Union Calendar No. 60
105TH CONGRESS
1ST SESSION
H. R. 5
[Report No. 105–95]
A BILL
To amend the Individuals with Disabilities Edu-
cation Act, to reauthorize and make improve-
ments to that Act, and for other purposes.
MAY 13, 1997
Reported with an amendment, committed to the Commit-
tee of the Whole House on the State of the Union, and
ordered to be printed
IB
Union Calendar No. 60
105TH CONGRESS
1ST SESSION
H. R. 5
[Report No. 105–95]
To amend the Individuals with Disabilities Education Act, to reauthorize
and make improvements to that Act, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 7, 1997
Mr. GOODLING (for himself, Mr. RIGGS, Mr. CASTLE, Mr. PETRI, Mr.
BALLENGER, Mr. BARRETT of Nebraska, Mr. MCKEON, Mr. TALENT,
Mr. GREENWOOD, Mr. KNOLLENBERG, Mr. GRAHAM, Mr. SOUDER, Mr.
MCINTOSH, Mr. NORWOOD, and Mr. CUNNINGHAM) introduced the fol-
lowing bill; which was referred to the Committee on Education and the
Workforce
MAY 13, 1997
Additional sponsors: Mr. SAM JOHNSON of Texas, Mr. BONO, Mr. LATHAM,
and Mr. MCGOVERN
MAY 13, 1997
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on January 7, 1997]
A BILL
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 Disabilities
Education Act (20 U.S.C. 1400 et seq.) are amended to read
as follows:
‘‘PART A—GENERAL PROVISIONS
‘‘SEC. 601. SHORT TITLE; TABLE OF CONTENTS; FINDINGS;
PURPOSES.
‘‘(a) SHORT TITLE.—This Act may be cited as the ‘In-
dividuals 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 appropriations.
‘‘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 DISSEMINATION OF IN-
FORMATION
‘‘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-sufficiency
for individuals with disabilities.
‘‘(2) Before the date of the enactment of the Edu-
cation 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 op-
portunity;
‘‘(C) 1,000,000 of the children with disabil-
ities in the United States were excluded entirely
from the public school system and did not go
through the educational process with their peers;
‘‘(D) there were many children with disabil-
ities throughout the United States participating
in regular school programs whose disabilities
prevented such children from having a successful
educational experience because their disabilities
were undetected; and
‘‘(E) because of the lack of adequate services
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 chil-
dren with disabilities and the families of such chil-
dren access to a free appropriate public education
and in improving educational results for children
with disabilities.
‘‘(4) However, the implementation of this Act
has been impeded by low expectations, and an insuffi-
cient focus on applying replicable research on proven
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 chil-
dren and ensuring their access in the general
curriculum to the maximum extent possible;
‘‘(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 pro-
fessional 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 chal-
lenging expectations that have been estab-
lished for all children; and
‘‘(ii) to be prepared to lead productive,
independent, adult lives, to the maximum
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 respon-
sive to the growing needs of an increasingly more di-
verse society. A more equitable allocation of resources
is essential for the Federal Government to meet its re-
sponsibility to provide an equal educational oppor-
tunity 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 pub-
lic school students. Large-city school populations are
overwhelmingly minority, for example: for fall 1993,
the figure for Miami was 84 percent; Chicago, 89 per-
cent; 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 appro-
priate practitioner knowledge, role models, and suffi-
cient manpower to address the clearly changing de-
mography 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 en-
tering school at the kindergarten level. Studies have
documented apparent discrepancies in the levels of re-
ferral and placement of limited English proficient
children in special education. The Department of
Education has found that services provided to limited
English proficient students often do not respond pri-
marily to the pupil’s academic needs. These trends
pose special challenges for special education in the re-
ferral, assessment, and services for our Nation’s stu-
dents 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 organiza-
tions receiving funds under this Act; and peer review
panels; and training of professionals in the area of
special education by minority individuals, organiza-
tions, and historically black colleges and universities
is essential if we are to obtain greater success in the
education of minority children with disabilities.
‘‘(B) In 1993, of the 915,000 college and univer-
sity professors, 4.9 percent were African-American
and 2.4 percent were Hispanic. Of the 2,940,000
teachers, prekindergarten through high school, 6.8 per-
cent 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 popu-
lation at that time and were clearly underrepresented
then among employed teachers. Today, the elementary
and secondary teaching force is 13 percent 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 Afri-
can-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 constitute
28 percent of total enrollment in special education,
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 Afri-
can-American or Hispanic students.
‘‘(10) Minorities and underserved persons are so-
cially disadvantaged because of the lack of opportuni-
ties in training and educational programs, under-
girded by the practices in the private sector that im-
pede their full participation in the mainstream of so-
ciety.
‘‘(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 protected;
and
‘‘(C) to assist States, localities, educational serv-
ice 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 development
and media services; and
‘‘(4) to assess, and ensure the effectiveness of, ef-
forts 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 acquired com-
mercially off the shelf, modified, or customized, that
is used to increase, maintain, or improve functional
capabilities of a child with a disability.
‘‘(2) ASSISTIVE
TECHNOLOGY
SERVICE.—The
term ‘assistive technology service’ means any service
that directly assists a child with a disability in the
selection, acquisition, or use of an assistive technology
device. Such term includes—
‘‘(A) the evaluation of the needs of such
child, including a functional evaluation of the
child in the child’s customary environment;
‘‘(B) purchasing, leasing, or otherwise 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 impairments
(including blindness), serious emotional dis-
turbance (hereinafter referred to as ‘emo-
tional disturbance’), orthopedic impair-
ments, autism, traumatic brain injury,
other health impairments, or specific learn-
ing disabilities; and
‘‘(ii) who, by reason thereof, needs spe-
cial education and related services.
‘‘(B) CHILD AGED 3 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 instruments and
procedures, in one or more of the following
areas: physical development, cognitive devel-
opment, communication development, social
or emotional development, or adaptive de-
velopment; and
‘‘(ii) who, by reason thereof, needs spe-
cial 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 spe-
cial education and related services provided
within public elementary and secondary
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 ‘elemen-
tary school’ means a nonprofit institutional day or
residential school that provides elementary education,
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 func-
tioning of a particular facility as a facility for
the provision of educational services, including
items such as instructional equipment and nec-
essary furniture; printed, published, and audio-
visual instructional materials; telecommuni-
cations, sensory, and other technological 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 an-
nual per-student expenditure in a local educational
agency during the preceding school year for an ele-
mentary or secondary school student, as may be ap-
propriate, and which shall be computed after deduct-
ing—
‘‘(A) amounts received—
‘‘(i) under part B of this title;
‘‘(ii) under part A of title I of the Ele-
mentary 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 EDUCATION.—
The term ‘free appropriate public education’ means
special education and related services that—
‘‘(A) have been provided at public expense,
under public supervision and direction, and
without charge;
‘‘(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 indi-
vidual 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 Alaskan Native village or regional village cor-
poration (as defined in or established under the Alas-
ka Native Claims Settlement Act).
‘‘(11) INDIVIDUALIZED EDUCATION PROGRAM.—
The term ‘individualized education program’ or ‘IEP’
means a written statement for each child with a dis-
ability that is developed, reviewed, and revised in ac-
cordance with section 614(d).
‘‘(12) INDIVIDUALIZED FAMILY SERVICE PLAN.—
The term ‘individualized family service plan’ has the
meaning given such term in section 632.
‘‘(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 Inte-
rior 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 Indian
Affairs, but only to the extent that such inclusion
makes the school eligible for programs for which
specific eligibility is not provided to the school in
another provision of law and the school does not
have a student population that is smaller than
the student population of the local educational
agency receiving assistance under this Act with
the smallest student population, except that the
school shall not be subject to the jurisdiction of
any State educational agency other than the Bu-
reau of Indian Affairs.
‘‘(16) NATIVE LANGUAGE.—The term ‘native lan-
guage’, when used with reference to an individual of
limited English proficiency, means the language nor-
mally 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 ap-
plied to a school, agency, organization, or institution,
means a school, agency, organization, or institution
owned and operated by one or more nonprofit cor-
porations or associations no part of the net earnings
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 CEN-
TER.—The term ‘parent training and information
center’ means a center assisted under section 682 or
683.
‘‘(22) RELATED
SERVICES.—The term ‘related
services’ means transportation, and such developmen-
tal, corrective, and other supportive services (includ-
ing speech-language pathology and audiology services,
psychological services, physical and occupational ther-
apy, recreation, including therapeutic recreation, so-
cial work services, counseling services, including reha-
bilitation counseling, orientation and mobility serv-
ices, and medical services, except that such medical
services shall be for diagnostic and evaluation pur-
poses only) as may be required to assist a child with
a disability to benefit from special education, and in-
cludes the early identification and assessment of dis-
abling 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 classroom,
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 involved
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 calculations.
‘‘(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, cultural, or
economic disadvantage.
‘‘(27) STATE.—The term ‘State’ means each of
the 50 States, the District of Columbia, the Common-
wealth 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 primarily respon-
sible for the State supervision of public elementary
and secondary schools, or, if there is no such officer
or agency, an officer or agency designated by the Gov-
ernor 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-related
settings to enable children with disabilities to be edu-
cated with nondisabled children to the maximum ex-
tent 
appropriate 
in 
accordance 
with 
section
612(a)(5).
‘‘(30) TRANSITION SERVICES.—The term ‘transi-
tion services’ means a coordinated set of activities for
a student with a disability that—
‘‘(A) are 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 employ-
ment), continuing and adult education, adult
services, independent living, or community par-
ticipation;
‘‘(B) are based upon the individual stu-
dent’s needs, taking into account the student’s
preferences and interests; and
‘‘(C) include 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
evaluation.
‘‘SEC. 603. OFFICE OF SPECIAL EDUCATION PROGRAMS.
‘‘(a) ESTABLISHMENT.—There shall be, within the Of-
fice of Special Education and Rehabilitative Services in the
Department of Education, an Office of Special Education
Programs, which shall be the principal agency in such De-
partment for administering and carrying out this Act and
other programs and activities concerning the education 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 SERVICES.—
Notwithstanding section 1342 of title 31, United States
Code, the Secretary is authorized to accept voluntary and
uncompensated services in furtherance of the purposes of
this 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 viola-
tion 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 Handi-
capped 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 ex-
isting 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 require-
ments of—
‘‘(1) appendix A of part 36 of title 28, Code of
Federal Regulations (commonly known as the ‘Ameri-
cans 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 disabil-
ities 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 proce-
durally or substantively lessen the protections provided to
children with disabilities under this Act, as embodied in
regulations in effect on July 20, 1983 (particularly as such
protections relate to parental consent to initial evaluation
or initial placement in special education, least restrictive
environment, related services, timelines, attendance of eval-
uation personnel at individualized education program
meetings, or qualifications of personnel), except to the extent
that such regulation reflects the clear and unequivocal in-
tent 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 EDU-
CATION 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 cor-
respondence from the Department of Education re-
ceived by individuals during the previous quarter
that describes the interpretations of the Department of
Education of this Act or the regulations implemented
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 sum-
mary information as the Secretary determines to be
appropriate.
‘‘(e) ISSUES OF NATIONAL SIGNIFICANCE.—If the Sec-
retary receives a written request regarding a policy, ques-
tion, or interpretation under part B of this Act, and deter-
mines that it raises an issue of general interest or applica-
bility 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 in-
terpretation through such means as the Secretary de-
termines to be appropriate and consistent with law,
such as a policy memorandum, notice of interpreta-
tion, or notice of proposed rulemaking.
‘‘(f) EXPLANATION.—Any written response by the Sec-
retary under subsection (e) regarding a policy, question, or
interpretation under part B of this Act shall include an
explanation that the written response—
‘‘(1) is provided as informal guidance and is not
legally binding; and
‘‘(2) represents the interpretation by the Depart-
ment of Education of the applicable statutory or regu-
latory 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 as-
sist them to provide special education and related
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 ex-
penditure 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 percent,
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 com-
petition under part B of this Act described under
the heading ‘‘SPECIAL EDUCATION’’ in Pub-
lic Law 104–134.
‘‘(2) LIMITATION
FOR
FREELY
ASSOCIATED
STATES.—
‘‘(A) COMPETITIVE GRANTS.—The Secretary
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 associ-
ated States to carry out the purposes of this
part.
‘‘(B) AWARD
BASIS.—The Secretary shall
award grants under subparagraph (A) on a com-
petitive basis, pursuant to the recommendations
of the Pacific Region Educational Laboratory in
Honolulu, Hawaii. Those recommendations shall
be made by experts in the field of special edu-
cation 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 provision
of special education and related services to
children with disabilities and to enhance its
capacity to make a free appropriate public
education available to all children with dis-
abilities;
‘‘(iii) identify 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.—Not-
withstanding 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 eligi-
ble for a competitive award under paragraph (2) un-
less 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 eligible
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 Republic
of the Marshall Islands, the Federated States of Mi-
cronesia, 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 as-
sistance 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 Sec-
retary shall allocate the remaining amount among the
States in accordance with paragraph (2) or sub-
section (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 ac-
cordance 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 Disabilities
Education Act Amendments of 1997, except that the
determination of the number of children with disabil-
ities receiving special education and related services
under such section 611(a)(3) may, at the State’s dis-
cretion, 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 Sec-
retary 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 appropriated
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 avail-
able to all children with disabilities aged three
through five in the State in any subsequent fiscal
year, the Secretary shall compute the State’s base
year amount, solely for the purpose of calculat-
ing 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 avail-
able 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 subparagraph
(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 chil-
dren with disabilities for whom the State
ensures the availability of a free appro-
priate 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 subject
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 percent
of the amount by which the
amount appropriated under sub-
section (j) exceeds the amount ap-
propriated 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 multiplied
by the percentage by which the in-
crease in the funds appropriated
from the preceding fiscal year ex-
ceeds 1.5 percent; or
‘‘(III) the sum of—
‘‘(aa) the amount it received
for the preceding fiscal year; and
‘‘(bb) that amount multiplied
by 90 percent of the percentage
increase in the amount appro-
priated 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 percent-
age 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 rat-
ably reduced, subject to subparagraph (B)(i).
‘‘(4) DECREASE IN FUNDS.—If the amount avail-
able 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 alloca-
tions 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 allo-
cated 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 section
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 Statistics of the De-
partment 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 (adjusted by the cu-
mulative rate of inflation since fiscal year
1998, as measured by the percentage in-
crease, if any, in the Consumer Price Index
For All Urban Consumers, published by the
Bureau of Labor Statistics of the Depart-
ment 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 sup-
port 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 support
implementation of the State Improvement Plan
under subpart 1 of part D if the State receives
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 paragraph
(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 per-
centage 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), each State shall re-
serve, 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 children
in charter schools.
‘‘(ii) Addressing needs or carrying out im-
provement strategies identified in the State’s Im-
provement Plan under subpart 1 of part D.
‘‘(iii) Adopting promising practices, mate-
rials, and technology, based on knowledge derived
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 al-
lowed to retain under paragraph (1)(A) for the
prior fiscal year, or for fiscal year 1998, 25 per-
cent 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 preced-
ing 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 es-
tablished 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 sec-
tion 613, for use in accordance with this part.
‘‘(2) ALLOCATIONS
TO
LOCAL
EDUCATIONAL
AGENCIES.—
‘‘(A) INTERIM PROCEDURE.—For each fiscal
year for which funds are allocated to States
under subsection (d)(2), each State shall allocate
funds under paragraph (1) in accordance with
section 611(d) of this Act, as in effect prior to
the enactment of the Individuals with Disabil-
ities 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 allo-
cate funds under paragraph (1) as follows:
‘‘(i) BASE PAYMENTS.—The State shall
first award each agency described in para-
graph (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 re-
maining funds to those agencies on the
basis of the relative numbers of chil-
dren enrolled in public and private ele-
mentary 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 numbers
of children living in poverty, as deter-
mined 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 subparagraph (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 fiscal year for
which the funds were appropriated, equal to
the per-child amount the agency received
under that subpart for fiscal year 1994.
‘‘(B) The number of children counted under
subparagraph (A)(i)(I) shall not exceed the num-
ber 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 edu-
cational agency determines that a local educational
agency is adequately providing a free appropriate
public education to all children with disabilities re-
siding in the area served by that agency with State
and local funds, the State educational agency may re-
allocate any portion of the funds under this part that
are not needed by that local agency to provide a free
appropriate public education to other local edu-
cational 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 section—
‘‘(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 expenditures,
during the second fiscal year preceding the
fiscal year for which the determination is
made (or, if satisfactory data for that year
are not available, during the most recent
preceding fiscal year for which satisfactory
data are available) of all local educational
agencies in the 50 States and the District of
Columbia); plus
‘‘(ii) any direct expenditures by the
State for the operation of those agencies; di-
vided by
‘‘(B) the aggregate number of children in
average daily attendance to whom those agencies
provided free public education during that pre-
ceding year; and
‘‘(2) the term ‘State’ means each of the 50 States,
the District of Columbia, and the Commonwealth 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 res-
ervations aged 5 to 21, inclusive, enrolled in ele-
mentary and secondary schools for Indian chil-
dren 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 fis-
cal year.
‘‘(B) CALCULATION OF NUMBER OF CHIL-
DREN.—In the case of Indian students ages 3 to
5, inclusive, who are enrolled in programs affili-
ated with Bureau of Indian Affairs (hereafter 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 ac-
creditation prior to the date of enactment of the
Individuals with Disabilities Education Act
Amendments of 1991, the school shall be allowed
to count those children for the purpose of dis-
tribution of the funds provided under this para-
graph to the Secretary of the Interior. The Sec-
retary 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 re-
spect to all other children aged 3 to 21, inclusive,
on reservations, the State educational agency
shall be responsible for ensuring that all of the
requirements of this part are implemented.
‘‘(2) SUBMISSION
OF
INFORMATION.—The Sec-
retary of Education may provide the Secretary of the
Interior amounts under paragraph (1) for a fiscal
year only if the Secretary of the Interior submits to
the Secretary of Education information that—
‘‘(A) demonstrates that the Department of
the Interior meets the appropriate requirements,
as determined by the Secretary of Education, of
sections 612 (including monitoring and evalua-
tion 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 pro-
viders;
‘‘(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 procedures 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 serv-
ices to Indian children with disabilities residing
on or near reservations (such agreement shall
provide for the apportionment of responsibilities
and costs including, but not limited to, child
find, evaluation, diagnosis, remediation or thera-
peutic measures, and (where appropriate) equip-
ment and medical or personal supplies as needed
for a child to remain in school or a program);
and
‘‘(F) includes an assurance that the Depart-
ment of the Interior will cooperate with the De-
partment of Education in its exercise of monitor-
ing 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 Secretary
of the Interior to be distributed to tribes or tribal
organizations (as defined under section 4 of the
Indian Self-Determination and Education As-
sistance Act) or consortia of the above to provide
for the coordination of assistance for special edu-
cation and related services for children with dis-
abilities aged 3 through 5 on reservations 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 organization
an amount based on the number of children with
disabilities ages 3 through 5 residing on reserva-
tions as reported annually, divided by the total
of those children served by all tribes or tribal or-
ganizations.
‘‘(C) SUBMISSION OF INFORMATION.—To re-
ceive a payment under this paragraph, the tribe
or tribal organization shall submit such figures
to the Secretary of the Interior as required to de-
termine the amounts to be allocated under sub-
paragraph (B). This information shall be com-
piled and submitted to the Secretary of Edu-
cation.
‘‘(D) USE OF FUNDS.—The funds received
by a tribe or tribal organization shall be used to
assist in child find, screening, and other proce-
dures for the early identification of children aged
3 through 5, parent training, and the provision
of direct services. These activities may be carried
out directly or through contracts or cooperative
agreements with the BIA, local educational agen-
cies, and other public or private nonprofit orga-
nizations. The tribe or tribal organization is en-
couraged to involve Indian parents in the devel-
opment and implementation of these activities.
The above entities shall, as appropriate, make re-
ferrals 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, in-
cluding the number of contracts and cooperative
agreements entered into, the number of children
contacted and receiving services for each year,
and the estimated number of children needing
services during the 2 years following the one in
which the report is made. The Secretary of the
Interior shall include a summary of this infor-
mation on a biennial basis in the report to the
Secretary of Education required under this sub-
section. The Secretary of Education may require
any additional information from the Secretary
of the Interior.
‘‘(F) PROHIBITIONS.—None of the funds al-
located under this paragraph may be used by the
Secretary of the Interior for administrative pur-
poses, including child count and the provision of
technical assistance.
‘‘(4) PLAN FOR COORDINATION OF SERVICES.—
The Secretary of the Interior shall develop and imple-
ment a plan for the coordination of services for all
Indian children with disabilities residing on reserva-
tions covered under this Act. Such plan shall provide
for the coordination of services benefiting these chil-
dren from whatever source, including tribes, the In-
dian Health Service, other BIA divisions, and other
Federal agencies. In developing the plan, the Sec-
retary 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 co-
operative 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 dis-
abilities, to tribes, and to other interested parties.
‘‘(5) ESTABLISHMENT OF ADVISORY BOARD.—To
meet the requirements of section 612(a)(21), the Sec-
retary of the Interior shall establish, not later than 6
months after the date of the enactment of the Individ-
uals with Disabilities Education Act Amendments of
1997, under the BIA, an advisory board composed of
individuals involved in or concerned with the edu-
cation and provision of services to Indian infants,
toddlers, children, and youth with disabilities, includ-
ing Indians with disabilities, Indian parents or
guardians of such children, teachers, service providers,
State and local educational officials, representatives
of tribes or tribal organizations, representatives from
State Interagency Coordinating Councils under sec-
tion 641 in States having reservations, and other
members representing the various divisions and enti-
ties 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 re-
sponsibilities 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 in-
formation on best practices, effective program co-
ordination strategies, and recommendations for
improved educational programming for Indian
infants, toddlers, and children with disabilities;
and
‘‘(E) provide assistance in the preparation
of information required under paragraph (2)(D).
‘‘(6) ANNUAL REPORTS.—
‘‘(A) IN GENERAL.—The advisory board es-
tablished under paragraph (5) shall prepare and
submit to the Secretary of the Interior and to the
Congress an annual report containing a descrip-
tion 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 EDUCATION.—
‘‘(A) IN GENERAL.—A free appropriate pub-
lic education is available to all children with
disabilities residing in the State between the ages
of 3 and 21, inclusive, including children with
disabilities who have been suspended or expelled
from school.
‘‘(B) LIMITATION.—The obligation to make
a free appropriate public education available to
all children with disabilities does not apply with
respect to children:
‘‘(i) aged 3 through 5 and 18 through
21 in a State to the extent that its applica-
tion to those children would be inconsistent
with State law or practice, or the order of
any court, respecting the provision of public
education to children in those age ranges;
and
‘‘(ii) aged 18 through 21 to the extent
that State law does not require that special
education and related services under this
part be provided to children with 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 providing full edu-
cational opportunity to all children with disabilities
and a detailed timetable for accomplishing 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 disabil-
ities are currently receiving needed special edu-
cation and related services.
‘‘(B) CONSTRUCTION.—Nothing in this Act
requires that children be classified by their dis-
ability so long as each child who has a disability
listed in section 602 and who, by reason of that
disability, needs special education and related
services is regarded as a child with a disability
under this part.
‘‘(4) INDIVIDUALIZED
EDUCATION
PROGRAM.—
An individualized education program, or an 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 en-
vironment occurs only when the nature or sever-
ity of the disability of a child is such that edu-
cation in regular classes with the use of supple-
mentary 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 place-
ments that violate the requirements of sub-
paragraph (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 utilized for
the purposes of evaluation and placement of chil-
dren with disabilities will be selected and admin-
istered so as not to be racially or culturally dis-
criminatory. Such materials or procedures shall
be provided and administered in the child’s na-
tive language or mode of communication, unless
it clearly is not feasible to do so, and no single
procedure shall be the sole criterion for determin-
ing an appropriate educational program for a
child.
‘‘(7) EVALUATION.—Children with disabilities
are evaluated in accordance with subsections (a)
through (c) of section 614.
‘‘(8) CONFIDENTIALITY.—Agencies in the State
comply with section 617(c) (relating to the 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 transition to
those preschool programs in a manner consistent with
section 637(a)(8). By the third birthday of such a
child, an individualized education program or, if con-
sistent with sections 614(d)(2)(B) and 636(d), an in-
dividualized family service plan, has been developed
and is being implemented for the child. The local edu-
cational agency will participate in transition plan-
ning conferences arranged by the designated 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 children
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 subsection
(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 consistent
with law.
‘‘(ii) CHILD-FIND REQUIREMENT.—The
requirements of paragraph (3) of this sub-
section (relating to child find) shall apply
with respect to children with disabilities in
the State who are enrolled in private, in-
cluding parochial, elementary and second-
ary 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 serv-
ices, in accordance with an individualized
education program, at no cost to their par-
ents, if such children are placed in, or re-
ferred to, such schools or facilities by the
State or appropriate local educational agen-
cy as the means of carrying out the require-
ments of this part or any other applicable
law requiring the provision of special edu-
cation 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 agencies 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 WITHOUT
CONSENT
OF
OR
REFERRAL
BY
THE
PUBLIC
AGENCY.—
‘‘(i) IN GENERAL.—Subject to subpara-
graph (A), this part does not require a local
educational agency to pay for the cost of
education, including special education and
related services, of a child with a disability
at a private school or facility if that agency
made a free appropriate public education
available to the child and the parents elect-
ed 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 services
under the authority of a public agency, en-
roll the child in a private elementary or sec-
ondary school without the consent of or re-
ferral by the public agency, a court or a
hearing officer may require the agency to
reimburse the parents for the cost of that en-
rollment if the court or hearing officer finds
that the agency had not made a free appro-
priate public education available to the
child in a timely manner prior to that en-
rollment.
‘‘(iii) LIMITATION
ON
REIMBURSE-
MENT.—The cost of reimbursement described
in clause (ii) may be reduced or denied—
‘‘(I) if—
‘‘(aa) at the most recent IEP
meeting that the parents attended
prior to removal of the child from
the public school, the parents did
not inform the IEP team that
they were rejecting the placement
proposed by the public agency to
provide a free appropriate public
education to their child, including
stating their concerns and their
intent to enroll their child in a
private school at public expense;
or
‘‘(bb) 10 business days (in-
cluding any holidays that occur
on a business day) prior to the re-
moval of the child from the public
school, the parents did not give
written notice to the public agen-
cy of the information described 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 (includ-
ing a statement of the purpose of the
evaluation that was appropriate and
reasonable), but the parents did not
make the child available for such eval-
uation; 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 reduced
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 received
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 ensuring
that the requirements of this part are met with
respect to children with disabilities who are con-
victed as adults under State law and incarcer-
ated in adult prisons.
‘‘(12) OBLIGATIONS RELATED TO AND METHODS
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 en-
sure that all services described in subparagraph
(B)(i) that are needed to ensure a free appro-
priate public education are provided, including
the provision of such services during the pend-
ency of any dispute under clause (iii). Such
agreement or mechanism shall include the follow-
ing:
‘‘(i) AGENCY FINANCIAL RESPONSIBIL-
ITY.—An identification of, or a method for
defining, the financial responsibility of each
agency for providing services described in
subparagraph (B)(i) to ensure a free appro-
priate public education to children with
disabilities, provided that the financial re-
sponsibility 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 edu-
cational agency (or the State agency re-
sponsible for developing the child’s IEP).
‘‘(ii) CONDITIONS AND TERMS OF RE-
IMBURSEMENT.—The conditions, terms, and
procedures under which a local educational
agency shall be reimbursed by other agen-
cies.
‘‘(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 agen-
cy other than an educational agency is oth-
erwise obligated under Federal or State law,
or assigned responsibility under State pol-
icy or pursuant to subparagraph (A), to
provide or pay for any services that are also
considered special education or related serv-
ices (such as, but not limited to, services de-
scribed in sections 602(1) relating to
assistive technology devices, 602(2) relating
to assistive technology services, 602(22) re-
lating to related services, 602(29) relating
to supplementary aids and services, and
602(30) relating to transition services) that
are necessary for ensuring a free appro-
priate public education to children with
disabilities within the State, such public
agency shall fulfill that obligation or re-
sponsibility, either directly or through con-
tract 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 reimburse-
ment for the services from the public agency
that failed to provide or pay for such serv-
ices 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 proce-
dures established in such agreement pursu-
ant 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 respec-
tive agency officials that clearly identify the
responsibilities of each agency relating 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 officer.
‘‘(13) PROCEDURAL
REQUIREMENTS
RELATING
TO LOCAL EDUCATIONAL AGENCY ELIGIBILITY.—The
State educational agency will not make a final deter-
mination that a local educational agency is not eligi-
ble for assistance under this part without first afford-
ing that agency reasonable notice and an opportunity
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 devel-
opment that is designed to ensure an adequate supply
of qualified special education, regular education, 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 stand-
ards 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 ap-
plicable 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 disabil-
ities 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 re-
cruit 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), con-
sistent with State law, and the steps described in
subparagraph (B)(ii) within three years.
‘‘(16) PERFORMANCE GOALS AND INDICATORS.—
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 indicators
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 gradua-
tion 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 as-
sistance 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 appropriate,
the State or local educational agency—
‘‘(i) develops guidelines for the partici-
pation of children with disabilities in alter-
nate assessments for those children who can-
not participate in State and district-wide
assessment programs; and
‘‘(ii) develops and, beginning not later
than July 1, 2000, conducts those alternate
assessments.
‘‘(B) REPORTS.—The State educational
agency makes available to the public, and reports
to the public with the same frequency and in the
same detail as it reports on the assessment of
nondisabled children, the following:
‘‘(i) The number of children with dis-
abilities participating in regular assess-
ments.
‘‘(ii) The number of those children par-
ticipating in alternate assessments.
‘‘(iii)(I) The performance of those chil-
dren on regular assessments (beginning not
later than July 1, 1998) and on alternate
assessments (not later than July 1, 2000), if
doing so would be statistically sound and
would not result in the disclosure of per-
formance results identifiable to individual
children.
‘‘(II) Data relating to the performance
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 accord-
ance 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 SUPPLANTATION
AND CONDITIONS FOR WAIVER BY SECRETARY.—
Except as provided in section 613, funds paid to
a State under this part will be used to supple-
ment the level of Federal, State, and local funds
(including funds that are not under the direct
control of State or local educational agencies) ex-
pended for special education and related services
provided to children with disabilities under this
part and in no case to supplant such Federal,
State, and local funds, except that, where the
State provides clear and convincing evidence
that all children with disabilities have available
to them a free appropriate public education, the
Secretary may waive, in whole or in part, the
requirements of this subparagraph if the Sec-
retary concurs with the evidence provided by the
State.
‘‘(19) MAINTENANCE OF STATE FINANCIAL SUP-
PORT.—
‘‘(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 support for
the preceding fiscal year.
‘‘(B) REDUCTION OF FUNDS FOR FAILURE
TO MAINTAIN SUPPORT.—The Secretary shall re-
duce the allocation of funds under section 611 for
any fiscal year following the fiscal year in which
the State fails to comply with the requirement of
subparagraph (A) by the same amount by which
the State fails to meet the requirement.
‘‘(C) WAIVERS FOR EXCEPTIONAL OR UN-
CONTROLLABLE CIRCUMSTANCES.—The Secretary
may waive the requirement of subparagraph (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 cri-
teria 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 en-
actment.
‘‘(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 available
to the general public, including individuals with dis-
abilities 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 officials;
‘‘(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 tran-
sition services to children with disabilities;
and
‘‘(x) representatives from the State ju-
venile 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 regarding
the education of children with disabilities;
‘‘(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 Federal
monitoring reports under this part; and
‘‘(v) advise the State educational agen-
cy in developing and implementing policies
relating to the coordination of services for
children with disabilities.
‘‘(22) SUSPENSION AND EXPULSION RATES.—
‘‘(A) IN GENERAL.—The State educational
agency examines data to determine if significant
discrepancies are occurring in the rate of long-
term suspensions and expulsions of children with
disabilities—
‘‘(i) among local educational agencies
in the State; or
‘‘(ii) compared to such rates for non-
disabled children within such agencies.
‘‘(B) REVIEW AND REVISION OF POLICIES.—
If such discrepancies are occurring, the State
educational agency reviews and, if appropriate,
revises (or requires the affected State or local
educational agency to revise) its policies, proce-
dures, and practices relating to the development
and implementation of IEPs, the use of behav-
ioral interventions, and procedural safeguards,
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 SERV-
ICES.—If the State educational agency provides free appro-
priate public education to children with disabilities, or pro-
vides 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 chil-
dren without regard to section 613(a)(2)(A)(i) (relat-
ing 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 consider
such State to have met such requirement for purposes
of receiving a grant under this part.
‘‘(2) MODIFICATIONS MADE BY STATE.—Subject
to paragraph (3), an application submitted by a
State in accordance with this section shall remain in
effect until the State submits to the Secretary such
modifications as the State deems necessary. This sec-
tion shall apply to a modification to an application
to the same extent and in the same manner as this
section applies to the original plan.
‘‘(3) MODIFICATIONS
REQUIRED
BY
THE
SEC-
RETARY.—If, after the effective date of the Individuals
with Disabilities Education Act Amendments of 1997,
the provisions of this Act are amended (or the regula-
tions developed to carry out this Act are amended),
or there is a new interpretation of this Act by a Fed-
eral or State Supreme court, or there is an official
finding of noncompliance with Federal law or regula-
tions, the Secretary may require a State to modify its
application only to the extent necessary to ensure the
State’s compliance with this part.
‘‘(d) APPROVAL BY THE SECRETARY.—
‘‘(1) IN GENERAL.—If the Secretary determines
that a State is eligible to receive a grant under this
part, the Secretary shall notify the State of that deter-
mination.
‘‘(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 enactment
of the Education of the Handicapped Act Amend-
ments of 1983, a State educational agency is prohib-
ited by law from providing for the participation in
special programs of children with disabilities enrolled
in private elementary and secondary schools as re-
quired by subsection (a)(10)(A), the Secretary shall,
notwithstanding such provision of law, arrange for
the provision of services to such children through ar-
rangements which shall be subject to the requirements
of such subsection.
‘‘(2) PAYMENTS.—
‘‘(A) DETERMINATION OF AMOUNTS.—If the
Secretary arranges for services pursuant to this
subsection, the Secretary, after consultation with
the appropriate public and private school offi-
cials, 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 subparagraph
(A).
‘‘(C) PERIOD
OF
PAYMENTS.—The period
under which payments are made under subpara-
graph (A) shall continue until the Secretary de-
termines 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 ac-
tion has had an opportunity, for at least 45 days
after receiving written notice thereof, to submit
written objections and to appear before the Sec-
retary 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 re-
view of that action. A copy of the petition shall
be forthwith transmitted by the clerk of the court
to the Secretary. The Secretary thereupon shall
file in the court the record of the proceedings on
which the Secretary based the Secretary’s action,
as provided in section 2112 of title 28, United
States Code.
‘‘(C) REVIEW OF FINDINGS OF FACT.—The
findings of fact by the Secretary, if supported by
substantial evidence, shall be conclusive, but the
court, for good cause shown, may remand the
case to the Secretary to take further evidence,
and the Secretary may thereupon make new or
modified findings of fact and may modify the
Secretary’s previous action, and shall file in the
court the record of the further proceedings. Such
new or modified findings of fact shall likewise be
conclusive if supported by substantial evidence.
‘‘(D) JURISDICTION OF COURT OF APPEALS;
REVIEW BY UNITED STATES SUPREME COURT.—
Upon the filing of a petition under subpara-
graph (B), the United States court of appeals
shall have jurisdiction to affirm the action of the
Secretary or to set it aside, in whole or in part.
The judgment of the court shall be subject to re-
view by the Supreme Court of the United States
upon certiorari or certification as provided in
section 1254 of title 28, United States Code.
‘‘SEC. 613. LOCAL EDUCATIONAL AGENCY ELIGIBILITY.
‘‘(a) IN GENERAL.—A local educational agency is 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 edu-
cation of children with disabilities within its jurisdic-
tion, has in effect policies, procedures, and programs
that are consistent with the State policies and proce-
dures 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 excess
costs of providing special education and re-
lated services to children with disabilities;
‘‘(ii) shall be used to supplement State,
local, and other Federal funds and not to
supplant such funds; and
‘‘(iii) shall not be used, except as pro-
vided in subparagraphs (B) and (C), to re-
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 re-
striction 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 retire-
ment or otherwise, or departure for just
cause, of special education personnel;
‘‘(ii) a decrease in the enrollment of
children with disabilities;
‘‘(iii) the termination of the obligation
of the agency, consistent with this part, to
provide a program of special education to a
particular child with a disability that is an
exceptionally costly program, as determined
by the State educational agency, because the
child—
‘‘(I) has left the jurisdiction of the
agency;
‘‘(II) has reached the age at which
the obligation of the agency to provide
a free appropriate public education to
the child has terminated; or
‘‘(III) no longer needs such pro-
gram of special education; or
‘‘(iv) the termination of costly expendi-
tures for long-term purchases, such as the
acquisition of equipment or the construction
of school facilities.
‘‘(C) TREATMENT OF FEDERAL FUNDS IN
CERTAIN FISCAL YEARS.—
(i) Notwithstanding clauses (ii) and
(iii) of subparagraph (A), for any fiscal
100
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 ex-
ceeds 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-
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 so by the State constitution or
a State statute.
‘‘(D) SCHOOLWIDE PROGRAMS UNDER TITLE
I OF THE ESEA.—Notwithstanding subparagraph
(A) or any other provision of this part, a local
educational agency may use funds received under
this part for any fiscal year to carry out a
schoolwide program under section 1114 of the
Elementary and Secondary Education Act of
101
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 edu-
cational agency—
‘‘(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 com-
prehensive 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:
102
‘‘(A) SERVICES AND AIDS THAT ALSO BENE-
FIT NONDISABLED CHILDREN.—For the costs of
special education and related services and sup-
plementary aids and services provided in a regu-
lar 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 SERV-
ICES
SYSTEM.—To develop and implement a
fully integrated and coordinated services system
in accordance with subsection (f).
‘‘(5) TREATMENT
OF
CHARTER
SCHOOLS
AND
THEIR STUDENTS.—In carrying out this part with re-
spect to charter schools that are public schools of the
local educational agency, the local educational agen-
cy—
‘‘(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.
103
‘‘(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), infor-
mation 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
children with disabilities and to the general public all
documents relating to the eligibility of such agency
under this part.
‘‘(b) EXCEPTION FOR PRIOR LOCAL PLANS.—
‘‘(1) IN GENERAL.—If a local educational agency
or State agency has on file with the State educational
agency policies and procedures that demonstrate that
such local educational agency, or such State agency,
as the case may be, meets any requirement of sub-
section (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 State educational agen-
cy shall consider such local educational agency or
104
State agency, as the case may be, to have met such
requirement for purposes of receiving assistance under
this part.
‘‘(2) MODIFICATION
MADE
BY
LOCAL
EDU-
CATIONAL AGENCY.—Subject to paragraph (3), an ap-
plication submitted by a local educational agency in
accordance with this section shall remain in effect
until it submits to the State educational agency such
modifications as the local educational agency deems
necessary.
‘‘(3) MODIFICATIONS REQUIRED BY STATE EDU-
CATIONAL AGENCY.—If, after the effective date of the
Individuals with Disabilities Education Act Amend-
ments 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 Federal or State courts, or there is an official find-
ing of noncompliance with Federal or State law or
regulations, the State educational agency may require
a local educational agency to modify its application
only to the extent necessary to ensure the local edu-
cational agency’s compliance with this part or State
law.
‘‘(c) NOTIFICATION OF LOCAL EDUCATIONAL AGENCY
OR STATE AGENCY IN CASE OF INELIGIBILITY.—If the
105
State educational agency determines that a local edu-
cational agency or State agency is not eligible under this
section, the State educational agency shall notify the local
educational agency or State agency, as the case may be,
of that determination and shall provide such local edu-
cational agency or State agency with reasonable notice and
an opportunity for a hearing.
‘‘(d) LOCAL EDUCATIONAL AGENCY COMPLIANCE.—
‘‘(1) IN
GENERAL.—If the State educational
agency, after reasonable notice and an opportunity
for a hearing, finds that a local educational agency
or State agency that has been determined to be 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 necessary
to bring the pendency of an action pursuant to this
106
subsection to the attention of the public within the ju-
risdiction 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.—
‘‘(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 suffi-
cient 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-
107
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 eli-
gibility under paragraph (1), the total amount of
funds made available to the affected local educational
agencies shall be equal to the sum of the payments
that each such local educational agency would have
received under section 611(g) if such agencies were el-
igible for such payments.
‘‘(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 proce-
dures under section 612(a); and
‘‘(B) be jointly responsible for implementing
programs that receive assistance under this part.
‘‘(4) REQUIREMENTS FOR EDUCATIONAL SERVICE
AGENCIES.—
‘‘(A) IN GENERAL.—If an educational 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—
108
‘‘(i) not apply to the administration
and disbursement of any payments received
by that educational service agency; and
‘‘(ii) be carried out only by that edu-
cational service agency.
‘‘(B) 
ADDITIONAL
REQUIREMENT.—Not-
withstanding any other provision of this sub-
section, an educational service agency shall pro-
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 system 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—
109
‘‘(A) improving the effectiveness and effi-
ciency of service delivery, including developing
strategies that promote accountability for results;
‘‘(B) service coordination and case manage-
ment that facilitates the linkage of individual-
ized education programs under this part and in-
dividualized family service plans under part C
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 serv-
ices, including transition services and related
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
110
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 agen-
cy may, in accordance with paragraph (2), use funds
made available under this part to permit a public
school within the jurisdiction of the local educational
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 de-
signed to improve educational and transitional re-
sults for all children with disabilities and, as appro-
priate, for other children consistent with subpara-
graphs (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 paragraph
(4)(B)) to design, implement, and evaluate a
111
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 agen-
cy grants the authority described in subpara-
graph (A), a local educational agency that is
granted such authority shall have the sole re-
sponsibility of oversight of all activities relating
to the design, implementation, and evaluation of
any school-based improvement plan that a public
school is permitted to design under this sub-
section.
‘‘(3) PLAN REQUIREMENTS.—A school-based im-
provement plan described in paragraph (1) shall—
‘‘(A) be designed to be consistent with the
purposes described in section 651(b) and to im-
prove educational and transitional results for all
children with disabilities and, as appropriate,
for other children consistent with subparagraphs
(A) and (B) of subsection (a)(4), who attend the
school for which the plan is designed and imple-
mented;
‘‘(B) be designed, evaluated, and, as appro-
priate, implemented by a school-based standing
112
panel established in accordance with paragraph
(4)(B);
‘‘(C) include goals and measurable indica-
tors to assess the progress of the public school in
meeting such goals; and
‘‘(D) ensure that all children with disabil-
ities receive the services described in the individ-
ualized education programs of such children.
‘‘(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, im-
plement, and evaluate such a plan;
‘‘(B) require each school selected under sub-
paragraph (A), in accordance with criteria es-
tablished by such local educational agency under
subparagraph (C), to establish a school-based
standing panel to carry out the duties described
in paragraph (3)(B);
‘‘(C) establish—
113
‘‘(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
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 dis-
abilities from unserved and under-
served populations, as appropriate;
‘‘(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
114
‘‘(IV) related services providers
who are responsible for providing serv-
ices to the children with disabilities
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;
‘‘(D) disseminate the criteria established
under subparagraph (C) to local school district
personnel and local parent organizations within
the jurisdiction of such local educational agency;
‘‘(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 agen-
cy 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 improvement
plan described in paragraph (1) may be submitted to
a local educational agency for approval only if a con-
115
sensus with respect to any matter relating to the de-
sign, 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
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 educational
agency may approve a school-based improvement
plan of a public school within the jurisdiction of
such agency for a period of 3 years, if—
‘‘(i) the approval is consistent with the
policies, procedures, and practices estab-
lished 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 stand-
ing panel, and a majority of other members
of the school-based standing panel, that de-
116
signed 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
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 EDUCATIONAL
AGENCY.—
‘‘(1) IN GENERAL.—A State educational agency
shall use the payments that would otherwise have been
available to a local educational agency or to a State
agency to provide special education and related serv-
ices directly to children with disabilities residing 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 education agency or
State agency, as the case may be—
‘‘(A) has not provided the information need-
ed to establish the eligibility of such agency
under this section;
117
‘‘(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 pro-
grams; or
‘‘(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 pro-
vide 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
118
part receive a free appropriate public education, and
that those children and their parents are provided all
the rights and procedural safeguards described in this
part; and
‘‘(2) the agency meets such other conditions of
this section as the Secretary determines to be appro-
priate.
‘‘(j) DISCIPLINARY INFORMATION.—The State may re-
quire that a local educational agency include in the records
of a child with a disability a statement of any current or
previous disciplinary action that has been taken against the
child and transmit such statement to the same extent that
such disciplinary information is included in, and transmit-
ted with, the student records of nondisabled children. The
statement may include a description of any behavior en-
gaged 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 individualized edu-
cation program and any such statement of current or pre-
vious disciplinary action that has been taken against the
child.
119
‘‘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
agency shall conduct a full and individual ini-
tial evaluation, in accordance with this para-
graph and subsection (b), before the initial pro-
vision 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 propos-
ing to conduct an initial evaluation to de-
termine if the child qualifies as a child with
a disability as defined in section 602(3)(A)
or 602(3)(B) shall obtain an informed con-
sent from the parent of such child before the
120
evaluation is conducted. Parental consent
for evaluation shall not be construed as con-
sent for placement for receipt of special edu-
cation and related services.
‘‘(ii) REFUSAL.—If the parents of such
child refuse consent for the evaluation, the
agency may continue to pursue an evalua-
tion by utilizing the mediation and due
process procedures under section 615, except
to the extent inconsistent with State law re-
lating 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 eval-
uation procedures such agency proposes to conduct.
121
‘‘(2) CONDUCT OF EVALUATION.—In conducting
the evaluation, the local educational agency shall—
‘‘(A) use a variety of assessment tools and
strategies to gather relevant functional and de-
velopmental information, including information
provided by the parent, that may assist in deter-
mining whether the child is a child with a dis-
ability and the content of the child’s individual-
ized education program, including information
related to enabling the child to be involved in
and progress in the general curriculum or, for
preschool children, to participate in appropriate
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 cognitive
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—
122
‘‘(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 fea-
sible to do so; and
‘‘(B) any standardized tests that are given
to the child—
‘‘(i) have been validated for the specific
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 sus-
pected disability; and
‘‘(D) assessment tools and strategies that
provide relevant information that directly assists
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—
123
‘‘(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 pro-
fessionals and the parent of the child in accord-
ance 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 appropriate) and
as part of any reevaluation under this section, the
IEP Team described in subsection (d)(1)(B) and other
qualified professionals, as appropriate, shall—
‘‘(A) review existing evaluation data on the
child, including evaluations and information
provided by the parents of the child, current
124
classroom-based assessments and observations,
and teacher and related services providers obser-
vation; 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 education
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 program of the
child and to participate, as appropriate, in
the general curriculum.
125
‘‘(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 disabil-
ity, except that such informed parent consent need not
be obtained if the local educational agency can dem-
onstrate that it had taken reasonable measures to ob-
tain 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 addi-
tional 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
‘‘(ii) the right of such parents to re-
quest an assessment to determine whether
126
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, re-
viewed, and revised in accordance with this sec-
tion and that includes—
‘‘(i) a statement of the child’s present
levels of educational performance, includ-
ing—
‘‘(I) how the child’s disability af-
fects 
the 
child’s 
involvement 
and
progress in the general curriculum; or
127
‘‘(II) for preschool children, as
appropriate, how the disability affects
the child’s participation in appro-
priate activities;
‘‘(ii) a statement of measurable annual
goals, including benchmarks or short-term
objectives, related to—
‘‘(I) meeting the child’s needs that
result from the child’s disability to en-
able the child to be involved in and
progress in the general curriculum;
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—
‘‘(I) to advance appropriately to-
ward attaining the annual goals;
128
‘‘(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 student
achievement that are needed in order for the
child to participate in such assessment; and
‘‘(II) if the IEP Team determines that
the child will not participate in a particu-
lar State or districtwide assessment of stu-
dent achievement (or part of such an assess-
ment), a statement of—
129
‘‘(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 ap-
plicable components of the child’s IEP that
focuses on the child’s courses of study (such
as participation in advanced-placement
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 re-
sponsibilities or any needed linkages; and
‘‘(III) beginning at least one year be-
fore the child reaches the age of majority
under State law, a statement that the child
130
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 described
in clause (ii); and
‘‘(bb) the extent to which that
progress is sufficient to enable the
child to achieve the goals by the
end of the year.
‘‘(B) INDIVIDUALIZED EDUCATION PROGRAM
TEAM.—The term ‘individualized education pro-
gram team’ or ‘IEP Team’ means a group of in-
dividuals composed of—
131
‘‘(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 education
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
results, who may be a member of the team
described in clauses (ii) through (vi);
132
‘‘(vi) at the discretion of the parent or
the agency, other individuals who have
knowledge or special expertise regarding the
child, including related services personnel as
appropriate; and
‘‘(vii) whenever appropriate, the child
with a disability.
‘‘(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 agency,
as the case may be, shall have in effect, for each
child with a disability in its jurisdiction, an in-
dividualized 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 during the
school year), an individualized family service
plan that contains the material described in sec-
tion 636, and that is developed in accordance
133
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 behav-
ior impedes his or her learning or that of
others, consider, when appropriate, strate-
gies, including positive behavioral interven-
tions, strategies, and supports to address
that behavior;
‘‘(ii) in the case of a child with limited
English proficiency, consider the language
134
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 evalua-
tion of the child’s future needs for instruc-
tion in Braille or the use of Braille), that
instruction in Braille or the use of Braille
is not appropriate for the child;
‘‘(iv) 
consider 
the 
communication
needs of the child, and in the case of a child
who is deaf or hard of hearing, consider the
child’s language and communication needs,
opportunities for direct communications
with peers and professional personnel in the
child’s language and communication mode,
academic level, and full range of needs, in-
cluding opportunities for direct instruction
in the child’s language and communication
mode; and
135
‘‘(v) consider whether the child requires
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 consistent
with paragraph (1)(A)(iii).
‘‘(4) REVIEW AND REVISION OF IEP.—
‘‘(A) IN GENERAL.—The local educational
agency shall ensure that, subject to subparagraph
(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
‘‘(ii) revises the IEP as appropriate to
address—
136
‘‘(I) any lack of expected progress
toward the annual goals and in the
general curriculum, where appropriate;
‘‘(II) the results of any reevalua-
tion conducted under this section;
‘‘(III) information about the child
provided to, or by, the parents, as de-
scribed 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
shall reconvene the IEP Team to identify alternative
strategies to meet the transition objectives for the
child set out in that program.
137
‘‘(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 sec-
tion 612(a)(17) and paragraph (1)(A)(v) of
this subsection (relating to participation of
children with disabilities in general assess-
ments).
‘‘(ii) The requirements of subclauses (I)
and (II) of paragraph (1)(A)(vii) of this
subsection (relating to transition planning
and transition services), do not apply with
respect to such children whose eligibility
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
prison, the child’s IEP team may modify the
child’s IEP or placement notwithstanding the re-
quirements 
of 
sections 
612(a)(5)(A) 
and
614(d)(1)(A) if the State has demonstrated a
138
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 information
under one component of a child’s IEP that is already con-
tained 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 members
of any group that makes decisions on the educational place-
ment 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.
‘‘(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 respect
139
to the identification, evaluation, and educational
placement of the child, and the provision of a free ap-
propriate public education to such child, and to ob-
tain 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 par-
ents, or the child is a ward of the State, including the
assignment of an individual (who shall not be an em-
ployee of the State educational agency, the local edu-
cational agency, or any other agency that is involved
in the education or care of the child) to act as a sur-
rogate for the parents;
‘‘(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;
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 notice
required by paragraph (3) is in the native language
140
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 confiden-
tial)—
‘‘(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—
‘‘(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
141
‘‘(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 par-
ents in filing a complaint in accordance with para-
graph (7).
‘‘(c) CONTENT OF PRIOR WRITTEN NOTICE.—The no-
tice 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;
‘‘(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 procedural
safeguards of this part and, if this notice is not an
initial referral for evaluation, the means by which a
142
copy of a description of the procedural safeguards 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 re-
evaluation of the child; and
‘‘(C) upon registration of a complaint
under subsection (b)(6).
‘‘(2) CONTENTS.—The procedural safeguards no-
tice shall include a full explanation of the procedural
safeguards, written in the native language of the par-
ents, unless it clearly is not feasible to do so, and
written in an easily understandable manner, avail-
able under this section and under regulations promul-
gated by the Secretary relating to—
‘‘(A) independent educational evaluation;
‘‘(B) prior written notice;
‘‘(C) parental consent;
143
‘‘(D) access to educational records;
‘‘(E) opportunity to present complaints;
‘‘(F) the child’s placement during pendency
of due process proceedings;
‘‘(G) procedures for students who are subject
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;
‘‘(K) State-level appeals (if applicable in
that State);
‘‘(L) civil actions; and
‘‘(M) attorneys’ fees.
‘‘(e) MEDIATION.—
‘‘(1) IN GENERAL.—Any State educational agen-
cy or local educational agency that receives assistance
under this part shall ensure that procedures are estab-
lished and implemented to allow parties to disputes
involving any matter described in subsection (b)(6) to
resolve such disputes through a mediation process
144
which, at a minimum, shall be available whenever a
hearing is requested under subsection (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
‘‘(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 process
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 informa-
tion center or community parent resource
center in the State established under section
682 or 683; or
145
‘‘(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 me-
diation process, including the costs of meetings
described in subparagraph (B).
‘‘(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 me-
diation 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 required
146
to sign a confidentiality pledge prior to the com-
mencement 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 educational
agency.
‘‘(2) DISCLOSURE
OF
EVALUATIONS
AND
REC-
OMMENDATIONS.—
‘‘(A) IN GENERAL.—At least 5 business days
prior to a hearing conducted pursuant to para-
graph (1), each party shall disclose to all other
parties all evaluations completed by that date
and recommendations based on the offering par-
ty’s evaluations that the party intends to use at
the hearing.
‘‘(B) FAILURE TO DISCLOSE.—A hearing of-
ficer may bar any party that fails to comply
with subparagraph (A) from introducing the rel-
evant evaluation or recommendation at the hear-
ing without the consent of the other party.
147
‘‘(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 impar-
tial review of such decision. The officer conducting such re-
view shall make an independent decision upon completion
of such review.
‘‘(h) SAFEGUARDS.—Any party to a hearing conducted
pursuant to subsection (f) or (k), or an appeal conducted
pursuant to subsection (g), shall be accorded—
‘‘(1) the right to be accompanied and advised by
counsel and by individuals with special knowledge or
training with respect to the problems of children with
disabilities;
‘‘(2) the right to present evidence and confront,
cross-examine, and compel the attendance of wit-
nesses;
148
‘‘(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, in-
formation, and records) and shall also be transmitted
to the advisory panel established pursuant to section
612(a)(21)).
‘‘(i) ADMINISTRATIVE PROCEDURES.—
‘‘(1) IN GENERAL.—
‘‘(A) DECISION MADE IN HEARING.—A deci-
sion made in a hearing conducted pursuant to
subsection (f) or (k) shall be final, except that
any party involved in such hearing may appeal
such decision under the provisions of subsection
(g) and paragraph (2) of this subsection.
‘‘(B) DECISION MADE AT APPEAL.—A deci-
sion made under subsection (g) shall be final, ex-
cept that any party may bring an action under
paragraph (2) of this subsection.
‘‘(2) RIGHT TO BRING CIVIL ACTION.—
149
‘‘(A) IN GENERAL.—Any party aggrieved by
the findings and decision made under subsection
(f) or (k) who does not have the right to an ap-
peal under subsection (g), and any party ag-
grieved by the findings and decision under this
subsection, shall have the right to bring a civil
action with respect to the complaint presented
pursuant to this section, which action may be
brought in any State court of competent jurisdic-
tion 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—
‘‘(i) shall receive the records of the ad-
ministrative 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 appro-
priate.
‘‘(3) JURISDICTION OF DISTRICT COURTS; ATTOR-
NEYS’ FEES.—
‘‘(A) IN GENERAL.—The district courts of
the United States shall have jurisdiction of ac-
150
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 sec-
tion, the court, in its discretion, may award rea-
sonable 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 para-
graph shall be based on rates prevailing in the
community in which the action or proceeding
arose for the kind and quality of services fur-
nished. 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 SERVICES.—
‘‘(i) Attorneys’ fees may not be award-
ed and related costs may not be reimbursed
in any action or proceeding under this sec-
tion for services performed subsequent to the
time of a written offer of settlement to a
parent if—
151
‘‘(I) the offer is made within the
time prescribed by Rule 68 of the Fed-
eral Rules of Civil Procedure or, in the
case of an administrative proceeding,
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.
‘‘(ii) Attorneys’ fees may not be award-
ed 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 com-
plaint under subsection (b)(6) or (k) of this
section.
‘‘(E) EXCEPTION TO PROHIBITION ON AT-
TORNEYS’ FEES AND RELATED COSTS.—Notwith-
standing subparagraph (D), an award of attor-
152
neys’ fees and related costs may be made to a
parent who is the prevailing party and who was
substantially justified in rejecting the settlement
offer.
‘‘(F) REDUCTION
IN
AMOUNT
OF
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-
sonably exceeds the hourly rate prevailing
in the community for similar services by at-
torneys of reasonably comparable skill, rep-
utation, and experience;
‘‘(iii) the time spent and legal services
furnished were excessive considering the na-
ture of the action or proceeding; or
‘‘(iv) the attorney representing the par-
ent did not provide to the school district the
appropriate information in the due process
complaint in accordance with subsection
(b)(7);
153
the court shall reduce, accordingly, the amount of
the attorneys’ fees awarded under this section.
‘‘(G) EXCEPTION TO REDUCTION IN AMOUNT
OF ATTORNEYS’ FEES.—The provisions of sub-
paragraph (F) shall not apply in any action or
proceeding if the court finds that the State or
local educational agency unreasonably protracted
the final resolution of the action or proceeding or
there was a violation of this section.
‘‘(j) 
MAINTENANCE
OF
CURRENT
EDUCATIONAL
PLACEMENT.—Except as provided in subsection (k)(7), dur-
ing the pendency of any proceedings conducted pursuant
to this section, unless the State or local educational agency
and the parents otherwise agree, the child shall remain in
the then-current educational placement of 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 com-
pleted.
‘‘(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SET-
TING.—
‘‘(1) AUTHORITY OF SCHOOL PERSONNEL.—
‘‘(A) School personnel under this section
may order a change in the placement of a child
with a disability—
154
‘‘(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—
‘‘(I) the child carries a weapon to
school or to a school function under the
jurisdiction of a State or a local edu-
cational agency; or
‘‘(II) the child knowingly possesses
or uses illegal drugs or sells or solicits
the sale of a controlled substance while
at school or a school function under the
jurisdiction of a State or local edu-
cational agency.
‘‘(B) Either before or not later than 10 days
after taking a disciplinary action described in
subparagraph (A)—
155
‘‘(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 convene
an IEP meeting to develop an assessment
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 necessary,
to address the behavior.
‘‘(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 setting
for not more than 45 days if the hearing officer—
‘‘(A) determines that the public agency has
demonstrated by substantial evidence that main-
taining 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;
156
‘‘(C) considers whether the public agency
has made reasonable efforts to minimize the risk
of harm in the child’s current placement, includ-
ing the use of supplementary aids and services;
and
‘‘(D) determines that the interim alternative
educational setting meets the requirements of
paragraph (3)(B).
‘‘(3) DETERMINATION OF SETTING.—
‘‘(A) IN
GENERAL.—The alternative edu-
cational 
setting 
described 
in 
paragraph
(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 general
curriculum, although in another setting,
and to continue to receive those services and
modifications, including those described in
the child’s current IEP, that will enable the
child to meet the goals set out in that IEP;
and
157
‘‘(ii) include services and modifications
designed to address the behavior described
in paragraph (1) or paragraph (2) so that
it does not recur.
‘‘(4) 
MANIFESTATION
DETERMINATION
RE-
VIEW.—
‘‘(A) IN GENERAL.—If a disciplinary action
is contemplated as described in paragraph (1) or
paragraph (2) for a behavior of a child with a
disability described in either of those para-
graphs, or if a disciplinary action involving 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 decision
and of all procedural safeguards accorded
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
158
the relationship between the child’s disabil-
ity and the behavior subject to the discipli-
nary 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
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—