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``SEC. 613. <<NOTE: 20 USC 1413.>> LOCAL EDUCATIONAL AGENCY ELIGIBILITY.
``(a) In General.--A local educational agency is eligible for
assistance under this part for a fiscal year if such agency submits a
plan that provides assurances to the State educational agency that the
local educational agency meets each of the following conditions:
``(1) Consistency with state policies.--The local
educational agency, in providing for the education of children
with disabilities within its jurisdiction, has in effect
policies, procedures, and programs that are consistent with the
State policies and procedures established under section 612.
``(2) Use of amounts.--
``(A) In general.--Amounts provided to the local
educational agency under this part shall be expended in
accordance with the applicable provisions of this part
and--
``(i) shall be used only to pay the excess
costs of providing special education and related
services to children with disabilities;
``(ii) shall be used to supplement State,
local, and other Federal funds and not to supplant
such funds; and
``(iii) shall not be used, except as provided
in subparagraphs (B) and (C), to reduce the level
of expenditures for the education of children with
disabilities made by the local educational agency
from local funds below the level of those
expenditures for the preceding fiscal year.
``(B) Exception.--Notwithstanding the restriction in
subparagraph (A)(iii), a local educational agency may
reduce the level of expenditures where such reduction is
attributable to--
``(i) the voluntary departure, by retirement
or otherwise, or departure for just cause, of
special education personnel;
``(ii) a decrease in the enrollment of
children with disabilities;
``(iii) the termination of the obligation of
the agency, consistent with this part, to provide
a program of special education to a particular
child with a disability that is an exceptionally
costly program, as determined by the State
educational agency, because the child--
[[Page 118 STAT. 2695]]
``(I) has left the jurisdiction of
the agency;
``(II) has reached the age at which
the obligation of the agency to provide
a free appropriate public education to
the child has terminated; or
``(III) no longer needs such program
of special education; or
``(iv) the termination of costly expenditures
for long-term purchases, such as the acquisition
of equipment or the construction of school
facilities.
``(C) Adjustment to local fiscal effort in certain
fiscal years.--
``(i) Amounts in excess.--Notwithstanding
clauses (ii) and (iii) of subparagraph (A), for
any fiscal year for which the allocation received
by a local educational agency under section 611(f)
exceeds the amount the local educational agency
received for the previous fiscal year, the local
educational agency may reduce the level of
expenditures otherwise required by subparagraph
(A)(iii) by not more than 50 percent of the amount
of such excess.
``(ii) Use of amounts to carry out activities
under esea.--If a local educational agency
exercises the authority under clause (i), the
agency shall use an amount of local funds equal to
the reduction in expenditures under clause (i) to
carry out activities authorized under the
Elementary and Secondary Education Act of 1965.
``(iii) State prohibition.--Notwithstanding
clause (i), if a State educational agency
determines that a local educational agency is
unable to establish and maintain programs of free
appropriate public education that meet the
requirements of subsection (a) or the State
educational agency has taken action against the
local educational agency under section 616, the
State educational agency shall prohibit the local
educational agency from reducing the level of
expenditures under clause (i) for that fiscal
year.
``(iv) Special rule.--The amount of funds
expended by a local educational agency under
subsection (f) shall count toward the maximum
amount of expenditures such local educational
agency may reduce under clause (i).
``(D) Schoolwide programs under title i of the
esea.--Notwithstanding subparagraph (A) or any other
provision of this part, a local educational agency may
use funds received under this part for any fiscal year
to carry out a schoolwide program under section 1114 of
the Elementary and Secondary Education Act of 1965,
except that the amount so used in any such program shall
not exceed--
``(i) the number of children with disabilities
participating in the schoolwide program;
multiplied by
``(ii)(I) the amount received by the local
educational agency under this part for that fiscal
year; divided by
``(II) the number of children with
disabilities in the jurisdiction of that agency.
[[Page 118 STAT. 2696]]
``(3) Personnel development.--The local educational agency
shall ensure that all personnel necessary to carry out this part
are appropriately and adequately prepared, subject to the
requirements of section 612(a)(14) and section 2122 of the
Elementary and Secondary Education Act of 1965.
``(4) Permissive use of funds.--
``(A) Uses.--Notwithstanding paragraph (2)(A) or
section 612(a)(17)(B) (relating to commingled funds),
funds provided to the local educational agency under
this part may be used for the following activities:
``(i) Services and aids that also benefit
nondisabled children.--For the costs of special
education and related services, and supplementary
aids and services, provided in a regular class or
other education-related setting to a child with a
disability in accordance with the individualized
education program of the child, even if 1 or more
nondisabled children benefit from such services.
``(ii) Early intervening services.--To develop
and implement coordinated, early intervening
educational services in accordance with subsection
(f).
``(iii) High cost education and related
services.--To establish and implement cost or risk
sharing funds, consortia, or cooperatives for the
local educational agency itself, or for local
educational agencies working in a consortium of
which the local educational agency is a part, to
pay for high cost special education and related
services.
``(B) Administrative case management.--A local
educational agency may use funds received under this
part to purchase appropriate technology for
record keeping, data collection, and related case
management activities of teachers and related services
personnel providing services described in the
individualized education program of children with
disabilities, that is needed for the implementation of
such case management activities.
``(5) Treatment of charter schools and their students.--In
carrying out this part with respect to charter schools that are
public schools of the local educational agency, the local
educational agency--
``(A) serves children with disabilities attending
those charter schools in the same manner as the local
educational agency serves children with disabilities in
its other schools, including providing supplementary and
related services on site at the charter school to the
same extent to which the local educational agency has a
policy or practice of providing such services on the
site to its other public schools; and
``(B) provides funds under this part to those
charter schools--
``(i) on the same basis as the local
educational agency provides funds to the local
educational agency's other public schools,
including proportional distribution based on
relative enrollment of children with disabilities;
and
[[Page 118 STAT. 2697]]
``(ii) at the same time as the agency
distributes other Federal funds to the agency's
other public schools, consistent with the State's
charter school law.
``(6) Purchase of instructional materials.--
``(A) <<NOTE: Deadline.>> In general.--Not later
than 2 years after the date of enactment of the
Individuals with Disabilities Education Improvement Act
of 2004, a local educational agency that chooses to
coordinate with the National Instructional Materials
Access Center, when purchasing print instructional
materials, shall acquire the print instructional
materials in the same manner and subject to the same
conditions as a State educational agency acquires print
instructional materials under section 612(a)(23).
``(B) Rights of local educational agency.--Nothing
in this paragraph shall be construed to require a local
educational agency to coordinate with the National
Instructional Materials Access Center. If a local
educational agency chooses not to coordinate with the
National Instructional Materials Access Center, the
local educational agency shall provide an assurance to
the State educational agency that the local educational
agency will provide instructional materials to blind
persons or other persons with print disabilities in a
timely manner.
``(7) Information for state educational agency.--The local
educational agency shall provide the State educational agency
with information necessary to enable the State educational
agency to carry out its duties under this part, including, with
respect to paragraphs (15) and (16) of section 612(a),
information relating to the performance of children with
disabilities participating in programs carried out under this
part.
``(8) Public information.--The local educational agency
shall make available to parents of children with disabilities
and to the general public all documents relating to the
eligibility of such agency under this part.
``(9) Records regarding migratory children with
disabilities.--The local educational agency shall cooperate in
the Secretary's efforts under section 1308 of the Elementary and
Secondary Education Act of 1965 to ensure the linkage of records
pertaining to migratory children with a disability for the
purpose of electronically exchanging, among the States, health
and educational information regarding such children.
``(b) Exception for Prior Local Plans.--
``(1) In general.--If a local educational agency or State
agency has on file with the State educational agency policies
and procedures that demonstrate that such local educational
agency, or such State agency, as the case may be, meets any
requirement of 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 State educational agency shall
consider such local educational agency or State agency, as the
case may be, to have met such requirement for purposes of
receiving assistance under this part.
``(2) Modification made by local educational agency.--
Subject to paragraph (3), an application submitted by a local
educational agency in accordance with this section shall remain
[[Page 118 STAT. 2698]]
in effect until the local educational agency submits to the
State educational agency such modifications as the local
educational agency determines necessary.
``(3) Modifications required by state educational agency.--
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 Federal or State courts, or there is an official
finding of noncompliance with Federal or State law or
regulations, then the State educational agency may require a
local educational agency to modify its application only to the
extent necessary to ensure the local educational agency's
compliance with this part or State law.
``(c) Notification of Local Educational Agency or State Agency in
Case of Ineligibility.--If the State educational agency determines that
a local educational agency or State agency is not eligible under this
section, then the State educational agency shall notify the local
educational agency or State agency, as the case may be, of that
determination and shall provide such local educational agency or State
agency with reasonable notice and an opportunity for a hearing.
``(d) Local Educational Agency Compliance.--
``(1) In general.--If the State educational agency, after
reasonable notice and an opportunity for a hearing, finds that a
local educational agency or State agency that has been
determined to be eligible under this section is failing to
comply with any requirement described in subsection (a), the
State educational agency shall reduce or shall not provide any
further payments to the local educational agency or State agency
until the State educational agency is satisfied that the local
educational agency or State agency, as the case may be, is
complying with that requirement.
``(2) Additional requirement.--Any State agency or local
educational agency in receipt of a notice described in paragraph
(1) shall, by means of public notice, take such measures as may
be necessary to bring the pendency of an action pursuant to this
subsection to the attention of the public within the
jurisdiction of such agency.
``(3) Consideration.--In carrying out its responsibilities
under paragraph (1), the State educational agency shall consider
any decision made in a hearing held under section 615 that is
adverse to the local educational agency or State agency involved
in that decision.
``(e) Joint Establishment of Eligibility.--
``(1) Joint establishment.--
``(A) In general.--A State educational agency may
require a local educational agency to establish its
eligibility jointly with another local educational
agency if the State educational agency determines that
the local educational agency will be ineligible under
this section because the local educational agency will
not be able to establish and maintain programs of
sufficient size and scope to effectively meet the needs
of children with disabilities.
``(B) Charter school exception.--A State educational
agency may not require a charter school that is a local
educational agency to jointly establish its eligibility
under
[[Page 118 STAT. 2699]]
subparagraph (A) unless the charter school is explicitly
permitted to do so under the State's charter school law.
``(2) Amount of payments.--If a State educational agency
requires the joint establishment of eligibility under paragraph
(1), the total amount of funds made available to the affected
local educational agencies shall be equal to the sum of the
payments that each such local educational agency would have
received under section 611(f) if such agencies were eligible for
such payments.
``(3) Requirements.--Local educational agencies that
establish joint eligibility under this subsection shall--
``(A) adopt policies and procedures that are
consistent with the State's policies and procedures
under section 612(a); and
``(B) be jointly responsible for implementing
programs that receive assistance under this part.
``(4) Requirements for educational service agencies.--
``(A) In general.--If an educational service agency
is required by State law to carry out programs under
this part, the joint responsibilities given to local
educational agencies under this subsection shall--
``(i) not apply to the administration and
disbursement of any payments received by that
educational service agency; and
``(ii) be carried out only by that educational
service agency.
``(B) Additional requirement.--Notwithstanding any
other provision of this subsection, an educational
service agency shall provide for the education of
children with disabilities in the least restrictive
environment, as required by section 612(a)(5).
``(f) Early Intervening Services.--
``(1) In general.--A local educational agency may not use
more than 15 percent of the amount such agency receives under
this part for any fiscal year, less any amount reduced by the
agency pursuant to subsection (a)(2)(C), if any, in combination
with other amounts (which may include amounts other than
education funds), to develop and implement coordinated, early
intervening services, which may include interagency financing
structures, for students in kindergarten through grade 12 (with
a particular emphasis on students in kindergarten through grade
3) who have not been identified as needing special education or
related services but who need additional academic and behavioral
support to succeed in a general education environment.
``(2) Activities.--In implementing coordinated, early
intervening services under this subsection, a local educational
agency may carry out activities that include--
``(A) professional development (which may be
provided by entities other than local educational
agencies) for teachers and other school staff to enable
such personnel to deliver scientifically based academic
instruction and behavioral interventions, including
scientifically based literacy instruction, and, where
appropriate, instruction on the use of adaptive and
instructional software; and
[[Page 118 STAT. 2700]]
``(B) providing educational and behavioral
evaluations, services, and supports, including
scientifically based literacy instruction.
``(3) Construction.--Nothing in this subsection shall be
construed to limit or create a right to a free appropriate
public education under this part.
``(4) Reporting.--Each local educational agency that
develops and maintains coordinated, early intervening services
under this subsection shall annually report to the State
educational agency on--
``(A) the number of students served under this
subsection; and
``(B) the number of students served under this
subsection who subsequently receive special education
and related services under this title during the
preceding 2-year period.
``(5) Coordination with elementary and secondary education
act of 1965.--Funds made available to carry out this subsection
may be used to carry out coordinated, early intervening services
aligned with activities funded by, and carried out under, the
Elementary and Secondary Education Act of 1965 if such funds are
used to supplement, and not supplant, funds made available under
the Elementary and Secondary Education Act of 1965 for the
activities and services assisted under this subsection.
``(g) Direct Services by the State Educational Agency.--
``(1) In general.--A State educational agency shall use the
payments that would otherwise have been available to a local
educational agency or to a State agency to provide special
education and related services directly to children with
disabilities residing in the area served by that local
educational agency, or for whom that State agency is
responsible, if the State educational agency determines that the
local educational agency or State agency, as the case may be--
``(A) has not provided the information needed to
establish the eligibility of such local educational
agency or State agency under this section;
``(B) is unable to establish and maintain programs
of free appropriate public education that meet the
requirements of subsection (a);
``(C) is unable or unwilling to be consolidated with
1 or more local educational agencies in order to
establish and maintain such programs; or
``(D) has 1 or more children with disabilities who
can best be served by a regional or State program or
service delivery system designed to meet the needs of
such children.
``(2) Manner and location of education and services.--The
State educational agency may provide special education and
related services under paragraph (1) in such manner and at such
locations (including regional or State centers) as the State
educational agency considers appropriate. Such education and
services shall be provided in accordance with this part.
``(h) State Agency Eligibility.--Any State agency that desires to
receive a subgrant for any fiscal year under section 611(f) shall
demonstrate to the satisfaction of the State educational agency that--
[[Page 118 STAT. 2701]]
``(1) all children with disabilities who are participating
in programs and projects funded under this part receive a free
appropriate public education, and that those children and their
parents are provided all the rights and procedural safeguards
described in this part; and
``(2) the agency meets such other conditions of this section
as the Secretary determines to be appropriate.
``(i) Disciplinary Information.--The State may require that a local
educational agency include in the records of a child with a disability a
statement of any current or previous disciplinary action that has been
taken against the child and transmit such statement to the same extent
that such disciplinary information is included in, and transmitted with,
the student records of nondisabled children. The statement may include a
description of any behavior engaged in by the child that required
disciplinary action, a description of the disciplinary action taken, and
any other information that is relevant to the safety of the child and
other individuals involved with the child. If the State adopts such a
policy, and the child transfers from 1 school to another, the
transmission of any of the child's records shall include both the
child's current individualized education program and any such statement
of current or previous disciplinary action that has been taken against
the child.
``(j) State Agency Flexibility.--
``(1) Adjustment to state fiscal effort in certain fiscal
years.--For any fiscal year for which the allotment received by
a State under section 611 exceeds the amount the State received
for the previous fiscal year and if the State in school year
2003-2004 or any subsequent school year pays or reimburses all
local educational agencies within the State from State revenue
100 percent of the non-Federal share of the costs of special
education and related services, the State educational agency,
notwithstanding paragraphs (17) and (18) of section 612(a) and
section 612(b), may reduce the level of expenditures from State
sources for the education of children with disabilities by not
more than 50 percent of the amount of such excess.
``(2) Prohibition.--Notwithstanding paragraph (1), if the
Secretary determines that a State educational agency is unable
to establish, maintain, or oversee programs of free appropriate
public education that meet the requirements of this part, or
that the State needs assistance, intervention, or substantial
intervention under section 616(d)(2)(A), the Secretary shall
prohibit the State educational agency from exercising the
authority in paragraph (1).
``(3) Education activities.--If a State educational agency
exercises the authority under paragraph (1), the agency shall
use funds from State sources, in an amount equal to the amount
of the reduction under paragraph (1), to support activities
authorized under the Elementary and Secondary Education Act of
1965 or to support need based student or teacher higher
education programs.
``(4) Report.--For each fiscal year for which a State
educational agency exercises the authority under paragraph (1),
the State educational agency shall report to the Secretary the
amount of expenditures reduced pursuant to such paragraph
[[Page 118 STAT. 2702]]
and the activities that were funded pursuant to paragraph (3).
``(5) Limitation.--Notwithstanding paragraph (1), a State
educational agency may not reduce the level of expenditures
described in paragraph (1) if any local educational agency in
the State would, as a result of such reduction, receive less
than 100 percent of the amount necessary to ensure that all
children with disabilities served by the local educational
agency receive a free appropriate public education from the
combination of Federal funds received under this title and State
funds received from the State educational agency.
``SEC. 614. <<NOTE: 20 USC 1414.>> EVALUATIONS, ELIGIBILITY
DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND
EDUCATIONAL PLACEMENTS.
``(a) Evaluations, Parental Consent, and Reevaluations.--
``(1) Initial evaluations.--
``(A) In general.--A State educational agency, other
State agency, or local educational agency shall conduct
a full and individual initial evaluation in accordance
with this paragraph and subsection (b), before the
initial provision of special education and related
services to a child with a disability under this part.
``(B) Request for initial evaluation.--Consistent
with subparagraph (D), either a parent of a child, or a
State educational agency, other State agency, or local
educational agency may initiate a request for an initial
evaluation to determine if the child is a child with a
disability.
``(C) Procedures.--
``(i) In general.--Such initial evaluation
shall consist of procedures--
``(I) <<NOTE: Deadline.>> to
determine whether a child is a child
with a disability (as defined in section
602) within 60 days of receiving
parental consent for the evaluation, or,
if the State establishes a timeframe
within which the evaluation must be
conducted, within such timeframe; and
``(II) to determine the educational
needs of such child.
``(ii) Exception.--The relevant timeframe in
clause (i)(I) shall not apply to a local
educational agency if--
``(I) a child enrolls in a school
served by the local educational agency
after the relevant timeframe in clause
(i)(I) has begun and prior to a
determination by the child's previous
local educational agency as to whether
the child is a child with a disability
(as defined in section 602), but only if
the subsequent local educational agency
is making sufficient progress to ensure
a prompt completion of the evaluation,
and the parent and subsequent local
educational agency agree to a specific
time when the evaluation will be
completed; or
``(II) the parent of a child
repeatedly fails or refuses to produce
the child for the evaluation.
``(D) Parental consent.--
``(i) In general.--
[[Page 118 STAT. 2703]]
``(I) Consent for initial
evaluation.--The agency proposing to
conduct an initial evaluation to
determine if the child qualifies as a
child with a disability as defined in
section 602 shall obtain informed
consent from the parent of such child
before conducting the evaluation.
Parental consent for evaluation shall
not be construed as consent for
placement for receipt of special
education and related services.
``(II) Consent for services.--An
agency that is responsible for making a
free appropriate public education
available to a child with a disability
under this part shall seek to obtain
informed consent from the parent of such
child before providing special education
and related services to the child.
``(ii) Absence of consent.--
``(I) For initial evaluation.--If
the parent of such child does not
provide consent for an initial
evaluation under clause (i)(I), or the
parent fails to respond to a request to
provide the consent, the local
educational agency may pursue the
initial evaluation of the child by
utilizing the procedures described in
section 615, except to the extent
inconsistent with State law relating to
such parental consent.
``(II) For services.--If the parent
of such child refuses to consent to
services under clause (i)(II), the local
educational agency shall not provide
special education and related services
to the child by utilizing the procedures
described in section 615.
``(III) Effect on agency
obligations.--If the parent of such
child refuses to consent to the receipt
of special education and related
services, or the parent fails to respond
to a request to provide such consent--
``(aa) the local educational
agency shall not be considered
to be in violation of the
requirement to make available a
free appropriate public
education to the child for the
failure to provide such child
with the special education and
related services for which the
local educational agency
requests such consent; and
``(bb) the local educational
agency shall not be required to
convene an IEP meeting or
develop an IEP under this
section for the child for the
special education and related
services for which the local
educational agency requests such
consent.
``(iii) Consent for wards of the state.--
``(I) In general.--If the child is a
ward of the State and is not residing
with the child's parent, the agency
shall make reasonable efforts to obtain
the informed consent from the parent (as
defined in section 602) of the child for
an
[[Page 118 STAT. 2704]]
initial evaluation to determine whether
the child is a child with a disability.
``(II) Exception.--The agency shall
not be required to obtain informed
consent from the parent of a child for
an initial evaluation to determine
whether the child is a child with a
disability if--
``(aa) despite reasonable
efforts to do so, the agency
cannot discover the whereabouts
of the parent of the child;
``(bb) the rights of the
parents of the child have been
terminated in accordance with
State law; or
``(cc) the rights of the
parent to make educational
decisions have been subrogated
by a judge in accordance with
State law and consent for an
initial evaluation has been
given by an individual appointed
by the judge to represent the
child.
``(E) Rule of construction.--The screening of a
student by a teacher or specialist to determine
appropriate instructional strategies for curriculum
implementation shall not be considered to be an
evaluation for eligibility for special education and
related services.
``(2) Reevaluations.--
``(A) In general.--A local educational agency shall
ensure that a reevaluation of each child with a
disability is conducted in accordance with subsections
(b) and (c)--
``(i) if the local educational agency
determines that the educational or related
services needs, including improved academic
achievement and functional performance, of the
child warrant a reevaluation; or
``(ii) if the child's parents or teacher
requests a reevaluation.
``(B) Limitation.--A reevaluation conducted under
subparagraph (A) shall occur--
``(i) not more frequently than once a year,
unless the parent and the local educational agency
agree otherwise; and
``(ii) at least once every 3 years, unless the
parent and the local educational agency agree that
a reevaluation is unnecessary.
``(b) Evaluation Procedures.--
``(1) Notice.--The local educational agency shall provide
notice to the parents of a child with a disability, in
accordance with subsections (b)(3), (b)(4), and (c) of section
615, that describes any evaluation procedures such agency
proposes to conduct.
``(2) Conduct of evaluation.--In conducting the evaluation,
the local educational agency shall--
``(A) use a variety of assessment tools and
strategies to gather relevant functional, developmental,
and academic information, including information provided
by the parent, that may assist in determining--
``(i) whether the child is a child with a
disability; and
[[Page 118 STAT. 2705]]
``(ii) the content of the child's
individualized education program, including
information related to enabling the child to be
involved in and progress in the general education
curriculum, or, for preschool children, to
participate in appropriate activities;
``(B) not use any single measure or assessment as
the sole criterion for determining whether a child is a
child with a disability or determining an appropriate
educational program for the child; and
``(C) use technically sound instruments that may
assess the relative contribution of cognitive and
behavioral factors, in addition to physical or
developmental factors.
``(3) Additional requirements.--Each local educational
agency shall ensure that--
``(A) assessments and other evaluation materials
used to assess a child under this section--
``(i) are selected and administered so as not
to be discriminatory on a racial or cultural
basis;
``(ii) are provided and administered in the
language and form most likely to yield accurate
information on what the child knows and can do
academically, developmentally, and functionally,
unless it is not feasible to so provide or
administer;
``(iii) are used for purposes for which the
assessments or measures are valid and reliable;
``(iv) are administered by trained and
knowledgeable personnel; and
``(v) are administered in accordance with any
instructions provided by the producer of such
assessments;
``(B) the child is assessed in all areas of
suspected disability;
``(C) assessment tools and strategies that provide
relevant information that directly assists persons in
determining the educational needs of the child are
provided; and
``(D) assessments of children with disabilities who
transfer from 1 school district to another school
district in the same academic year are coordinated with
such children's prior and subsequent schools, as
necessary and as expeditiously as possible, to ensure
prompt completion of full evaluations.
``(4) Determination of eligibility and educational need.--
Upon completion of the administration of assessments and other
evaluation measures--
``(A) the determination of whether the child is a
child with a disability as defined in section 602(3) and
the educational needs of the child shall be made by a
team of qualified professionals and the parent of the
child in accordance with paragraph (5); and
``(B) a copy of the evaluation report and the
documentation of determination of eligibility shall be
given to the parent.
``(5) Special rule for eligibility determination.--In making
a determination of eligibility under paragraph (4)(A), a child
shall not be determined to be a child with a disability if the
determinant factor for such determination is--
[[Page 118 STAT. 2706]]
``(A) lack of appropriate instruction in reading,
including in the essential components of reading
instruction (as defined in section 1208(3) of the
Elementary and Secondary Education Act of 1965);
``(B) lack of instruction in math; or
``(C) limited English proficiency.
``(6) Specific learning disabilities.--
``(A) In general.--Notwithstanding section 607(b),
when determining whether a child has a specific learning
disability as defined in section 602, a local
educational agency shall not be required to take into
consideration whether a child has a severe discrepancy
between achievement and intellectual ability in oral
expression, listening comprehension, written expression,
basic reading skill, reading comprehension, mathematical
calculation, or mathematical reasoning.
``(B) Additional authority.--In determining whether
a child has a specific learning disability, a local
educational agency may use a process that determines if
the child responds to scientific, research-based
intervention as a part of the evaluation procedures
described in paragraphs (2) and (3).
``(c) Additional Requirements For Evaluation and Reevaluations.--
``(1) Review of existing evaluation data.--As part of an
initial evaluation (if appropriate) and as part of any
reevaluation under this section, the IEP Team and other
qualified professionals, as appropriate, shall--
``(A) review existing evaluation data on the child,
including--
``(i) evaluations and information provided by
the parents of the child;
``(ii) current classroom-based, local, or
State assessments, and classroom-based
observations; and
``(iii) observations by teachers and related
services providers; and
``(B) on the basis of that review, and input from
the child's parents, identify what additional data, if
any, are needed to determine--
``(i) whether the child is a child with a
disability as defined in section 602(3), and the
educational needs of the child, or, in case of a
reevaluation of a child, whether the child
continues to have such a disability and such
educational needs;
``(ii) the present levels of academic
achievement and related developmental needs of the
child;
``(iii) whether the child needs special
education and related services, or in the case of
a reevaluation of a child, whether the child
continues to need special education and related
services; and
``(iv) whether any additions or modifications
to the special education and related services are
needed to enable the child to meet the measurable
annual goals set out in the individualized
education program of the child and to participate,
as appropriate, in the general education
curriculum.
[[Page 118 STAT. 2707]]
``(2) Source of data.--The local educational agency shall
administer such assessments and other evaluation measures as may
be needed to produce the data identified by the IEP Team under
paragraph (1)(B).
``(3) Parental consent.--Each local educational agency shall
obtain informed parental consent, in accordance with subsection
(a)(1)(D), prior to conducting any reevaluation of a child with
a disability, except that such informed parental consent need
not be obtained if the local educational agency can demonstrate
that it had taken reasonable measures to obtain such consent and
the child's parent has failed to respond.
``(4) Requirements if additional data are not needed.--If
the IEP Team and other qualified professionals, as appropriate,
determine that no additional data are needed to determine
whether the child continues to be a child with a disability and
to determine the child's educational needs, the local
educational agency--
``(A) shall notify the child's parents of--
``(i) that determination and the reasons for
the determination; and
``(ii) the right of such parents to request an
assessment to determine whether the child
continues to be a child with a disability and to
determine the child's educational needs; and
``(B) shall not be required to conduct such an
assessment unless requested to by the child's parents.
``(5) Evaluations before change in eligibility.--
``(A) In general.--Except as provided in
subparagraph (B), a local educational agency shall
evaluate a child with a disability in accordance with
this section before determining that the child is no
longer a child with a disability.
``(B) Exception.--
``(i) In general.--The evaluation described in
subparagraph (A) shall not be required before the
termination of a child's eligibility under this
part due to graduation from secondary school with
a regular diploma, or due to exceeding the age
eligibility for a free appropriate public
education under State law.
``(ii) Summary of performance.--For a child
whose eligibility under this part terminates under
circumstances described in clause (i), a local
educational agency shall provide the child with a
summary of the child's academic achievement and
functional performance, which shall include
recommendations on how to assist the child in
meeting the child's postsecondary goals.
``(d) Individualized Education Programs.--
``(1) Definitions.--In this title:
``(A) Individualized education program.--
``(i) In general.--The term `individualized
education program' or `IEP' means a written
statement for each child with a disability that is
developed, reviewed, and revised in accordance
with this section and that includes--
``(I) a statement of the child's
present levels of academic achievement
and functional performance, including--
[[Page 118 STAT. 2708]]
``(aa) how the child's
disability affects the child's
involvement and progress in the
general education curriculum;
``(bb) for preschool
children, as appropriate, how
the disability affects the
child's participation in
appropriate activities; and
``(cc) for children with
disabilities who take alternate
assessments aligned to alternate
achievement standards, a
description of benchmarks or
short-term objectives;
``(II) a statement of measurable
annual goals, including academic and
functional goals, designed to--
``(aa) meet the child's
needs that result from the
child's disability to enable the
child to be involved in and make
progress in the general
education curriculum; and
``(bb) meet each of the
child's other educational needs
that result from the child's
disability;
``(III) a description of how the
child's progress toward meeting the
annual goals described in subclause (II)
will be measured and when periodic
reports on the progress the child is
making toward meeting the annual goals
(such as through the use of quarterly or
other periodic reports, concurrent with
the issuance of report cards) will be
provided;
``(IV) a statement of the special
education and related services and
supplementary aids and services, based
on peer-reviewed research to the extent
practicable, to be provided to the
child, or on behalf of the child, and a
statement of the program modifications
or supports for school personnel that
will be provided for the child--
``(aa) to advance
appropriately toward attaining
the annual goals;
``(bb) to be involved in and
make progress in the general
education curriculum in
accordance with subclause (I)
and to participate in
extracurricular and other
nonacademic activities; and
``(cc) to be educated and
participate with other children
with disabilities and
nondisabled children in the
activities described in this
subparagraph;
``(V) an explanation of the extent,
if any, to which the child will not
participate with nondisabled children in
the regular class and in the activities
described in subclause (IV)(cc);
``(VI)(aa) a statement of any
individual appropriate accommodations
that are necessary to measure the
academic achievement and functional
performance of the child on State and
districtwide assessments consistent with
section 612(a)(16)(A); and
[[Page 118 STAT. 2709]]
``(bb) if the IEP Team determines
that the child shall take an alternate
assessment on a particular State or
districtwide assessment of student
achievement, a statement of why--
``(AA) the child cannot
participate in the regular
assessment; and
``(BB) the particular
alternate assessment selected is
appropriate for the child;
``(VII) the projected date for the
beginning of the services and
modifications described in subclause
(IV), and the anticipated frequency,
location, and duration of those services
and modifications; and
``(VIII) beginning not later than
the first IEP to be in effect when the
child is 16, and updated annually
thereafter--
``(aa) appropriate
measurable postsecondary goals
based upon age appropriate
transition assessments related
to training, education,
employment, and, where
appropriate, independent living
skills;
``(bb) the transition
services (including courses of
study) needed to assist the
child in reaching those goals;
and
``(cc) beginning not later
than 1 year before the child
reaches the age of majority
under State law, a statement
that the child has been informed
of the child's rights under this
title, if any, that will
transfer to the child on
reaching the age of majority
under section 615(m).
``(ii) Rule of construction.--Nothing in this
section shall be construed to require--
``(I) that additional information be
included in a child's IEP beyond what is
explicitly required in this section; and
``(II) the IEP Team to include
information under 1 component of a
child's IEP that is already contained
under another component of such IEP.
``(B) Individualized education program team.--The
term `individualized education program team' or `IEP
Team' means a group of individuals composed of--
``(i) the parents of a child with a
disability;
``(ii) not less than 1 regular education
teacher of such child (if the child is, or may be,
participating in the regular education
environment);
``(iii) not less than 1 special education
teacher, or where appropriate, not less than 1
special education provider of such child;
``(iv) a representative of the local
educational agency who--
``(I) is qualified to provide, or
supervise the provision of, specially
designed instruction to meet the unique
needs of children with disabilities;
``(II) is knowledgeable about the
general education curriculum; and
[[Page 118 STAT. 2710]]
``(III) is knowledgeable about the
availability of resources of the local
educational agency;
``(v) an individual who can interpret the
instructional implications of evaluation results,
who may be a member of the team described in
clauses (ii) through (vi);
``(vi) at the discretion of the parent or the
agency, other individuals who have knowledge or
special expertise regarding the child, including
related services personnel as appropriate; and
``(vii) whenever appropriate, the child with a
disability.
``(C) IEP team attendance.--
``(i) Attendance not necessary.--A member of
the IEP Team shall not be required to attend an
IEP meeting, in whole or in part, if the parent of
a child with a disability and the local
educational agency agree that the attendance of
such member is not necessary because the member's
area of the curriculum or related services is not
being modified or discussed in the meeting.
``(ii) Excusal.--A member of the IEP Team may
be excused from attending an IEP meeting, in whole
or in part, when the meeting involves a
modification to or discussion of the member's area
of the curriculum or related services, if--
``(I) the parent and the local
educational agency consent to the
excusal; and
``(II) the member submits, in
writing to the parent and the IEP Team,
input into the development of the IEP
prior to the meeting.
``(iii) Written agreement and consent
required.--A parent's agreement under clause (i)
and consent under clause (ii) shall be in writing.
``(D) IEP team transition.--In the case of a child
who was previously served under part C, an invitation to
the initial IEP meeting shall, at the request of the
parent, be sent to the part C service coordinator or
other representatives of the part C system to assist
with the smooth transition of services.
``(2) Requirement that program be in effect.--
``(A) In general.--At the beginning of each school
year, each local educational agency, State educational
agency, or other State agency, as the case may be, shall
have in effect, for each child with a disability in the
agency's jurisdiction, an individualized education
program, as defined in paragraph (1)(A).
``(B) Program for child aged 3 through 5.--In the
case of a child with a disability aged 3 through 5 (or,
at the discretion of the State educational agency, a 2-
year-old child with a disability who will turn age 3
during the school year), the IEP Team shall consider the
individualized family service plan that contains the
material described in section 636, and that is developed
in accordance with this section, and the individualized
family service plan may serve as the IEP of the child if
using that plan as the IEP is--
[[Page 118 STAT. 2711]]
``(i) consistent with State policy; and
``(ii) agreed to by the agency and the child's
parents.
``(C) Program for children who transfer school
districts.--
``(i) In general.--
``(I) Transfer within the same
state.--In the case of a child with a
disability who transfers school
districts within the same academic year,
who enrolls in a new school, and who had
an IEP that was in effect in the same
State, the local educational agency
shall provide such child with a free
appropriate public education, including
services comparable to those described
in the previously held IEP, in
consultation with the parents until such
time as the local educational agency
adopts the previously held IEP or
develops, adopts, and implements a new
IEP that is consistent with Federal and
State law.
``(II) Transfer outside state.--In
the case of a child with a disability
who transfers school districts within
the same academic year, who enrolls in a
new school, and who had an IEP that was
in effect in another State, the local
educational agency shall provide such
child with a free appropriate public
education, including services comparable
to those described in the previously
held IEP, in consultation with the
parents until such time as the local
educational agency conducts an
evaluation pursuant to subsection
(a)(1), if determined to be necessary by
such agency, and develops a new IEP, if
appropriate, that is consistent with
Federal and State law.
``(ii) Transmittal of records.--To facilitate
the transition for a child described in clause
(i)--
``(I) the new school in which the
child enrolls shall take reasonable
steps to promptly obtain the child's
records, including the IEP and
supporting documents and any other
records relating to the provision of
special education or related services to
the child, from the previous school in
which the child was enrolled, pursuant
to section 99.31(a)(2) of title 34, Code
of Federal Regulations; and
``(II) the previous school in which
the child was enrolled shall take
reasonable steps to promptly respond to
such request from the new school.
``(3) Development of iep.--
``(A) In general.--In developing each child's IEP,
the IEP Team, subject to subparagraph (C), shall
consider--
``(i) the strengths of the child;
``(ii) the concerns of the parents for
enhancing the education of their child;
``(iii) the results of the initial evaluation
or most recent evaluation of the child; and
[[Page 118 STAT. 2712]]
``(iv) the academic, developmental, and
functional needs of the child.
``(B) Consideration of special factors.--The IEP
Team shall--
``(i) in the case of a child whose behavior
impedes the child's learning or that of others,
consider the use of positive behavioral
interventions and supports, and other strategies,
to address that behavior;
``(ii) in the case of a child with limited
English proficiency, consider the language needs
of the child as such needs relate to the child's
IEP;
``(iii) in the case of a child who is blind or
visually impaired, provide for instruction in
Braille and the use of Braille unless the IEP Team
determines, after an evaluation of the child's
reading and writing skills, needs, and appropriate
reading and writing media (including an evaluation
of the child's future needs for instruction in
Braille or the use of Braille), that instruction
in Braille or the use of Braille is not
appropriate for the child;
``(iv) consider the communication needs of the
child, and in the case of a child who is deaf or
hard of hearing, consider the child's language and
communication needs, opportunities for direct
communications with peers and professional
personnel in the child's language and
communication mode, academic level, and full range
of needs, including opportunities for direct
instruction in the child's language and
communication mode; and
``(v) consider whether the child needs
assistive technology devices and services.
``(C) Requirement with respect to regular education
teacher.--A regular education teacher of the child, as a
member of the IEP Team, shall, to the extent
appropriate, participate in the development of the IEP
of the child, including the determination of appropriate
positive behavioral interventions and supports, and
other strategies, and the determination of supplementary
aids and services, program modifications, and support
for school personnel consistent with paragraph
(1)(A)(i)(IV).
``(D) Agreement.--In making changes to a child's IEP
after the annual IEP meeting for a school year, the
parent of a child with a disability and the local
educational agency may agree not to convene an IEP
meeting for the purposes of making such changes, and
instead may develop a written document to amend or
modify the child's current IEP.
``(E) Consolidation of iep team meetings.--To the
extent possible, the local educational agency shall
encourage the consolidation of reevaluation meetings for
the child and other IEP Team meetings for the child.
``(F) Amendments.--Changes to the IEP may be made
either by the entire IEP Team or, as provided in
subparagraph (D), by amending the IEP rather than by
redrafting the entire IEP. Upon request, a parent shall
be provided with a revised copy of the IEP with the
amendments incorporated.
``(4) Review and revision of iep.--
[[Page 118 STAT. 2713]]
``(A) In general.--The local educational agency
shall ensure that, subject to subparagraph (B), the IEP
Team--
``(i) reviews the child's IEP periodically,
but not less frequently than annually, to
determine whether the annual goals for the child
are being achieved; and
``(ii) revises the IEP as appropriate to
address--
``(I) any lack of expected progress
toward the annual goals and in the
general education curriculum, where
appropriate;
``(II) the results of any
reevaluation conducted under this
section;
``(III) information about the child
provided to, or by, the parents, as
described in subsection (c)(1)(B);
``(IV) the child's anticipated
needs; or
``(V) other matters.
``(B) Requirement with respect to regular education
teacher.--A regular education teacher of the child, as a
member of the IEP Team, shall, consistent with paragraph
(1)(C), participate in the review and revision of the
IEP of the child.
``(5) Multi-year iep demonstration.--
``(A) Pilot program.--
``(i) Purpose.--The purpose of this paragraph
is to provide an opportunity for States to allow
parents and local educational agencies the
opportunity for long-term planning by offering the
option of developing a comprehensive multi-year
IEP, not to exceed 3 years, that is designed to
coincide with the natural transition points for
the child.
``(ii) Authorization.--In order to carry out
the purpose of this paragraph, the Secretary is
authorized to approve not more than 15 proposals
from States to carry out the activity described in
clause (i).
``(iii) Proposal.--
``(I) In general.--A State desiring
to participate in the program under this
paragraph shall submit a proposal to the
Secretary at such time and in such
manner as the Secretary may reasonably
require.
``(II) Content.--The proposal shall
include--
``(aa) assurances that the
development of a multi-year IEP
under this paragraph is optional
for parents;
``(bb) assurances that the
parent is required to provide
informed consent before a
comprehensive multi-year IEP is
developed;
``(cc) a list of required
elements for each multi-year
IEP, including--``(AA)
measurable goals pursuant to
paragraph (1)(A)(i)(II),
coinciding with natural
transition points for the child,
that will enable the child to be
involved in and make progress in
the general education curriculum
and that will meet the child's
other needs that result from the
child's disability; and
[[Page 118 STAT. 2714]]
``(BB) measurable annual goals for
determining progress toward meeting the
goals described in subitem (AA); and
``(dd) a description of the
process for the review and
revision of each multi-year IEP,
including--
``(AA) a review by the IEP Team of
the child's multi-year IEP at each of
the child's natural transition points;
``(BB) in years other than a child's
natural transition points, an annual
review of the child's IEP to determine
the child's current levels of progress
and whether the annual goals for the
child are being achieved, and a
requirement to amend the IEP, as
appropriate, to enable the child to
continue to meet the measurable goals
set out in the IEP;
``(CC) if the IEP Team determines on
the basis of a review that the child is
not making sufficient progress toward
the goals described in the multi-year
IEP, a requirement that the local
educational agency shall ensure that the
IEP Team carries out a more thorough
review of the IEP in accordance with
paragraph (4) within 30 calendar days;
and
``(DD) at the request of the parent,
a requirement that the IEP Team shall
conduct a review of the child's multi-
year IEP rather than or subsequent to an
annual review.
``(B) Report.--Beginning 2 years after the date of
enactment of the Individuals with Disabilities Education
Improvement Act of 2004, the Secretary shall submit an
annual report to the Committee on Education and the
Workforce of the House of Representatives and the
Committee on Health, Education, Labor, and Pensions of
the Senate regarding the effectiveness of the program
under this paragraph and any specific recommendations
for broader implementation of such program, including--
``(i) 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;
``(ii) enhancing longer-term educational
planning;
``(iii) improving positive outcomes for
children with disabilities;
``(iv) promoting collaboration between IEP
Team members; and
``(v) ensuring satisfaction of family members.
``(C) Definition.--In this paragraph, the term
`natural transition points' means those periods that are
close in time to the transition of a child with a
disability from preschool to elementary grades, from
elementary grades
[[Page 118 STAT. 2715]]
to middle or junior high school grades, from middle or
junior high school grades to secondary school grades,
and from secondary school grades to post-secondary
activities, but in no case a period longer than 3 years.
``(6) Failure to meet transition objectives.--If a
participating agency, other than the local educational agency,
fails to provide the transition services described in the IEP in
accordance with paragraph (1)(A)(i)(VIII), the local educational
agency shall reconvene the IEP Team to identify alternative
strategies to meet the transition objectives for the child set
out in the IEP.
``(7) Children with disabilities in adult prisons.--
``(A) In general.--The following requirements shall
not apply to children with disabilities who are
convicted as adults under State law and incarcerated in
adult prisons:
``(i) The requirements contained in section
612(a)(16) and paragraph (1)(A)(i)(VI) (relating
to participation of children with disabilities in
general assessments).
``(ii) The requirements of items (aa) and (bb)
of paragraph (1)(A)(i)(VIII) (relating to
transition planning and transition services), do
not apply with respect to such children whose
eligibility under this part will end, because of
such children's age, before such children will be
released from prison.
``(B) Additional requirement.--If a child with a
disability is convicted as an adult under State law and
incarcerated in an adult prison, the child's IEP Team
may modify the child's IEP or placement notwithstanding
the requirements of sections 612(a)(5)(A) and paragraph
(1)(A) if the State has demonstrated a bona fide
security or compelling penological interest that cannot
otherwise be accommodated.
``(e) Educational Placements.--Each local educational agency or
State educational agency shall ensure that the parents of each child
with a disability are members of any group that makes decisions on the
educational placement of their child.
``(f) Alternative Means of Meeting Participation.--When conducting
IEP team meetings and placement meetings pursuant to this section,
section 615(e), and section 615(f)(1)(B), and carrying out
administrative matters under section 615 (such as scheduling, exchange
of witness lists, and status conferences), the parent of a child with a
disability and a local educational agency may agree to use alternative
means of meeting participation, such as video conferences and conference
calls.
``SEC. 615. <<NOTE: 20 USC 1415.>> PROCEDURAL SAFEGUARDS.
``(a) Establishment of Procedures.--Any State educational agency,
State agency, or local educational agency that receives assistance under
this part shall establish and maintain procedures in accordance with
this section to ensure that children with disabilities and their parents
are guaranteed procedural safeguards with respect to the provision of a
free appropriate public education by such agencies.
``(b) Types of Procedures.--The procedures required by this section
shall include the following:
[[Page 118 STAT. 2716]]
``(1) An opportunity for the parents of a child with a
disability to examine all records relating to such child and to
participate in meetings with respect to the identification,
evaluation, and educational placement of the child, and the
provision of a free appropriate public education to such child,
and to obtain an independent educational evaluation of the
child.
``(2)(A) Procedures to protect the rights of the child
whenever the parents of the child are not known, the agency
cannot, after reasonable efforts, locate the parents, or the
child is a ward of the State, including the assignment of an
individual to act as a surrogate for the parents, which
surrogate shall not be an employee of the State educational
agency, the local educational agency, or any other agency that
is involved in the education or care of the child. In the case
of--
``(i) a child who is a ward of the State, such
surrogate may alternatively be appointed by the judge
overseeing the child's care provided that the surrogate
meets the requirements of this paragraph; and
``(ii) an unaccompanied homeless youth as defined in
section 725(6) of the McKinney-Vento Homeless Assistance
Act (42 U.S.C. 11434a(6)), the local educational agency
shall appoint a surrogate in accordance with this
paragraph.
``(B) The State shall make reasonable efforts to ensure the
assignment of a surrogate not more than 30 days after there is a
determination by the agency that the child needs a surrogate.
``(3) Written prior notice to the parents of the child, in
accordance with subsection (c)(1), whenever the local
educational agency--
``(A) proposes to initiate or change; or
``(B) refuses to initiate or change,
the identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education
to the child.
``(4) Procedures designed to ensure that the notice required
by paragraph (3) is in the native language of the parents,
unless it clearly is not feasible to do so.
``(5) An opportunity for mediation, in accordance with
subsection (e).
``(6) An opportunity for any party to present a complaint--
``(A) with respect to any matter relating to the
identification, evaluation, or educational placement of
the child, or the provision of a free appropriate public
education to such child; and
``(B) <<NOTE: Applicability.>> which sets forth an
alleged violation that occurred not more than 2 years
before the date the parent or public agency knew or
should have known about the alleged action that forms
the basis of the complaint, or, if the State has an
explicit time limitation for presenting such a complaint
under this part, in such time as the State law allows,
except that the exceptions to the timeline described in
subsection (f)(3)(D) shall apply to the timeline
described in this subparagraph.
``(7)(A) Procedures that require either party, or the
attorney representing a party, to provide due process complaint
notice
[[Page 118 STAT. 2717]]
in accordance with subsection (c)(2) (which shall remain
confidential)--
``(i) to the other party, in the complaint filed
under paragraph (6), and forward a copy of such notice
to the State educational agency; and
``(ii) that shall include--
``(I) the name of the child, the address of
the residence of the child (or available contact
information in the case of a homeless child), and
the name of the school the child is attending;
``(II) in the case of a homeless child or
youth (within the meaning of section 725(2) of the
McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(2)), available contact information for the
child and the name of the school the child is
attending;
``(III) a description of the nature of the
problem of the child relating to such proposed
initiation or change, including facts relating to
such problem; and
``(IV) a proposed resolution of the problem to
the extent known and available to the party at the
time.
``(B) A requirement that a party may not have a due process
hearing until the party, or the attorney representing the party,
files a notice that meets the requirements of subparagraph
(A)(ii).
``(8) Procedures that require the State educational agency
to develop a model form to assist parents in filing a complaint
and due process complaint notice in accordance with paragraphs
(6) and (7), respectively.
``(c) Notification Requirements.--
``(1) Content of prior written notice.--The notice required
by subsection (b)(3) shall include--
``(A) a description of the action proposed or
refused by the agency;
``(B) an explanation of why the agency proposes or
refuses to take the action and a description of each
evaluation procedure, assessment, record, or report the
agency used as a basis for the proposed or refused
action;
``(C) a statement that the parents of a child with a
disability have protection under the procedural
safeguards of this part and, if this notice is not an
initial referral for evaluation, the means by which a
copy of a description of the procedural safeguards can
be obtained;
``(D) sources for parents to contact to obtain
assistance in understanding the provisions of this part;
``(E) a description of other options considered by
the IEP Team and the reason why those options were
rejected; and
``(F) a description of the factors that are relevant
to the agency's proposal or refusal.
``(2) Due process complaint notice.--
``(A) Complaint.--The due process complaint notice
required under subsection (b)(7)(A) shall be deemed to
be sufficient unless the party receiving the notice
notifies the hearing officer and the other party in
writing that the receiving party believes the notice has
not met the requirements of subsection (b)(7)(A).
``(B) Response to complaint.--
[[Page 118 STAT. 2718]]
``(i) Local educational agency response.--
``(I) <<NOTE: Deadline.>> In
general.--If the local educational
agency has not sent a prior written
notice to the parent regarding the
subject matter contained in the parent's
due process complaint notice, such local
educational agency shall, within 10 days
of receiving the complaint, send to the
parent a response that shall include--
``(aa) an explanation of why
the agency proposed or refused
to take the action raised in the
complaint;
``(bb) a description of
other options that the IEP Team
considered and the reasons why
those options were rejected;
``(cc) a description of each
evaluation procedure,
assessment, record, or report
the agency used as the basis for
the proposed or refused action;
and
``(dd) a description of the
factors that are relevant to the
agency's proposal or refusal.
``(II) Sufficiency.--A response
filed by a local educational agency
pursuant to subclause (I) shall not be
construed to preclude such local
educational agency from asserting that
the parent's due process complaint
notice was insufficient where
appropriate.
``(ii) <<NOTE: Deadline.>> Other party
response.--Except as provided in clause (i), the
non-complaining party shall, within 10 days of
receiving the complaint, send to the complaint a
response that specifically addresses the issues
raised in the complaint.
``(C) <<NOTE: Deadline.>> Timing.--The party
providing a hearing officer notification under
subparagraph (A) shall provide the notification within
15 days of receiving the complaint.
``(D) <<NOTE: Deadline.>> Determination.--Within 5
days of receipt of the notification provided under
subparagraph (C), the hearing officer shall make a
determination on the face of the notice of whether the
notification meets the requirements of subsection
(b)(7)(A), and shall immediately notify the parties in
writing of such determination.
``(E) Amended complaint notice.--
``(i) In general.--A party may amend its due
process complaint notice only if--
``(I) the other party consents in
writing to such amendment and is given
the opportunity to resolve the complaint
through a meeting held pursuant to
subsection (f)(1)(B); or
``(II) the hearing officer grants
permission, except that the hearing
officer may only grant such permission
at any time not later than 5 days before
a due process hearing occurs.
``(ii) Applicable timeline.--The applicable
timeline for a due process hearing under this part
shall recommence at the time the party files an
amended notice, including the timeline under
subsection (f)(1)(B).
``(d) Procedural Safeguards Notice.--
[[Page 118 STAT. 2719]]
``(1) In general.--
``(A) Copy to parents.--A copy of the procedural
safeguards available to the parents of a child with a
disability shall be given to the parents only 1 time a
year, except that a copy also shall be given to the
parents--
``(i) upon initial referral or parental
request for evaluation;
``(ii) upon the first occurrence of the filing
of a complaint under subsection (b)(6); and
``(iii) upon request by a parent.
``(B) Internet website.--A local educational agency
may place a current copy of the procedural safeguards
notice on its Internet website if such website exists.
``(2) Contents.--The procedural safeguards notice shall
include a full explanation of the procedural safeguards, written
in the native language of the parents (unless it clearly is not
feasible to do so) and written in an easily understandable
manner, available under this section and under regulations
promulgated by the Secretary relating to--
``(A) independent educational evaluation;
``(B) prior written notice;
``(C) parental consent;
``(D) access to educational records;
``(E) the opportunity to present and resolve
complaints, including--
``(i) the time period in which to make a
complaint;
``(ii) the opportunity for the agency to
resolve the complaint; and
``(iii) the availability of mediation;
``(F) the child's placement during pendency of due
process proceedings;
``(G) procedures for students who are subject to
placement in an interim alternative educational setting;
``(H) requirements for unilateral placement by
parents of children in private schools at public
expense;
``(I) due process hearings, including requirements
for disclosure of evaluation results and
recommendations;
``(J) State-level appeals (if applicable in that
State);
``(K) civil actions, including the time period in
which to file such actions; and
``(L) attorneys' fees.
``(e) Mediation.--
``(1) In general.--Any State educational agency or local
educational agency that receives assistance under this part
shall ensure that procedures are established and implemented to
allow parties to disputes involving any matter, including
matters arising prior to the filing of a complaint pursuant to
subsection (b)(6), to resolve such disputes through a mediation
process.
``(2) Requirements.--Such procedures shall meet the
following requirements:
``(A) The procedures shall ensure that the mediation
process--
``(i) is voluntary on the part of the parties;
``(ii) is not used to deny or delay a parent's
right to a due process hearing under subsection
(f), or to deny any other rights afforded under
this part; and
[[Page 118 STAT. 2720]]
``(iii) is conducted by a qualified and
impartial mediator who is trained in effective
mediation techniques.
``(B) Opportunity to meet with a disinterested
party.--A local educational agency or a State agency may
establish procedures to offer to parents and schools
that choose not to use the mediation process, an
opportunity to meet, at a time and location convenient
to the parents, with a disinterested party who is under
contract with--
``(i) a parent training and information center
or community parent resource center in the State
established under section 671 or 672; or
``(ii) an appropriate alternative dispute
resolution entity,
to encourage the use, and explain the benefits, of the
mediation process to the parents.
``(C) List of qualified mediators.--The State shall
maintain a list of individuals who are qualified
mediators and knowledgeable in laws and regulations
relating to the provision of special education and
related services.
``(D) Costs.--The State shall bear the cost of the
mediation process, including the costs of meetings
described in subparagraph (B).
``(E) Scheduling and location.--Each session in the
mediation process shall be scheduled in a timely manner
and shall be held in a location that is convenient to
the parties to the dispute.
``(F) Written agreement.--In the case that a
resolution is reached to resolve the complaint through
the mediation process, the parties shall execute a
legally binding agreement that sets forth such
resolution and that--
``(i) states that all discussions that
occurred during the mediation process shall be
confidential and may not be used as evidence in
any subsequent due process hearing or civil
proceeding;
``(ii) is signed by both the parent and a
representative of the agency who has the authority
to bind such agency; and
``(iii) is enforceable in any State court of
competent jurisdiction or in a district court of
the United States.
``(G) <<NOTE: Confidential information.>> Mediation
discussions.--Discussions that occur during the
mediation process shall be confidential and may not be
used as evidence in any subsequent due process hearing
or civil proceeding.
``(f) Impartial Due Process Hearing.--
``(1) In general.--
``(A) Hearing.--Whenever a complaint has been
received under subsection (b)(6) or (k), the parents or
the local educational agency involved in such complaint
shall have an opportunity for an impartial due process
hearing, which shall be conducted by the State
educational agency or by the local educational agency,
as determined by State law or by the State educational
agency.
``(B) Resolution session.--
``(i) Preliminary meeting.--Prior to the
opportunity for an impartial due process hearing
under subparagraph (A), the local educational
agency shall
[[Page 118 STAT. 2721]]
convene a meeting with the parents and the
relevant member or members of the IEP Team who
have specific knowledge of the facts identified in
the complaint--
``(I) <<NOTE: Deadline.>> within 15
days of receiving notice of the parents'
complaint;
``(II) which shall include a
representative of the agency who has
decisionmaking authority on behalf of
such agency;
``(III) which may not include an
attorney of the local educational agency
unless the parent is accompanied by an
attorney; and
``(IV) where the parents of the
child discuss their complaint, and the
facts that form the basis of the
complaint, and the local educational
agency is provided the opportunity to
resolve the complaint,
unless the parents and the local educational
agency agree in writing to waive such meeting, or
agree to use the mediation process described in
subsection (e).
``(ii) <<NOTE: Deadline.>> Hearing.--If the
local educational agency has not resolved the
complaint to the satisfaction of the parents
within 30 days of the receipt of the complaint,
the due process hearing may occur, and all of the
applicable timelines for a due process hearing
under this part shall commence.
``(iii) Written settlement agreement.--In the
case that a resolution is reached to resolve the
complaint at a meeting described in clause (i),
the parties shall execute a legally binding
agreement that is--
``(I) signed by both the parent and
a representative of the agency who has
the authority to bind such agency; and
``(II) enforceable in any State
court of competent jurisdiction or in a
district court of the United States.
``(iv) Review period.--If the parties execute
an agreement pursuant to clause (iii), a party may
void such agreement within 3 business days of the
agreement's execution.
``(2) Disclosure of evaluations and recommendations.--
``(A) <<NOTE: Deadline.>> In general.--Not less than
5 business days prior to a hearing conducted pursuant to
paragraph (1), each party shall disclose to all other
parties all evaluations completed by that date, and
recommendations based on the offering party's
evaluations, that the party intends to use at the
hearing.
``(B) Failure to disclose.--A hearing officer may
bar any party that fails to comply with subparagraph (A)
from introducing the relevant evaluation or
recommendation at the hearing without the consent of the
other party.
``(3) Limitations on hearing.--
``(A) Person conducting hearing.--A hearing officer
conducting a hearing pursuant to paragraph (1)(A) shall,
at a minimum--
``(i) not be--
[[Page 118 STAT. 2722]]
``(I) an employee of the State
educational agency or the local
educational agency involved in the
education or care of the child; or
``(II) a person having a personal or
professional interest that conflicts
with the person's objectivity in the
hearing;
``(ii) possess knowledge of, and the ability
to understand, the provisions of this title,
Federal and State regulations pertaining to this
title, and legal interpretations of this title by
Federal and State courts;
``(iii) possess the knowledge and ability to
conduct hearings in accordance with appropriate,
standard legal practice; and
``(iv) possess the knowledge and ability to
render and write decisions in accordance with
appropriate, standard legal practice.
``(B) Subject matter of hearing.--The party
requesting the due process hearing shall not be allowed
to raise issues at the due process hearing that were not
raised in the notice filed under subsection (b)(7),
unless the other party agrees otherwise.
``(C) Timeline for requesting hearing.--A parent or
agency shall request an impartial due process hearing
within 2 years of the date the parent or agency knew or
should have known about the alleged action that forms
the basis of the complaint, or, if the State has an
explicit time limitation for requesting such a hearing
under this part, in such time as the State law allows.
``(D) Exceptions to the timeline.--The timeline
described in subparagraph (C) shall not apply to a
parent if the parent was prevented from requesting the
hearing due to--
``(i) specific misrepresentations by the local
educational agency that it had resolved the
problem forming the basis of the complaint; or
``(ii) the local educational agency's
withholding of information from the parent that
was required under this part to be provided to the
parent.
``(E) Decision of hearing officer.--
``(i) In general.--Subject to clause (ii), a
decision made by a hearing officer shall be made
on substantive grounds based on a determination of
whether the child received a free appropriate
public education.
``(ii) Procedural issues.--In matters alleging
a procedural violation, a hearing officer may find
that a child did not receive a free appropriate
public education only if the procedural
inadequacies--
``(I) impeded the child's right to a
free appropriate public education;
``(II) significantly impeded the
parents' opportunity to participate in
the decisionmaking process regarding the
provision of a free appropriate public
education to the parents' child; or
``(III) caused a deprivation of
educational benefits.
``(iii) Rule of construction.--Nothing in this
subparagraph shall be construed to preclude a
hearing
[[Page 118 STAT. 2723]]
officer from ordering a local educational agency
to comply with procedural requirements under this
section.
``(F) Rule of construction.--Nothing in this
paragraph shall be construed to affect the right of a
parent to file a complaint with the State educational
agency.
``(g) Appeal.--
``(1) In general.--If the hearing required by subsection (f)
is conducted by a local educational agency, any party aggrieved
by the findings and decision rendered in such a hearing may
appeal such findings and decision to the State educational
agency.
``(2) Impartial review and independent decision.--The State
educational agency shall conduct an impartial review of the
findings and decision appealed under paragraph (1). The officer
conducting such review shall make an independent decision upon
completion of such review.
``(h) Safeguards.--Any party to a hearing conducted pursuant to
subsection (f) or (k), or an appeal conducted pursuant to subsection
(g), shall be accorded--
``(1) the right to be accompanied and advised by counsel and
by individuals with special knowledge or training with respect
to the problems of children with disabilities;
``(2) the right to present evidence and confront, cross-
examine, and compel the attendance of witnesses;
``(3) the right to a written, or, at the option of the
parents, electronic verbatim record of such hearing; and
``(4) the right to written, or, at the option of the
parents, electronic findings of fact and decisions, which
findings and decisions--
``(A) shall be made available to the public
consistent with the requirements of section 617(b)
(relating to the confidentiality of data, information,
and records); and
``(B) shall be transmitted to the advisory panel
established pursuant to section 612(a)(21).
``(i) Administrative Procedures.--
``(1) In general.--
``(A) Decision made in hearing.--A decision made in
a hearing conducted pursuant to subsection (f) or (k)
shall be final, except that any party involved in such
hearing may appeal such decision under the provisions of
subsection (g) and paragraph (2).
``(B) Decision made at appeal.--A decision made
under subsection (g) shall be final, except that any
party may bring an action under paragraph (2).
``(2) Right to bring civil action.--
``(A) In general.--Any party aggrieved by the
findings and decision made under subsection (f) or (k)
who does not have the right to an appeal under
subsection (g), and any party aggrieved by the findings
and decision made under this subsection, shall have the
right to bring a civil action with respect to the
complaint presented pursuant to this section, which
action may be brought in any State court of competent
jurisdiction or in a district court of the United
States, without regard to the amount in controversy.
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