In the Senate of the United States,
May 13, 2004.
Resolved, That the bill from the House of Representa-
tives (H.R. 1350) entitled ‘‘An Act to reauthorize the Individ-
uals with Disabilities Education Act, and for other pur-
poses.’’, do pass with the following
AMENDMENT:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Individuals with Dis-
abilities Education Improvement Act of 2004’’.
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SEC. 2. ORGANIZATION OF THE ACT.
This Act is organized into the following titles:
TITLE I—AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES
EDUCATION ACT
TITLE II—AMENDMENTS TO THE REHABILITATION ACT OF 1973
TITLE III—NATIONAL CENTER FOR SPECIAL EDUCATION
RESEARCH
TITLE IV—COMMISSION ON UNIVERSAL DESIGN AND THE
ACCESSIBILITY OF CURRICULUM AND INSTRUCTIONAL MATERIALS
TITLE V—MISCELLANEOUS
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.
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‘‘Sec. 605. Acquisition of equipment; construction or alteration of facilities.
‘‘Sec. 606. Employment of individuals with disabilities.
‘‘Sec. 607. Requirements for prescribing regulations.
‘‘Sec. 608. State administration.
‘‘Sec. 609. Paperwork reduction.
‘‘Sec. 610. Freely associated States.
‘‘PART B—ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH
DISABILITIES
‘‘Sec. 611. Authorization; allotment; use of funds; authorization of appro-
priations.
‘‘Sec. 612. State eligibility.
‘‘Sec. 613. Local educational agency eligibility.
‘‘Sec. 614. Evaluations, eligibility determinations, individualized education
programs, and educational placements.
‘‘Sec. 615. Procedural safeguards.
‘‘Sec. 616. Monitoring, technical assistance, and enforcement.
‘‘Sec. 617. Administration.
‘‘Sec. 618. Program information.
‘‘Sec. 619. Preschool grants.
‘‘PART C—INFANTS AND TODDLERS WITH DISABILITIES
‘‘Sec. 631. Findings and policy.
‘‘Sec. 632. Definitions.
‘‘Sec. 633. General authority.
‘‘Sec. 634. Eligibility.
‘‘Sec. 635. Requirements for statewide system.
‘‘Sec. 636. Individualized family service plan.
‘‘Sec. 637. State application and assurances.
‘‘Sec. 638. Uses of funds.
‘‘Sec. 639. Procedural safeguards.
‘‘Sec. 640. Payor of last resort.
‘‘Sec. 641. State Interagency Coordinating Council.
‘‘Sec. 642. Federal administration.
‘‘Sec. 643. Allocation of funds.
‘‘Sec. 644. Authorization of appropriations.
‘‘PART D—NATIONAL ACTIVITIES TO IMPROVE EDUCATION OF CHILDREN WITH
DISABILITIES
‘‘Sec. 650. Findings.
‘‘SUBPART 1—STATE PERSONNEL PREPARATION AND PROFESSIONAL
DEVELOPMENT GRANTS
‘‘Sec. 651. Purpose; definition; program authority.
‘‘Sec. 652. Eligibility and collaborative process.
‘‘Sec. 653. Applications.
‘‘Sec. 654. Use of funds.
‘‘Sec. 655. Authorization of appropriations.
‘‘SUBPART 2—SCIENTIFICALLY BASED RESEARCH, TECHNICAL ASSISTANCE,
MODEL DEMONSTRATION PROJECTS, AND DISSEMINATION OF INFORMATION
‘‘Sec. 660. Purpose.
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‘‘Sec. 661. Administrative provisions.
‘‘Sec. 662. Research coordination to improve results for children with dis-
abilities.
‘‘Sec. 663. Technical assistance, demonstration projects, dissemination of in-
formation, and implementation of scientifically based re-
search.
‘‘Sec. 664. Personnel development to improve services and results for children
with disabilities.
‘‘Sec. 665. Studies and evaluations.
‘‘SUBPART 3—SUPPORTS TO IMPROVE RESULTS FOR CHILDREN WITH
DISABILITIES
‘‘Sec. 670. Purposes.
‘‘Sec. 671. Parent training and information centers.
‘‘Sec. 672. Community parent resource centers.
‘‘Sec. 673. Technical assistance for parent training and information centers.
‘‘Sec. 674. Technology development, demonstration, and utilization; and
media services.
‘‘Sec. 675. Accessibility of instructional materials.
‘‘Sec. 676. Authorization of appropriations.
‘‘SUBPART 4—INTERIM ALTERNATIVE EDUCATIONAL SETTINGS, BEHAVIORAL
SUPPORTS, AND WHOLE SCHOOL INTERVENTIONS
‘‘Sec. 681. Purpose.
‘‘Sec. 682. Definition of eligible entity.
‘‘Sec. 683. Program authorized.
‘‘Sec. 684. Program evaluations.
‘‘Sec. 685. Authorization of appropriations.
‘‘(c) FINDINGS.—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), the educational needs of mil-
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lions of children with disabilities were not being fully
met because—
‘‘(A) the children did not receive appro-
priate educational services;
‘‘(B) the children were excluded entirely
from the public school system and from being
educated with their peers;
‘‘(C) undiagnosed disabilities prevented the
children from having a successful educational ex-
perience; or
‘‘(D) a lack of adequate resources within the
public school system forced families to find serv-
ices outside the public school system.
‘‘(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.
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‘‘(5) Over 25 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 to the general
education curriculum in the regular classroom to
the maximum extent possible in order to—
‘‘(i) meet developmental goals and, to
the maximum extent possible, the chal-
lenging expectations that have been estab-
lished for all children; and
‘‘(ii) be prepared to lead productive
and independent adult lives, to the max-
imum extent possible;
‘‘(B) strengthening the role and responsi-
bility 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, including improve-
ment efforts under the Elementary and Sec-
ondary Education Act of 1965, in order to en-
sure that such children benefit from such efforts
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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
preservice preparation and professional develop-
ment for all personnel who work with children
with disabilities in order to ensure that such per-
sonnel have the skills and knowledge necessary to
improve the academic achievement and func-
tional performance of children with disabilities,
including the use of scientifically based instruc-
tional practices, to the maximum extent possible;
‘‘(F) providing incentives for whole-school
approaches, scientifically based early reading
programs, positive behavioral interventions and
supports, and prereferral interventions to reduce
the need to label children as disabled in order to
address their learning and behavioral needs;
‘‘(G) focusing resources on teaching and
learning while reducing paperwork and require-
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ments that do not assist in improving edu-
cational results; and
‘‘(H) supporting the development and use of
technology, including assistive technology devices
and assistive technology services, to maximize
accessibility for children with disabilities.
‘‘(6) While States, local educational agencies,
and educational service agencies are primarily re-
sponsible for providing an education for all children
with disabilities, it is in the national interest that the
Federal Government have a supporting role in assist-
ing State and local efforts to educate children with
disabilities in order to improve results for such chil-
dren and to ensure equal protection of the law.
‘‘(7) 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.
‘‘(8) Parents and schools should be given ex-
panded opportunities to resolve their disagreements in
positive and constructive ways.
‘‘(9) Teachers, schools, local educational agencies,
and States should be relieved of irrelevant and unnec-
essary paperwork burdens that do not lead to im-
proved educational outcomes.
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‘‘(10)(A) The Federal Government must be re-
sponsive to the growing needs of an increasingly more
diverse society.
‘‘(B) America’s ethnic profile is rapidly chang-
ing. In the year 2000, 1 of every 3 persons in the
United States was a member of a minority group or
was limited English proficient.
‘‘(C) Minority children comprise an increasing
percentage of public school students.
‘‘(D) With such changing demographics, recruit-
ment efforts for special education personnel should
focus on increasing the participation of minorities in
the teaching profession.
‘‘(11)(A) The limited English proficient popu-
lation is the fastest growing in our Nation, and the
growth is occurring in many parts of our Nation.
‘‘(B) Studies have documented apparent discrep-
ancies in the levels of referral and placement of lim-
ited English proficient children in special education.
‘‘(C) This poses a special challenge for special
education in the referral of, assessment of, and serv-
ices for, our Nation’s students from non-English lan-
guage backgrounds.
‘‘(12)(A) Greater efforts are needed to prevent the
intensification of problems connected with mislabeling
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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) African-American children are identified as
having mental retardation and emotional disturbance
at rates greater than their white counterparts.
‘‘(D) In the 1998–1999 school year, African-
American children represented just 14.8 percent of the
population aged 6 through 21, but comprised 20.2
percent of all children with disabilities.
‘‘(E) Studies have found that schools with pre-
dominately Caucasian students and teachers have
placed disproportionately high numbers of their mi-
nority students into special education.
‘‘(13)(A) As the number of minority students in
special education increases, the number of minority
teachers and related services personnel produced in
colleges and universities continues to decrease.
‘‘(B) The opportunity for minority individuals,
organizations, and Historically Black Colleges and
Universities to participate fully in awards for grants
and contracts, boards of organizations receiving funds
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under this Act, and peer review panels, and in the
training of professionals in the area of special edu-
cation is essential if we are to obtain greater success
in the education of minority children with disabil-
ities.
‘‘(14) As the graduation rates for children with
disabilities continue to climb, providing effective
transition services to promote successful post-school
employment or education is an important measure of
accountability for children with disabilities.
‘‘(d) PURPOSES.—The purposes of this title are—
‘‘(1)(A) to ensure that all children with 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, further education, 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, 
coordinated, 
multidisciplinary, 
inter-
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agency system of early intervention services for in-
fants 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. The term
does not include a medical device that is surgically
implanted, or the repalcement of such device.
‘‘(2) ASSISTIVE
TECHNOLOGY
SERVICE.—The
term ‘assistive technology service’ means any service
that directly assists a child with a disability in the
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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, custom-
izing, adapting, applying, maintaining, repair-
ing, 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.
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‘‘(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 (or any subset of that age range, in-
cluding ages 3 through 5), may, at the discretion
of the State and the local educational agency, in-
clude a child—
‘‘(i) experiencing developmental delays,
as defined by the State and as measured by
appropriate diagnostic instruments and
procedures, in 1 or more of the following
areas: physical development, cognitive devel-
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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) CORE ACADEMIC SUBJECT.—The term ‘core
academic subject’ has the meaning given the term in
section 9101(11) of the Elementary and Secondary
Education Act of 1965.
‘‘(5) EDUCATIONAL SERVICE AGENCY.—The term
‘educational service agency’—
‘‘(A) means a regional public multiservice
agency—
‘‘(i) authorized by State law to 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 schools and sec-
ondary schools of the State; and
‘‘(B) includes any other public institution
or agency having administrative control and di-
rection over a public elementary school or sec-
ondary school.
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‘‘(6) ELEMENTARY SCHOOL.—The term ‘elemen-
tary school’ means a nonprofit institutional day or
residential school that provides elementary education,
as determined under State law.
‘‘(7) 
EQUIPMENT.—The 
term 
‘equipment’
includes—
‘‘(A) machinery, utilities, and built-in
equipment, and any necessary enclosures or
structures to house such machinery, utilities, or
equipment; and
‘‘(B) all other items necessary for the 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.
‘‘(8) 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 school or secondary school student, as may
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be appropriate, and which shall be computed after
deducting—
‘‘(A) amounts received—
‘‘(i) under part B of this title;
‘‘(ii) under part A of title I of the Ele-
mentary and Secondary Education Act of
1965; and
‘‘(iii) under parts A and B of title III
of that Act; and
‘‘(B) any State or local funds expended for
programs that would qualify for assistance under
any of those parts.
‘‘(9) FREE APPROPRIATE PUBLIC EDUCATION.—
The term ‘free appropriate public education’ means
special education and related services that—
‘‘(A) have been provided at public expense,
under public supervision and direction, and
without charge;
‘‘(B) meet the standards of the State edu-
cational agency;
‘‘(C) include an appropriate preschool, ele-
mentary school, or secondary school education in
the State involved; and
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‘‘(D) are provided in conformity with the
individualized 
education 
program 
required
under section 614(d).
‘‘(10) HIGHLY
QUALIFIED.—The term ‘highly
qualified’ means the following:
‘‘(A) ALL
SPECIAL
EDUCATION
TEACH-
ERS.—When used with respect to any public ele-
mentary school or secondary school special edu-
cation teacher teaching in a State, means that
the teacher holds at least a bachelor’s degree and
that—
‘‘(i) the teacher has obtained full State
certification as a special education teacher
through a State-approved special education
teacher preparation program (including
certification obtained through alternative
routes to certification) or other comparably
rigorous methods, or passed the State teach-
er special education licensing examination,
and holds a license to teach in the State as
a special education teacher, except that
when used
with respect to any teacher
teaching in a public charter school, the term
means that the teacher meets the require-
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ments set forth in the State’s public charter
school law;
‘‘(ii) the teacher has not had certifi-
cation or licensure requirements waived on
an emergency, temporary, or provisional
basis; and
‘‘(iii) the teacher demonstrates knowl-
edge of special education and the teaching
skills necessary to teach children with dis-
abilities.
‘‘(B) NEW ELEMENTARY SCHOOL SPECIAL
EDUCATION TEACHERS.—When used with respect
to a special education elementary school teacher
who is new to the profession, means that the
teacher demonstrated, by passing a rigorous
State test, subject knowledge and teaching skills
in reading, writing, mathematics, and other
areas of the basic elementary school curriculum
(which may consist of passing a State-required
certification or licensing test or tests in reading,
writing, mathematics, and other areas of the
basic elementary school curriculum).
‘‘(C) NEW MIDDLE SCHOOL AND SECONDARY
SCHOOL SPECIAL EDUCATION TEACHERS.—When
used with respect to a special education middle
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school or secondary school teacher who is new to
the profession, means that the teacher has dem-
onstrated a high level of competency in each of
the academic subjects in which the teacher teach-
es by—
‘‘(i) passing a rigorous State academic
subject test in each of the academic subjects
in which the teacher teaches (which may
consist of a passing level of performance on
a State-required certification or licensing
test or tests in each of the academic subjects
in which the teacher teaches); or
‘‘(ii) successful completion, in each of
the academic subjects in which the teacher
teaches, of an academic major, graduate de-
gree, coursework equivalent to an under-
graduate academic major, or advanced cer-
tification or credentialing.
‘‘(D) VETERAN SPECIAL EDUCATION TEACH-
ERS.—When used with respect to an elementary
school, middle school, or secondary school special
education teacher who is not new to the profes-
sion, means that the teacher has—
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‘‘(i) met the applicable standard in
subparagraph (B) or (C), which includes an
option for a test; or
‘‘(ii) has demonstrated competence in
all the academic subjects in which the teach-
er teaches based on a high objective uniform
State standard of evaluation for special
education teachers that—
‘‘(I) is set by the State for both
grade-appropriate 
academic 
subject
matter knowledge and special edu-
cation teaching skills;
‘‘(II) is aligned with challenging
State academic content and student
academic achievement standards and
developed in consultation with special
education teachers, core content spe-
cialists, 
teachers, 
principals, 
and
school administrators;
‘‘(III) provides objective, coherent
information about the teachers’ attain-
ment of knowledge of core content
knowledge in the academic subjects in
which a teacher teaches;
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‘‘(IV) is applied uniformly to all
special education teachers who teach in
the same academic subject and the
same grade level throughout the State;
‘‘(V) takes into consideration, but
is not based primarily on, the time the
teacher has been teaching in the aca-
demic subject;
‘‘(VI) is made available to the
public on request; and
‘‘(VII) may involve multiple objec-
tive measures of teacher competency.
‘‘(E) TEACHERS PROVIDING CONSULTATIVE
SERVICES.—
‘‘(i) IN
GENERAL.—Notwithstanding
subparagraphs (B) through (D), when used
with respect to a special education teacher
who provides only consultative services to a
highly qualified regular education teacher
(as the term highly qualified is defined in
section 9101(23) of the Elementary and
Secondary Education Act of 1965), means
that the teacher meets the requirements of
subparagraph (A).
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‘‘(ii) CONSULTATIVE
SERVICES.—As
used in clause (i), the term ‘consultative
services’ means services that adjust the
learning environment, modify instructional
methods, adapt curricula, use positive be-
havior supports and interventions, and se-
lect and implement appropriate accom-
modations to meet the needs of individual
children.
‘‘(F) EXCEPTION.—Notwithstanding sub-
paragraphs (B) through (D), when used with re-
spect to a special education teacher who teaches
more than 1 subject, primarily to middle school
and secondary school-aged children with signifi-
cant cognitive disabilities, means that the teach-
er has demonstrated subject knowledge and teach-
ing skills in reading, mathematics, and other
areas of the basic elementary school curriculum
by—
‘‘(i) passing a rigorous State test
(which may consist of passing a State-re-
quired certification or licensing test or tests
in those areas); or
‘‘(ii) demonstrating competency in all
the academic subjects in which the teacher
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teaches, based on a high objective uniform
State standard as described in subpara-
graph (D)(ii).
‘‘(11) INDIAN.—The term ‘Indian’ means an in-
dividual who is a member of an Indian tribe.
‘‘(12) INDIAN TRIBE.—The term ‘Indian tribe’
means any Federal or State Indian tribe, band,
rancheria, pueblo, colony, or community, including
any Alaska Native village or regional village corpora-
tion (as defined in or established under the Alaska
Native Claims Settlement Act).
‘‘(13) 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).
‘‘(14) INDIVIDUALIZED FAMILY SERVICE PLAN.—
The term ‘individualized family service plan’ has the
meaning given such term in section 636.
‘‘(15) INFANT
OR
TODDLER
WITH
A
DIS-
ABILITY.—The term ‘infant or toddler with a dis-
ability’ has the meaning given such term in section
632.
‘‘(16) INSTITUTION
OF
HIGHER
EDUCATION.—
The term ‘institution of higher education’—
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‘‘(A) has the meaning given such term in
section 101 (a) and (b) 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 College or
University Assistance Act of 1978.
‘‘(17) LIMITED ENGLISH PROFICIENT.—The term
‘limited English proficient’ has the meaning given the
term in section 9101(25) of the Elementary and Sec-
ondary Education Act of 1965.
‘‘(18) 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 schools or secondary schools in a city,
county, township, school district, or other polit-
ical subdivision of a State, or for such combina-
tion of school districts or counties as are recog-
nized in a State as an administrative agency for
its public elementary schools or secondary
schools.
‘‘(B) The term includes—
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‘‘(i) an educational service agency, as
defined in paragraph (5); and
‘‘(ii) any other public institution or
agency having administrative control and
direction of a public elementary school or
secondary school.
‘‘(C) The term includes an elementary
school or secondary school funded by the Bureau
of Indian Affairs, but only to the extent that
such inclusion makes the school eligible for pro-
grams for which specific eligibility is not pro-
vided to the school in another provision of law
and the school does not have a student popu-
lation that is smaller than the student popu-
lation of the local educational agency receiving
assistance under this Act with the smallest stu-
dent population, except that the school shall not
be subject to the jurisdiction of any State edu-
cational agency other than the Bureau of Indian
Affairs.
‘‘(19) NATIVE LANGUAGE.—The term ‘native lan-
guage’, when used with respect to an individual of
limited English proficiency, means the language nor-
mally used by the individual, or in the case of a
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child, the language normally used by the parents of
the child.
‘‘(20) 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 1 or more nonprofit corpora-
tions or associations no part of the net earnings of
which inures, or may lawfully inure, to the benefit of
any private shareholder or individual.
‘‘(21) OUTLYING
AREA.—The term ‘outlying
area’ means the United States Virgin Islands, Guam,
American Samoa, and the Commonwealth of the
Northern Mariana Islands.
‘‘(22) PARENT.—
‘‘(A) IN GENERAL.—The term ‘parent’—
‘‘(i) means—
‘‘(I) a natural or adoptive parent
of a child;
‘‘(II) a guardian (but not the
State if the child is a ward of the
State);
‘‘(III) an individual acting in the
place of a natural or adoptive parent,
including a grandparent, stepparent,
or other relative with whom the child
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lives or an individual who is legally
responsible for the child’s welfare; or
‘‘(IV) except as used in sections
615(b)(2) and 639(a)(5), an individual
assigned under either of those sections
to be a surrogate parent; and
‘‘(ii) in the case of a homeless child
who is not in the physical custody of a par-
ent or guardian, includes a related or unre-
lated adult with whom the child is living or
other adult jointly designated by the child
and the local educational agency liaison for
homeless children and youths (designated
pursuant to section 722(g)(1)(J)(ii) of the
McKinney-Vento Homeless Assistance Act),
in addition to other individuals permitted
by law.
‘‘(B) FOSTER PARENT.—Unless State law
prohibits a foster parent from acting as a par-
ent, the term ‘parent’ includes a foster parent
if—
‘‘(i) the natural or adoptive parents’
authority to make educational decisions on
the child’s behalf has been extinguished
under State law; and
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‘‘(ii) the foster parent—
‘‘(I) has an ongoing, long-term
parental relationship with the child;
‘‘(II) is willing to make the edu-
cational decisions required of parents
under this Act; and
‘‘(III) has no interest that would
conflict with the interests of the child.
‘‘(23) PARENT ORGANIZATION.—The term ‘par-
ent organization’ has the meaning given such term in
section 671(g).
‘‘(24) PARENT TRAINING AND INFORMATION CEN-
TER.—The term ‘parent training and information
center’ means a center assisted under section 671 or
672.
‘‘(25) RELATED
SERVICES.—The term ‘related
services’ means transportation, and such develop-
mental, corrective, and other supportive services (in-
cluding speech-language pathology and audiology
services, interpreting services, psychological services,
physical and occupational therapy, recreation, in-
cluding therapeutic recreation, social work services,
school health services, counseling services, including
rehabilitation counseling, orientation and mobility
services, travel training instruction, and medical
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services, except that such medical services shall be for
diagnostic and evaluation purposes only) as may be
required to assist a child with a disability to benefit
from special education, and includes the early identi-
fication and assessment of disabling conditions in
children. The term does not include a medical device
that is surgically implanted, or the replacement of
such device.
‘‘(26) SECONDARY
SCHOOL.—The term ‘sec-
ondary 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.
‘‘(27) SECRETARY.—The term ‘Secretary’ means
the Secretary of Education.
‘‘(28) 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.
‘‘(29) SPECIFIC LEARNING DISABILITY.—
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‘‘(A) IN
GENERAL.—The term ‘specific
learning disability’ means a disorder in 1 or
more of the basic psychological processes involved
in understanding or in using language, spoken
or written, which disorder may manifest itself in
the imperfect ability to listen, think, speak, read,
write, spell, or do mathematical calculations.
‘‘(B) DISORDERS
INCLUDED.—Such term
includes such conditions as perceptual 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.
‘‘(30) 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.
‘‘(31) 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
schools and secondary schools, or, if there is no such
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officer or agency, an officer or agency designated by
the Governor or by State law.
‘‘(32) 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).
‘‘(33) TRANSITION SERVICES.—The term ‘transi-
tion services’ means a coordinated set of activities for
a child with a disability (as defined in paragraph
(3)(A)) that—
‘‘(A) is designed to be within a results-ori-
ented process, that is focused on improving the
academic and functional achievement of the child
with a disability to facilitate the child’s move-
ment from school to post-school activities, includ-
ing post-secondary education, vocational train-
ing, integrated employment (including supported
employment), continuing and adult education,
adult services, independent living, or community
participation;
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‘‘(B) is based on the individual child’s
needs, taking into account the child’s strengths,
preferences, and interests; and
‘‘(C) includes instruction, related services,
community experiences, the development of em-
ployment and other post-school adult living ob-
jectives, and, when appropriate, acquisition of
daily living skills and functional vocational
evaluation.
‘‘(34) CHILD WITH A DISABILITY IN A MILITARY
FAMILY.—The term ‘child with a disability in a mili-
tary family’ means a child with a disability who has
a parent who is a member of the Armed Forces, in-
cluding a member of the National Guard or Reserves.
‘‘(35) HOMELESS CHILDREN.—The term ‘home-
less children’ has the meaning given the term ‘home-
less children and youths’ in section 725 of the McKin-
ney-Vento Homeless Assistance Act.
‘‘(36) WARD OF THE STATE.—The term ‘ward of
the State’ means a child who, as defined by the State
where the child resides, is a foster child, a ward of the
State or is in the custody of a public child welfare
agency.
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‘‘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 11th 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
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extent as those remedies are available for such a violation
in the suit against any public entity other than a State.
‘‘(c) EFFECTIVE DATE.—Subsections (a) and (b) apply
with respect to violations that occur in whole or part after
the date of enactment of the Education of the Handicapped
Act Amendments of 1990.
‘‘SEC. 605. ACQUISITION OF EQUIPMENT; CONSTRUCTION
OR ALTERATION OF FACILITIES.
‘‘(a) IN GENERAL.—If the Secretary determines that
a program authorized under this Act will be improved by
permitting program funds to be used to acquire appropriate
equipment, or to construct new facilities or alter existing
facilities, the Secretary is authorized to allow the use of
those funds for those purposes.
‘‘(b) COMPLIANCE WITH CERTAIN REGULATIONS.—
Any construction of new facilities or alteration of existing
facilities under subsection (a) shall comply with the 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 subpart 101–19.6 of title 41,
Code of Federal Regulations (commonly known as the
‘Uniform Federal Accessibility Standards’).
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‘‘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) IN GENERAL.—In carrying out the provisions of
this Act, 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 require-
ments of this Act.
‘‘(b) PROTECTIONS PROVIDED
TO CHILDREN.—The
Secretary may not implement, or publish in final form, any
regulation prescribed pursuant to this Act that—
‘‘(1) violates or contradicts any provision of this
Act; and
‘‘(2) procedurally or substantively lessens the
protections provided to children with disabilities
under this Act, as embodied in regulations in effect
on July 20, 1983 (particularly as such protections re-
lated to parental consent to initial evaluation or ini-
tial placement in special education, least restrictive
environment, related services, timelines, attendance of
evaluation personnel at individualized education pro-
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gram meetings, or qualifications of personnel), except
to the extent that such regulation reflects the clear
and unequivocal intent of the Congress in legislation.
‘‘(c) PUBLIC COMMENT PERIOD.—The Secretary shall
provide a public comment period of not more than 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.
‘‘(d) POLICY LETTERS AND STATEMENTS.—The Sec-
retary may not issue policy letters or other statements (in-
cluding letters or statements regarding issues of national
significance) that—
‘‘(1) violate or contradict any provision of this
Act; or
‘‘(2) establish a rule that is required for compli-
ance with, and eligibility under, this Act without fol-
lowing the requirements of section 553 of title 5,
United States Code.
‘‘(e) EXPLANATION AND ASSURANCES.—Any written
response by the Secretary under subsection (d) regarding
a policy, question, or interpretation under part B of this
Act shall include an explanation in the written response
that—
‘‘(1) such response is provided as informal guid-
ance and is not legally binding;
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‘‘(2) when required, such response is issued in
compliance with the requirements of section 553 of
title 5, United States Code; and
‘‘(3) such response represents the interpretation
by the Department of Education of the applicable
statutory or regulatory requirements in the context of
the specific facts presented.
‘‘(f) CORRESPONDENCE FROM DEPARTMENT OF EDU-
CATION DESCRIBING INTERPRETATIONS OF THIS ACT.—
‘‘(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—
‘‘(A) identify the topic addressed by the cor-
respondence and shall include such other sum-
mary information as the Secretary determines to
be appropriate; and
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‘‘(B) ensure that all such correspondence is
issued, where applicable, in compliance with the
requirements of section 553 of title 5, United
States Code.
‘‘SEC. 608. STATE ADMINISTRATION.
‘‘(a) RULEMAKING.—Each State that receives funds
under this Act shall—
‘‘(1) ensure that any State rules, regulations,
and policies relating to this Act conform to the pur-
poses of this Act; and
‘‘(2) identify in writing to its local educational
agencies and the Secretary any such rule, regulation,
or policy as a State-imposed requirement that is not
required by this Act and Federal regulations.
‘‘(b) SUPPORT AND FACILITATION.—State rules, regu-
lations, and policies under this Act shall support and facili-
tate local educational agency and school-level systemic re-
form designed to enable children with disabilities to meet
the challenging State student academic achievement stand-
ards.
‘‘SEC. 609. PAPERWORK REDUCTION.
‘‘(a) REPORT TO CONGRESS.—The Comptroller Gen-
eral shall conduct a review of Federal, State, and local re-
quirements relating to the education of children with dis-
abilities to determine which requirements result in excessive
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paperwork completion burdens for teachers, related services
providers, and school administrators, and shall report to
Congress not later than 18 months after the date of enact-
ment of the Individuals with Disabilities Education Im-
provement Act of 2003 regarding such review along with
strategic proposals for reducing the paperwork burdens on
teachers.
‘‘(b) PAPERWORK REDUCTION DEMONSTRATION.—
‘‘(1) PILOT PROGRAM.—
‘‘(A) PURPOSE.—The purpose of this sub-
section is to provide an opportunity for States to
identify ways to reduce paperwork burdens and
other administrative duties that are directly as-
sociated with the requirements of this Act, in
order to increase the time and resources available
for instruction and other activities aimed at im-
proving educational and functional results for
children with disabilities.
‘‘(B) AUTHORIZATION.—
‘‘(i) IN GENERAL.—In order to carry
out the purpose of this subsection, the Sec-
retary is authorized to grant waivers of
statutory requirements of, or regulatory re-
quirements relating to, this part for a pe-
riod of time not to exceed 4 years with re-
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spect to not more than 15 States based on
proposals submitted by States to reduce ex-
cessive paperwork and noninstructional
time burdens that do not assist in improv-
ing educational and functional results for
children with disabilities.
‘‘(ii) EXCEPTION.—The Secretary shall
not waive any statutory requirements of, or
regulatory requirements relating to, appli-
cable civil rights requirements.
‘‘(iii) RULE OF CONSTRUCTION.—Noth-
ing in this subsection shall be construed
to—
‘‘(I) affect the right of a child
with a disability to receive a free ap-
propriate public education under this
part; and
‘‘(II) permit a State or local edu-
cational agency to waive procedural
safeguards under section 615.
‘‘(C) PROPOSAL.—
‘‘(i) IN GENERAL.—A State desiring to
participate in the program under this sub-
section shall submit a proposal to the Sec-
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retary at such time and in such manner as
the Secretary may reasonably require.
‘‘(ii) CONTENT.—The proposal shall
include—
‘‘(I) a list of any statutory re-
quirements of, or regulatory require-
ments relating to, this part that the
State desires the Secretary to waive or
change, in whole or in part; and
‘‘(II) a list of any State require-
ments that the State proposes to waive
or change, in whole or in part, to
carry out a waiver granted to the State
by the Secretary.
‘‘(D) TERMINATION OF WAIVER.—The Sec-
retary shall terminate a State’s waiver under
this subsection if the Secretary determines that
the State—
‘‘(i) has failed to make satisfactory
progress in meeting the indicators described
in section 616; or
‘‘(ii) has failed to appropriately imple-
ment its waiver.
‘‘(2) REPORT.—Beginning 2 years after the date
of enactment of the Individuals with Disabilities
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Education Improvement Act of 2003, the Secretary
shall include in the annual report to Congress sub-
mitted pursuant to section 426 of the Department of
Education Organization Act information related to
the effectiveness of waivers granted under paragraph
(1), including any specific recommendations for
broader implementation of such waivers, in—
‘‘(A) reducing—
‘‘(i) the paperwork burden on teachers,
principals, 
administrators, 
and 
related
service providers; and
‘‘(ii) noninstructional time spent by
teachers in complying with this part;
‘‘(B) enhancing longer-term educational
planning;
‘‘(C) improving positive outcomes for chil-
dren with disabilities;
‘‘(D) promoting collaboration between IEP
Team members; and
‘‘(E) ensuring satisfaction of family mem-
bers.
‘‘SEC. 610. FREELY ASSOCIATED STATES.
‘‘The Republic of the Marshall Islands, the Federated
States of Micronesia, and the Republic of Palau shall con-
tinue to be eligible for competitive grants administered by
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the Secretary under this Act to the extent that such grants
continue to be available to States and local educational
agencies under this Act.
‘‘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
AMOUNT.—The 
maximum
amount available for awarding grants under this sec-
tion for any fiscal year is—
‘‘(A) the total number of children with dis-
abilities in the 2002–2003 school year in the
States who received special education and related
services and who were—
‘‘(i) aged 3 through 5, if the State was
eligible for a grant under section 619; and
‘‘(ii) aged 6 through 21; multiplied by
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‘‘(B) 40 percent of the average per-pupil ex-
penditure in public elementary schools and sec-
ondary schools in the United States; adjusted by;
‘‘(C) the rate of change in the sum of—
‘‘(i) 85 percent of the change in the na-
tionwide total of the population described in
subsection (d)(3)(A)(i)(II); and
‘‘(ii) 15 percent of the change in the
nationwide total of the population described
in subsection (d)(3)(A)(i)(III).
‘‘(b) OUTLYING AREAS
AND FREELY ASSOCIATED
STATES.—
‘‘(1) FUNDS RESERVED.—From the amount ap-
propriated for any fiscal year under subsection (i),
the Secretary shall reserve not more than 1 percent,
which shall be used—
‘‘(A) to provide assistance to the outlying
areas in accordance with their respective popu-
lations of individuals aged 3 through 21; and
‘‘(B) to provide each freely associated State
a grant in the amount that such freely associated
State received for fiscal year 2003 under this
part, but only if the freely associated State meets
the applicable requirements of this part, as well
as the requirements of section 611(b)(2)(C) as
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such section was in effect on the day before the
date of enactment of the Individuals with Dis-
abilities Education Improvement Act of 2004.
‘‘(2) 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 the outlying areas or the freely associated
States under this section.
‘‘(3) 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
(i), 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 665, and for
payments to the outlying areas, the freely associated
States, and the Secretary of the Interior under sub-
sections (b) and (c) for a fiscal year, the Secretary
shall allocate the remaining amount among the States
in accordance with this subsection.
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‘‘(2) SPECIAL RULE FOR USE OF FISCAL YEAR
1999 AMOUNT.—If a State received any funds under
this section for fiscal year 1999 on the basis of chil-
dren aged 3 through 5, but does not make a free ap-
propriate public education available to all children
with disabilities aged 3 through 5 in the State in any
subsequent fiscal year, the Secretary shall compute the
State’s amount for fiscal year 1999, solely for the
purpose of calculating the State’s allocation in that
subsequent year under paragraph (3) or (4), by sub-
tracting the amount allocated to the State for fiscal
year 1999 on the basis of those children.
‘‘(3) INCREASE IN FUNDS.—If the amount avail-
able for allocations to States under paragraph (1) for
a fiscal year is equal to or greater than the amount
allocated to the States under this paragraph for the
preceding fiscal year, those allocations shall be cal-
culated as follows:
‘‘(A) ALLOCATION OF INCREASE.—
‘‘(i) IN GENERAL.—Except as provided
in subparagraph (B), the Secretary shall al-
locate for the fiscal year—
‘‘(I) to each State the amount the
State received under this section for
fiscal year 1999;
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‘‘(II) 85 percent of any remaining
funds to States on the basis of the
States’ relative populations of children
aged 3 through 21 who are of the same
age as children with disabilities for
whom the State ensures the avail-
ability of a free appropriate public
education under this part; and
‘‘(III) 15 percent of those remain-
ing funds to States on the basis of the
States’ relative populations of children
described in subclause (II) who are liv-
ing in poverty.
‘‘(ii) DATA.—For the purpose of mak-
ing grants under this paragraph, the Sec-
retary shall use the most recent population
data, including data on children living in
poverty, that are available and satisfactory
to the Secretary.
‘‘(B) LIMITATIONS.—Notwithstanding sub-
paragraph (A), allocations under this paragraph
shall be subject to the following:
‘‘(i) PRECEDING YEAR ALLOCATION.—
No State’s allocation shall be less than its
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allocation under this section for the pre-
ceding fiscal year.
‘‘(ii) MINIMUM.—No State’s allocation
shall be less than the greatest of—
‘‘(I) the sum of—
‘‘(aa) the amount the State
received under this section for fis-
cal year 1999; and
‘‘(bb) 1⁄3 of 1 percent of the
amount by which the amount ap-
propriated under subsection (i)
for the fiscal year exceeds the
amount appropriated for this sec-
tion for fiscal year 1999;
‘‘(II) the sum of—
‘‘(aa) the amount the State
received under this section for the
preceding fiscal year; and
‘‘(bb) that amount multiplied
by the percentage by which the in-
crease in the funds appropriated
for this section from the preceding
fiscal year exceeds 1.5 percent; or
‘‘(III) the sum of—
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‘‘(aa) the amount the State
received under this section for the
preceding fiscal year; and
‘‘(bb) that amount multiplied
by 90 percent of the percentage
increase in the amount appro-
priated for this section from the
preceding fiscal year.
‘‘(iii) 
MAXIMUM.—Notwithstanding
clause (ii), no State’s allocation under this
paragraph shall exceed the sum of—
‘‘(I) the amount the State received
under this section for the preceding fis-
cal year; and
‘‘(II) that amount multiplied by
the sum of 1.5 percent and the percent-
age increase in the amount appro-
priated under this section from the
preceding fiscal year.
‘‘(C) RATABLE REDUCTION.—If the amount
available for allocations under this paragraph is
insufficient to pay those allocations in full, those
allocations shall be ratably reduced, subject to
subparagraph (B)(i).
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‘‘(4) DECREASE IN FUNDS.—If the amount avail-
able for allocations to States under paragraph (1) for
a fiscal year is less than the amount allocated to the
States under this section for the preceding fiscal year,
those allocations shall be calculated as follows:
‘‘(A) AMOUNTS
GREATER
THAN
FISCAL
YEAR 1999 ALLOCATIONS.—If the amount avail-
able for allocations is greater than the amount
allocated to the States for fiscal year 1999, each
State shall be allocated the sum of—
‘‘(i) the amount the State received
under this section for fiscal year 1999; and
‘‘(ii) an amount that bears the same
relation to any remaining funds as the in-
crease the State received under this section
for the preceding fiscal year over fiscal year
1999 bears to the total of all such increases
for all States.
‘‘(B) AMOUNTS EQUAL TO OR LESS THAN
FISCAL YEAR 1999 ALLOCATIONS.—
‘‘(i) IN
GENERAL.—If the amount
available for allocations under this para-
graph is equal to or less than the amount
allocated to the States for fiscal year 1999,
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each State shall be allocated the amount the
State received for fiscal year 1999.
‘‘(ii) RATABLE
REDUCTION.—If the
amount available for allocations under this
paragraph is insufficient to make the allo-
cations described in clause (i), those alloca-
tions shall be ratably reduced.
‘‘(e) STATE-LEVEL ACTIVITIES.—
‘‘(1) STATE ADMINISTRATION.—
‘‘(A) IN GENERAL.—For the purpose of ad-
ministering this part, including paragraph (3),
section 619, and the coordination of activities
under this part with, and providing technical
assistance to, other programs that provide serv-
ices to children with disabilities—
‘‘(i) each State may reserve not more
than the maximum amount the State was
eligible to reserve for State administration
for fiscal year 2003 or $800,000 (adjusted
by the cumulative rate of inflation since fis-
cal year 2003 as measured by the percent-
age increase, if any, in the Consumer Price
Index For All Urban Consumers, published
by the Bureau of Labor Statistics of the De-
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partment of Labor), whichever is greater;
and
‘‘(ii) each outlying area may reserve
not more than 5 percent of the amount the
outlying area receives under subsection (b)
for any fiscal year or $35,000, whichever is
greater.
‘‘(B) PART C.—Funds reserved under sub-
paragraph (A) may be used for the administra-
tion of part C, if the State educational agency
is the lead agency for the State under that part.
‘‘(C) CERTIFICATION.—Prior to expenditure
of funds under this paragraph, the State shall
certify to the Secretary that the arrangements to
establish responsibility for services pursuant to
section 612(a)(12)(A) are current as of the date
of submission of the certification.
‘‘(2) OTHER STATE-LEVEL ACTIVITIES.—
‘‘(A) STATE-LEVEL ACTIVITIES.—
‘‘(i) IN GENERAL.—For the purpose of
carrying out State-level activities, each
State may reserve for each of the fiscal
years 2004 and 2005, not more than 10 per-
cent of the amount that remains after sub-
tracting the amount reserved under para-
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graph (1) from the amount of the State’s al-
location under subsection (d) for fiscal years
2004 and 2005, respectively. For fiscal
years 2006, 2007, 2008, and 2009, the State
may reserve the maximum amount the
State was eligible to reserve under the pre-
ceding sentence for fiscal year 2005 (ad-
justed by the cumulative rate of inflation
since fiscal year 2005 as measured by the
percentage increase, if any, in the Con-
sumer Price Index for All Urban Con-
sumers, published by the Bureau of Labor
Statistics of the Department of Labor).
‘‘(ii) SMALL
STATE
ADJUSTMENT.—
Notwithstanding clause (i), in the case of a
State for which the maximum amount re-
served for State administration under para-
graph (1) is not greater than $800,000 (as
adjusted pursuant to paragraph (1)(A)(i)),
the State may reserve for the purpose of
carrying out State-level activities for each
of the fiscal years 2004 and 2005, not more
than 12 percent of the amount that remains
after subtracting the amount reserved under
paragraph (1) from the amount of the
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State’s allocation under subsection (d) for
fiscal years 2004 and 2005, respectively.
For each of the fiscal years 2006, 2007,
2008, and 2009, each such State may re-
serve for such purpose the maximum
amount the State was eligible to reserve
under the preceding sentence for fiscal year
2005 (adjusted by the cumulative rate of in-
flation since fiscal year 2005 as measured
by the percentage increase, if any, in the
Consumer Price Index For All Urban Con-
sumers, published by the Bureau of Labor
Statistics of the Department of Labor).
‘‘(B) REQUIRED
ACTIVITIES.—Funds re-
served under subparagraph (A) shall be used to
carry out the following activities:
‘‘(i) For monitoring, enforcement and
complaint investigation.
‘‘(ii) To establish and implement the
mediation, processes required by section
615(e)(1), including providing for the costs
of mediators and support personnel;
‘‘(iii) To support the State protection
and advocacy system to advise and assist
parents in the areas of—
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‘‘(I) dispute resolution and due
process;
‘‘(II) voluntary mediation; and
‘‘(III) the opportunity to resolve
complaints.
‘‘(C) AUTHORIZED ACTIVITIES.—Funds re-
served under subparagraph (A) may be used to
carry out the following activities:
‘‘(i) For support and direct services,
including technical assistance, personnel
preparation, and professional development
and training.
‘‘(ii) To support paperwork reduction
activities, including expanding the use of
technology in the IEP process.
‘‘(iii) To assist local educational agen-
cies in providing positive behavioral inter-
ventions and supports and mental health
services for children with disabilities.
‘‘(iv) To improve the use of technology
in the classroom by children with disabil-
ities to enhance learning.
‘‘(v) To support the development and
use of technology, including universally de-
signed technologies and assistive technology
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devices, to maximize accessibility to the gen-
eral curriculum for children with disabil-
ities.
‘‘(vi) Development and implementation
of transition programs, including coordina-
tion of services with agencies involved in
supporting the transition of students with
disabilities to post-secondary activities.
‘‘(vii) To assist local educational agen-
cies in meeting personnel shortages.
‘‘(viii) To support capacity building
activities and improve the delivery of serv-
ices by local educational agencies to im-
prove results for children with disabilities.
‘‘(ix) Alternative programming for
children who have been expelled from school,
and services for children in correctional fa-
cilities, children enrolled in State-operated
or State-supported schools, and children in
charter schools.
‘‘(x) To support the development and
provision of appropriate accommodations
for children with disabilities, or the develop-
ment and provision of alternate assessments
that are valid and reliable for assessing the
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performance of children with disabilities, in
accordance with sections 1111(b) and 6111
of the Elementary and Secondary Edu-
cation Act of 1965.
‘‘(3) LOCAL EDUCATIONAL AGENCY RISK POOL.—
‘‘(A) IN GENERAL.—For the purpose of as-
sisting local educational agencies (and charter
schools that are local educational agencies) in
addressing the needs of high-need children and
the unanticipated enrollment of other children el-
igible for services under this part, each State
shall reserve for each of the fiscal years 2004
through 2009, 2 percent of the amount that re-
mains after subtracting the amount reserved
under paragraph (1) from the amount of the
State’s allocation under subsection (d) for each of
the fiscal years 2004 through 2009, respectively,
to—
‘‘(i) establish a high-cost fund; and
‘‘(ii) make disbursements from the
high-cost fund to local educational agencies
in accordance with this paragraph.
‘‘(B) REQUIRED
DISBURSEMENTS
FROM
THE FUND.—
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‘‘(i) IN
GENERAL.—Each State edu-
cational agency shall make disbursements
from the fund established under subpara-
graph (A) to local educational agencies to
pay the percentage, described in subpara-
graph (D), of the costs of providing a free
appropriate public education to high-need
children.
‘‘(ii) SPECIAL
RULE.—If funds re-
served for a fiscal year under subparagraph
(A) are insufficient to pay the percentage
described in subparagraph (D) to assist all
the local educational agencies having appli-
cations approved under subparagraph (C),
then the State educational agency shall rat-
ably reduce the amount paid to each local
educational agency that receives a disburse-
ment for that fiscal year.
‘‘(C) APPLICATION.—A local educational
agency that desires a disbursement under this
subsection shall submit an application to the
State educational agency at such time, in such
manner, and containing such information as the
State educational agency may require. Such ap-
plication shall include assurances that funds
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provided under this paragraph shall not be used
to pay costs that otherwise would be reimburs-
able as medical assistance for a child with a dis-
ability under the State medicaid program under
title XIX of the Social Security Act.
‘‘(D) DISBURSEMENTS.—
‘‘(i) 
IN
GENERAL.—A 
State 
edu-
cational agency shall make a disbursement
to a local educational agency that submits
an application under subparagraph (C) in
an amount that is equal to 75 percent of the
costs that are in excess of 4 times the aver-
age per-pupil expenditure in the United
States or in the State where the child re-
sides (whichever average per-pupil expendi-
ture is lower) associated with educating
each high need child served by such local
educational agency in a fiscal year for
whom such agency desires a disbursement.
‘‘(ii) APPROPRIATE COSTS.—The costs
associated with educating a high need child
under clause (i) are only those costs associ-
ated with providing direct special education
and related services to such child that are
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identified in such child’s appropriately de-
veloped IEP.
‘‘(E) LEGAL
FEES.—The disbursements
under subparagraph (D) shall not support legal
fees, court costs, or other costs associated with a
cause of action brought on behalf of such child to
ensure a free appropriate public education for
such child.
‘‘(F) PERMISSIBLE DISBURSEMENTS FROM
REMAINING FUNDS.—A State educational agency
may make disbursements to local educational
agencies from any funds that are remaining in
the high cost fund after making the required dis-
bursements under subparagraph (D) for a fiscal
year for the following purposes:
‘‘(i) To pay the costs associated with
serving children with disabilities who
moved into the areas served by such local
agencies after the budget for the following
school year had been finalized to assist the
local educational agencies in providing a
free appropriate public education for such
children in such year.
‘‘(ii) To compensate local educational
agencies for extraordinary costs, as deter-
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mined by the State, of any children eligible
for services under this part due to—
‘‘(I) unexpected enrollment or
placement of children eligible for serv-
ices under this part; or
‘‘(II) a significant underestimate
of the average cost of providing services
to children eligible for services under
this part.
‘‘(G) REMAINING
FUNDS.—Funds reserved
under subparagraph (A) in any fiscal year but
not expended in that fiscal year pursuant to sub-
paragraph (D) or subparagraph (F) shall—
‘‘(i) be allocated to local educational
agencies pursuant to subparagraphs (D) or
(F) for the next fiscal year; or
‘‘(ii) be allocated to local educational
agencies in the same manner as funds are
allocated to local educational agencies under
subsection (f).
‘‘(H) ASSURANCE OF A FREE APPROPRIATE
PUBLIC
EDUCATION.—Nothing in this section
shall be construed—
‘‘(i) to limit or condition the right of
a child with a disability who is assisted
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under this part to receive a free appropriate
public 
education 
pursuant 
to 
section
612(a)(1) in a least restrictive environment
pursuant to section 612(a)(5); or
‘‘(ii) to authorize a State educational
agency or local educational agency to indi-
cate a limit on what is expected to be spent
on the education of a child with a dis-
ability.
‘‘(I) MEDICAID SERVICES NOT AFFECTED.—
Disbursements provided under this subsection
shall not be used to pay costs that otherwise
would be reimbursable as medical assistance for
a child with a disability under the State med-
icaid program under title XIX of the Social Se-
curity Act.
‘‘(J) DEFINITIONS.—In this paragraph:
‘‘(i) AVERAGE
PER-PUPIL
EXPENDI-
TURE.—The term ‘average per-pupil ex-
penditure’ has the meaning given the term
in section 9101 of the Elementary and Sec-
ondary Education Act of 1965.
‘‘(ii) HIGH-NEED
CHILD.—The term
‘high-need’, when used with respect to a
child with a disability, means a child with
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a disability for whom a free appropriate
public education in a fiscal year costs more
than 4 times the average per-pupil expendi-
ture for such fiscal year.
‘‘(K) SPECIAL RULE FOR RISK POOL AND
HIGH-NEED ASSISTANCE PROGRAMS IN EFFECT
AS
OF
JANUARY
1, 2003.—Notwithstanding the
provisions of subparagraphs (A) through (J), a
State may use funds reserved pursuant to this
paragraph for administering and implementing
a placement-neutral cost-sharing and reimburse-
ment program of high-need, low-incidence, emer-
gency, catastrophic, or extraordinary aid to local
educational agencies that provides services to
students eligible under this part based on eligi-
bility criteria for such programs that were oper-
ative on January 1, 2003.
‘‘(4) INAPPLICABILITY
OF
CERTAIN
PROHIBI-
TIONS.—A State may use funds the State reserves
under paragraphs (1), (2), and (3) without regard
to—
‘‘(A) the prohibition on commingling of
funds in section 612(a)(17)(B); and
‘‘(B) the prohibition on supplanting other
funds in section 612(a)(17)(C).
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‘‘(5) REPORT ON USE OF FUNDS.—As part of the
information required to be submitted to the Secretary
under section 612, each State shall annually describe
how amounts under this section—
‘‘(A) will be used to meet the requirements
of this Act; and
‘‘(B) will be allocated among the activities
described in this section to meet State priorities
based on input from local educational agencies.
‘‘(6) FLEXIBILITY IN USING FUNDS FOR PART
C.—Any State eligible to receive a grant under sec-
tion 619 may use funds made available under para-
graph (1)(A), subsection (f)(3), or section 619(f)(5) to
develop and implement a State policy jointly with the
lead agency under part C and the State educational
agency to provide early intervention services (which
shall include an educational component that promotes
school readiness and incorporates pre-literacy, lan-
guage, and numeracy skills) in accordance with part
C to children with disabilities who are eligible for
services under section 619 and who previously re-
ceived services under part C until such children enter,
or are eligible under State law to enter, kindergarten.
‘‘(f) SUBGRANTS
TO LOCAL EDUCATIONAL AGEN-
CIES.—
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‘‘(1) SUBGRANTS REQUIRED.—Each State that
receives a grant under this section for any fiscal year
shall distribute any funds the State does not reserve
under subsection (e) to local educational agencies (in-
cluding public charter schools that operate as local
educational agencies) in the State that have estab-
lished their eligibility under section 613 for use in ac-
cordance with this part.
‘‘(2) PROCEDURE FOR ALLOCATIONS TO LOCAL
EDUCATIONAL AGENCIES.—
‘‘(A) PROCEDURE.—For each fiscal year for
which funds are allocated to States under sub-
section (d), each State shall allocate funds under
paragraph (1) as follows:
‘‘(i) BASE PAYMENTS.—The State shall
first award each local educational agency
described in paragraph (1) the amount the
local educational agency would have re-
ceived under this section for fiscal year
1999, if the State had distributed 75 per-
cent of its grant for that year under section
611(d) as section 611(d) was then in effect.
‘‘(ii) 
ALLOCATION
OF
REMAINING
FUNDS.—After making allocations under
clause (i), the State shall—
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‘‘(I) allocate 85 percent of any re-
maining funds to those local edu-
cational agencies on the basis of the
relative numbers of children enrolled in
public and private elementary schools
and secondary schools within the local
educational agency’s jurisdiction; and
‘‘(II) allocate 15 percent of those
remaining funds to those local edu-
cational agencies in accordance with
their relative numbers of children liv-
ing in poverty, as determined by the
State educational agency.
‘‘(3) 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 local educational
agency with State and local funds, the State edu-
cational agency may reallocate any portion of the
funds under this part that are not needed by that
local educational agency to provide a free appropriate
public education to other local educational agencies in
the State that are not adequately providing special
education and related services to all children with
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disabilities residing in the areas served by those other
local educational agencies.
‘‘(g) DEFINITIONS.—For the purpose of this section—
‘‘(1) the term ‘average per-pupil expenditure in
public elementary schools and secondary schools in
the United States’ means—
‘‘(A) without regard to the source of
funds—
‘‘(i) the aggregate current expenditures,
during the second fiscal year preceding the
fiscal year for which the determination is
made (or, if satisfactory data for that year
are not available, during the most recent
preceding fiscal year for which satisfactory
data are available) of all local educational
agencies in the 50 States and the District of
Columbia; plus
‘‘(ii) any direct expenditures by the
State for the operation of those local edu-
cational agencies; divided by
‘‘(B) the aggregate number of children in
average daily attendance to whom those local
educational agencies provided free public edu-
cation during that preceding year; and
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‘‘(2) the term ‘State’ means each of the 50 States,
the District of Columbia, and the Commonwealth of
Puerto Rico.
‘‘(h) USE OF AMOUNTS BY SECRETARY OF THE 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 through 21 who are enrolled in
elementary schools and secondary schools for In-
dian children operated or funded by the Sec-
retary of the Interior. The amount of such pay-
ment for any fiscal year shall be equal to 80 per-
cent of the amount allotted under subsection (c)
for that fiscal year.
‘‘(B) CALCULATION OF NUMBER OF CHIL-
DREN.—In the case of Indian students aged 3
through 5 who are enrolled in programs affili-
ated with the 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
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State accreditation, and which schools had such
accreditation prior to the date of enactment of
the Individuals with Disabilities Education Act
Amendments of 1991, the school shall be allowed
to count those children for the purpose of 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 through 21 on
reservations, the State educational agency shall
be responsible for ensuring that all of the re-
quirements 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
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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
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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 moni-
toring and oversight of this application, and any
agreements entered into between the Secretary of
the Interior and other entities under this part,
and will fulfill its duties under this part.
‘‘(3) 
APPLICABILITY.—Section 
616(a) 
shall
apply to the information described in this paragraph.
‘‘(4) PAYMENTS FOR EDUCATION AND SERVICES
FOR INDIAN CHILDREN WITH DISABILITIES AGED 3
THROUGH 5.—
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‘‘(A) IN
GENERAL.—With funds appro-
priated under subsection (i), the Secretary of
Education shall make payments to the Secretary
of the Interior to be distributed to tribes or tribal
organizations (as defined under section 4 of the
Indian Self-Determination and Education 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 schools and secondary schools for
Indian children operated or funded by the De-
partment 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.
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‘‘(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),
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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 year 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.
‘‘(5) 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
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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. The plan shall be based on the
needs of the children and the system best suited for
meeting those needs, and may involve the establish-
ment of cooperative agreements between the BIA,
other Federal agencies, and other entities. The plan
shall also be distributed upon request to States, State
and local educational agencies, and other agencies
providing services to infants, toddlers, and children
with disabilities, to tribes, and to other interested
parties.
‘‘(6) ESTABLISHMENT OF ADVISORY BOARD.—To
meet the requirements of section 612(a)(20), the Sec-
retary of the Interior shall establish, under the BIA,
an advisory board composed of individuals involved
in or concerned with the education and provision of
services to Indian infants, toddlers, children, and
youth with disabilities, including Indians with dis-
abilities, Indian parents or guardians of such chil-
dren, teachers, service providers, State and local edu-
cational officials, representatives of tribes or tribal or-
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ganizations, representatives from State Interagency
Coordinating Councils under section 641 in States
having reservations, and other members representing
the various divisions and entities of the BIA. The
chairperson shall 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
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‘‘(E) provide assistance in the preparation
of information required under paragraph (2)(D).
‘‘(7) ANNUAL REPORTS.—
‘‘(A) IN GENERAL.—The advisory board es-
tablished under paragraph (6) shall prepare and
submit to the Secretary of the Interior and to
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).
‘‘(i) AUTHORIZATION OF APPROPRIATIONS.—For the
purpose of carrying out this part, other than section 619,
there are authorized to be appropriated—
‘‘(1) $12,358,376,571 for fiscal year 2005;
‘‘(2) $14,648,647,143 for fiscal year 2006;
‘‘(3) $16,938,917,714 for fiscal year 2007;
‘‘(4) $19,229,188,286 for fiscal year 2008;
‘‘(5) $21,519,458,857 for fiscal year 2009;
‘‘(6) $23,809,729,429 for fiscal year 2010;
‘‘(7) $26,100,000,000 for fiscal year 2011; and
‘‘(8) such sums as may be necessary for fiscal
year 2012 and each succeeding fiscal year.
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‘‘SEC. 612. STATE ELIGIBILITY.
‘‘(a) IN GENERAL.—A State is eligible for assistance
under this part for a fiscal year if the State submits a plan
that provides assurances to the Secretary that the State has
in effect policies and procedures to ensure that the State
meets each of the following conditions:
‘‘(1) FREE APPROPRIATE PUBLIC EDUCATION.—
‘‘(A) IN GENERAL.—A free appropriate 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
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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); or
‘‘(II) did not have an individual-
ized education program under this
part.
‘‘(C) STATE
FLEXIBILITY.—A State that
provides early intervention services in accord-
ance with part C to a child who is eligible for
services under section 619, is not required to
provide such child with a free appropriate public
education.
‘‘(2) FULL EDUCATIONAL OPPORTUNITY GOAL.—
The State has established a goal of providing full 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 who are homeless children or
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are wards of the State and children with disabil-
ities attending private schools, regardless of the
severity of their disabilities, and who are in need
of special education and related services, are
identified, located, and evaluated and a practical
method is developed and implemented to deter-
mine which children with disabilities are cur-
rently receiving needed special education and re-
lated 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-
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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.—A State funding
mechanism shall not result in placements
that violate the requirements of subpara-
graph (A), and a State shall not use a
funding mechanism by which the State dis-
tributes funds on the basis of the type of set-
ting in which a child is served that will re-
sult in the failure to provide a child with
a disability a free appropriate public edu-
cation according to the unique needs of the
child as described in the child’s IEP.
‘‘(ii) ASSURANCE.—If the State does
not have policies and procedures to ensure
compliance with clause (i), the State shall
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provide the Secretary an assurance that the
State will revise the funding mechanism as
soon as feasible to ensure that such mecha-
nism 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 deter-
mining an appropriate educational program for
a child.
‘‘(7) EVALUATION.—Children with disabilities
are evaluated in accordance with subsections (a) and
(b) of section 614.
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‘‘(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 635(a)(10).
‘‘(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 schools and secondary schools in
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the school district served by a local edu-
cational agency, provision is made for the
participation of those children in the pro-
gram assisted or carried out under this part
by providing for such children special edu-
cation and related services in accordance
with the following requirements, unless the
Secretary has arranged for services to those
children under subsection (f):
‘‘(I) Amounts to be expended for
the provision of those services (includ-
ing direct services to parentally placed
children) by the local educational agen-
cy shall be equal to a proportionate
amount of Federal funds made avail-
able under this part.
‘‘(II) Such services may be pro-
vided to children with disabilities on
the premises of private, including reli-
gious, schools, to the extent consistent
with law.
‘‘(III) 
Each 
local 
educational
agency shall maintain in its records
and provide to the State educational
agency the number of children evalu-
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ated under this paragraph, the number
of children determined to be children
with disabilities, and the number of
children served under this subsection.
‘‘(ii) CHILD-FIND REQUIREMENT.—
‘‘(I) IN
GENERAL.—The require-
ments of paragraph (3) of this sub-
section (relating to child find) shall
apply with respect to children with
disabilities in the State who are en-
rolled in private, including religious,
elementary 
schools 
and 
secondary
schools. Such child find process shall be
conducted in a comparable time period
as for other students attending public
schools in the local educational agency.
‘‘(II) 
EQUITABLE
PARTICIPA-
TION.—The child find process shall be
designed to ensure the equitable par-
ticipation of parentally placed private
school children and an accurate count
of such children.
‘‘(III) ACTIVITIES.—In carrying
out this clause, the local educational
agency, or where applicable, the State
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educational agency, shall undertake ac-
tivities similar to those activities un-
dertaken for its public school children.
‘‘(IV) COST.—The cost of carrying
out this clause, including individual
evaluations, may not be considered in
determining whether a local education
agency has met its obligations under
clause (i).
‘‘(iii) 
CONSULTATION.—To 
ensure
timely and meaningful consultation, a local
educational agency, or where appropriate, a
State educational agency, shall consult with
representatives of children with disabilities
who are parentally placed in private
schools, during the design and development
of special education and related services for
these 
children, 
including 
consultation
regarding—
‘‘(I) the child find process and
how parentally placed private school
children suspected of having a dis-
ability can participate equitably, in-
cluding how parents, teachers, and pri-
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vate school officials will be informed of
the process;
‘‘(II) the determination of the pro-
portionate share of Federal funds
available to serve parentally placed
private school children with disabilities
under this paragraph, including the
determination of how the proportionate
share of those funds were calculated;
‘‘(III) the consultation process
among the school district, private
school officials, and parents of paren-
tally placed private school children
with disabilities, including how such
process will operate throughout the
school year to ensure that parentally
placed children with disabilities identi-
fied through the child find process can
meaningfully participate in special
education and related services;
‘‘(IV) how, where, and by whom
special education and related services
will be provided for parentally placed
private school children, including a
discussion of alternate service delivery
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mechanisms, how such services will be
apportioned if funds are insufficient to
serve all children, and how and when
these decisions will be made; and
‘‘(V) how, if the local educational
agency disagrees with the views of the
private school officials on the provision
of services through a contract, the local
educational agency shall provide to the
private school officials a written expla-
nation of the reasons why the local
educational agency chose not to pro-
vide services through a contract.
‘‘(iv) WRITTEN
AFFIRMATION.—When
timely and meaningful consultation as re-
quired by this section has occurred, the local
educational agency shall obtain a written
affirmation signed by the representatives of
participating private schools, and if such
officials do not provide such affirmation
within a reasonable period of time, the local
educational agency shall forward the docu-
mentation of the consultation process to the
State educational agency.
‘‘(v) COMPLIANCE.—
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‘‘(I) IN
GENERAL.—A private
school official shall have the right to
complain to the State educational
agency that the local educational agen-
cy did not engage in consultation that
was meaningful and timely, or did not
give due consideration to the views of
the private school official.
‘‘(II) PROCEDURE.—If the private
school official wishes to complain, the
official shall provide the basis of the
noncompliance with this section by the
local educational agency to the State
educational agency, and the local edu-
cational agency shall forward the ap-
propriate documentation to the State
educational agency. If the private
school official is dissatisfied with the
decision of the State educational agen-
cy, such official may complain to the
Secretary by providing the basis of the
noncompliance with this section by the
local educational agency to the Sec-
retary, and the State educational agen-
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cy shall forward the appropriate docu-
mentation to the Secretary.
‘‘(vi) PROVISION OF EQUITABLE SERV-
ICES.—
‘‘(I) DIRECT
SERVICES.—To the
extent practicable, the local educational
agency shall provide direct services to
children with disabilities parentally
placed in private schools.
‘‘(II) DIRECTLY
OR
THROUGH
CONTRACTS.—A public agency may
provide special education and related
services directly or through contracts
with public and private agencies, orga-
nizations, and institutions.
‘‘(III) SECULAR, NEUTRAL, NON-
IDEOLOGICAL.—Special education and
related services provided to children
with 
disabilities 
attending 
private
schools, including materials and equip-
ment, shall be secular, neutral, and
nonideological.
‘‘(vii) PUBLIC CONTROL OF FUNDS.—
The control of funds used to provide special
education and related services under this
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section, and title to materials, equipment,
and property purchased with those funds,
shall be in a public agency for the uses and
purposes provided in this Act, and a public
agency shall administer the funds and
property.
‘‘(B) CHILDREN PLACED IN, OR REFERRED
TO, PRIVATE SCHOOLS BY PUBLIC AGENCIES.—
‘‘(i) IN GENERAL.—Children with 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
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State and local educational agencies and
that children so served have all the rights
the children would have if served by such
agencies.
‘‘(C) PAYMENT FOR EDUCATION OF 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 school
or secondary school without the consent of
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or referral by the public agency, a court or
a hearing officer may require the agency to
reimburse the parents for the cost of that 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
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‘‘(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)(3), 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—
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‘‘(I) shall not be reduced or denied
for failure to provide such notice if—
‘‘(aa) the school prevented the
parent from providing such no-
tice; or
‘‘(bb) the parents had not re-
ceived notice, pursuant to section
615, of the notice requirement in
clause (iii)(I); and
‘‘(II) may, in the discretion of a
court or a hearing officer, not be re-
duced or denied for failure to provide
such notice if—
‘‘(aa) the parent is illiterate
and cannot write in English; or
‘‘(bb) compliance with clause
(iii)(I) would likely have resulted
in physical or serious emotional
harm to the child.
‘‘(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
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‘‘(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 ages birth through 26, including not
less than 1 foster parent of a child with dis-
abilities who is a ward of the State, not less
than 1 grandparent or other relative who is
acting in the place of a natural or adoptive
parent, and not less than 1 representative of
children with disabilities in military fami-
lies;
‘‘(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,
including officials who carry out activities