
who are members of the school-based
standing panel, and a majority of other
members of the school-based standing
panel, that designed such plan agree in
writing to such plan.
‘‘(7) EXTENSION OF PLAN.—If a public school
within the jurisdiction of a local educational agency
meets the applicable requirements and criteria de-
scribed in paragraphs (3) and (4) at the expiration
119
of the 3-year approval period described in paragraph
(6)(B), such agency may approve a school-based im-
provement plan of such school for an additional 3-
year period.
‘‘(h) DIRECT
SERVICES
BY
THE
STATE
EDU-
CATIONAL 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 relat-
ed services directly to children with disabilities resid-
ing in the area served by that local agency, or for
whom that State agency is responsible, if the State
educational agency determines that the local edu-
cation agency or State agency, as the case may be—
‘‘(A) has not provided the information
needed to establish the eligibility of such 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 consoli-
dated with one or more local educational agen-
cies in order to establish and maintain such
programs; or
120
‘‘(D) has one or more children with disabil-
ities who can best be served by a regional or
State program or service-delivery system de-
signed 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
agency considers appropriate. Such education and
services shall be provided in accordance with this
part.
‘‘(i) STATE AGENCY ELIGIBILITY.—Any State agency
that desires to receive a subgrant for any fiscal year under
section 611(g) shall demonstrate to the satisfaction of the
State educational agency that—
‘‘(1) all children with disabilities who are par-
ticipating in programs and projects funded under
this part receive a free appropriate public education,
and that those children and their parents are pro-
vided all the rights and procedural safeguards de-
scribed in this part; and
‘‘(2) the agency meets such other conditions of
this section as the Secretary determines to be appro-
priate.
121
‘‘(j) 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 cur-
rent 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
one school to another, the transmission of any of the
child’s records must include both the child’s current indi-
vidualized education program and any such statement of
current or previous disciplinary action that has been taken
against the child.
‘‘SEC. 614. EVALUATIONS, ELIGIBILITY DETERMINATIONS,
INDIVIDUALIZED 
EDUCATION 
PROGRAMS,
AND EDUCATIONAL PLACEMENTS.
‘‘(a) EVALUATIONS AND REEVALUATIONS.—
‘‘(1) INITIAL EVALUATIONS.—
‘‘(A) IN
GENERAL.—A State educational
agency, other State agency, or local educational
122
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) PROCEDURES.—Such initial evalua-
tion shall consist of procedures—
‘‘(i) to determine whether a child is a
child with a disability (as defined in sec-
tion 602(3)); and
‘‘(ii) to determine the educational
needs of such child.
‘‘(C) PARENTAL CONSENT.—
‘‘(i) IN GENERAL.—The agency pro-
posing to conduct an initial evaluation to
determine if the child qualifies as a child
with a disability as defined in section
602(3)(A) or 602(3)(B) shall obtain an in-
formed consent from the parent of such
child before the evaluation is conducted.
Parental consent for evaluation shall not
be construed as consent for placement for
receipt of special education and related
services.
123
‘‘(ii) REFUSAL.—If the parents of
such child refuse consent for the evalua-
tion, the agency may continue to pursue an
evaluation by utilizing the mediation and
due process procedures under section 615,
except to the extent inconsistent with State
law relating to parental consent.
‘‘(2) REEVALUATIONS.—A local educational
agency shall ensure that a reevaluation of each child
with a disability is conducted—
‘‘(A) if conditions warrant a reevaluation
or if the child’s parent or teacher requests a re-
evaluation, but at least once every 3 years; and
‘‘(B) in accordance with subsections (b)
and (c).
‘‘(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 con-
duct.
‘‘(2) CONDUCT OF EVALUATION.—In conduct-
ing the evaluation, the local educational agency
shall—
124
‘‘(A) use a variety of assessment tools and
strategies to gather relevant functional and de-
velopmental information, including information
provided by the parent, that may assist in de-
termining whether the child is a child with a
disability and the content of the child’s individ-
ualized education program, including informa-
tion related to enabling the child to be involved
in and progress in the general curriculum or,
for preschool children, to participate in appro-
priate activities;
‘‘(B) not use any single procedure as the
sole criterion for determining whether a child is
a child with a disability or determining an ap-
propriate educational program for the child;
and
‘‘(C) use technically sound instruments
that may assess the relative contribution of cog-
nitive and behavioral factors, in addition to
physical or developmental factors.
‘‘(3) ADDITIONAL REQUIREMENTS.—Each local
educational agency shall ensure that—
‘‘(A) tests and other evaluation materials
used to assess a child under this section—
125
‘‘(i) are selected and administered so
as not to be discriminatory on a racial or
cultural basis; and
‘‘(ii) are provided and administered in
the child’s native language or other mode
of communication, unless it is clearly not
feasible to do so; and
‘‘(B) any standardized tests that are given
to the child—
‘‘(i) have been validated for the spe-
cific purpose for which they are used;
‘‘(ii) are administered by trained and
knowledgeable personnel; and
‘‘(iii) are administered in accordance
with any instructions provided by the pro-
ducer of such tests;
‘‘(C) the child is assessed in all areas of
suspected disability; and
‘‘(D) assessment tools and strategies that
provide relevant information that directly as-
sists persons in determining the educational
needs of the child are provided.
‘‘(4) DETERMINATION OF ELIGIBILITY.—Upon
completion of administration of tests and other eval-
uation materials—
126
‘‘(A) the determination of whether the
child is a child with a disability as defined in
section 602(3) 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
will be given to the parent.
‘‘(5) SPECIAL RULE FOR ELIGIBILITY DETER-
MINATION.—In making a determination of eligibility
under paragraph (4)(A), a child shall not be deter-
mined to be a child with a disability if the deter-
minant factor for such determination is lack of in-
struction in reading or math or limited English pro-
ficiency.
‘‘(c) ADDITIONAL REQUIREMENTS FOR EVALUATION
AND REEVALUATIONS.—
‘‘(1) 
REVIEW
OF
EXISTING
EVALUATION
DATA.—As part of an initial evaluation (if appro-
priate) and as part of any reevaluation under this
section, the IEP Team described in subsection
(d)(1)(B) and other qualified professionals, as ap-
propriate, shall—
‘‘(A) review existing evaluation data on the
child, including evaluations and information
127
provided by the parents of the child, current
classroom-based assessments and observations,
and teacher and related services providers ob-
servation; and
‘‘(B) on the basis of that review, and input
from the child’s parents, identify what addi-
tional data, if any, are needed to determine—
‘‘(i) whether the child has a particular
category of disability, as described in sec-
tion 602(3), or, in case of a reevaluation of
a child, whether the child continues to have
such a disability;
‘‘(ii) the present levels of performance
and educational 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 edu-
cation and related services; and
‘‘(iv) whether any additions or modi-
fications to the special education and relat-
ed services are needed to enable the child
to meet the measurable annual goals set
out in the individualized education pro-
128
gram of the child and to participate, as ap-
propriate, in the general curriculum.
‘‘(2) SOURCE OF DATA.—The local educational
agency shall administer such tests and other evalua-
tion materials as may be needed to produce the data
identified by the IEP Team under paragraph (1)(B).
‘‘(3) PARENTAL
CONSENT.—Each local edu-
cational agency shall obtain informed parental con-
sent, in accordance with subsection (a)(1)(C), prior
to conducting any reevaluation of a child with a dis-
ability, except that such informed parent consent
need not be obtained if the local educational agency
can demonstrate that it had taken reasonable meas-
ures 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 ad-
ditional data are needed to determine whether the
child continues to be a child with a disability, the
local educational agency—
‘‘(A) shall notify the child’s parents of—
‘‘(i) that determination and the rea-
sons for it; and
129
‘‘(ii) the right of such parents to re-
quest an assessment to determine whether
the child continues to be a child with a dis-
ability; and
‘‘(B) shall not be required to conduct such
an assessment unless requested to by the child’s
parents.
‘‘(5) EVALUATIONS BEFORE CHANGE IN ELIGI-
BILITY.—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.
‘‘(d) INDIVIDUALIZED EDUCATION PROGRAMS.—
‘‘(1) DEFINITIONS.—As used in this title:
‘‘(A) INDIVIDUALIZED
EDUCATION
PRO-
GRAM.—The term ‘individualized education pro-
gram’ 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 educational performance, includ-
ing—
130
‘‘(I) how the child’s disability af-
fects the child’s involvement and
progress in the general curriculum; or
‘‘(II) for preschool children, as
appropriate, how the disability affects
the child’s participation in appropriate
activities;
‘‘(ii) a statement of measurable an-
nual goals, including benchmarks or short-
term objectives, related to—
‘‘(I) meeting the child’s needs
that result from the child’s disability
to enable the child to be involved in
and progress in the general curricu-
lum; and
‘‘(II) meeting each of the child’s
other educational needs that result
from the child’s disability;
‘‘(iii) a statement of the special edu-
cation and related services and supple-
mentary aids and services 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—
131
‘‘(I) to advance appropriately to-
ward attaining the annual goals;
‘‘(II) to be involved and progress
in the general curriculum in accord-
ance with clause (i) and to participate
in extracurricular and other nonaca-
demic activities; and
‘‘(III) to be educated and partici-
pate with other children with disabil-
ities and nondisabled children in the
activities described in this paragraph;
‘‘(iv) 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
clause (iii);
‘‘(v)(I) a statement of any individual
modifications in the administration of
State or districtwide assessments of stu-
dent achievement that are needed in order
for the child to participate in such assess-
ment; and
‘‘(II) if the IEP Team determines
that the child will not participate in a par-
ticular State or districtwide assessment of
132
student achievement (or part of such an
assessment), a statement of—
‘‘(aa) why that assessment is not
appropriate for the child; and
‘‘(bb) how the child will be as-
sessed;
‘‘(vi) the projected date for the begin-
ning of the services and modifications de-
scribed in clause (iii), and the anticipated
frequency, location, and duration of those
services and modifications;
‘‘(vii)(I) beginning at age 14, and up-
dated annually, a statement of the transi-
tion service needs of the child under the
applicable components of the child’s IEP
that focuses on the child’s courses of study
(such as participation in advanced-place-
ment courses or a vocational education
program);
‘‘(II) beginning at age 16 (or younger,
if determined appropriate by the IEP
Team), a statement of needed transition
services for the child, including, when ap-
propriate, a statement of the interagency
responsibilities or any needed linkages; and
133
‘‘(III) beginning at least one year be-
fore the child reaches the age of majority
under State law, a statement that the child
has been informed of his or her rights
under this title, if any, that will transfer to
the child on reaching the age of majority
under section 615(m); and
‘‘(viii) a statement of—
‘‘(I) how the child’s progress to-
ward the annual goals described in
clause (ii) will be measured; and
‘‘(II) how the child’s parents will
be regularly informed (by such means
as periodic report cards), at least as
often as parents are informed of their
nondisabled children’s progress, of—
‘‘(aa) their child’s progress
toward the annual goals de-
scribed in clause (ii); and
‘‘(bb) the extent to which
that progress is sufficient to en-
able the child to achieve the goals
by the end of the year.
‘‘(B) INDIVIDUALIZED
EDUCATION
PRO-
GRAM
TEAM.—The term ‘individualized edu-
134
cation program team’ or ‘IEP Team’ means a
group of individuals composed of—
‘‘(i) the parents of a child with a dis-
ability;
‘‘(ii) at least one regular education
teacher of such child (if the child is, or
may be, participating in the regular edu-
cation environment);
‘‘(iii) at least one special education
teacher, or where appropriate, at least one
special education provider of such child;
‘‘(iv) a representative of the local edu-
cational agency who—
‘‘(I) is qualified to provide, or su-
pervise the provision of, specially de-
signed instruction to meet the unique
needs of children with disabilities;
‘‘(II) is knowledgeable about the
general curriculum; and
‘‘(III) is knowledgeable about the
availability of resources of the local
educational agency;
‘‘(v) an individual who can interpret
the instructional implications of evaluation
135
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 person-
nel as appropriate; and
‘‘(vii) whenever appropriate, the child
with a disability.
‘‘(2) REQUIREMENT THAT PROGRAM BE IN EF-
FECT.—
‘‘(A) IN GENERAL.—At the beginning of
each school year, each local educational agency,
State educational agency, or other State agen-
cy, as the case may be, shall have in effect, for
each child with a disability in its jurisdiction,
an individualized education program, as defined
in paragraph (1)(A).
‘‘(B) PROGRAM
FOR
CHILD
AGED
THROUGH 5.—In the case of a child with a dis-
ability 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 dur-
ing the school year), an individualized family
service plan that contains the material de-
136
scribed in section 636, and that is developed in
accordance with this section, may serve as the
IEP of the child if using that plan as the IEP
is—
‘‘(i) consistent with State policy; and
‘‘(ii) agreed to by the agency and the
child’s parents.
‘‘(3) DEVELOPMENT OF IEP.—
‘‘(A) IN
GENERAL.—In developing each
child’s IEP, the IEP Team, subject to subpara-
graph (C), shall consider—
‘‘(i) the strengths of the child and the
concerns of the parents for enhancing the
education of their child; and
‘‘(ii) the results of the initial evalua-
tion or most recent evaluation of the child.
‘‘(B) CONSIDERATION
OF
SPECIAL
FAC-
TORS.—The IEP Team shall—
‘‘(i) in the case of a child whose be-
havior impedes his or her learning or that
of others, consider, when appropriate,
strategies, including positive behavioral
interventions, strategies, and supports to
address that behavior;
137
‘‘(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 in-
struction in Braille and the use of Braille
unless the IEP Team determines, after an
evaluation of the child’s reading and writ-
ing 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 in-
struction 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, con-
sider the child’s language and communica-
tion needs, opportunities for direct commu-
nications with peers and professional per-
sonnel in the child’s language and commu-
nication mode, academic level, and full
range of needs, including opportunities for
138
direct instruction in the child’s language
and communication mode; and
‘‘(v) consider whether the child re-
quires assistive technology devices and
services.
‘‘(C) REQUIREMENT
WITH
RESPECT
TO
REGULAR EDUCATION TEACHER.—The 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 appro-
priate positive behavioral interventions and
strategies and the determination of supple-
mentary aids and services, program modifica-
tions, and support for school personnel consist-
ent with paragraph (1)(A)(iii).
‘‘(4) REVIEW AND REVISION OF IEP.—
‘‘(A) IN GENERAL.—The local educational
agency shall ensure that, subject to subpara-
graph (B), the IEP Team—
‘‘(i) reviews the child’s IEP periodi-
cally, but not less than annually to deter-
mine whether the annual goals for the
child are being achieved; and
139
‘‘(ii) revises the IEP as appropriate to
address—
‘‘(I) 
any 
lack 
of 
expected
progress toward the annual goals and
in the general curriculum, where ap-
propriate;
‘‘(II) the results of any reevalua-
tion 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.—The regular
education teacher of the child, as a member of
the IEP Team, shall, to the extent appropriate,
participate in the review and revision of the
IEP of the child.
‘‘(5) FAILURE
TO
MEET
TRANSITION
OBJEC-
TIVES.—If a participating agency, other than the
local educational agency, fails to provide the transi-
tion services described in the IEP in accordance with
paragraph (1)(A)(vii), the local educational agency
140
shall reconvene the IEP Team to identify alternative
strategies to meet the transition objectives for the
child set out in that program.
‘‘(6) CHILDREN WITH DISABILITIES IN ADULT
PRISONS.—
‘‘(A) IN GENERAL.—The following require-
ments do 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)(17) 
and 
paragraph
(1)(A)(v) of this subsection (relating to
participation of children with disabilities in
general assessments).
‘‘(ii) The requirements of subclauses
(I) and (II) of paragraph (1)(A)(vii) of
this subsection (relating to transition plan-
ning and transition services), do not apply
with respect to such children whose eligi-
bility under this part will end, because of
their age, before they 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
141
prison, the child’s IEP Team may modify the
child’s IEP or placement notwithstanding the
requirements of sections 612(a)(5)(A) and
614(d)(1)(A) if the State has demonstrated a
bona fide security or compelling penological in-
terest that cannot otherwise be accommodated.
‘‘(e) CONSTRUCTION.—Nothing in this section shall
be construed to require the IEP Team to include informa-
tion under one component of a child’s IEP that is already
contained under another component of such IEP.
‘‘(f) EDUCATIONAL PLACEMENTS.—Each local edu-
cational agency or State educational agency shall ensure
that the parents of each child with a disability are mem-
bers of any group that makes decisions on the educational
placement of their child.
‘‘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 estab-
lish and maintain procedures in accordance with this sec-
tion to ensure that children with disabilities and their par-
ents are guaranteed procedural safeguards with respect to
the provision of free appropriate public education by such
agencies.
142
‘‘(b) TYPES OF PROCEDURES.—The procedures re-
quired by this section shall include—
‘‘(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 re-
spect to the identification, evaluation, and edu-
cational 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) 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
(who shall not be an employee of the State edu-
cational agency, the local educational agency, or any
other agency that is involved in the education or
care of the child) to act as a surrogate for the par-
ents;
‘‘(3) written prior notice to the parents of the
child whenever such agency—
‘‘(A) proposes to initiate or change; or
‘‘(B) refuses to initiate or change;
143
the identification, evaluation, or educational place-
ment of the child, in accordance with subsection (c),
or the provision of a free appropriate public edu-
cation to the child;
‘‘(4) procedures designed to ensure that the no-
tice required by paragraph (3) is in the native lan-
guage 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 to present complaints 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;
‘‘(7) procedures that require the parent of a
child with a disability, or the attorney representing
the child, to provide notice (which shall remain con-
fidential)—
‘‘(A) to the State educational agency or
local educational agency, as the case may be, in
the complaint filed under paragraph (6); and
‘‘(B) that shall include—
144
‘‘(i) the name of the child, the address
of the residence of the child, and the name
of the school the child is attending;
‘‘(ii) a description of the nature of the
problem of the child relating to such pro-
posed initiation or change, including facts
relating to such problem; and
‘‘(iii) a proposed resolution of the
problem to the extent known and available
to the parents at the time; and
‘‘(8) procedures that require the State edu-
cational agency to develop a model form to assist
parents in filing a complaint in accordance with
paragraph (7).
‘‘(c) CONTENT OF PRIOR WRITTEN NOTICE.—The
notice required by subsection (b)(3) shall include—
‘‘(1) a description of the action proposed or re-
fused by the agency;
‘‘(2) an explanation of why the agency proposes
or refuses to take the action;
‘‘(3) a description of any other options that the
agency considered and the reasons why those options
were rejected;
145
‘‘(4) a description of each evaluation procedure,
test, record, or report the agency used as a basis for
the proposed or refused action;
‘‘(5) a description of any other factors that are
relevant to the agency’s proposal or refusal;
‘‘(6) a statement that the parents of a child
with a disability have protection under the proce-
dural 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 safe-
guards can be obtained; and
‘‘(7) sources for parents to contact to obtain as-
sistance in understanding the provisions of this part.
‘‘(d) PROCEDURAL SAFEGUARDS NOTICE.—
‘‘(1) IN GENERAL.—A copy of the procedural
safeguards available to the parents of a child with
a disability shall be given to the parents, at a mini-
mum—
‘‘(A) upon initial referral for evaluation;
‘‘(B) upon each notification of an individ-
ualized education program meeting and upon
reevaluation of the child; and
‘‘(C) upon registration of a complaint
under subsection (b)(6).
146
‘‘(2) CONTENTS.—The procedural safeguards
notice shall include a full explanation of the proce-
dural 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) opportunity to present complaints;
‘‘(F) the child’s placement during pend-
ency of due process proceedings;
‘‘(G) procedures for students who are sub-
ject to placement in an interim alternative edu-
cational setting;
‘‘(H) requirements for unilateral placement
by parents of children in private schools at pub-
lic expense;
‘‘(I) mediation;
‘‘(J) due process hearings, including re-
quirements for disclosure of evaluation results
and recommendations;
147
‘‘(K) State-level appeals (if applicable in
that State);
‘‘(L) civil actions; and
‘‘(M) attorneys’ fees.
‘‘(e) MEDIATION.—
‘‘(1) IN
GENERAL.—Any State educational
agency or local educational agency that receives as-
sistance under this part shall ensure that procedures
are established and implemented to allow parties to
disputes involving any matter described in sub-
section (b)(6) to resolve such disputes through a me-
diation process which, at a minimum, shall be avail-
able whenever a hearing is requested under sub-
section (f) or (k).
‘‘(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
148
‘‘(iii) is conducted by a qualified and
impartial mediator who is trained in effec-
tive mediation techniques.
‘‘(B) A local educational agency or a State
agency may establish procedures to require par-
ents who choose not to use the mediation proc-
ess 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 cen-
ter in the State established under section
682 or 683; or
‘‘(ii) an appropriate alternative dis-
pute resolution entity;
to encourage the use, and explain the benefits,
of the mediation process to the parents.
‘‘(C) The State shall maintain a list of in-
dividuals who are qualified mediators and
knowledgeable in laws and regulations relating
to the provision of special education and related
services.
‘‘(D) The State shall bear the cost of the
mediation process, including the costs of meet-
ings described in subparagraph (B).
149
‘‘(E) 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) An agreement reached by the parties
to the dispute in the mediation process shall be
set forth in a written mediation agreement.
‘‘(G) Discussions that occur during the
mediation process shall be confidential and may
not be used as evidence in any subsequent due
process hearings or civil proceedings and the
parties to the mediation process may be re-
quired to sign a confidentiality pledge prior to
the commencement of such process.
‘‘(f) IMPARTIAL DUE PROCESS HEARING.—
‘‘(1) IN GENERAL.—Whenever a complaint has
been received under subsection (b)(6) or (k) of this
section, the parents involved in such complaint shall
have an opportunity for an impartial due process
hearing, which shall be conducted by the State edu-
cational agency or by the local educational agency,
as determined by State law or by the State edu-
cational agency.
‘‘(2) DISCLOSURE OF EVALUATIONS AND REC-
OMMENDATIONS.—
150
‘‘(A) IN
GENERAL.—At least 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 offer-
ing 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) LIMITATION ON CONDUCT OF HEARING.—
A hearing conducted pursuant to paragraph (1) may
not be conducted by an employee of the State edu-
cational agency or the local educational agency in-
volved in the education or care of the child.
‘‘(g) APPEAL.—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. Such agency shall conduct an
impartial review of such decision. The officer conducting
such review shall make an independent decision upon com-
pletion of such review.
151
‘‘(h) SAFEGUARDS.—Any party to a hearing con-
ducted pursuant to subsection (f) or (k), or an appeal con-
ducted 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,
cross-examine, and compel the attendance of wit-
nesses;
‘‘(3) the right to a written, or, at the option of
the parents, electronic verbatim record of such hear-
ing; and
‘‘(4) the right to written, or, at the option of
the parents, electronic findings of fact and decisions
(which findings and decisions shall be made available
to the public consistent with the requirements of sec-
tion 617(c) (relating to the confidentiality of data,
information, and records) and shall also be transmit-
ted to the advisory panel established pursuant to
section 612(a)(21)).
‘‘(i) ADMINISTRATIVE PROCEDURES.—
‘‘(1) IN GENERAL.—
‘‘(A) DECISION MADE IN HEARING.—A de-
cision made in a hearing conducted pursuant to
152
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) of this subsection.
‘‘(B) DECISION MADE AT APPEAL.—A de-
cision made under subsection (g) shall be final,
except that any party may bring an action
under paragraph (2) of this subsection.
‘‘(2) RIGHT TO BRING CIVIL ACTION.—
‘‘(A) IN GENERAL.—Any party aggrieved
by the findings and decision made under sub-
section (f) or (k) who does not have the right
to an appeal under subsection (g), and any
party aggrieved by the findings and decision
under this subsection, shall have the right to
bring a civil action with respect to the com-
plaint 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.
‘‘(B) 
ADDITIONAL
REQUIREMENTS.—In
any action brought under this paragraph, the
court—
153
‘‘(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 pre-
ponderance of the evidence, shall grant
such relief as the court determines is ap-
propriate.
‘‘(3) JURISDICTION OF DISTRICT COURTS; AT-
TORNEYS’ FEES.—
‘‘(A) IN GENERAL.—The district courts of
the United States shall have jurisdiction of ac-
tions brought under this section without regard
to the amount in controversy.
‘‘(B) AWARD
OF
ATTORNEYS’ FEES.—In
any action or proceeding brought under this
section, the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs
to the parents of a child with a disability who
is the prevailing party.
‘‘(C) DETERMINATION OF AMOUNT OF AT-
TORNEYS’ FEES.—Fees awarded under this
paragraph shall be based on rates prevailing in
the community in which the action or proceed-
ing arose for the kind and quality of services
154
furnished. No bonus or multiplier may be used
in calculating the fees awarded under this sub-
section.
‘‘(D) PROHIBITION OF ATTORNEYS’ FEES
AND
RELATED
COSTS
FOR
CERTAIN
SERV-
ICES.—
‘‘(i) Attorneys’ fees may not be
awarded and related costs may not be re-
imbursed 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—
‘‘(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 pro-
ceeding, at any time more than ten
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 fi-
nally obtained by the parents is not
more favorable to the parents than
the offer of settlement.
155
‘‘(ii) 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) that is conducted prior to
the filing of a complaint under subsection
(b)(6) or (k) of this section.
‘‘(E) EXCEPTION TO PROHIBITION ON AT-
TORNEYS’ FEES
AND
RELATED
COSTS.—Not-
withstanding 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 set-
tlement offer.
‘‘(F) REDUCTION IN AMOUNT OF ATTOR-
NEYS’ FEES.—Except as provided in subpara-
graph (G), whenever the court finds that—
‘‘(i) the parent, during the course of
the action or proceeding, unreasonably pro-
tracted the final resolution of the con-
troversy;
‘‘(ii) the amount of the attorneys’ fees
otherwise authorized to be awarded unrea-
156
sonably 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 school dis-
trict the appropriate information in the
due process complaint in accordance with
subsection (b)(7);
the court shall reduce, accordingly, the amount
of the attorneys’ fees awarded under this sec-
tion.
‘‘(G) 
EXCEPTION
TO
REDUCTION
IN
AMOUNT
OF
ATTORNEYS’ FEES.—The provi-
sions of subparagraph (F) shall not apply in
any action or proceeding if the court finds that
the State or local educational agency unreason-
ably 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)(7),
157
during the pendency of any proceedings conducted pursu-
ant 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 such
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) School personnel under this section
may order a change in the placement of a child
with a disability—
‘‘(i) to an appropriate interim alter-
native educational setting, another setting,
or suspension, for not more than 10 school
days (to the extent such alternatives would
be applied to children without disabilities);
and
‘‘(ii) to an appropriate interim alter-
native educational setting for the same
amount of time that a child without a dis-
ability would be subject to discipline, but
for not more than 45 days if—
158
‘‘(I) the child carries a weapon to
school or to a school function under
the jurisdiction of a State or a local
educational agency; or
‘‘(II) the child knowingly pos-
sesses or uses illegal drugs or sells or
solicits the sale of a controlled sub-
stance while at school or a school
function under the jurisdiction of a
State or local educational agency.
‘‘(B) Either before or not later than 10
days after taking a disciplinary action described
in subparagraph (A)—
‘‘(i) if the local educational agency did
not conduct a functional behavioral assess-
ment and implement a behavioral interven-
tion plan for such child before the behavior
that resulted in the suspension described in
subparagraph (A), the agency shall con-
vene an IEP meeting to develop an assess-
ment plan to address that behavior; or
‘‘(ii) if the child already has a behav-
ioral intervention plan, the IEP Team shall
review the plan and modify it, as nec-
essary, to address the behavior.
159
‘‘(2) AUTHORITY
OF
HEARING
OFFICER.—A
hearing officer under this section may order a
change in the placement of a child with a disability
to an appropriate interim alternative educational set-
ting for not more than 45 days if the hearing offi-
cer—
‘‘(A) determines that the public agency has
demonstrated by substantial evidence that
maintaining the current placement of such child
is substantially likely to result in injury to the
child or to others;
‘‘(B) considers the appropriateness of the
child’s current placement;
‘‘(C) considers whether the public agency
has made reasonable efforts to minimize the
risk of harm in the child’s current placement,
including the use of supplementary aids and
services; and
‘‘(D) determines that the interim alter-
native educational setting meets the require-
ments of paragraph (3)(B).
‘‘(3) DETERMINATION OF SETTING.—
‘‘(A) IN GENERAL.—The alternative edu-
cational 
setting 
described 
in 
paragraph
160
(1)(A)(ii) shall be determined by the IEP
Team.
‘‘(B) ADDITIONAL
REQUIREMENTS.—Any
interim alternative educational setting in which
a child is placed under paragraph (1) or (2)
shall—
‘‘(i) be selected so as to enable the
child to continue to participate in the gen-
eral curriculum, although in another set-
ting, and to continue to receive those serv-
ices and modifications, including those de-
scribed in the child’s current IEP, that will
enable the child to meet the goals set out
in that IEP; and
‘‘(ii) include services and modifica-
tions designed to address the behavior de-
scribed in paragraph (1) or paragraph (2)
so that it does not recur.
‘‘(4) MANIFESTATION
DETERMINATION
RE-
VIEW.—
‘‘(A) IN GENERAL.—If a disciplinary ac-
tion is contemplated as described in paragraph
(1) or paragraph (2) for a behavior of a child
with a disability described in either of those
paragraphs, or if a disciplinary action involving
161
a change of placement for more than 10 days
is contemplated for a child with a disability who
has engaged in other behavior that violated any
rule or code of conduct of the local educational
agency that applies to all children—
‘‘(i) not later than the date on which
the decision to take that action is made,
the parents shall be notified of that deci-
sion and of all procedural safeguards ac-
corded under this section; and
‘‘(ii) immediately, if possible, but in
no case later than 10 school days after the
date on which the decision to take that ac-
tion is made, a review shall be conducted
of the relationship between the child’s dis-
ability and the behavior subject to the dis-
ciplinary action.
‘‘(B) INDIVIDUALS
TO
CARRY
OUT
RE-
VIEW.—A review described in subparagraph (A)
shall be conducted by the IEP Team and other
qualified personnel.
‘‘(C) CONDUCT OF REVIEW.—In carrying
out a review described in subparagraph (A), the
IEP Team may determine that the behavior of
162
the child was not a manifestation of such
child’s disability only if the IEP Team—
‘‘(i) first considers, in terms of the be-
havior subject to disciplinary action, all rel-
evant information, including—
‘‘(I) evaluation and diagnostic re-
sults, including such results or other
relevant information supplied by the
parents of the child;
‘‘(II) observations of the child;
and
‘‘(III) the child’s IEP and place-
ment; and
‘‘(ii) then determines that—
‘‘(I) in relationship to the behav-
ior subject to disciplinary action, the
child’s IEP and placement were ap-
propriate and the special education
services, supplementary aids and serv-
ices, and behavior intervention strate-
gies were provided consistent with the
child’s IEP and placement;
‘‘(II) the child’s disability did not
impair the ability of the child to un-
derstand the impact and consequences
163
of the behavior subject to disciplinary
action; and
‘‘(III) the child’s disability did
not impair the ability of the child to
control the behavior subject to dis-
ciplinary action.
‘‘(5) DETERMINATION
THAT
BEHAVIOR
WAS
NOT MANIFESTATION OF DISABILITY.—
‘‘(A) IN GENERAL.—If the result of the re-
view described in paragraph (4) is a determina-
tion, consistent with paragraph (4)(C), that the
behavior of the child with a disability was not
a manifestation of the child’s disability, the rel-
evant disciplinary procedures applicable to chil-
dren without disabilities may be applied to the
child in the same manner in which they would
be applied to children without disabilities, ex-
cept as provided in section 612(a)(1).
‘‘(B) ADDITIONAL REQUIREMENT.—If the
public agency initiates disciplinary procedures
applicable to all children, the agency shall en-
sure that the special education and disciplinary
records of the child with a disability are trans-
mitted for consideration by the person or per-
164
sons making the final determination regarding
the disciplinary action.
‘‘(6) PARENT APPEAL.—
‘‘(A) IN GENERAL.—
‘‘(i) If the child’s parent disagrees
with a determination that the child’s be-
havior was not a manifestation of the
child’s disability or with any decision re-
garding placement, the parent may request
a hearing.
‘‘(ii) The State or local educational
agency shall arrange for an expedited hear-
ing in any case described in this subsection
when requested by a parent.
‘‘(B) REVIEW OF DECISION.—
‘‘(i) In reviewing a decision with re-
spect to the manifestation determination,
the hearing officer shall determine whether
the public agency has demonstrated that
the child’s behavior was not a manifesta-
tion of such child’s disability consistent
with the requirements of paragraph (4)(C).
‘‘(ii) In reviewing a decision under
paragraph (1)(A)(ii) to place the child in
an interim alternative educational setting,
166
cational setting), except as provided in subpara-
graph (C).
‘‘(C) EXPEDITED HEARING.—
‘‘(i) If school personnel maintain that
it is dangerous for the child to be in the
current placement (placement prior to re-
moval to the interim alternative education
setting) during the pendency of the due
process proceedings, the local educational
agency may request an expedited hearing.
‘‘(ii) In determining whether the child
may be placed in the alternative edu-
cational setting or in another appropriate
placement ordered by the hearing officer,
the hearing officer shall apply the stand-
ards set out in paragraph (2).
‘‘(8) 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 edu-
cation and related services under this part and
who has engaged in behavior that violated any
rule or code of conduct of the local educational
agency, including any behavior described in
167
paragraph (1), may assert any of the protec-
tions provided for in this part if the local edu-
cational agency had knowledge (as determined
in accordance with this paragraph) that the
child was a child with a disability before the be-
havior that precipitated the disciplinary action
occurred.
‘‘(B) BASIS OF KNOWLEDGE.—A local edu-
cational agency shall be deemed to have knowl-
edge that a child is a child with a disability if—
‘‘(i) the parent of the child has ex-
pressed concern in writing (unless the par-
ent is illiterate or has a disability that pre-
vents compliance with the requirements
contained in this clause) to personnel of
the appropriate educational agency that
the child is in need of special education
and related services;
‘‘(ii) the behavior or performance of
the child demonstrates the need for such
services;
‘‘(iii) the parent of the child has re-
quested an evaluation of the child pursuant
to section 614; or
168
‘‘(iv) the teacher of the child, or other
personnel of the local educational agency,
has expressed concern about the behavior
or performance of the child to the director
of special education of such agency or to
other personnel of the agency.
‘‘(C) CONDITIONS
THAT
APPLY
IF
NO
BASIS OF KNOWLEDGE.—
‘‘(i) IN
GENERAL.—If a local edu-
cational agency does not have knowledge
that a child is a child with a disability (in
accordance with subparagraph (B)) prior
to taking disciplinary measures against the
child, the child may be subjected to the
same disciplinary measures as measures
applied to children without disabilities who
engaged in comparable behaviors consist-
ent 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 sub-
jected to disciplinary measures under para-
graph (1) or (2), the evaluation shall be
conducted in an expedited manner. If the
child is determined to be a child with a dis-
169
ability, taking into consideration informa-
tion from the evaluation conducted by the
agency and information provided by the
parents, the agency shall provide special
education and related services in accord-
ance with the provisions of this part, ex-
cept that, pending the results of the eval-
uation, the child shall remain in the edu-
cational placement determined by school
authorities.
‘‘(9) REFERRAL TO AND ACTION BY LAW EN-
FORCEMENT AND JUDICIAL AUTHORITIES.—
‘‘(A) Nothing in this part shall be con-
strued 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 exer-
cising their responsibilities with regard to the
application of Federal and State law to crimes
committed by a child with a disability.
‘‘(B) An agency reporting a crime commit-
ted by a child with a disability shall ensure that
copies of the special education and disciplinary
records of the child are transmitted for consid-
170
eration by the appropriate authorities to whom
it reports the crime.
‘‘(10) DEFINITIONS.—For purposes of this sub-
section, the following definitions apply:
‘‘(A) 
CONTROLLED
SUBSTANCE.—The
term ‘controlled substance’ means a drug or
other substance identified under schedules 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’—
‘‘(i) means a controlled substance; but
‘‘(ii) does not include such a sub-
stance that is legally possessed or used
under the supervision of a licensed health-
care professional or that is legally pos-
sessed or used under any other authority
under that Act or under any other provi-
sion of Federal law.
‘‘(C) SUBSTANTIAL EVIDENCE.—The term
‘substantial evidence’ means beyond a prepon-
derance of the evidence.
‘‘(D) WEAPON.—The term ‘weapon’ has
the meaning given the term ‘dangerous weapon’
171
under paragraph (2) of the first subsection (g)
of section 930 of title 18, United States Code.
‘‘(l) RULE OF CONSTRUCTION.—Nothing in this part
shall be construed to restrict or limit the rights, proce-
dures, and remedies available under the Constitution, the
Americans with Disabilities Act of 1990, title V of the Re-
habilitation 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 ex-
tent 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 incom-
petent under State law)—
‘‘(A) the public agency shall provide any
notice required by this section to both the indi-
vidual and the parents;
172
‘‘(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 incarcer-
ated 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 deter-
mined 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 edu-
cational interests of the child throughout the period
of eligibility of the child under this part.
‘‘SEC. 616. WITHHOLDING AND JUDICIAL REVIEW.
(a) WITHHOLDING OF PAYMENTS.—
‘‘(1) IN
GENERAL.—Whenever the Secretary,
after reasonable notice and opportunity for hearing
to the State educational agency involved (and to any
173
local educational agency or State agency affected by
any failure described in subparagraph (B)), finds—
‘‘(A) that there has been a failure by the
State to comply substantially with any provision
of this part; or
‘‘(B) that there is a failure to comply with
any condition of a local educational agency’s or
State agency’s eligibility under this part, includ-
ing the terms of any agreement to achieve com-
pliance with this part within the timelines speci-
fied in the agreement;
the Secretary shall, after notifying the State edu-
cational agency, withhold, in whole or in part, any
further payments to the State under this part, or
refer the matter for appropriate enforcement action,
which may include referral to the Department of
Justice.
‘‘(2) NATURE OF WITHHOLDING.—If the Sec-
retary withholds further payments under paragraph
(1), the Secretary may determine that such with-
holding will be limited to programs or projects, or
portions thereof, affected by the failure, or that the
State educational agency shall not make further pay-
ments under this part to specified local educational
agencies or State agencies affected by the failure.
174
Until the Secretary is satisfied that there is no
longer any failure to comply with the provisions of
this part, as specified in subparagraph (A) or (B) of
paragraph (1), payments to the State under this
part shall be withheld in whole or in part, or pay-
ments by the State educational agency under this
part shall be limited to local educational agencies
and State agencies whose actions did not cause or
were not involved in the failure, as the case may be.
Any State educational agency, State agency, or local
educational agency that has received notice under
paragraph (1) shall, by means of a public notice,
take such measures as may be necessary to bring
the pendency of an action pursuant to this sub-
section to the attention of the public within the ju-
risdiction of such agency.
‘‘(b) JUDICIAL REVIEW.—
‘‘(1) IN GENERAL.—If any State is dissatisfied
with the Secretary’s final action with respect to the
eligibility of the State under section 612, such State
may, not later than 60 days after notice of such ac-
tion, 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
175
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 sec-
tion 2112 of title 28, United States Code.
‘‘(2) 
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 Unit-
ed States upon certiorari or certification as provided
in section 1254 of title 28, United States Code.
‘‘(3) 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 pro-
ceedings. Such new or modified findings of fact shall
likewise be conclusive if supported by substantial evi-
dence.
‘‘(c) DIVIDED STATE AGENCY RESPONSIBILITY.—For
purposes of this section, where responsibility for ensuring
176
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 as-
signed 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 appro-
priate corrective action to ensure compliance with this
part, except—
‘‘(1) any reduction or withholding of payments
to the State is proportionate to the total funds allot-
ted 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.
‘‘SEC. 617. ADMINISTRATION.
‘‘(a) RESPONSIBILITIES OF SECRETARY.—In carry-
ing out this part, the Secretary shall—
177
‘‘(1) cooperate with, and (directly or by grant
or contract) furnish technical assistance necessary
to, the State in matters relating to—
‘‘(A) the education of children with disabil-
ities; and
‘‘(B) carrying out this part; and
‘‘(2) provide short-term training programs and
institutes.
‘‘(b) RULES AND REGULATIONS.—In carrying out
the provisions of this part, the Secretary shall issue regu-
lations under this Act only to the extent that such regula-
tions are necessary to ensure that there is compliance with
the specific requirements of this Act.
‘‘(c) CONFIDENTIALITY.—The Secretary shall take
appropriate action, in accordance with the provisions of
section 444 of the General Education Provisions Act (20
U.S.C. 1232g), to assure the protection of the confiden-
tiality of any personally identifiable data, information, and
records collected or maintained by the Secretary and by
State and local educational agencies pursuant to the provi-
sions of this part.
‘‘(d) PERSONNEL.—The Secretary is authorized to
hire qualified personnel necessary to carry out the Sec-
retary’s duties under subsection (a) and under sections
618, 661, and 673 (or their predecessor authorities
178
through October 1, 1997) 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 twenty such personnel shall be em-
ployed at any time.
‘‘SEC. 618. PROGRAM INFORMATION.
‘‘(a) IN GENERAL.—Each State that receives assist-
ance under this part, and the Secretary of the Interior,
shall provide data each year to the Secretary—
‘‘(1)(A) on—
‘‘(i) the number of children with disabil-
ities, by race, ethnicity, and disability category,
who are receiving a free appropriate public edu-
cation;
‘‘(ii) the number of children with disabil-
ities, by race and ethnicity, who are receiving
early intervention services;
‘‘(iii) the number of children with disabil-
ities, by race, ethnicity, and disability category,
who are participating in regular education;
‘‘(iv) the number of children with disabil-
ities, by race, ethnicity, and disability category,
who are in separate classes, separate schools or
179
facilities, or public or private residential facili-
ties;
‘‘(v) the number of children with disabil-
ities, by race, ethnicity, and disability category,
who, for each year of age from age 14 to 21,
stopped receiving special education and related
services because of program completion or other
reasons and the reasons why those children
stopped receiving special education and related
services;
‘‘(vi) the number of children with disabil-
ities, by race and ethnicity, who, from birth
through age two, stopped receiving early inter-
vention services because of program completion
or for other reasons; and
‘‘(vii)(I) the number of children with dis-
abilities, by race, ethnicity, and disability cat-
egory, who under subparagraphs (A)(ii) and
(B) of section 615(k)(1), are removed to an in-
terim alternative educational setting;
‘‘(II) the acts or items precipitating those
removals; and
‘‘(III) the number of children with disabil-
ities who are subject to long-term suspensions
or expulsions; and
180
‘‘(B) on the number of infants and toddlers, by
race and ethnicity, who are at risk of having sub-
stantial developmental delays (as described in sec-
tion 632), and who are receiving early intervention
services under part C; and
‘‘(2) on any other information that may be re-
quired by the Secretary.
‘‘(b) SAMPLING.—The Secretary may permit States
and the Secretary of the Interior to obtain the data de-
scribed in subsection (a) through sampling.
‘‘(c) DISPROPORTIONALITY.—
‘‘(1) IN GENERAL.—Each State that receives
assistance under this part, and the Secretary of the
Interior, shall provide for the collection and exam-
ination 
of 
data 
to 
determine 
if 
significant
disproportionality based on race is occurring in the
State with respect to—
‘‘(A) the identification of children as chil-
dren with disabilities, including the identifica-
tion of children as children with disabilities in
accordance with a particular impairment de-
scribed in section 602(3); and
‘‘(B) the placement in particular edu-
cational settings of such children.
181
‘‘(2) REVIEW
AND
REVISION
OF
POLICIES,
PRACTICES, AND PROCEDURES.—In the case of a de-
termination of significant disproportionality with re-
spect to the identification of children as children
with disabilities, or the placement in particular edu-
cational settings of such children, in accordance with
paragraph (1), the State or the Secretary of the In-
terior, as the case may be, shall provide for the re-
view and, if appropriate, revision of the policies, pro-
cedures, and practices used in such identification or
placement to ensure that such policies, procedures,
and practices comply with the requirements of this
Act.
‘‘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 to 5, in-
clusive; and
‘‘(2) at the State’s discretion, to 2-year-old chil-
dren 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—
182
‘‘(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.—After reserving funds for
studies and evaluations under section 674(e), the
Secretary shall allocate the remaining amount
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) 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)(i) Except as provided in subpara-
graph (B), the Secretary shall—
‘‘(I) allocate to each State the amount
it received for fiscal year 1997;
‘‘(II) allocate 85 percent of any re-
maining funds to States on the basis of
their relative populations of children aged
3 through 5; and
183
‘‘(III) allocate 15 percent of those re-
maining funds to States on the basis of
their relative populations of all children
aged 3 through 5 who are living in poverty.
‘‘(ii) 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) Notwithstanding subparagraph (A),
allocations under this paragraph shall be sub-
ject to the following:
‘‘(i) No State’s allocation shall be less
than its allocation for the preceding fiscal
year.
‘‘(ii) No State’s allocation shall be less
than the greatest of—
‘‘(I) the sum of—
‘‘(aa) the amount it received
for fiscal year 1997; and
‘‘(bb) one third of one per-
cent of the amount by which the
amount appropriated under sub-
section (j) exceeds the amount
184
appropriated under this section
for fiscal year 1997;
‘‘(II) the sum of—
‘‘(aa) the amount it received
for the preceding fiscal year; and
‘‘(bb) that amount multi-
plied by the percentage by which
the increase in the funds appro-
priated from the preceding fiscal
year exceeds 1.5 percent; or
‘‘(III) the sum of—
‘‘(aa) the amount it received
for the preceding fiscal year; and
‘‘(bb) that amount multi-
plied by 90 percent of the per-
centage increase in the amount
appropriated from the preceding
fiscal year.
‘‘(iii) Notwithstanding clause (ii), no
State’s allocation under this paragraph
shall exceed the sum of—
‘‘(I) the amount it received for
the preceding fiscal year; and
‘‘(II) that amount multiplied by
the sum of 1.5 percent and the per-
185
centage increase in the amount appro-
priated.
‘‘(C) 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) 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) 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 it received for fiscal
year 1997; and
‘‘(ii) an amount that bears the same
relation to any remaining funds as the in-
crease the State received for the preceding
fiscal year over fiscal year 1997 bears to
the total of all such increases for all
States.
186
‘‘(B) If the amount available for alloca-
tions is equal to or less than the amount allo-
cated to the States for fiscal year 1997, each
State shall be allocated the amount it received
for that year, ratably reduced, if necessary.
‘‘(4) OUTLYING
AREAS.—The Secretary shall
increase the fiscal year 1998 allotment of each outly-
ing area under section 611 by at least the amount
that that area received under this section for fiscal
year 1997.
‘‘(d) RESERVATION FOR STATE ACTIVITIES.—
‘‘(1) IN GENERAL.—Each State may retain 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 per-
cent of the amount the State received under this sec-
tion 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 alloca-
tion under this section; or
187
‘‘(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 Depart-
ment of Labor.
‘‘(e) STATE ADMINISTRATION.—
‘‘(1) IN GENERAL.—For the purpose of admin-
istering this section (including the coordination of
activities under this part with, and providing tech-
nical assistance to, other programs that provide
services to children with disabilities) a State may
use not more than 20 percent of the maximum
amount it may retain under subsection (d) for any
fiscal year.
‘‘(2) ADMINISTRATION OF PART C.—Funds de-
scribed in paragraph (1) may also be used for the
administration of part C of this Act, if the State
educational agency is the lead agency for the State
under that part.
‘‘(f) OTHER STATE-LEVEL ACTIVITIES.—Each State
shall use any funds it retains 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 dis-
188
abilities 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) to develop a State improvement plan under
subpart 1 of part D;
‘‘(4) for activities at the State and local levels
to meet the performance goals established by the
State under section 612(a)(16) and to support im-
plementation of the State improvement plan under
subpart 1 of part D if the State receives funds
under that subpart; or
‘‘(5) to supplement other funds used to develop
and implement a Statewide coordinated services sys-
tem designed to improve results for children and
families, including children with disabilities and their
families, but not to exceed one percent of the
amount received by the State under this section for
a fiscal year.
‘‘(g) SUBGRANTS TO LOCAL EDUCATIONAL AGEN-
CIES.—
‘‘(1) SUBGRANTS REQUIRED.—Each State that
receives a grant under this section for any fiscal
year shall distribute any of the grant funds that it
189
does not reserve under subsection (d) to local edu-
cational agencies in the State that have established
their eligibility under section 613, as follows:
‘‘(A) BASE
PAYMENTS.—The State shall
first award each 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 then in ef-
fect.
‘‘(B) 
ALLOCATION
OF
REMAINING
FUNDS.—After making allocations under sub-
paragraph (A), the State shall—
‘‘(i) allocate 85 percent of any re-
maining funds to those agencies on the
basis of the relative numbers of children
enrolled in public and private elementary
and secondary schools within the agency’s
jurisdiction; and
‘‘(ii) allocate 15 percent of those re-
maining funds to those agencies in accord-
ance with their relative numbers of chil-
dren living in poverty, as determined by
the State educational agency.
190
‘‘(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 chil-
dren with disabilities aged three through five
residing in the area served by that 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 agency to provide a free appropriate public
education to other local educational agencies in
the State that are not adequately providing spe-
cial education and related services to all chil-
dren with disabilities aged three through five
residing in the areas they serve.
‘‘(h) PART C INAPPLICABLE.—Part C of this Act
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) DEFINITION.—For the purpose of 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.—For the
purpose of carrying out this section, there are authorized
to be appropriated to the Secretary $500,000,000 for fis-
191
cal year 1998 and such sums as may be necessary for each
subsequent fiscal year.
‘‘PART C—INFANTS AND TODDLERS WITH
DISABILITIES
‘‘SEC. 631. FINDINGS AND POLICY.
‘‘(a) FINDINGS.—The Congress finds that there is an
urgent and substantial need—
‘‘(1) to enhance the development of infants and
toddlers with disabilities and to minimize their po-
tential for developmental delay;
‘‘(2) to reduce the educational costs to our soci-
ety, 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 minimize the likelihood of institutional-
ization of individuals with disabilities and maximize
the potential for their independently living 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 historically underrepresented
192
populations, particularly minority, low-income, inner-
city, and rural populations.
‘‘(b) POLICY.—It is therefore the policy of the United
States to provide financial assistance to States—
‘‘(1) to develop and implement a statewide,
comprehensive, coordinated, multidisciplinary, inter-
agency system that provides early intervention serv-
ices 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 pri-
vate insurance coverage);
‘‘(3) to enhance their capacity to provide qual-
ity early intervention services and expand and im-
prove existing early intervention services being pro-
vided to infants and toddlers with disabilities and
their families; and
‘‘(4) to encourage States to expand opportuni-
ties 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.
‘‘As used in this part:
193
‘‘(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 interven-
tion 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 ‘de-
velopmental delay’, when used with respect to an in-
dividual 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 developmen-
tal services that—
‘‘(A) are provided under public supervision;
‘‘(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 developmen-
tal needs of an infant or toddler with a disabil-
ity in any one or more of the following areas—
‘‘(i) physical development;
‘‘(ii) cognitive development;
194
‘‘(iii) communication development;
‘‘(iv) social or emotional development;
or
‘‘(v) adaptive development;
‘‘(D) meet the standards of the State in
which they are provided, including the require-
ments of this part;
‘‘(E) include—
‘‘(i) family training, counseling, and
home visits;
‘‘(ii) special instruction;
‘‘(iii) speech-language pathology and
audiology services;
‘‘(iv) occupational therapy;
‘‘(v) physical therapy;
‘‘(vi) psychological services;
‘‘(vii) service coordination services;
‘‘(viii) medical services only for diag-
nostic or evaluation purposes;
‘‘(ix) early identification, screening,
and assessment services;
‘‘(x) health services necessary to en-
able the infant or toddler to benefit from
the other early intervention services;
‘‘(xi) social work services;
195
‘‘(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) nutritionists;
‘‘(ix) family therapists;
‘‘(x) orientation and mobility special-
ists; and
‘‘(xi) pediatricians and other physi-
cians;
196
‘‘(G) to the maximum extent appropriate,
are provided in natural environments, including
the home, and community settings in which
children without disabilities participate; and
‘‘(H) are provided in conformity with an
individualized family service plan adopted in ac-
cordance with section 636.
‘‘(5) INFANT
OR
TODDLER
WITH
A
DISABIL-
ITY.—The term ‘infant or toddler with a disabil-
ity’—
‘‘(A) means an individual under 3 years of
age who needs early intervention services be-
cause the individual—
‘‘(i) is experiencing developmental
delays, as measured by appropriate diag-
nostic instruments and procedures in one
or more of the areas of cognitive develop-
ment, physical development, communica-
tion development, social or emotional devel-
opment, and adaptive development; or
‘‘(ii) has a diagnosed physical or men-
tal condition which has a high probability
of resulting in developmental delay; and
‘‘(B) may also include, at a State’s discre-
tion, at-risk infants and toddlers.
197
‘‘SEC. 633. GENERAL AUTHORITY.
‘‘The Secretary shall, in accordance with this part,
make grants to States (from their allotments under sec-
tion 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 demonstrate 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 fami-
lies, including Indian infants and toddlers with dis-
abilities and their families residing on a reservation
geographically located in the State; and
‘‘(2) has in effect a statewide system that meets
the requirements of section 635.
‘‘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 definition of the term ‘developmental
delay’ that will be used by the State in carrying out
programs under this part.
198
‘‘(2) A State policy that is in effect and that
ensures that appropriate early intervention services
are available to all infants and toddlers with disabil-
ities and their families, including Indian infants and
toddlers and their families residing on a reservation
geographically located in the State.
‘‘(3) A timely, comprehensive, multidisciplinary
evaluation of the functioning of each infant or tod-
dler with a disability in the State, and a family-di-
rected identification of the needs of each family of
such an infant or toddler, to appropriately assist 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 co-
ordination services in accordance with such service
plan.
‘‘(5) A comprehensive child find system, con-
sistent with part B, including a system for making
referrals to service providers that includes timelines
and provides for participation by primary referral
sources.
‘‘(6) A public awareness program focusing on
early identification of infants and toddlers with dis-
abilities, including the preparation and dissemination