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[[Page 118 STAT. 2677]]
``(i) aged 3 through 5 and 18 through 21 in a
State to the extent that its application to those
children would be inconsistent with State law or
practice, or the order of any court, respecting
the provision of public education to children in
those age ranges; and
``(ii) aged 18 through 21 to the extent that
State law does not require that special education
and related services under this part be provided
to children with disabilities who, in the
educational placement prior to their incarceration
in an adult correctional facility--
``(I) were not actually identified
as being a child with a disability under
section 602; or
``(II) did not have an
individualized education program under
this part.
``(C) State flexibility.--A State that provides
early intervention services in accordance with part C to
a child who is eligible for services under section 619,
is not required to provide such child with a free
appropriate public education.
``(2) Full educational opportunity goal.--The State has
established a goal of providing full educational opportunity to
all children with disabilities and a detailed timetable for
accomplishing that goal.
``(3) Child find.--
``(A) In general.--All children with disabilities
residing in the State, including children with
disabilities who are homeless children or are wards of
the State and children with disabilities attending
private schools, regardless of the severity of their
disabilities, and who are in need of special education
and related services, are identified, located, and
evaluated and a practical method is developed and
implemented to determine which children with
disabilities are currently receiving needed special
education and related services.
``(B) Construction.--Nothing in this title requires
that children be classified by their disability so long
as each child who has a disability listed in section 602
and who, by reason of that disability, needs special
education and related services is regarded as a child
with a disability under this part.
``(4) Individualized education program.--An individualized
education program, or an individualized family service plan that
meets the requirements of section 636(d), is developed,
reviewed, and revised for each child with a disability in
accordance with section 614(d).
``(5) Least restrictive environment.--
``(A) In general.--To the maximum extent
appropriate, children with disabilities, including
children in public or private institutions or other care
facilities, are educated with children who are not
disabled, and special classes, separate schooling, or
other removal of children with disabilities from the
regular educational environment occurs only when the
nature or severity of the disability of a child is such
that education in regular classes with the use of
supplementary aids and services cannot be achieved
satisfactorily.
``(B) Additional requirement.--
[[Page 118 STAT. 2678]]
``(i) In general.--A State funding mechanism
shall not result in placements that violate the
requirements of subparagraph (A), and a State
shall not use a funding mechanism by which the
State distributes funds on the basis of the type
of setting in which a child is served that will
result in the failure to provide a child with a
disability a free appropriate public education
according to the unique needs of the child as
described in the child's IEP.
``(ii) Assurance.--If the State does not have
policies and procedures to ensure compliance with
clause (i), the State shall provide the Secretary
an assurance that the State will revise the
funding mechanism as soon as feasible to ensure
that such mechanism does not result in such
placements.
``(6) Procedural safeguards.--
``(A) In general.--Children with disabilities and
their parents are afforded the procedural safeguards
required by section 615.
``(B) Additional procedural safeguards.--Procedures
to ensure that testing and evaluation materials and
procedures utilized for the purposes of evaluation and
placement of children with disabilities for services
under this title will be selected and administered so as
not to be racially or culturally discriminatory. Such
materials or procedures shall be provided and
administered in the child's native language or mode of
communication, unless it clearly is not feasible to do
so, and no single procedure shall be the sole criterion
for determining an appropriate educational program for a
child.
``(7) Evaluation.--Children with disabilities are evaluated
in accordance with subsections (a) through (c) of section 614.
``(8) Confidentiality.--Agencies in the State comply with
section 617(c) (relating to the confidentiality of records and
information).
``(9) Transition from part c to preschool programs.--
Children participating in early intervention programs assisted
under part C, and who will participate in preschool programs
assisted under this part, experience a smooth and effective
transition to those preschool programs in a manner consistent
with section 637(a)(9). By the third birthday of such a child,
an individualized education program or, if consistent with
sections 614(d)(2)(B) and 636(d), an individualized family
service plan, has been developed and is being implemented for
the child. The local educational agency will participate in
transition planning conferences arranged by the designated lead
agency under section 635(a)(10).
``(10) Children in private schools.--
``(A) Children enrolled in private schools by their
parents.--
``(i) In general.--To the extent consistent
with the number and location of children with
disabilities in the State who are enrolled by
their parents in private elementary schools and
secondary schools in the school district served by
a local educational agency, provision is made for
the participation of those children in the program
assisted or carried out under this part
[[Page 118 STAT. 2679]]
by providing for such children special education
and related services in accordance with the
following requirements, unless the Secretary has
arranged for services to those children under
subsection (f):
``(I) Amounts to be expended for the
provision of those services (including
direct services to parentally placed
private school children) by the local
educational agency shall be equal to a
proportionate amount of Federal funds
made available under this part.
``(II) In calculating the
proportionate amount of Federal funds,
the local educational agency, after
timely and meaningful consultation with
representatives of private schools as
described in clause (iii), shall conduct
a thorough and complete child find
process to determine the number of
parentally placed children with
disabilities attending private schools
located in the local educational agency.
``(III) Such services to parentally
placed private school children with
disabilities may be provided to the
children on the premises of private,
including religious, schools, to the
extent consistent with law.
``(IV) State and local funds may
supplement and in no case shall supplant
the proportionate amount of Federal
funds required to be expended under this
subparagraph.
``(V) Each local educational agency
shall maintain in its records and
provide to the State educational agency
the number of children evaluated under
this subparagraph, the number of
children determined to be children with
disabilities under this paragraph, and
the number of children served under this
paragraph.
``(ii) Child find requirement.--
``(I) In general.--The requirements
of paragraph (3) (relating to child
find) shall apply with respect to
children with disabilities in the State
who are enrolled in private, including
religious, elementary schools and
secondary schools.
``(II) Equitable participation.--The
child find process shall be designed to
ensure the equitable participation of
parentally placed private school
children with disabilities and an
accurate count of such children.
``(III) Activities.--In carrying out
this clause, the local educational
agency, or where applicable, the State
educational agency, shall undertake
activities similar to those activities
undertaken for the agency's public
school children.
``(IV) Cost.--The cost of carrying
out this clause, including individual
evaluations, may not be considered in
determining whether a local educational
agency has met its obligations under
clause (i).
[[Page 118 STAT. 2680]]
``(V) Completion period.--Such child
find process shall be completed in a
time period comparable to that for other
students attending public schools in the
local educational agency.
``(iii) Consultation.--To ensure timely and
meaningful consultation, a local educational
agency, or where appropriate, a State educational
agency, shall consult with private school
representatives and representatives of parents of
parentally placed private school children with
disabilities during the design and development of
special education and related services for the
children, including regarding--
``(I) the child find process and how
parentally placed private school
children suspected of having a
disability can participate equitably,
including how parents, teachers, and
private school officials will be
informed of the process;
``(II) the determination of the
proportionate amount of Federal funds
available to serve parentally placed
private school children with
disabilities under this subparagraph,
including the determination of how the
amount was calculated;
``(III) the consultation process
among the local educational agency,
private school officials, and
representatives of parents of parentally
placed private school children with
disabilities, including how such process
will operate throughout the school year
to ensure that parentally placed private
school children with disabilities
identified through the child find
process can meaningfully participate in
special education and related services;
``(IV) how, where, and by whom
special education and related services
will be provided for parentally placed
private school children with
disabilities, including a discussion of
types of services, including direct
services and alternate service delivery
mechanisms, how such services will be
apportioned if funds are insufficient to
serve all children, and how and when
these decisions will be made; and
``(V) how, if the local educational
agency disagrees with the views of the
private school officials on the
provision of services or the types of
services, whether provided directly or
through a contract, the local
educational agency shall provide to the
private school officials a written
explanation of the reasons why the local
educational agency chose not to provide
services directly or through a contract.
``(iv) Written affirmation.--When timely and
meaningful consultation as required by clause
(iii) has occurred, the local educational agency
shall obtain a written affirmation signed by the
representatives of participating private schools,
and if such representatives do not provide such
affirmation within a reasonable period of time,
the local educational agency shall
[[Page 118 STAT. 2681]]
forward the documentation of the consultation
process to the State educational agency.
``(v) Compliance.--
``(I) In general.--A private school
official shall have the right to submit
a complaint to the State educational
agency that the local educational agency
did not engage in consultation that was
meaningful and timely, or did not give
due consideration to the views of the
private school official.
``(II) Procedure.--If the private
school official wishes to submit a
complaint, the official shall provide
the basis of the noncompliance with this
subparagraph by the local educational
agency to the State educational agency,
and the local educational agency shall
forward the appropriate documentation to
the State educational agency. If the
private school official is dissatisfied
with the decision of the State
educational agency, such official may
submit a complaint to the Secretary by
providing the basis of the noncompliance
with this subparagraph by the local
educational agency to the Secretary, and
the State educational agency shall
forward the appropriate documentation to
the Secretary.
``(vi) Provision of equitable services.--
``(I) Directly or through
contracts.--The provision of services
pursuant to this subparagraph shall be
provided--
``(aa) by employees of a
public agency; or
``(bb) through contract by
the public agency with an
individual, association, agency,
organization, or other entity.
``(II) Secular, neutral,
nonideological.--Special education and
related services provided to parentally
placed private school children with
disabilities, including materials and
equipment, shall be secular, neutral,
and nonideological.
``(vii) Public control of funds.--The control
of funds used to provide special education and
related services under this subparagraph, and
title to materials, equipment, and property
purchased with those funds, shall be in a public
agency for the uses and purposes provided in this
title, and a public agency shall administer the
funds and property.
``(B) Children placed in, or referred to, private
schools by public agencies.--
``(i) In general.--Children with disabilities
in private schools and facilities are provided
special education and related services, in
accordance with an individualized education
program, at no cost to their parents, if such
children are placed in, or referred to, such
schools or facilities by the State or appropriate
local educational agency as the means of carrying
out the requirements of this part or any other
applicable law requiring the provision of special
education and related services to all children
with disabilities within such State.
[[Page 118 STAT. 2682]]
``(ii) Standards.--In all cases described in
clause (i), the State educational agency shall
determine whether such schools and facilities meet
standards that apply to State educational agencies
and local educational agencies and that children
so served have all the rights the children would
have if served by such agencies.
``(C) Payment for education of children enrolled in
private schools without consent of or referral by the
public agency.--
``(i) In general.--Subject to subparagraph
(A), this part does not require a local
educational agency to pay for the cost of
education, including special education and related
services, of a child with a disability at a
private school or facility if that agency made a
free appropriate public education available to the
child and the parents elected to place the child
in such private school or facility.
``(ii) Reimbursement for private school
placement.--If the parents of a child with a
disability, who previously received special
education and related services under the authority
of a public agency, enroll the child in a private
elementary school or secondary school without the
consent of or referral by the public agency, a
court or a hearing officer may require the agency
to reimburse the parents for the cost of that
enrollment if the court or hearing officer finds
that the agency had not made a free appropriate
public education available to the child in a
timely manner prior to that enrollment.
``(iii) Limitation on reimbursement.--The cost
of reimbursement described in clause (ii) may be
reduced or denied--
``(I) if--
``(aa) at the most recent
IEP meeting that the parents
attended prior to removal of the
child from the public school,
the parents did not inform the
IEP Team that they were
rejecting the placement proposed
by the public agency to provide
a free appropriate public
education to their child,
including stating their concerns
and their intent to enroll their
child in a private school at
public expense; or
``(bb) 10 business days
(including any holidays that
occur on a business day) prior
to the removal of the child from
the public school, the parents
did not give written notice to
the public agency of the
information described in item
(aa);
``(II) if, prior to the parents'
removal of the child from the public
school, the public agency informed the
parents, through the notice requirements
described in section 615(b)(3), of its
intent to evaluate the child (including
a statement of the purpose of the
evaluation that was appropriate and
reasonable), but the parents did not
make the child available for such
evaluation; or
[[Page 118 STAT. 2683]]
``(III) upon a judicial finding of
unreasonableness with respect to actions
taken by the parents.
``(iv) Exception.--Notwithstanding the notice
requirement in clause (iii)(I), the cost of
reimbursement--
``(I) shall not be reduced or denied
for failure to provide such notice if--
``(aa) the school prevented
the parent from providing such
notice;
``(bb) the parents had not
received notice, pursuant to
section 615, of the notice
requirement in clause (iii)(I);
or
``(cc) compliance with
clause (iii)(I) would likely
result in physical harm to the
child; and
``(II) may, in the discretion of a
court or a hearing officer, not be
reduced or denied for failure to provide
such notice if--
``(aa) the parent is
illiterate or cannot write in
English; or
``(bb) compliance with
clause (iii)(I) would likely
result in serious emotional harm
to the child.
``(11) State educational agency responsible for general
supervision.--
``(A) In general.--The State educational agency is
responsible for ensuring that--
``(i) the requirements of this part are met;
``(ii) all educational programs for children
with disabilities in the State, including all such
programs administered by any other State agency or
local agency--
``(I) are under the general
supervision of individuals in the State
who are responsible for educational
programs for children with disabilities;
and
``(II) meet the educational
standards of the State educational
agency; and
``(iii) in carrying out this part with respect
to homeless children, the requirements of subtitle
B of title VII of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11431 et seq.) are met.
``(B) Limitation.--Subparagraph (A) shall not limit
the responsibility of agencies in the State other than
the State educational agency to provide, or pay for some
or all of the costs of, a free appropriate public
education for any child with a disability in the State.
``(C) Exception.--Notwithstanding subparagraphs (A)
and (B), the Governor (or another individual pursuant to
State law), consistent with State law, may assign to any
public agency in the State the responsibility of
ensuring that the requirements of this part are met with
respect to children with disabilities who are convicted
as adults under State law and incarcerated in adult
prisons.
``(12) Obligations related to and methods of ensuring
services.--
[[Page 118 STAT. 2684]]
``(A) Establishing responsibility for services.--The
Chief Executive Officer of a State or designee of the
officer shall ensure that an interagency agreement or
other mechanism for interagency coordination is in
effect between each public agency described in
subparagraph (B) and the State educational agency, in
order to ensure that all services described in
subparagraph (B)(i) that are needed to ensure a free
appropriate public education are provided, including the
provision of such services during the pendency of any
dispute under clause (iii). Such agreement or mechanism
shall include the following:
``(i) Agency financial responsibility.--An
identification of, or a method for defining, the
financial responsibility of each agency for
providing services described in subparagraph
(B)(i) to ensure a free appropriate public
education to children with disabilities, provided
that the financial responsibility of each public
agency described in subparagraph (B), including
the State medicaid agency and other public
insurers of children with disabilities, shall
precede the financial responsibility of the local
educational agency (or the State agency
responsible for developing the child's IEP).
``(ii) Conditions and terms of
reimbursement.--The conditions, terms, and
procedures under which a local educational agency
shall be reimbursed by other agencies.
``(iii) Interagency disputes.--Procedures for
resolving interagency disputes (including
procedures under which local educational agencies
may initiate proceedings) under the agreement or
other mechanism to secure reimbursement from other
agencies or otherwise implement the provisions of
the agreement or mechanism.
``(iv) Coordination of services procedures.--
Policies and procedures for agencies to determine
and identify the interagency coordination
responsibilities of each agency to promote the
coordination and timely and appropriate delivery
of services described in subparagraph (B)(i).
``(B) Obligation of public agency.--
``(i) In general.--If any public agency other
than an educational agency is otherwise obligated
under Federal or State law, or assigned
responsibility under State policy pursuant to
subparagraph (A), to provide or pay for any
services that are also considered special
education or related services (such as, but not
limited to, services described in section 602(1)
relating to assistive technology devices, 602(2)
relating to assistive technology services, 602(26)
relating to related services, 602(33) relating to
supplementary aids and services, and 602(34)
relating to transition services) that are
necessary for ensuring a free appropriate public
education to children with disabilities within the
State, such public agency shall fulfill that
obligation or responsibility, either directly or
through contract or
[[Page 118 STAT. 2685]]
other arrangement pursuant to subparagraph (A) or
an agreement pursuant to subparagraph (C).
``(ii) Reimbursement for services by public
agency.--If a public agency other than an
educational agency fails to provide or pay for the
special education and related services described
in clause (i), the local educational agency (or
State agency responsible for developing the
child's IEP) shall provide or pay for such
services to the child. Such local educational
agency or State agency is authorized to claim
reimbursement for the services from the public
agency that failed to provide or pay for such
services and such public agency shall reimburse
the local educational agency or State agency
pursuant to the terms of the interagency agreement
or other mechanism described in subparagraph
(A)(i) according to the procedures established in
such agreement pursuant to subparagraph (A)(ii).
``(C) Special rule.--The requirements of
subparagraph (A) may be met through--
``(i) State statute or regulation;
``(ii) signed agreements between respective
agency officials that clearly identify the
responsibilities of each agency relating to the
provision of services; or
``(iii) other appropriate written methods as
determined by the Chief Executive Officer of the
State or designee of the officer and approved by
the Secretary.
``(13) Procedural requirements relating to local educational
agency eligibility.--The State educational agency will not make
a final determination that a local educational agency is not
eligible for assistance under this part without first affording
that agency reasonable notice and an opportunity for a hearing.
``(14) Personnel qualifications.--
``(A) In general.--The State educational agency has
established and maintains qualifications to ensure that
personnel necessary to carry out this part are
appropriately and adequately prepared and trained,
including that those personnel have the content
knowledge and skills to serve children with
disabilities.
``(B) Related services personnel and
paraprofessionals.--The qualifications under
subparagraph (A) include qualifications for related
services personnel and paraprofessionals that--
``(i) are consistent with any State-approved
or State-recognized certification, licensing,
registration, or other comparable requirements
that apply to the professional discipline in which
those personnel are providing special education or
related services;
``(ii) ensure that related services personnel
who deliver services in their discipline or
profession meet the requirements of clause (i) and
have not had certification or licensure
requirements waived on an emergency, temporary, or
provisional basis; and
``(iii) allow paraprofessionals and assistants
who are appropriately trained and supervised, in
accordance with State law, regulation, or written
policy, in
[[Page 118 STAT. 2686]]
meeting the requirements of this part to be used
to assist in the provision of special education
and related services under this part to children
with disabilities.
``(C) Qualifications for special education
teachers.--The qualifications described in subparagraph
(A) shall ensure that each person employed as a special
education teacher in the State who teaches elementary
school, middle school, or secondary school is highly
qualified by the deadline established in section
1119(a)(2) of the Elementary and Secondary Education Act
of 1965.
``(D) Policy.--In implementing this section, a State
shall adopt a policy that includes a requirement that
local educational agencies in the State take measurable
steps to recruit, hire, train, and retain highly
qualified personnel to provide special education and
related services under this part to children with
disabilities.
``(E) Rule of construction.--Notwithstanding any
other individual right of action that a parent or
student may maintain under this part, nothing in this
paragraph shall be construed to create a right of action
on behalf of an individual student for the failure of a
particular State educational agency or local educational
agency staff person to be highly qualified, or to
prevent a parent from filing a complaint about staff
qualifications with the State educational agency as
provided for under this part.
``(15) Performance goals and indicators.--The State--
``(A) has established goals for the performance of
children with disabilities in the State that--
``(i) promote the purposes of this title, as
stated in section 601(d);
``(ii) are the same as the State's definition
of adequate yearly progress, including the State's
objectives for progress by children with
disabilities, under section 1111(b)(2)(C) of the
Elementary and Secondary Education Act of 1965;
``(iii) address graduation rates and dropout
rates, as well as such other factors as the State
may determine; and
``(iv) are consistent, to the extent
appropriate, with any other goals and standards
for children established by the State;
``(B) has established performance indicators the
State will use to assess progress toward achieving the
goals described in subparagraph (A), including
measurable annual objectives for progress by children
with disabilities under section 1111(b)(2)(C)(v)(II)(cc)
of the Elementary and Secondary Education Act of 1965;
and
``(C) <<NOTE: Reports.>> will annually report to the
Secretary and the public on the progress of the State,
and of children with disabilities in the State, toward
meeting the goals established under subparagraph (A),
which may include elements of the reports required under
section 1111(h) of the Elementary and Secondary
Education Act of 1965.
``(16) Participation in assessments.--
``(A) In general.--All children with disabilities
are included in all general State and districtwide
assessment programs, including assessments described
under section
[[Page 118 STAT. 2687]]
1111 of the Elementary and Secondary Education Act of
1965, with appropriate accommodations and alternate
assessments where necessary and as indicated in their
respective individualized education programs.
``(B) Accommodation guidelines.--The State (or, in
the case of a districtwide assessment, the local
educational agency) has developed guidelines for the
provision of appropriate accommodations.
``(C) Alternate assessments.--
``(i) In general.--The State (or, in the case
of a districtwide assessment, the local
educational agency) has developed and implemented
guidelines for the participation of children with
disabilities in alternate assessments for those
children who cannot participate in regular
assessments under subparagraph (A) with
accommodations as indicated in their respective
individualized education programs.
``(ii) Requirements for alternate
assessments.--The guidelines under clause (i)
shall provide for alternate assessments that--
``(I) are aligned with the State's
challenging academic content standards
and challenging student academic
achievement standards; and
``(II) if the State has adopted
alternate academic achievement standards
permitted under the regulations
promulgated to carry out section
1111(b)(1) of the Elementary and
Secondary Education Act of 1965, measure
the achievement of children with
disabilities against those standards.
``(iii) Conduct of alternate assessments.--The
State conducts the alternate assessments described
in this subparagraph.
``(D) Reports.--The State educational agency (or, in
the case of a districtwide assessment, the local
educational agency) makes available to the public, and
reports to the public with the same frequency and in the
same detail as it reports on the assessment of
nondisabled children, the following:
``(i) The number of children with disabilities
participating in regular assessments, and the
number of those children who were provided
accommodations in order to participate in those
assessments.
``(ii) The number of children with
disabilities participating in alternate
assessments described in subparagraph (C)(ii)(I).
``(iii) The number of children with
disabilities participating in alternate
assessments described in subparagraph (C)(ii)(II).
``(iv) The performance of children with
disabilities on regular assessments and on
alternate assessments (if the number of children
with disabilities participating in those
assessments is sufficient to yield statistically
reliable information and reporting that
information will not reveal personally
identifiable information about an individual
student), compared with the achievement of all
children, including children with disabilities, on
those assessments.
[[Page 118 STAT. 2688]]
``(E) Universal design.--The State educational
agency (or, in the case of a districtwide assessment,
the local educational agency) shall, to the extent
feasible, use universal design principles in developing
and administering any assessments under this paragraph.
``(17) Supplementation of state, local, and other federal
funds.--
``(A) Expenditures.--Funds paid to a State under
this part will be expended in accordance with all the
provisions of this part.
``(B) Prohibition against commingling.--Funds paid
to a State under this part will not be commingled with
State funds.
``(C) Prohibition against supplantation and
conditions for waiver by secretary.--Except as provided
in section 613, funds paid to a State under this part
will be used to supplement the level of Federal, State,
and local funds (including funds that are not under the
direct control of State or local educational agencies)
expended for special education and related services
provided to children with disabilities under this part
and in no case to supplant such Federal, State, and
local funds, except that, where the State provides clear
and convincing evidence that all children with
disabilities have available to them a free appropriate
public education, the Secretary may waive, in whole or
in part, the requirements of this subparagraph if the
Secretary concurs with the evidence provided by the
State.
``(18) Maintenance of state financial support.--
``(A) In general.--The State does not reduce the
amount of State financial support for special education
and related services for children with disabilities, or
otherwise made available because of the excess costs of
educating those children, below the amount of that
support for the preceding fiscal year.
``(B) Reduction of funds for failure to maintain
support.--The Secretary shall reduce the allocation of
funds under section 611 for any fiscal year following
the fiscal year in which the State fails to comply with
the requirement of subparagraph (A) by the same amount
by which the State fails to meet the requirement.
``(C) Waivers for exceptional or uncontrollable
circumstances.--The Secretary may waive the requirement
of subparagraph (A) for a State, for 1 fiscal year at a
time, if the Secretary determines that--
``(i) granting a waiver would be equitable due
to exceptional or uncontrollable circumstances
such as a natural disaster or a precipitous and
unforeseen decline in the financial resources of
the State; or
``(ii) the State meets the standard in
paragraph (17)(C) for a waiver of the requirement
to supplement, and not to supplant, funds received
under this part.
``(D) Subsequent years.--If, for any year, a State
fails to meet the requirement of subparagraph (A),
including any year for which the State is granted a
waiver under subparagraph (C), the financial support
required of the State in future years under subparagraph
(A) shall
[[Page 118 STAT. 2689]]
be the amount that would have been required in the
absence of that failure and not the reduced level of the
State's support.
``(19) Public participation.--Prior to the adoption of any
policies and procedures needed to comply with this section
(including any amendments to such policies and procedures), the
State ensures that there are public hearings, adequate notice of
the hearings, and an opportunity for comment available to the
general public, including individuals with disabilities and
parents of children with disabilities.
``(20) Rule of construction.--In complying with paragraphs
(17) and (18), a State may not use funds paid to it under this
part to satisfy State-law mandated funding obligations to local
educational agencies, including funding based on student
attendance or enrollment, or inflation.
``(21) State advisory panel.--
``(A) In general.--The State has established and
maintains an advisory panel for the purpose of providing
policy guidance with respect to special education and
related services for children with disabilities in the
State.
``(B) Membership.--Such advisory panel shall consist
of members appointed by the Governor, or any other
official authorized under State law to make such
appointments, be representative of the State population,
and be composed of individuals involved in, or concerned
with, the education of children with disabilities,
including--
``(i) parents of children with disabilities
(ages birth through 26);
``(ii) individuals with disabilities;
``(iii) teachers;
``(iv) representatives of institutions of
higher education that prepare special education
and related services personnel;
``(v) State and local education officials,
including officials who carry out activities under
subtitle B of title VII of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11431 et seq.);
``(vi) administrators of programs for children
with disabilities;
``(vii) representatives of other State
agencies involved in the financing or delivery of
related services to children with disabilities;
``(viii) representatives of private schools
and public charter schools;
``(ix) not less than 1 representative of a
vocational, community, or business organization
concerned with the provision of transition
services to children with disabilities;
``(x) a representative from the State child
welfare agency responsible for foster care; and
``(xi) representatives from the State juvenile
and adult corrections agencies.
``(C) Special rule.--A majority of the members of
the panel shall be individuals with disabilities or
parents of children with disabilities (ages birth
through 26).
``(D) Duties.--The advisory panel shall--
[[Page 118 STAT. 2690]]
``(i) advise the State educational agency of
unmet needs within the State in the education of
children with disabilities;
``(ii) comment publicly on any rules or
regulations proposed by the State regarding the
education of children with disabilities;
``(iii) advise the State educational agency in
developing evaluations and reporting on data to
the Secretary under section 618;
``(iv) advise the State educational agency in
developing corrective action plans to address
findings identified in Federal monitoring reports
under this part; and
``(v) advise the State educational agency in
developing and implementing policies relating to
the coordination of services for children with
disabilities.
``(22) Suspension and expulsion rates.--
``(A) In general.--The State educational agency
examines data, including data disaggregated by race and
ethnicity, to determine if significant discrepancies are
occurring in the rate of long-term suspensions and
expulsions of children with disabilities--
``(i) among local educational agencies in the
State; or
``(ii) compared to such rates for nondisabled
children within such agencies.
``(B) Review and revision of policies.--If such
discrepancies are occurring, the State educational
agency reviews and, if appropriate, revises (or requires
the affected State or local educational agency to
revise) its policies, procedures, and practices relating
to the development and implementation of IEPs, the use
of positive behavioral interventions and supports, and
procedural safeguards, to ensure that such policies,
procedures, and practices comply with this title.
``(23) Access to instructional materials.--
``(A) In general.--The State adopts the National
Instructional Materials Accessibility Standard for the
purposes of providing instructional materials to blind
persons or other persons with print disabilities, in a
timely manner after the publication of the National
Instructional Materials Accessibility Standard in the
Federal Register.
``(B) Rights of state educational agency.--Nothing
in this paragraph shall be construed to require any
State educational agency to coordinate with the National
Instructional Materials Access Center. If a State
educational agency chooses not to coordinate with the
National Instructional Materials Access Center, such
agency shall provide an assurance to the Secretary that
the agency will provide instructional materials to blind
persons or other persons with print disabilities in a
timely manner.
``(C) <<NOTE: Deadline. Contracts.>> Preparation and
delivery of files.--If a State educational agency
chooses to coordinate with the National Instructional
Materials Access Center, not later than 2 years after
the date of enactment of the Individuals with
Disabilities Education Improvement Act of 2004, the
[[Page 118 STAT. 2691]]
agency, as part of any print instructional materials
adoption process, procurement contract, or other
practice or instrument used for purchase of print
instructional materials, shall enter into a written
contract with the publisher of the print instructional
materials to--
``(i) require the publisher to prepare and, on
or before delivery of the print instructional
materials, provide to the National Instructional
Materials Access Center electronic files
containing the contents of the print instructional
materials using the National Instructional
Materials Accessibility Standard; or
``(ii) purchase instructional materials from
the publisher that are produced in, or may be
rendered in, specialized formats.
``(D) Assistive technology.--In carrying out this
paragraph, the State educational agency, to the maximum
extent possible, shall work collaboratively with the
State agency responsible for assistive technology
programs.
``(E) Definitions.--In this paragraph:
``(i) National instructional materials access
center.--The term `National Instructional
Materials Access Center' means the center
established pursuant to section 674(e).
``(ii) National instructional materials
accessibility standard.--The term `National
Instructional Materials Accessibility Standard'
has the meaning given the term in section
674(e)(3)(A).
``(iii) Specialized formats.--The term
`specialized formats' has the meaning given the
term in section 674(e)(3)(D).
``(24) Overidentification and disproportionality.--The State
has in effect, consistent with the purposes of this title and
with section 618(d), policies and procedures designed to prevent
the inappropriate overidentification or disproportionate
representation by race and ethnicity of children as children
with disabilities, including children with disabilities with a
particular impairment described in section 602.
``(25) Prohibition on mandatory medication.--
``(A) In general.--The State educational agency
shall prohibit State and local educational agency
personnel from requiring a child to obtain a
prescription for a substance covered by the Controlled
Substances Act (21 U.S.C. 801 et seq.) as a condition of
attending school, receiving an evaluation under
subsection (a) or (c) of section 614, or receiving
services under this title.
``(B) Rule of construction.--Nothing in subparagraph
(A) shall be construed to create a Federal prohibition
against teachers and other school personnel consulting
or sharing classroom-based observations with parents or
guardians regarding a student's academic and functional
performance, or behavior in the classroom or school, or
regarding the need for evaluation for special education
or related services under paragraph (3).
[[Page 118 STAT. 2692]]
``(b) State Educational Agency as Provider of Free Appropriate
Public Education or Direct Services.--If the State educational agency
provides free appropriate public education to children with
disabilities, or provides direct services to such children, such
agency--
``(1) shall comply with any additional requirements of
section 613(a), as if such agency were a local educational
agency; and
``(2) may use amounts that are otherwise available to such
agency under this part to serve those children without regard to
section 613(a)(2)(A)(i) (relating to excess costs).
``(c) Exception for Prior State Plans.--
``(1) In general.--If a State has on file with the Secretary
policies and procedures that demonstrate that such State meets
any requirement of subsection (a), including any policies and
procedures filed under this part as in effect before the
effective date of the Individuals with Disabilities Education
Improvement Act of 2004, the Secretary shall consider such State
to have met such requirement for purposes of receiving a grant
under this part.
``(2) Modifications made by state.--
Subject <<NOTE: Termination date.>> to paragraph (3), an
application submitted by a State in accordance with this section
shall remain in effect until the State submits to the Secretary
such modifications as the State determines
necessary. <<NOTE: Applicability.>> This section shall apply
to
a modification to an application to the same extent and in the
same manner as this section applies to the original plan.
``(3) Modifications required by the secretary.--If, after
the effective date of the Individuals with Disabilities
Education Improvement Act of 2004, the provisions of this title
are amended (or the regulations developed to carry out this
title are amended), there is a new interpretation of this title
by a Federal court or a State's highest court, or there is an
official finding of noncompliance with Federal law or
regulations, then the Secretary may require a State to modify
its application only to the extent necessary to ensure the
State's compliance with this part.
``(d) Approval by the Secretary.--
``(1) <<NOTE: Notification.>> In general.--If the Secretary
determines that a State is eligible to receive a grant under
this part, the Secretary shall notify the State of that
determination.
``(2) Notice and hearing.--The Secretary shall not make a
final determination that a State is not eligible to receive a
grant under this part until after providing the State--
``(A) with reasonable notice; and
``(B) with an opportunity for a hearing.
``(e) Assistance Under Other Federal Programs.--Nothing in this
title permits a State to reduce medical and other assistance available,
or to alter eligibility, under titles V and XIX of the Social Security
Act with respect to the provision of a free appropriate public education
for children with disabilities in the State.
``(f) By-Pass for Children in Private Schools.--
``(1) In general.--If, on the date of enactment of the
Education of the Handicapped Act Amendments of 1983, a State
educational agency was prohibited by law from providing for the
equitable participation in special programs of children with
[[Page 118 STAT. 2693]]
disabilities enrolled in private elementary schools and
secondary schools as required by subsection (a)(10)(A), or if
the Secretary determines that a State educational agency, local
educational agency, or other entity has substantially failed or
is unwilling to provide for such equitable participation, then
the Secretary shall, notwithstanding such provision of law,
arrange for the provision of services to such children through
arrangements that shall be subject to the requirements of such
subsection.
``(2) Payments.--
``(A) Determination of amounts.--If the Secretary
arranges for services pursuant to this subsection, the
Secretary, after consultation with the appropriate
public and private school officials, shall pay to the
provider of such services for a fiscal year an amount
per child that does not exceed the amount determined by
dividing--
``(i) the total amount received by the State
under this part for such fiscal year; by
``(ii) the number of children with
disabilities served in the prior year, as reported
to the Secretary by the State under section 618.
``(B) Withholding of certain amounts.--Pending final
resolution of any investigation or complaint that may
result in a determination under this subsection, the
Secretary may withhold from the allocation of the
affected State educational agency the amount the
Secretary estimates will be necessary to pay the cost of
services described in subparagraph (A).
``(C) Period of payments.--The period under which
payments are made under subparagraph (A) shall continue
until the Secretary determines that there will no longer
be any failure or inability on the part of the State
educational agency to meet the requirements of
subsection (a)(10)(A).
``(3) <<NOTE: Deadlines.>> Notice and hearing.--
``(A) In general.--The Secretary shall not take any
final action under this subsection until the State
educational agency affected by such action has had an
opportunity, for not less than 45 days after receiving
written notice thereof, to submit written objections and
to appear before the Secretary or the Secretary's
designee to show cause why such action should not be
taken.
``(B) Review of action.--If a State educational
agency is dissatisfied with the Secretary's final action
after a proceeding under subparagraph (A), such agency
may, not later than 60 days after notice of such action,
file with the United States court of appeals for the
circuit in which such State is located a petition for
review of that action. A copy of the petition shall be
forthwith transmitted by the clerk of the court to the
Secretary. The Secretary thereupon shall file in the
court the record of the proceedings on which the
Secretary based the Secretary's action, as provided in
section 2112 of title 28, United States Code.
``(C) Review of findings of fact.--The findings of
fact by the Secretary, if supported by substantial
evidence, shall be conclusive, but the court, for good
cause shown, may remand the case to the Secretary to
take further
[[Page 118 STAT. 2694]]
evidence, and the Secretary may thereupon make new or
modified findings of fact and may modify the Secretary's
previous action, and shall file in the court the record
of the further proceedings. Such new or modified
findings of fact shall likewise be conclusive if
supported by substantial evidence.
``(D) Jurisdiction of court of appeals; review by
united states supreme court.--Upon the filing of a
petition under subparagraph (B), the United States court
of appeals shall have jurisdiction to affirm the action
of the Secretary or to set it aside, in whole or in
part. The judgment of the court shall be subject to
review by the Supreme Court of the United States upon
certiorari or certification as provided in section 1254
of title 28, United States Code.
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