H. R. 5—58
‘‘(I) the child carries a weapon to school or
to a school function under the jurisdiction of a
State or a local educational agency; or
‘‘(II) the child knowingly possesses or uses
illegal drugs or sells or solicits the sale of a con-
trolled substance while at school or a school
function under the jurisdiction of a State or local
educational agency.
‘‘(B) Either before or not later than 10 days after
taking a disciplinary action described in subparagraph
(A)—
‘‘(i) if the local educational agency did not conduct
a functional behavioral assessment and implement a
behavioral intervention 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 behavioral interven-
tion 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 dem-
onstrated by substantial evidence that maintaining the
current placement of such child is substantially likely to
result in injury to the child or to others;
‘‘(B) considers the appropriateness of the child’s current
placement;
‘‘(C) considers whether the public agency has made
reasonable efforts to minimize the risk of harm in the
child’s current placement, including the use of supple-
mentary aids and services; and
‘‘(D) determines that the interim alternative edu-
cational setting meets the requirements of paragraph
(3)(B).
‘‘(3) DETERMINATION OF SETTING.—
‘‘(A) IN GENERAL.—The alternative educational setting
described in paragraph (1)(A)(ii) shall be determined by
the IEP Team.
‘‘(B) ADDITIONAL REQUIREMENTS.—Any interim alter-
native 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 serv-
ices 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
‘‘(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 REVIEW.—
H. R. 5—59
‘‘(A) IN
GENERAL.—If a disciplinary action is con-
templated as described in paragraph (1) or paragraph (2)
for a behavior of a child with a disability described in
either of those paragraphs, or if a disciplinary action involv-
ing 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 noti-
fied 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 deci-
sion to take that action is made, a review shall be
conducted of the relationship between the child’s
disability and the behavior subject to the disciplinary
action.
‘‘(B) INDIVIDUALS
TO
CARRY
OUT
REVIEW.—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 deter-
mine 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 behavior subject
to disciplinary action, all relevant information, includ-
ing—
‘‘(I) evaluation and diagnostic results, includ-
ing 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 placement; and
‘‘(ii) then determines that—
‘‘(I) in relationship to the behavior subject to
disciplinary action, the child’s IEP and placement
were appropriate and the special education
services, supplementary aids and services, and
behavior intervention strategies were provided
consistent with the child’s IEP and placement;
‘‘(II) the child’s disability did not impair the
ability of the child to understand the impact and
consequences of the behavior subject to discipli-
nary action; and
‘‘(III) the child’s disability did not impair the
ability of the child to control the behavior subject
to disciplinary action.
‘‘(5) DETERMINATION THAT BEHAVIOR WAS NOT MANIFESTA-
TION OF DISABILITY.—
‘‘(A) IN GENERAL.—If the result of the review described
in paragraph (4) is a determination, consistent with para-
graph (4)(C), that the behavior of the child with a disability
was not a manifestation of the child’s disability, the rel-
evant disciplinary procedures applicable to children without
disabilities may be applied to the child in the same manner
in which they would be applied to children without disabil-
ities, except as provided in section 612(a)(1).
H. R. 5—60
‘‘(B) ADDITIONAL REQUIREMENT.—If the public agency
initiates disciplinary procedures applicable to all children,
the agency shall ensure that the special education and
disciplinary records of the child with a disability are
transmitted for consideration by the person or persons
making the final determination regarding the disciplinary
action.
‘‘(6) PARENT APPEAL.—
‘‘(A) IN GENERAL.—
‘‘(i) If the child’s parent disagrees with a
determination that the child’s behavior was not a mani-
festation of the child’s disability or with any decision
regarding placement, the parent may request a hear-
ing.
‘‘(ii) The State or local educational agency shall
arrange for an expedited hearing in any case described
in this subsection when requested by a parent.
‘‘(B) REVIEW OF DECISION.—
‘‘(i) In reviewing a decision with respect to the
manifestation determination, the hearing officer shall
determine whether the public agency has demonstrated
that the child’s behavior was not a manifestation of
such child’s disability consistent with the requirements
of paragraph (4)(C).
‘‘(ii) In reviewing a decision under paragraph
(1)(A)(ii) to place the child in an interim alternative
educational setting, the hearing officer shall apply the
standards set out in paragraph (2).
‘‘(7) PLACEMENT DURING APPEALS.—
‘‘(A) IN GENERAL.—When a parent requests a hearing
regarding a disciplinary action described in paragraph
(1)(A)(ii) or paragraph (2) to challenge the interim
alternative educational setting or the manifestation deter-
mination, the child shall remain in the interim alternative
educational setting pending the decision of the hearing
officer or until the expiration of the time period provided
for in paragraph (1)(A)(ii) or paragraph (2), whichever
occurs first, unless the parent and the State or local edu-
cational agency agree otherwise.
‘‘(B) CURRENT PLACEMENT.—If a child is placed in an
interim alternative educational setting pursuant to para-
graph (1)(A)(ii) or paragraph (2) and school personnel
propose to change the child’s placement after expiration
of the interim alternative placement, during the pendency
of any proceeding to challenge the proposed change in
placement, the child shall remain in the current placement
(the child’s placement prior to the interim alternative edu-
cational setting), except as provided in subparagraph (C).
‘‘(C) EXPEDITED HEARING.—
‘‘(i) If school personnel maintain that it is dan-
gerous for the child to be in the current placement
(placement prior to removal to the interim alternative
education setting) during the pendency of the due proc-
ess proceedings, the local educational agency may
request an expedited hearing.
‘‘(ii) In determining whether the child may be
placed in the alternative educational setting or in
H. R. 5—61
another appropriate placement ordered by the hearing
officer, the hearing officer shall apply the standards
set out in paragraph (2).
‘‘(8) PROTECTIONS
FOR
CHILDREN
NOT
YET
ELIGIBLE
FOR
SPECIAL EDUCATION AND RELATED SERVICES.—
‘‘(A) IN
GENERAL.—A child who has not been
determined to be eligible for special education and related
services under this part and who has engaged in behavior
that violated any rule or code of conduct of the local
educational agency, including any behavior described in
paragraph (1), may assert any of the protections provided
for in this part if the local educational agency had knowl-
edge (as determined in accordance with this paragraph)
that the child was a child with a disability before the
behavior that precipitated the disciplinary action occurred.
‘‘(B) BASIS OF KNOWLEDGE.—A local educational agency
shall be deemed to have knowledge that a child is a child
with a disability if—
‘‘(i) the parent of the child has expressed concern
in writing (unless the parent is illiterate or has a
disability that prevents compliance with the require-
ments contained in this clause) to personnel of the
appropriate educational agency that the child is in
need of special education and related services;
‘‘(ii) the behavior or performance of the child dem-
onstrates the need for such services;
‘‘(iii) the parent of the child has requested an
evaluation of the child pursuant to section 614; or
‘‘(iv) the teacher of the child, or other personnel
of the local educational agency, has expressed concern
about the behavior or performance of the child to the
director of special education of such agency or to other
personnel of the agency.
‘‘(C) CONDITIONS THAT APPLY IF NO BASIS OF KNOWL-
EDGE.—
‘‘(i) IN GENERAL.—If a local educational agency does
not have knowledge that a child is a child with a
disability (in accordance with subparagraph (B)) prior
to taking disciplinary measures against the child, the
child may be subjected to the same disciplinary
measures as measures applied to children without
disabilities who engaged in comparable behaviors
consistent with clause (ii).
‘‘(ii) LIMITATIONS.—If a request is made for an
evaluation of a child during the time period in which
the child is subjected to disciplinary measures under
paragraph (1) or (2), the evaluation shall be conducted
in an expedited manner. If the child is determined
to be a child with a disability, taking into consideration
information from the evaluation conducted by the
agency and information provided by the parents, the
agency shall provide special education and related serv-
ices in accordance with the provisions of this part,
except that, pending the results of the evaluation, the
child shall remain in the educational placement deter-
mined by school authorities.
H. R. 5—62
‘‘(9) REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND
JUDICIAL AUTHORITIES.—
‘‘(A) Nothing in this part shall be construed to prohibit
an agency from reporting a crime committed by a child
with a disability to appropriate authorities or to prevent
State law enforcement and judicial authorities from exercis-
ing their responsibilities with regard to the application
of Federal and State law to crimes committed by a child
with a disability.
‘‘(B) An agency reporting a crime committed by a child
with a disability shall ensure that copies of the special
education and disciplinary records of the child are transmit-
ted for consideration by the appropriate authorities to
whom it reports the crime.
‘‘(10) DEFINITIONS.—For purposes of this subsection, the
following definitions apply:
‘‘(A) CONTROLLED
SUBSTANCE.—The term ‘controlled
substance’ means a drug or other substance identified
under schedules I, II, III, IV, or V in section 202(c) of
the Controlled Substances Act (21 U.S.C. 812(c)).
‘‘(B) ILLEGAL DRUG.—The term ‘illegal drug ’—
‘‘(i) means a controlled substance; but
‘‘(ii) does not include such a substance that is
legally possessed or used under the supervision of a
licensed health-care professional or that is legally pos-
sessed or used under any other authority under that
Act or under any other provision of Federal law.
‘‘(C) SUBSTANTIAL
EVIDENCE.—The term ‘substantial
evidence’ means beyond a preponderance of the evidence.
‘‘(D) WEAPON.—The term ‘weapon’ has the meaning
given the term ‘dangerous weapon’ under paragraph (2)
of the first subsection (g) of section 930 of title 18, United
States Code.
‘‘(l) RULE OF CONSTRUCTION.—Nothing in this title shall be
construed to restrict or limit the rights, procedures, and remedies
available under the Constitution, the Americans with Disabilities
Act of 1990, title V of the Rehabilitation Act of 1973, or other
Federal laws protecting the rights of children with disabilities,
except that before the filing of a civil action under such laws
seeking relief that is also available under this part, the procedures
under subsections (f ) and (g) shall be exhausted to the same extent
as would be required had the action been brought under this part.
‘‘(m) TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY.—
‘‘(1) IN GENERAL.—A State that receives amounts from a
grant under this part may provide that, when a child with
a disability reaches the age of majority under State law (except
for a child with a disability who has been determined to be
incompetent under State law)—
‘‘(A) the public agency shall provide any notice required
by this section to both the individual and the parents;
‘‘(B) all other rights accorded to parents under this
part transfer to the child;
‘‘(C) the agency shall notify the individual and the
parents of the transfer of rights; and
‘‘(D) all rights accorded to parents under this part
transfer to children who are incarcerated in an adult or
juvenile Federal, State, or local correctional institution.
H. R. 5—63
‘‘(2) SPECIAL RULE.—If, under State law, a child with a
disability who has reached the age of majority under State
law, who has not been determined to be incompetent, but
who is determined not to have the ability to provide informed
consent with respect to the educational program of the child,
the State shall establish procedures for appointing the parent
of the child, or if the parent is not available, another appro-
priate individual, to represent the educational interests of the
child throughout the period of eligibility of the child under
this part.
‘‘SEC. 616. WITHHOLDING AND JUDICIAL REVIEW.
‘‘(a) WITHHOLDING OF PAYMENTS.—
‘‘(1) IN GENERAL.—Whenever the Secretary, after reason-
able notice and opportunity for hearing to the State educational
agency involved (and to any local educational agency or State
agency affected by any failure described in subparagraph (B)),
finds—
‘‘(A) that there has been a failure by the State to
comply substantially with any provision of this part; or
‘‘(B) that there is a failure to comply with any condition
of a local educational agency’s or State agency’s eligibility
under this part, including the terms of any agreement
to achieve compliance with this part within the timelines
specified in the agreement;
the Secretary shall, after notifying the State educational
agency, withhold, in whole or in part, any further payments
to the State under this part, or refer the matter for appropriate
enforcement action, which may include referral to the Depart-
ment of Justice.
‘‘(2) NATURE OF WITHHOLDING.—If the Secretary withholds
further payments under paragraph (1), the Secretary may deter-
mine that such withholding will be limited to programs or
projects, or portions thereof, affected by the failure, or that
the State educational agency shall not make further payments
under this part to specified local educational agencies or State
agencies affected by the failure. Until the Secretary is satisfied
that there is no longer any failure to comply with the provisions
of this part, as specified in subparagraph (A) or (B) of paragraph
(1), payments to the State under this part shall be withheld
in whole or in part, or payments by the State educational
agency under this part shall be limited to local educational
agencies and State agencies whose actions did not cause or
were not involved in the failure, as the case may be. Any
State educational agency, State agency, or local educational
agency that has received notice under paragraph (1) shall,
by means of a public notice, take such measures as may be
necessary to bring the pendency of an action pursuant to this
subsection to the attention of the public within the jurisdiction
of such agency.
‘‘(b) JUDICIAL REVIEW.—
‘‘(1) IN
GENERAL.—If any State is dissatisfied with the
Secretary’s final action with respect to the eligibility of the
State under section 612, such State may, not later than 60
days after notice of such action, file with the United States
court of appeals for the circuit in which such State is located
a petition for review of that action. A copy of the petition
H. R. 5—64
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 upon which the Secretary’s action
was based, as provided in section 2112 of title 28, United
States Code.
‘‘(2) JURISDICTION; REVIEW
BY
UNITED
STATES
SUPREME
COURT.—Upon the filing of such petition, the court shall have
jurisdiction to affirm the action of the Secretary or to set
it aside, in whole or in part. The judgment of the court shall
be subject to review by the Supreme Court of the United
States upon certiorari or certification as provided in section
1254 of title 28, United States Code.
‘‘(3) STANDARD OF REVIEW.—The findings of fact by the
Secretary, if supported by substantial evidence, shall be conclu-
sive, 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 sup-
ported by substantial evidence.
‘‘(c) DIVIDED STATE AGENCY RESPONSIBILITY.—For purposes of
this section, where responsibility for ensuring that the requirements
of this part are met with respect to children with disabilities who
are convicted as adults under State law and incarcerated in adult
prisons is assigned to a public agency other than the State edu-
cational agency pursuant to section 612(a)(11)(C), the Secretary,
in instances where the Secretary finds that the failure to comply
substantially with the provisions of this part are related to a failure
by the public agency, shall take appropriate corrective action to
ensure compliance with this part, except—
‘‘(1) any reduction or withholding of payments to the State
is proportionate to the total funds allotted under section 611
to the State as the number of eligible children with disabilities
in adult prisons under the supervision of the other public
agency is proportionate to the number of eligible individuals
with disabilities in the State under the supervision of the
State educational agency; and
‘‘(2) any withholding of funds under paragraph (1) shall
be limited to the specific agency responsible for the failure
to comply with this part.
‘‘SEC. 617. ADMINISTRATION.
‘‘(a) RESPONSIBILITIES OF SECRETARY.—In carrying out this part,
the Secretary shall—
‘‘(1) cooperate with, and (directly or by grant or contract)
furnish technical assistance necessary to, the State in matters
relating to—
‘‘(A) the education of children with disabilities; and
‘‘(B) carrying out this part; and
‘‘(2) provide short-term training programs and institutes.
‘‘(b) RULES AND REGULATIONS.—In carrying out the provisions
of this part, the Secretary shall issue regulations under this Act
only to the extent that such regulations are necessary to ensure
that there is compliance with the specific requirements of this
Act.
H. R. 5—65
‘‘(c) CONFIDENTIALITY.—The Secretary shall take appropriate
action, in accordance with the provisions of section 444 of the
General Education Provisions Act (20 U.S.C. 1232g), to assure
the protection of the confidentiality of any personally identifiable
data, information, and records collected or maintained by the Sec-
retary and by State and local educational agencies pursuant to
the provisions of this part.
‘‘(d) PERSONNEL.—The Secretary is authorized to hire qualified
personnel necessary to carry out the Secretary’s duties under
subsection (a) and under sections 618, 661, and 673 (or their prede-
cessor authorities through October 1, 1997) without regard to the
provisions of title 5, United States Code, relating to appointments
in the competitive service and without regard to chapter 51 and
subchapter III of chapter 53 of such title relating to classification
and general schedule pay rates, except that no more than twenty
such personnel shall be employed at any time.
‘‘SEC. 618. PROGRAM INFORMATION.
‘‘(a) IN GENERAL.—Each State that receives assistance under
this part, and the Secretary of the Interior, shall provide data
each year to the Secretary—
‘‘(1)(A) on—
‘‘(i) the number of children with disabilities, by race,
ethnicity, and disability category, who are receiving a free
appropriate public education;
‘‘(ii) the number of children with disabilities, by race
and ethnicity, who are receiving early intervention services;
‘‘(iii) the number of children with disabilities, by race,
ethnicity, and disability category, who are participating
in regular education;
‘‘(iv) the number of children with disabilities, by race,
ethnicity, and disability category, who are in separate
classes, separate schools or facilities, or public or private
residential facilities;
‘‘(v) the number of children with disabilities, by race,
ethnicity, and disability category, who, for each year of
age from age 14 to 21, stopped receiving special education
and related services because of program completion or other
reasons and the reasons why those children stopped receiv-
ing special education and related services;
‘‘(vi) the number of children with disabilities, by race
and ethnicity, who, from birth through age 2, stopped
receiving early intervention services because of program
completion or for other reasons; and
‘‘(vii)(I) the number of children with disabilities, by
race, ethnicity, and disability category, who under subpara-
graphs (A)(ii) and (B) of section 615(k)(1), are removed
to an interim alternative educational setting;
‘‘(II) the acts or items precipitating those removals;
and
‘‘(III) the number of children with disabilities who are
subject to long-term suspensions or expulsions; and
‘‘(B) on the number of infants and toddlers, by race and
ethnicity, who are at risk of having substantial developmental
delays (as described in section 632), and who are receiving
early intervention services under part C; and
H. R. 5—66
‘‘(2) on any other information that may be required by
the Secretary.
‘‘(b) SAMPLING.—The Secretary may permit States and the Sec-
retary of the Interior to obtain the data described in subsection
(a) through sampling.
‘‘(c) DISPROPORTIONALITY.—
‘‘(1) IN
GENERAL.—Each State that receives assistance
under this part, and the Secretary of the Interior, shall provide
for the collection and examination of data to determine if signifi-
cant disproportionality based on race is occurring in the State
with respect to—
‘‘(A) the identification of children as children with
disabilities, including the identification of children as chil-
dren with disabilities in accordance with a particular
impairment described in section 602(3); and
‘‘(B) the placement in particular educational settings
of such children.
‘‘(2) REVIEW AND REVISION OF POLICIES, PRACTICES, AND
PROCEDURES.—In the case of a determination of significant
disproportionality with respect to the identification of children
as children with disabilities, or the placement in particular
educational settings of such children, in accordance with para-
graph (1), the State or the Secretary of the Interior, as the
case may be, shall provide for the review and, if appropriate,
revision of the policies, procedures, and practices used in such
identification or placement to ensure that such policies, proce-
dures, and practices comply with the requirements of this Act.
‘‘SEC. 619. PRESCHOOL GRANTS.
‘‘(a) IN GENERAL.—The Secretary shall provide grants under
this section to assist States to provide special education and related
services, in accordance with this part—
‘‘(1) to children with disabilities aged 3 through 5,
inclusive; and
‘‘(2) at the State’s discretion, to 2-year-old children with
disabilities who will turn 3 during the school year.
‘‘(b) ELIGIBILITY.—A State shall be eligible for a grant under
this section if such State—
‘‘(1) is eligible under section 612 to receive a grant under
this part; and
‘‘(2) makes a free appropriate public education available
to all children with disabilities, aged 3 through 5, residing
in the State.
‘‘(c) ALLOCATIONS TO STATES.—
‘‘(1) IN GENERAL.—After reserving funds for studies and
evaluations under section 674(e), the Secretary shall allocate
the remaining amount among the States in accordance with
paragraph (2) or (3), as the case may be.
‘‘(2) INCREASE IN FUNDS.—If the amount available for alloca-
tions to States under paragraph (1) is equal to or greater
than the amount allocated to the States under this section
for the preceding fiscal year, those allocations shall be cal-
culated as follows:
‘‘(A)(i) Except as provided in subparagraph (B), the
Secretary shall—
‘‘(I) allocate to each State the amount it received
for fiscal year 1997;
H. R. 5—67
‘‘(II) allocate 85 percent of any remaining funds
to States on the basis of their relative populations
of children aged 3 through 5; and
‘‘(III) allocate 15 percent of those remaining funds
to States on the basis of their relative populations
of all children aged 3 through 5 who are living in
poverty.
‘‘(ii) For the purpose of making grants under this para-
graph, 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 fiscal year
1997; and
‘‘(bb) one third of one percent of the
amount by which the amount appropriated
under subsection (j) exceeds the amount appro-
priated under this section for fiscal year 1997;
‘‘(II) the sum of—
‘‘(aa) the amount it received for the
preceding fiscal year; and
‘‘(bb) that amount multiplied by the
percentage by which the increase in the funds
appropriated from the preceding fiscal year
exceeds 1.5 percent; or
‘‘(III) the sum of—
‘‘(aa) the amount it received for the
preceding fiscal year; and
‘‘(bb) that amount multiplied by 90 percent
of the percentage increase in the amount
appropriated from the preceding fiscal year.
‘‘(iii) Notwithstanding clause (ii), no State’s
allocation under this paragraph shall exceed the
sum of—
‘‘(I) the amount it received for the preceding
fiscal year; and
‘‘(II) that amount multiplied by the sum of
1.5 percent and the percentage increase in the
amount appropriated.
‘‘(C) If the amount available for allocations under this
paragraph is insufficient to pay those allocations in full,
those allocations shall be ratably reduced, subject to
subparagraph (B)(i).
‘‘(3) DECREASE
IN
FUNDS.—If the amount available for
allocations to States under paragraph (1) is less than the
amount allocated to the States under this section for the preced-
ing fiscal year, those allocations shall be calculated as follows:
‘‘(A) If the amount available for allocations is greater
than the amount allocated to the States for fiscal year
1997, each State shall be allocated the sum of—
H. R. 5—68
‘‘(i) the amount it received for fiscal year
1997; and
‘‘(ii) an amount that bears the same relation to
any remaining funds as the increase the State received
for the preceding fiscal year over fiscal year 1997 bears
to the total of all such increases for all States.
‘‘(B) If the amount available for allocations is equal
to or less than the amount allocated to the States for
fiscal year 1997, each State shall be allocated the amount
it received for that year, ratably reduced, if necessary.
‘‘(4) OUTLYING AREAS.—The Secretary shall increase the
fiscal year 1998 allotment of each outlying area under section
611 by at least the amount that that area received under
this section for fiscal year 1997.
‘‘(d) RESERVATION FOR STATE ACTIVITIES.—
‘‘(1) IN GENERAL.—Each State may retain not more than
the amount described in paragraph (2) for administration and
other State-level activities in accordance with subsections (e)
and (f ).
‘‘(2) AMOUNT DESCRIBED.—For each fiscal year, the Sec-
retary shall determine and report to the State educational
agency an amount that is 25 percent of the amount the State
received under this section for fiscal year 1997, cumulatively
adjusted by the Secretary for each succeeding fiscal year by
the lesser of—
‘‘(A) the percentage increase, if any, from the preceding
fiscal year in the State’s allocation under this section;
or
‘‘(B) the percentage increase, if any, from the preceding
fiscal year in the Consumer Price Index For All Urban
Consumers published by the Bureau of Labor Statistics
of the Department of Labor.
‘‘(e) STATE ADMINISTRATION.—
‘‘(1) IN GENERAL.—For the purpose of administering this
section (including the coordination of activities under this part
with, and providing technical assistance to, other programs
that provide services to children with disabilities) a State may
use not more than 20 percent of the maximum amount it
may retain under subsection (d) for any fiscal year.
‘‘(2) ADMINISTRATION OF PART C.—Funds described in para-
graph (1) may also be used for the administration of part
C of this Act, if the State educational agency is the lead
agency for the State under that part.
‘‘(f ) OTHER STATE-LEVEL ACTIVITIES.—Each State shall use any
funds it retains under subsection (d) and does not use for adminis-
tration under subsection (e)—
‘‘(1) for support services (including establishing and
implementing the mediation process required by section 615(e)),
which may benefit children with disabilities younger than 3
or older than 5 as long as those services also benefit children
with disabilities aged 3 through 5;
‘‘(2) for direct services for children eligible for services
under this section;
‘‘(3) to develop a State improvement plan under subpart
1 of part D;
‘‘(4) for activities at the State and local levels to meet
the performance goals established by the State under section
H. R. 5—69
612(a)(16) and to support implementation of the State improve-
ment plan under subpart 1 of part D if the State receives
funds under that subpart; or
‘‘(5) to supplement other funds used to develop and imple-
ment 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 per-
cent of the amount received by the State under this section
for a fiscal year.
‘‘(g) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—
‘‘(1) SUBGRANTS
REQUIRED.—Each State that receives a
grant under this section for any fiscal year shall distribute
any of the grant funds that it does not reserve under subsection
(d) to local educational agencies in the State that have estab-
lished their eligibility under section 613, as follows:
‘‘(A) BASE PAYMENTS.—The State shall first award each
agency described in paragraph (1) the amount that agency
would have received under this section for fiscal year 1997
if the State had distributed 75 percent of its grant for
that year under section 619(c)(3), as then in effect.
‘‘(B) ALLOCATION OF REMAINING FUNDS.—After making
allocations under subparagraph (A), the State shall—
‘‘(i) allocate 85 percent of any remaining funds
to those agencies on the basis of the relative numbers
of children enrolled in public and private elementary
and secondary schools within the agency’s jurisdiction;
and
‘‘(ii) allocate 15 percent of those remaining funds
to those agencies in accordance with their relative
numbers of children living in poverty, as determined
by the State educational agency.
‘‘(2) REALLOCATION OF FUNDS.—If a State educational
agency determines that a local educational agency is ade-
quately providing a free appropriate public education to
all children with disabilities aged 3 through 5 residing
in the area served by that agency with State and local
funds, the State educational agency may reallocate any
portion of the funds under this section that are not needed
by that local agency to provide a free appropriate public
education to other local educational agencies in the State
that are not adequately providing special education and
related services to all children with disabilities aged 3
through 5 residing in the areas they serve.
‘‘(h) PART C INAPPLICABLE.—Part C of this Act does not apply
to any child with a disability receiving a free appropriate public
education, in accordance with this part, with funds received under
this section.
‘‘(i) DEFINITION.—For the purpose of this section, the term
‘State’ means each of the 50 States, the District of Columbia,
and the Commonwealth of Puerto Rico.
‘‘(j) AUTHORIZATION OF APPROPRIATIONS.—For the purpose of
carrying out this section, there are authorized to be appropriated
to the Secretary $500,000,000 for fiscal year 1998 and such sums
as may be necessary for each subsequent fiscal year.
H. R. 5—70
‘‘PART C—INFANTS AND TODDLERS WITH
DISABILITIES
‘‘SEC. 631. FINDINGS AND POLICY.
‘‘(a) FINDINGS.—The Congress finds that there is an urgent
and substantial need—
‘‘(1) to enhance the development of infants and toddlers
with disabilities and to minimize their potential for devel-
opmental delay;
‘‘(2) to reduce the educational costs to our society, including
our Nation’s schools, by minimizing the need for special edu-
cation and related services after infants and toddlers with
disabilities reach school age;
‘‘(3) to minimize the likelihood of institutionalization of
individuals with disabilities and maximize the potential for
their independently living in society;
‘‘(4) to enhance the capacity of families to meet the special
needs of their infants and toddlers with disabilities; and
‘‘(5) to enhance the capacity of State and local agencies
and service providers to identify, evaluate, and meet the needs
of 
historically 
underrepresented 
populations, 
particularly
minority, low-income, inner-city, and rural populations.
‘‘(b) POLICY.—It is therefore the policy of the United States
to provide financial assistance to States—
‘‘(1) to develop and implement a statewide, comprehensive,
coordinated, multidisciplinary, interagency system that pro-
vides early intervention services for infants and toddlers with
disabilities and their families;
‘‘(2) to facilitate the coordination of payment for early inter-
vention services from Federal, State, local, and private sources
(including public and private insurance coverage);
‘‘(3) to enhance their capacity to provide quality early
intervention services and expand and improve existing early
intervention services being provided to infants and toddlers
with disabilities and their families; and
‘‘(4) to encourage States to expand opportunities for chil-
dren under 3 years of age who would be at risk of having
substantial developmental delay if they did not receive early
intervention services.
‘‘SEC. 632. DEFINITIONS.
‘‘As used in this part:
‘‘(1) AT-RISK INFANT OR TODDLER.—The term ‘at-risk infant
or toddler ’ means an individual under 3 years of age who
would be at risk of experiencing a substantial developmental
delay if early intervention services were not provided to the
individual.
‘‘(2) COUNCIL.—The term ‘council’ means a State inter-
agency coordinating council established under section 641.
‘‘(3) DEVELOPMENTAL
DELAY.—The term ‘developmental
delay ’, when used with respect to an individual residing in
a State, has the meaning given such term by the State under
section 635(a)(1).
‘‘(4) EARLY INTERVENTION SERVICES.—The term ‘early inter-
vention services’ means developmental services that—
‘‘(A) are provided under public supervision;
H. R. 5—71
‘‘(B) are provided at no cost except where Federal or
State law provides for a system of payments by families,
including a schedule of sliding fees;
‘‘(C) are designed to meet the developmental needs
of an infant or toddler with a disability in any one or
more of the following areas—
‘‘(i) physical development;
‘‘(ii) cognitive development;
‘‘(iii) communication development;
‘‘(iv) social or emotional development; or
‘‘(v) adaptive development;
‘‘(D) meet the standards of the State in which they
are provided, including the requirements of this part;
‘‘(E) include—
‘‘(i) family training, counseling, and home visits;
‘‘(ii) special instruction;
‘‘(iii) speech-language pathology and audiology
services;
‘‘(iv) occupational therapy;
‘‘(v) physical therapy;
‘‘(vi) psychological services;
‘‘(vii) service coordination services;
‘‘(viii) medical services only for diagnostic or
evaluation purposes;
‘‘(ix) early identification, screening, and assess-
ment services;
‘‘(x) health services necessary to enable the infant
or toddler to benefit from the other early intervention
services;
‘‘(xi) social work services;
‘‘(xii) vision services;
‘‘(xiii) assistive technology devices and assistive
technology services; and
‘‘(xiv) transportation and related costs that are
necessary to enable an infant or toddler and the
infant’s or toddler ’s family to receive another service
described in this paragraph;
‘‘(F) are provided by qualified personnel, including—
‘‘(i) special educators;
‘‘(ii) speech-language pathologists and audiologists;
‘‘(iii) occupational therapists;
‘‘(iv) physical therapists;
‘‘(v) psychologists;
‘‘(vi) social workers;
‘‘(vii) nurses;
‘‘(viii) nutritionists;
‘‘(ix) family therapists;
‘‘(x) orientation and mobility specialists; and
‘‘(xi) pediatricians and other physicians;
‘‘(G) to the maximum extent appropriate, are provided
in natural environments, including the home, and
community settings in which children without disabilities
participate; and
‘‘(H) are provided in conformity with an individualized
family service plan adopted in accordance with section
636.
H. R. 5—72
‘‘(5) INFANT
OR
TODDLER
WITH
A
DISABILITY.—The term
‘infant or toddler with a disability ’—
‘‘(A) means an individual under 3 years of age who
needs early intervention services because the individual—
‘‘(i) is experiencing developmental delays, as
measured by appropriate diagnostic instruments and
procedures in one or more of the areas of cognitive
development, physical development, communication
development, social or emotional development, and
adaptive development; or
‘‘(ii) has a diagnosed physical or mental condition
which has a high probability of resulting in devel-
opmental delay; and
‘‘(B) may also include, at a State’s discretion, at-risk
infants and toddlers.
‘‘SEC. 633. GENERAL AUTHORITY.
‘‘The Secretary shall, in accordance with this part, make grants
to States (from their allotments under section 643) to assist each
State to maintain and implement a statewide, comprehensive,
coordinated, multidisciplinary, interagency system to provide early
intervention services for infants and toddlers with disabilities and
their families.
‘‘SEC. 634. ELIGIBILITY.
‘‘In order to be eligible for a grant under section 633, a State
shall demonstrate to the Secretary that the State—
‘‘(1) has adopted a policy that appropriate early interven-
tion services are available to all infants and toddlers with
disabilities in the State and their families, including Indian
infants and toddlers with disabilities and their families residing
on a reservation geographically located in the State; and
‘‘(2) has in effect a statewide system that meets the require-
ments of section 635.
‘‘SEC. 635. REQUIREMENTS FOR STATEWIDE SYSTEM.
‘‘(a) IN GENERAL.—A statewide system described in section
633 shall include, at a minimum, the following components:
‘‘(1) A definition of the term ‘developmental delay ’ that
will be used by the State in carrying out programs under
this part.
‘‘(2) A State policy that is in effect and that ensures that
appropriate early intervention services are available to all
infants and toddlers with disabilities and their families, includ-
ing Indian infants and toddlers and their families residing
on a reservation geographically located in the State.
‘‘(3) A timely, comprehensive, multidisciplinary evaluation
of the functioning of each infant or toddler with a disability
in the State, and a family-directed identification of the needs
of each family of such an infant or toddler, to appropriately
assist in the development of the infant or toddler.
‘‘(4) For each infant or toddler with a disability in the
State, an individualized family service plan in accordance with
section 636, including service coordination services in accord-
ance with such service plan.
‘‘(5) A comprehensive child find system, consistent with
part B, including a system for making referrals to service
H. R. 5—73
providers that includes timelines and provides for participation
by primary referral sources.
‘‘(6) A public awareness program focusing on early identi-
fication of infants and toddlers with disabilities, including the
preparation and dissemination by the lead agency designated
or established under paragraph (10) to all primary referral
sources, especially hospitals and physicians, of information for
parents on the availability of early intervention services, and
procedures for determining the extent to which such sources
disseminate such information to parents of infants and toddlers.
‘‘(7) A central directory which includes information on early
intervention services, resources, and experts available in the
State and research and demonstration projects being conducted
in the State.
‘‘(8) A comprehensive system of personnel development,
including the training of paraprofessionals and the training
of primary referral sources respecting the basic components
of early intervention services available in the State, that is
consistent with the comprehensive system of personnel develop-
ment described in section 612(a)(14) and may include—
‘‘(A) implementing innovative strategies and activities
for the recruitment and retention of early education service
providers;
‘‘(B) promoting the preparation of early intervention
providers who are fully and appropriately qualified to
provide early intervention services under this part;
‘‘(C) training personnel to work in rural and inner-
city areas; and
‘‘(D) training personnel to coordinate transition services
for infants and toddlers served under this part from an
early intervention program under this part to preschool
or other appropriate services.
‘‘(9) Subject to subsection (b), policies and procedures relat-
ing to the establishment and maintenance of standards to
ensure that personnel necessary to carry out this part are
appropriately and adequately prepared and trained, including—
‘‘(A) the establishment and maintenance of standards
which are consistent with any State-approved or recognized
certification, licensing, registration, or other comparable
requirements which apply to the area in which such person-
nel are providing early intervention services; and
‘‘(B) to the extent such standards are not based on
the highest requirements in the State applicable to a spe-
cific profession or discipline, the steps the State is taking
to require the retraining or hiring of personnel that meet
appropriate professional requirements in the State;
except that nothing in this part, including this paragraph,
prohibits the use of paraprofessionals and assistants who are
appropriately trained and supervised, in accordance with State
law, regulations, or written policy, to assist in the provision
of early intervention services to infants and toddlers with
disabilities under this part.
‘‘(10) A single line of responsibility in a lead agency des-
ignated or established by the Governor for carrying out—
‘‘(A) the general administration and supervision of pro-
grams and activities receiving assistance under section 633,
and the monitoring of programs and activities used by
H. R. 5—74
the State to carry out this part, whether or not such pro-
grams or activities are receiving assistance made available
under section 633, to ensure that the State complies with
this part;
‘‘(B) the identification and coordination of all available
resources within the State from Federal, State, local, and
private sources;
‘‘(C) the assignment of financial responsibility in
accordance with section 637(a)(2) to the appropriate agen-
cies;
‘‘(D) the development of procedures to ensure that serv-
ices are provided to infants and toddlers with disabilities
and their families under this part in a timely manner
pending the resolution of any disputes among public agen-
cies or service providers;
‘‘(E) the resolution of intra- and interagency disputes;
and
‘‘(F) the entry into formal interagency agreements that
define the financial responsibility of each agency for paying
for early intervention services (consistent with State law)
and procedures for resolving disputes and that include
all additional components necessary to ensure meaningful
cooperation and coordination.
‘‘(11) A policy pertaining to the contracting or making of
other arrangements with service providers to provide early
intervention services in the State, consistent with the provisions
of this part, including the contents of the application used
and the conditions of the contract or other arrangements.
‘‘(12) A procedure for securing timely reimbursements of
funds used under this part in accordance with section 640(a).
‘‘(13) Procedural safeguards with respect to programs under
this part, as required by section 639.
‘‘(14) A system for compiling data requested by the Sec-
retary under section 618 that relates to this part.
‘‘(15) A State interagency coordinating council that meets
the requirements of section 641.
‘‘(16) Policies and procedures to ensure that, consistent
with section 636(d)(5)—
‘‘(A) to the maximum extent appropriate, early inter-
vention services are provided in natural environments; and
‘‘(B) the provision of early intervention services for
any infant or toddler occurs in a setting other than a
natural environment only when early intervention cannot
be achieved satisfactorily for the infant or toddler in a
natural environment.
‘‘(b) POLICY.—In implementing subsection (a)(9), a State may
adopt a policy that includes making ongoing good-faith efforts to
recruit and hire appropriately and adequately trained personnel
to provide early intervention services to infants and toddlers with
disabilities, including, in a geographic area of the State where
there is a shortage of such personnel, the most qualified individuals
available who are making satisfactory progress toward completing
applicable course work necessary to meet the standards described
in subsection (a)(9), consistent with State law within 3 years.
H. R. 5—75
‘‘SEC. 636. INDIVIDUALIZED FAMILY SERVICE PLAN.
‘‘(a) ASSESSMENT AND PROGRAM DEVELOPMENT.—A statewide
system described in section 633 shall provide, at a minimum, for
each infant or toddler with a disability, and the infant’s or toddler ’s
family, to receive—
‘‘(1) a multidisciplinary assessment of the unique strengths
and needs of the infant or toddler and the identification of
services appropriate to meet such needs;
‘‘(2) a family-directed assessment of the resources, prior-
ities, and concerns of the family and the identification of the
supports and services necessary to enhance the family ’s capac-
ity to meet the developmental needs of the infant or toddler;
and
‘‘(3) a written individualized family service plan developed
by a multidisciplinary team, including the parents, as required
by subsection (e).
‘‘(b) PERIODIC REVIEW.—The individualized family service plan
shall be evaluated once a year and the family shall be provided
a review of the plan at 6-month intervals (or more often where
appropriate based on infant or toddler and family needs).
‘‘(c) PROMPTNESS AFTER ASSESSMENT.—The individualized fam-
ily service plan shall be developed within a reasonable time after
the assessment required by subsection (a)(1) is completed. With
the parents’ consent, early intervention services may commence
prior to the completion of the assessment.
‘‘(d) CONTENT OF PLAN.—The individualized family service plan
shall be in writing and contain—
‘‘(1) a statement of the infant’s or toddler ’s present levels
of physical development, cognitive development, communication
development, social or emotional development, and adaptive
development, based on objective criteria;
‘‘(2) a statement of the family ’s resources, priorities, and
concerns relating to enhancing the development of the family ’s
infant or toddler with a disability;
‘‘(3) a statement of the major outcomes expected to be
achieved for the infant or toddler and the family, and the
criteria, procedures, and timelines used to determine the degree
to which progress toward achieving the outcomes is being made
and whether modifications or revisions of the outcomes or serv-
ices are necessary;
‘‘(4) a statement of specific early intervention services nec-
essary to meet the unique needs of the infant or toddler and
the family, including the frequency, intensity, and method of
delivering services;
‘‘(5) a statement of the natural environments in which
early intervention services shall appropriately be provided,
including a justification of the extent, if any, to which the
services will not be provided in a natural environment;
‘‘(6) the projected dates for initiation of services and the
anticipated duration of the services;
‘‘(7) the identification of the service coordinator from the
profession most immediately relevant to the infant’s or toddler ’s
or family ’s needs (or who is otherwise qualified to carry out
all applicable responsibilities under this part) who will be
responsible for the implementation of the plan and coordination
with other agencies and persons; and
H. R. 5—76
‘‘(8) the steps to be taken to support the transition of
the toddler with a disability to preschool or other appropriate
services.
‘‘(e) PARENTAL CONSENT.—The contents of the individualized
family service plan shall be fully explained to the parents and
informed written consent from the parents shall be obtained prior
to the provision of early intervention services described in such
plan. If the parents do not provide consent with respect to a particu-
lar early intervention service, then the early intervention services
to which consent is obtained shall be provided.
‘‘SEC. 637. STATE APPLICATION AND ASSURANCES.
‘‘(a) APPLICATION.—A State desiring to receive a grant under
section 633 shall submit an application to the Secretary at such
time and in such manner as the Secretary may reasonably require.
The application shall contain—
‘‘(1) a designation of the lead agency in the State that
will be responsible for the administration of funds provided
under section 633;
‘‘(2) a designation of an individual or entity responsible
for assigning financial responsibility among appropriate agen-
cies;
‘‘(3) information demonstrating eligibility of the State under
section 634, including—
‘‘(A) information demonstrating to the Secretary’s satis-
faction that the State has in effect the statewide system
required by section 633; and
‘‘(B) a description of services to be provided to infants
and toddlers with disabilities and their families through
the system;
‘‘(4) if the State provides services to at-risk infants and
toddlers through the system, a description of such services;
‘‘(5) a description of the uses for which funds will be
expended in accordance with this part;
‘‘(6) a description of the procedure used to ensure that
resources are made available under this part for all geographic
areas within the State;
‘‘(7) a description of State policies and procedures that
ensure that, prior to the adoption by the State of any other
policy or procedure necessary to meet the requirements of this
part, there are public hearings, adequate notice of the hearings,
and an opportunity for comment available to the general public,
including individuals with disabilities and parents of infants
and toddlers with disabilities;
‘‘(8) a description of the policies and procedures to be used—
‘‘(A) to ensure a smooth transition for toddlers receiving
early intervention services under this part to preschool
or other appropriate services, including a description of
how—
‘‘(i) the families of such toddlers will be included
in the transition plans required by subparagraph (C);
and
‘‘(ii) the lead agency designated or established
under section 635(a)(10) will—
‘‘(I) notify the local educational agency for the
area in which such a child resides that the child
will shortly reach the age of eligibility for preschool
H. R. 5—77
services under part B, as determined in accordance
with State law;
‘‘(II) in the case of a child who may be eligible
for such preschool services, with the approval of
the family of the child, convene a conference among
the lead agency, the family, and the local
educational agency at least 90 days (and at the
discretion of all such parties, up to 6 months)
before the child is eligible for the preschool serv-
ices, to discuss any such services that the child
may receive; and
‘‘(III) in the case of a child who may not be
eligible for such preschool services, with the
approval of the family, make reasonable efforts
to convene a conference among the lead agency,
the family, and providers of other appropriate serv-
ices for children who are not eligible for preschool
services under part B, to discuss the appropriate
services that the child may receive;
‘‘(B) to review the child’s program options for the period
from the child’s third birthday through the remainder of
the school year; and
‘‘(C) to establish a transition plan; and
‘‘(9) such other information and assurances as the Secretary
may reasonably require.
‘‘(b) ASSURANCES.—The application described in subsection (a)—
‘‘(1) shall provide satisfactory assurance that Federal funds
made available under section 643 to the State will be expended
in accordance with this part;
‘‘(2) shall contain an assurance that the State will comply
with the requirements of section 640;
‘‘(3) shall provide satisfactory assurance that the control
of funds provided under section 643, and title to property
derived from those funds, will be in a public agency for the
uses and purposes provided in this part and that a public
agency will administer such funds and property;
‘‘(4) shall provide for—
‘‘(A) making such reports in such form and containing
such information as the Secretary may require to carry
out the Secretary’s functions under this part; and
‘‘(B) keeping such records and affording such access
to them as the Secretary may find necessary to ensure
the correctness and verification of those reports and proper
disbursement of Federal funds under this part;
‘‘(5) provide satisfactory assurance that Federal funds made
available under section 643 to the State—
‘‘(A) will not be commingled with State funds; and
‘‘(B) will be used so as to supplement the level of
State and local funds expended for infants and toddlers
with disabilities and their families and in no case to sup-
plant those State and local funds;
‘‘(6) shall provide satisfactory assurance that such fiscal
control and fund accounting procedures will be adopted as
may be necessary to ensure proper disbursement of, and
accounting for, Federal funds paid under section 643 to the
State;
H. R. 5—78
‘‘(7) shall provide satisfactory assurance that policies and
procedures have been adopted to ensure meaningful involve-
ment of underserved groups, including minority, low-income,
and rural families, in the planning and implementation of
all the requirements of this part; and
‘‘(8) shall contain such other information and assurances
as the Secretary may reasonably require by regulation.
‘‘(c) STANDARD FOR DISAPPROVAL OF APPLICATION.—The Sec-
retary may not disapprove such an application unless the Secretary
determines, after notice and opportunity for a hearing, that the
application fails to comply with the requirements of this section.
‘‘(d) SUBSEQUENT STATE APPLICATION.—If a State has on file
with the Secretary a policy, procedure, or assurance that
demonstrates that the State meets a requirement of this section,
including any policy or procedure filed under part H (as in effect
before July 1, 1998), the Secretary shall consider the State to
have met the requirement for purposes of receiving a grant under
this part.
‘‘(e) MODIFICATION OF APPLICATION.—An application submitted
by a State in accordance with this section shall remain in effect
until the State submits to the Secretary such modifications as
the State determines necessary. This section shall apply to a modi-
fication of an application to the same extent and in the same
manner as this section applies to the original application.
‘‘(f ) MODIFICATIONS
REQUIRED
BY
THE
SECRETARY.—The
Secretary may require a State to modify its application under
this section, but only to the extent necessary to ensure the State’s
compliance with this part, if—
‘‘(1) an amendment is made to this Act, or a Federal regula-
tion issued under this Act;
‘‘(2) a new interpretation of this Act is made by a Federal
court or the State’s highest court; or
‘‘(3) an official finding of noncompliance with Federal law
or regulations is made with respect to the State.
‘‘SEC. 638. USES OF FUNDS.
‘‘In addition to using funds provided under section 633 to main-
tain and implement the statewide system required by such section,
a State may use such funds—
‘‘(1) for direct early intervention services for infants and
toddlers with disabilities, and their families, under this part
that are not otherwise funded through other public or private
sources;
‘‘(2) to expand and improve on services for infants and
toddlers and their families under this part that are otherwise
available;
‘‘(3) to provide a free appropriate public education, in
accordance with part B, to children with disabilities from their
third birthday to the beginning of the following school year;
and
‘‘(4) in any State that does not provide services for at-
risk infants and toddlers under section 637(a)(4), to strengthen
the statewide system by initiating, expanding, or improving
collaborative efforts related to at-risk infants and toddlers,
including establishing linkages with appropriate public or pri-
vate community-based organizations, services, and personnel
for the purposes of—
H. R. 5—79
‘‘(A) identifying and evaluating at-risk infants and
toddlers;
‘‘(B) making referrals of the infants and toddlers identi-
fied and evaluated under subparagraph (A); and
‘‘(C) conducting periodic follow-up on each such referral
to determine if the status of the infant or toddler involved
has changed with respect to the eligibility of the infant
or toddler for services under this part.
‘‘SEC. 639. PROCEDURAL SAFEGUARDS.
‘‘(a) 
MINIMUM
PROCEDURES.—The 
procedural 
safeguards
required to be included in a statewide system under section
635(a)(13) shall provide, at a minimum, the following:
‘‘(1) The timely administrative resolution of complaints by
parents. Any party aggrieved by the findings and decision
regarding an administrative complaint shall have the right
to bring a civil action with respect to the complaint in any
State court of competent jurisdiction or in a district court
of the United States without regard to the amount in con-
troversy. In any action brought under this paragraph, the court
shall receive the records of the administrative proceedings,
shall hear additional evidence at the request of a party, and,
basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate.
‘‘(2) The right to confidentiality of personally identifiable
information, including the right of parents to written notice
of and written consent to the exchange of such information
among agencies consistent with Federal and State law.
‘‘(3) The right of the parents to determine whether they,
their infant or toddler, or other family members will accept
or decline any early intervention service under this part in
accordance with State law without jeopardizing other early
intervention services under this part.
‘‘(4) The opportunity for parents to examine records relating
to assessment, screening, eligibility determinations, and the
development and implementation of the individualized family
service plan.
‘‘(5) Procedures to protect the rights of the infant or toddler
whenever the parents of the infant or toddler are not known
or cannot be found or the infant or toddler is a ward of the
State, including the assignment of an individual (who shall
not be an employee of the State lead agency, or other State
agency, and who shall not be any person, or any employee
of a person, providing early intervention services to the infant
or toddler or any family member of the infant or toddler)
to act as a surrogate for the parents.
‘‘(6) Written prior notice to the parents of the infant or
toddler with a disability whenever the State agency or service
provider proposes to initiate or change or refuses to initiate
or change the identification, evaluation, or placement of the
infant or toddler with a disability, or the provision of appro-
priate early intervention services to the infant or toddler.
‘‘(7) Procedures designed to ensure that the notice required
by paragraph (6) fully informs the parents, in the parents’
native language, unless it clearly is not feasible to do so,
of all procedures available pursuant to this section.
H. R. 5—80
‘‘(8) The right of parents to use mediation in accordance
with section 615(e), except that—
‘‘(A) any reference in the section to a State educational
agency shall be considered to be a reference to a State’s
lead agency established or designated under section
635(a)(10);
‘‘(B) any reference in the section to a local educational
agency shall be considered to be a reference to a local
service provider or the State’s lead agency under this part,
as the case may be; and
‘‘(C) any reference in the section to the provision of
free appropriate public education to children with disabil-
ities shall be considered to be a reference to the provision
of appropriate early intervention services to infants and
toddlers with disabilities.
‘‘(b) SERVICES DURING PENDENCY
OF PROCEEDINGS.—During
the pendency of any proceeding or action involving a complaint
by the parents of an infant or toddler with a disability, unless
the State agency and the parents otherwise agree, the infant or
toddler shall continue to receive the appropriate early intervention
services currently being provided or, if applying for initial services,
shall receive the services not in dispute.
‘‘SEC. 640. PAYOR OF LAST RESORT.
‘‘(a) NONSUBSTITUTION.—Funds provided under section 643 may
not be used to satisfy a financial commitment for services that
would have been paid for from another public or private source,
including any medical program administered by the Secretary of
Defense, but for the enactment of this part, except that whenever
considered necessary to prevent a delay in the receipt of appropriate
early intervention services by an infant, toddler, or family in a
timely fashion, funds provided under section 643 may be used
to pay the provider of services pending reimbursement from the
agency that has ultimate responsibility for the payment.
‘‘(b) REDUCTION
OF OTHER BENEFITS.—Nothing in this part
shall be construed to permit the State to reduce medical or other
assistance available or to alter eligibility under title V of the Social
Security Act (relating to maternal and child health) or title XIX
of the Social Security Act (relating to Medicaid for infants or
toddlers with disabilities) within the State.
‘‘SEC. 641. STATE INTERAGENCY COORDINATING COUNCIL.
‘‘(a) ESTABLISHMENT.—
‘‘(1) IN GENERAL.—A State that desires to receive financial
assistance under this part shall establish a State interagency
coordinating council.
‘‘(2) APPOINTMENT.—The council shall be appointed by the
Governor. In making appointments to the council, the Governor
shall ensure that the membership of the council reasonably
represents the population of the State.
‘‘(3) CHAIRPERSON.—The Governor shall designate a mem-
ber of the council to serve as the chairperson of the council,
or shall require the council to so designate such a member.
Any member of the council who is a representative of the
lead agency designated under section 635(a)(10) may not serve
as the chairperson of the council.
‘‘(b) COMPOSITION.—
‘‘(1) IN GENERAL.—The council shall be composed as follows:
H. R. 5—81
‘‘(A) PARENTS.—At least 20 percent of the members
shall be parents of infants or toddlers with disabilities
or children with disabilities aged 12 or younger, with
knowledge of, or experience with, programs for infants
and toddlers with disabilities. At least one such member
shall be a parent of an infant or toddler with a disability
or a child with a disability aged 6 or younger.
‘‘(B) SERVICE PROVIDERS.—At least 20 percent of the
members shall be public or private providers of early inter-
vention services.
‘‘(C) STATE LEGISLATURE.—At least one member shall
be from the State legislature.
‘‘(D) PERSONNEL PREPARATION.—At least one member
shall be involved in personnel preparation.
‘‘(E) AGENCY FOR EARLY INTERVENTION SERVICES.—At
least one member shall be from each of the State agencies
involved in the provision of, or payment for, early interven-
tion services to infants and toddlers with disabilities and
their families and shall have sufficient authority to engage
in policy planning and implementation on behalf of such
agencies.
‘‘(F) AGENCY FOR PRESCHOOL SERVICES.—At least one
member shall be from the State educational agency respon-
sible for preschool services to children with disabilities
and shall have sufficient authority to engage in policy
planning and implementation on behalf of such agency.
‘‘(G) AGENCY FOR HEALTH INSURANCE.—At least one
member shall be from the agency responsible for the State
governance of health insurance.
‘‘(H) HEAD START AGENCY.—At least one representative
from a Head Start agency or program in the State.
‘‘(I) CHILD CARE AGENCY.—At least one representative
from a State agency responsible for child care.
‘‘(2) OTHER MEMBERS.—The council may include other mem-
bers selected by the Governor, including a representative from
the Bureau of Indian Affairs, or where there is no BIA-operated
or BIA-funded school, from the Indian Health Service or the
tribe or tribal council.
‘‘(c) MEETINGS.—The council shall meet at least quarterly and
in such places as it deems necessary. The meetings shall be publicly
announced, and, to the extent appropriate, open and accessible
to the general public.
‘‘(d) MANAGEMENT AUTHORITY.—Subject to the approval of the
Governor, the council may prepare and approve a budget using
funds under this part to conduct hearings and forums, to reimburse
members of the council for reasonable and necessary expenses for
attending council meetings and performing council duties (including
child care for parent representatives), to pay compensation to a
member of the council if the member is not employed or must
forfeit wages from other employment when performing official
council business, to hire staff, and to obtain the services of such
professional, technical, and clerical personnel as may be necessary
to carry out its functions under this part.
‘‘(e) FUNCTIONS OF COUNCIL.—
‘‘(1) DUTIES.—The council shall—
‘‘(A) advise and assist the lead agency designated or
established under section 635(a)(10) in the performance