SWU SPED

Federal Law
Sunday, July 27, 2008

PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2647
Public Law 108–446
108th Congress
An Act
To reauthorize the Individuals with Disabilities Education Act, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Individuals with Disabilities
Education Improvement Act of 2004’’.
SEC. 2. ORGANIZATION OF THE ACT.
This Act is organized into the following titles:
Title I—Amendments to the Individuals With Disabilities
Education Act.
Title II—National Center for Special Education Research.
Title III—Miscellaneous Provisions.
TITLE I—AMENDMENTS TO THE INDIVIDUALS
WITH DISABILITIES EDUCATION
ACT
SEC. 101. AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION
ACT.
Parts A through D of the Individuals with Disabilities Education
Act (20 U.S.C. 1400 et seq.) are amended to read as follows:
‘‘PART A—GENERAL PROVISIONS
‘‘SEC. 601. SHORT TITLE; TABLE OF CONTENTS; FINDINGS; PURPOSES.
‘‘(a) SHORT TITLE.—This title may be cited as the ‘Individuals
with Disabilities Education Act’.
‘‘(b) TABLE OF CONTENTS.—The table of contents for this title
is as follows:
‘‘PART A—GENERAL PROVISIONS
‘‘Sec. 601. Short title; table of contents; findings; purposes.
‘‘Sec. 602. Definitions.
‘‘Sec. 603. Office of Special Education Programs.
‘‘Sec. 604. Abrogation of State sovereign immunity.
‘‘Sec. 605. Acquisition of equipment; construction or alteration of facilities.
‘‘Sec. 606. Employment of individuals with disabilities.
‘‘Sec. 607. Requirements for prescribing regulations.
‘‘Sec. 608. State administration.
‘‘Sec. 609. Paperwork reduction.
‘‘Sec. 610. Freely associated states.
20 USC 1400.
Individuals with
Disabilities
Education
Improvement Act
of 2004.
20 USC 1400
note.
Dec. 3, 2004
[H.R. 1350]
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118 STAT. 2648 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘PART B—ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES
‘‘Sec. 611. Authorization; allotment; use of funds; authorization of appropriations.
‘‘Sec. 612. State eligibility.
‘‘Sec. 613. Local educational agency eligibility.
‘‘Sec. 614. Evaluations, eligibility determinations, individualized education programs,
and educational placements.
‘‘Sec. 615. Procedural safeguards.
‘‘Sec. 616. Monitoring, technical assistance, and enforcement.
‘‘Sec. 617. Administration.
‘‘Sec. 618. Program information.
‘‘Sec. 619. Preschool grants.
‘‘PART C—INFANTS AND TODDLERS WITH DISABILITIES
‘‘Sec. 631. Findings and policy.
‘‘Sec. 632. Definitions.
‘‘Sec. 633. General authority.
‘‘Sec. 634. Eligibility.
‘‘Sec. 635. Requirements for statewide system.
‘‘Sec. 636. Individualized family service plan.
‘‘Sec. 637. State application and assurances.
‘‘Sec. 638. Uses of funds.
‘‘Sec. 639. Procedural safeguards.
‘‘Sec. 640. Payor of last resort.
‘‘Sec. 641. State interagency coordinating council.
‘‘Sec. 642. Federal administration.
‘‘Sec. 643. Allocation of funds.
‘‘Sec. 644. Authorization of appropriations.
‘‘PART D—NATIONAL ACTIVITIES TO IMPROVE EDUCATION OF CHILDREN WITH
DISABILITIES
‘‘Sec. 650. Findings.
‘‘SUBPART 1—STATE PERSONNEL DEVELOPMENT GRANTS
‘‘Sec. 651. Purpose; definition of personnel; program authority.
‘‘Sec. 652. Eligibility and collaborative process.
‘‘Sec. 653. Applications.
‘‘Sec. 654. Use of funds.
‘‘Sec. 655. Authorization of appropriations.
‘‘SUBPART 2—PERSONNEL PREPARATION, TECHNICAL ASSISTANCE, MODEL
DEMONSTRATION PROJECTS, AND DISSEMINATION OF INFORMATION
‘‘Sec. 661. Purpose; definition of eligible entity.
‘‘Sec. 662. Personnel development to improve services and results for children
with disabilities.
‘‘Sec. 663. Technical assistance, demonstration projects, dissemination of information,
and implementation of scientifically based research.
‘‘Sec. 664. Studies and evaluations.
‘‘Sec. 665. Interim alternative educational settings, behavioral supports, and
systemic school interventions.
‘‘Sec. 667. Authorization of appropriations.
‘‘SUBPART 3—SUPPORTS TO IMPROVE RESULTS FOR CHILDREN WITH DISABILITIES
‘‘Sec. 670. Purposes.
‘‘Sec. 671. Parent training and information centers.
‘‘Sec. 672. Community parent resource centers.
‘‘Sec. 673. Technical assistance for parent training and information centers.
‘‘Sec. 674. Technology development, demonstration, and utilization; and media
services.
‘‘Sec. 675. Authorization of appropriations.
‘‘SUBPART 4—GENERAL PROVISIONS
‘‘Sec. 681. Comprehensive plan for subparts 2 and 3.
‘‘Sec. 682. Administrative provisions.
‘‘(c) FINDINGS.—Congress finds the following:
‘‘(1) Disability is a natural part of the human experience
and in no way diminishes the right of individuals to participate
in or contribute to society. Improving educational results for
children with disabilities is an essential element of our national
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2649
policy of ensuring equality of opportunity, full participation,
independent living, and economic self-sufficiency for individuals
with disabilities.
‘‘(2) Before the date of enactment of the Education for
All Handicapped Children Act of 1975 (Public Law 94–142),
the educational needs of millions of children with disabilities
were not being fully met because—
‘‘(A) the children did not receive appropriate educational
services;
‘‘(B) the children were excluded entirely from the public
school system and from being educated with their peers;
‘‘(C) undiagnosed disabilities prevented the children
from having a successful educational experience; or
‘‘(D) a lack of adequate resources within the public
school system forced families to find services outside the
public school system.
‘‘(3) Since the enactment and implementation of the Education
for All Handicapped Children Act of 1975, this title
has been successful in ensuring children with disabilities and
the families of such children access to a free appropriate public
education and in improving educational results for children
with disabilities.
‘‘(4) However, the implementation of this title has been
impeded by low expectations, and an insufficient focus on
applying replicable research on proven methods of teaching
and learning for children with disabilities.
‘‘(5) Almost 30 years of research and experience has demonstrated
that the education of children with disabilities can
be made more effective by—
‘‘(A) having high expectations for such children and
ensuring their access to the general education curriculum
in the regular classroom, to the maximum extent possible,
in order to—
‘‘(i) meet developmental goals and, to the maximum
extent possible, the challenging expectations
that have been established for all children; and
‘‘(ii) be prepared to lead productive and independent
adult lives, to the maximum extent possible;
‘‘(B) strengthening the role and responsibility of parents
and ensuring that families of such children have meaningful
opportunities to participate in the education of their
children at school and at home;
‘‘(C) coordinating this title with other local, educational
service agency, State, and Federal school improvement
efforts, including improvement efforts under the
Elementary and Secondary Education Act of 1965, in order
to ensure that such children benefit from such efforts and
that special education can become a service for such children
rather than a place where such children are sent;
‘‘(D) providing appropriate special education and
related services, and aids and supports in the regular classroom,
to such children, whenever appropriate;
‘‘(E) supporting high-quality, intensive preservice
preparation and professional development for all personnel
who work with children with disabilities in order to ensure
that such personnel have the skills and knowledge necessary
to improve the academic achievement and functional
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118 STAT. 2650 PUBLIC LAW 108–446—DEC. 3, 2004
performance of children with disabilities, including the use
of scientifically based instructional practices, to the maximum
extent possible;
‘‘(F) providing incentives for whole-school approaches,
scientifically based early reading programs, positive behavioral
interventions and supports, and early intervening
services to reduce the need to label children as disabled
in order to address the learning and behavioral needs of
such children;
‘‘(G) focusing resources on teaching and learning while
reducing paperwork and requirements that do not assist
in improving educational results; and
‘‘(H) supporting the development and use of technology,
including assistive technology devices and assistive technology
services, to maximize accessibility for children with
disabilities.
‘‘(6) While States, local educational agencies, and educational
service agencies are primarily responsible for providing
an education for all children with disabilities, it is in the
national interest that the Federal Government have a supporting
role in assisting State and local efforts to educate
children with disabilities in order to improve results for such
children and to ensure equal protection of the law.
‘‘(7) A more equitable allocation of resources is essential
for the Federal Government to meet its responsibility to provide
an equal educational opportunity for all individuals.
‘‘(8) Parents and schools should be given expanded
opportunities to resolve their disagreements in positive and
constructive ways.
‘‘(9) Teachers, schools, local educational agencies, and
States should be relieved of irrelevant and unnecessary paperwork
burdens that do not lead to improved educational outcomes.
‘‘(10)(A) The Federal Government must be responsive to
the growing needs of an increasingly diverse society.
‘‘(B) America’s ethnic profile is rapidly changing. In 2000,
1 of every 3 persons in the United States was a member
of a minority group or was limited English proficient.
‘‘(C) Minority children comprise an increasing percentage
of public school students.
‘‘(D) With such changing demographics, recruitment efforts
for special education personnel should focus on increasing the
participation of minorities in the teaching profession in order
to provide appropriate role models with sufficient knowledge
to address the special education needs of these students.
‘‘(11)(A) The limited English proficient population is the
fastest growing in our Nation, and the growth is occurring
in many parts of our Nation.
‘‘(B) Studies have documented apparent discrepancies in
the levels of referral and placement of limited English proficient
children in special education.
‘‘(C) Such discrepancies pose a special challenge for special
education in the referral of, assessment of, and provision of
services for, our Nation’s students from non-English language
backgrounds.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2651
‘‘(12)(A) Greater efforts are needed to prevent the intensification
of problems connected with mislabeling and high dropout
rates among minority children with disabilities.
‘‘(B) More minority children continue to be served in special
education than would be expected from the percentage of
minority students in the general school population.
‘‘(C) African-American children are identified as having
mental retardation and emotional disturbance at rates greater
than their White counterparts.
‘‘(D) In the 1998–1999 school year, African-American children
represented just 14.8 percent of the population aged 6
through 21, but comprised 20.2 percent of all children with
disabilities.
‘‘(E) Studies have found that schools with predominately
White students and teachers have placed disproportionately
high numbers of their minority students into special education.
‘‘(13)(A) As the number of minority students in special
education increases, the number of minority teachers and
related services personnel produced in colleges and universities
continues to decrease.
‘‘(B) The opportunity for full participation by minority
individuals, minority organizations, and Historically Black Colleges
and Universities in awards for grants and contracts,
boards of organizations receiving assistance under this title,
peer review panels, and training of professionals in the area
of special education is essential to obtain greater success in
the education of minority children with disabilities.
‘‘(14) As the graduation rates for children with disabilities
continue to climb, providing effective transition services to promote
successful post-school employment or education is an
important measure of accountability for children with disabilities.
‘‘(d) PURPOSES.—The purposes of this title are—
‘‘(1)(A) to ensure that all children with disabilities have
available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for further education,
employment, and independent living;
‘‘(B) to ensure that the rights of children with disabilities
and parents of such children are protected; and
‘‘(C) to assist States, localities, educational service agencies,
and Federal agencies to provide for the education of all children
with disabilities;
‘‘(2) to assist States in the implementation of a statewide,
comprehensive, coordinated, multidisciplinary, interagency
system of early intervention services for infants and toddlers
with disabilities and their families;
‘‘(3) to ensure that educators and parents have the necessary
tools to improve educational results for children with
disabilities by supporting system improvement activities;
coordinated research and personnel preparation; coordinated
technical assistance, dissemination, and support; and technology
development and media services; and
‘‘(4) to assess, and ensure the effectiveness of, efforts to
educate children with disabilities.
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118 STAT. 2652 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘SEC. 602. DEFINITIONS.
‘‘Except as otherwise provided, in this title:
‘‘(1) ASSISTIVE TECHNOLOGY DEVICE.—
‘‘(A) IN GENERAL.—The term ‘assistive technology
device’ means any item, piece of equipment, or product
system, whether acquired commercially off the shelf, modified,
or customized, that is used to increase, maintain,
or improve functional capabilities of a child with a disability.
‘‘(B) EXCEPTION.—The term does not include a medical
device that is surgically implanted, or the replacement
of such device.
‘‘(2) ASSISTIVE TECHNOLOGY SERVICE.—The term ‘assistive
technology service’ means any service that directly assists a
child with a disability in the selection, acquisition, or use of
an assistive technology device. Such term includes—
‘‘(A) the evaluation of the needs of such child, including
a functional evaluation of the child in the child’s customary
environment;
‘‘(B) purchasing, leasing, or otherwise providing for
the acquisition of assistive technology devices by such child;
‘‘(C) selecting, designing, fitting, customizing, adapting,
applying, maintaining, repairing, or replacing assistive
technology devices;
‘‘(D) coordinating and using other therapies, interventions,
or services with assistive technology devices, such
as those associated with existing education and rehabilitation
plans and programs;
‘‘(E) training or technical assistance for such child,
or, where appropriate, the family of such child; and
‘‘(F) training or technical assistance for professionals
(including individuals providing education and rehabilitation
services), employers, or other individuals who provide
services to, employ, or are otherwise substantially involved
in the major life functions of such child.
‘‘(3) CHILD WITH A DISABILITY.—
‘‘(A) IN GENERAL.—The term ‘child with a disability’
means a child—
‘‘(i) with mental retardation, hearing impairments
(including deafness), speech or language impairments,
visual impairments (including blindness), serious emotional
disturbance (referred to in this title as ‘emotional
disturbance’), orthopedic impairments, autism, traumatic
brain injury, other health impairments, or specific
learning disabilities; and
‘‘(ii) who, by reason thereof, needs special education
and related services.
‘‘(B) CHILD AGED 3 THROUGH 9.—The term ‘child with
a disability’ for a child aged 3 through 9 (or any subset
of that age range, including ages 3 through 5), may, at
the discretion of the State and the local educational agency,
include a child—
‘‘(i) experiencing developmental delays, as defined
by the State and as measured by appropriate diagnostic
20 USC 1401.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2653
instruments and procedures, in 1 or more of the following
areas: physical development; cognitive development;
communication development; social or emotional
development; or adaptive development; and
‘‘(ii) who, by reason thereof, needs special education
and related services.
‘‘(4) CORE ACADEMIC SUBJECTS.—The term ‘core academic
subjects’ has the meaning given the term in section 9101 of
the Elementary and Secondary Education Act of 1965.
‘‘(5) EDUCATIONAL SERVICE AGENCY.—The term ‘educational
service agency’—
‘‘(A) means a regional public multiservice agency—
‘‘(i) authorized by State law to develop, manage,
and provide services or programs to local educational
agencies; and
‘‘(ii) recognized as an administrative agency for
purposes of the provision of special education and
related services provided within public elementary
schools and secondary schools of the State; and
‘‘(B) includes any other public institution or agency
having administrative control and direction over a public
elementary school or secondary school.
‘‘(6) ELEMENTARY SCHOOL.—The term ‘elementary school’
means a nonprofit institutional day or residential school,
including a public elementary charter school, that provides
elementary education, as determined under State law.
‘‘(7) EQUIPMENT.—The term ‘equipment’ includes—
‘‘(A) machinery, utilities, and built-in equipment, and
any necessary enclosures or structures to house such
machinery, utilities, or equipment; and
‘‘(B) all other items necessary for the functioning of
a particular facility as a facility for the provision of educational
services, including items such as instructional
equipment and necessary furniture; printed, published, and
audio-visual instructional materials; telecommunications,
sensory, and other technological aids and devices; and
books, periodicals, documents, and other related materials.
‘‘(8) EXCESS COSTS.—The term ‘excess costs’ means those
costs that are in excess of the average annual per-student
expenditure in a local educational agency during the preceding
school year for an elementary school or secondary school student,
as may be appropriate, and which shall be computed
after deducting—
‘‘(A) amounts received—
‘‘(i) under part B;
‘‘(ii) under part A of title I of the Elementary
and Secondary Education Act of 1965; and
‘‘(iii) under parts A and B of title III of that Act;
and
‘‘(B) any State or local funds expended for programs
that would qualify for assistance under any of those parts.
‘‘(9) FREE APPROPRIATE PUBLIC EDUCATION.—The term ‘free
appropriate public education’ means special education and
related services that—
‘‘(A) have been provided at public expense, under public
supervision and direction, and without charge;
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118 STAT. 2654 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(B) meet the standards of the State educational
agency;
‘‘(C) include an appropriate preschool, elementary
school, or secondary school education in the State involved;
and
‘‘(D) are provided in conformity with the individualized
education program required under section 614(d).
‘‘(10) HIGHLY QUALIFIED.—
‘‘(A) IN GENERAL.—For any special education teacher,
the term ‘highly qualified’ has the meaning given the term
in section 9101 of the Elementary and Secondary Education
Act of 1965, except that such term also—
‘‘(i) includes the requirements described in
subparagraph (B); and
‘‘(ii) includes the option for teachers to meet the
requirements of section 9101 of such Act by meeting
the requirements of subparagraph (C) or (D).
‘‘(B) REQUIREMENTS FOR SPECIAL EDUCATION
TEACHERS.—When used with respect to any public
elementary school or secondary school special education
teacher teaching in a State, such term means that—
‘‘(i) the teacher has obtained full State certification
as a special education teacher (including certification
obtained through alternative routes to certification),
or passed the State special education teacher licensing
examination, and holds a license to teach in the State
as a special education teacher, except that when used
with respect to any teacher teaching in a public charter
school, the term means that the teacher meets the
requirements set forth in the State’s public charter
school law;
‘‘(ii) the teacher has not had special education
certification or licensure requirements waived on an
emergency, temporary, or provisional basis; and
‘‘(iii) the teacher holds at least a bachelor’s degree.
‘‘(C) SPECIAL EDUCATION TEACHERS TEACHING TO ALTERNATE
ACHIEVEMENT STANDARDS.—When used with respect
to a special education teacher who teaches core academic
subjects exclusively to children who are assessed against
alternate achievement standards established under the
regulations promulgated under section 1111(b)(1) of the
Elementary and Secondary Education Act of 1965, such
term means the teacher, whether new or not new to the
profession, may either—
‘‘(i) meet the applicable requirements of section
9101 of such Act for any elementary, middle, or secondary
school teacher who is new or not new to the
profession; or
‘‘(ii) meet the requirements of subparagraph (B)
or (C) of section 9101(23) of such Act as applied to
an elementary school teacher, or, in the case of instruction
above the elementary level, has subject matter
knowledge appropriate to the level of instruction being
provided, as determined by the State, needed to effectively
teach to those standards.
‘‘(D) SPECIAL EDUCATION TEACHERS TEACHING MULTIPLE
SUBJECTS.—When used with respect to a special education
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2655
teacher who teaches 2 or more core academic subjects exclusively
to children with disabilities, such term means that
the teacher may either—
‘‘(i) meet the applicable requirements of section
9101 of the Elementary and Secondary Education Act
of 1965 for any elementary, middle, or secondary school
teacher who is new or not new to the profession;
‘‘(ii) in the case of a teacher who is not new to
the profession, demonstrate competence in all the core
academic subjects in which the teacher teaches in the
same manner as is required for an elementary, middle,
or secondary school teacher who is not new to the
profession under section 9101(23)(C)(ii) of such Act,
which may include a single, high objective uniform
State standard of evaluation covering multiple subjects;
or
‘‘(iii) in the case of a new special education teacher
who teaches multiple subjects and who is highly qualified
in mathematics, language arts, or science, demonstrate
competence in the other core academic subjects
in which the teacher teaches in the same manner
as is required for an elementary, middle, or secondary
school teacher under section 9101(23)(C)(ii) of such
Act, which may include a single, high objective uniform
State standard of evaluation covering multiple subjects,
not later than 2 years after the date of employment.
‘‘(E) RULE OF CONSTRUCTION.—Notwithstanding any
other individual right of action that a parent or student
may maintain under this part, nothing in this section or
part shall be construed to create a right of action on behalf
of an individual student or class of students for the failure
of a particular State educational agency or local educational
agency employee to be highly qualified.
‘‘(F) DEFINITION FOR PURPOSES OF THE ESEA.—A
teacher who is highly qualified under this paragraph shall
be considered highly qualified for purposes of the
Elementary and Secondary Education Act of 1965.
‘‘(11) HOMELESS CHILDREN.—The term ‘homeless children’
has the meaning given the term ‘homeless children and youths’
in section 725 of the McKinney-Vento Homeless Assistance
Act (42 U.S.C. 11434a).
‘‘(12) INDIAN.—The term ‘Indian’ means an individual who
is a member of an Indian tribe.
‘‘(13) INDIAN TRIBE.—The term ‘Indian tribe’ means any
Federal or State Indian tribe, band, rancheria, pueblo, colony,
or community, including any Alaska Native village or regional
village corporation (as defined in or established under the
Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)).
‘‘(14) INDIVIDUALIZED EDUCATION PROGRAM; IEP.—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 section 614(d).
‘‘(15) INDIVIDUALIZED FAMILY SERVICE PLAN.—The term
‘individualized family service plan’ has the meaning given the
term in section 636.
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118 STAT. 2656 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(16) INFANT OR TODDLER WITH A DISABILITY.—The term
‘infant or toddler with a disability’ has the meaning given
the term in section 632.
‘‘(17) INSTITUTION OF HIGHER EDUCATION.—The term
‘institution of higher education’—
‘‘(A) has the meaning given the term in section 101
of the Higher Education Act of 1965; and
‘‘(B) also includes any community college receiving
funding from the Secretary of the Interior under the Tribally
Controlled College or University Assistance Act of
1978.
‘‘(18) LIMITED ENGLISH PROFICIENT.—The term ‘limited
English proficient’ has the meaning given the term in section
9101 of the Elementary and Secondary Education Act of 1965.
‘‘(19) LOCAL EDUCATIONAL AGENCY.—
‘‘(A) IN GENERAL.—The term ‘local educational agency’
means a public board of education or other public authority
legally constituted within a State for either administrative
control or direction of, or to perform a service function
for, public elementary schools or secondary schools in a
city, county, township, school district, or other political
subdivision of a State, or for such combination of school
districts or counties as are recognized in a State as an
administrative agency for its public elementary schools or
secondary schools.
‘‘(B) EDUCATIONAL SERVICE AGENCIES AND OTHER
PUBLIC INSTITUTIONS OR AGENCIES.—The term includes—
‘‘(i) an educational service agency; and
‘‘(ii) any other public institution or agency having
administrative control and direction of a public
elementary school or secondary school.
‘‘(C) BIA FUNDED SCHOOLS.—The term includes an
elementary school or secondary school funded by the
Bureau of Indian Affairs, but only to the extent that such
inclusion makes the school eligible for programs for which
specific eligibility is not provided to the school in another
provision of law and the school does not have a student
population that is smaller than the student population
of the local educational agency receiving assistance under
this title with the smallest student population, except that
the school shall not be subject to the jurisdiction of any
State educational agency other than the Bureau of Indian
Affairs.
‘‘(20) NATIVE LANGUAGE.—The term ‘native language’, when
used with respect to an individual who is limited English
proficient, means the language normally used by the individual
or, in the case of a child, the language normally used by
the parents of the child.
‘‘(21) NONPROFIT.—The term ‘nonprofit’, as applied to a
school, agency, organization, or institution, means a school,
agency, organization, or institution owned and operated by
1 or more nonprofit corporations or associations no part of
the net earnings of which inures, or may lawfully inure, to
the benefit of any private shareholder or individual.
‘‘(22) OUTLYING AREA.—The term ‘outlying area’ means the
United States Virgin Islands, Guam, American Samoa, and
the Commonwealth of the Northern Mariana Islands.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2657
‘‘(23) PARENT.—The term ‘parent’ means—
‘‘(A) a natural, adoptive, or foster parent of a child
(unless a foster parent is prohibited by State law from
serving as a parent);
‘‘(B) a guardian (but not the State if the child is a
ward of the State);
‘‘(C) an individual acting in the place of a natural
or adoptive parent (including a grandparent, stepparent,
or other relative) with whom the child lives, or an individual
who is legally responsible for the child’s welfare;
or
‘‘(D) except as used in sections 615(b)(2) and 639(a)(5),
an individual assigned under either of those sections to
be a surrogate parent.
‘‘(24) PARENT ORGANIZATION.—The term ‘parent organization’
has the meaning given the term in section 671(g).
‘‘(25) PARENT TRAINING AND INFORMATION CENTER.—The
term ‘parent training and information center’ means a center
assisted under section 671 or 672.
‘‘(26) RELATED SERVICES.—
‘‘(A) IN GENERAL.—The term ‘related services’ means
transportation, and such developmental, corrective, and
other supportive services (including speech-language
pathology and audiology services, interpreting services,
psychological services, physical and occupational therapy,
recreation, including therapeutic recreation, social work
services, school nurse services designed to enable a child
with a disability to receive a free appropriate public education
as described in the individualized education program
of the child, counseling services, including rehabilitation
counseling, orientation and mobility services, and medical
services, except that such medical services shall be for
diagnostic and evaluation purposes only) as may be
required to assist a child with a disability to benefit from
special education, and includes the early identification and
assessment of disabling conditions in children.
‘‘(B) EXCEPTION.—The term does not include a medical
device that is surgically implanted, or the replacement
of such device.
‘‘(27) SECONDARY SCHOOL.—The term ‘secondary school’
means a nonprofit institutional day or residential school,
including a public secondary charter school, that provides secondary
education, as determined under State law, except that
it does not include any education beyond grade 12.
‘‘(28) SECRETARY.—The term ‘Secretary’ means the Secretary
of Education.
‘‘(29) SPECIAL EDUCATION.—The term ‘special education’
means specially designed instruction, at no cost to parents,
to meet the unique needs of a child with a disability, including—
‘‘(A) instruction conducted in the classroom, in the
home, in hospitals and institutions, and in other settings;
and
‘‘(B) instruction in physical education.
‘‘(30) SPECIFIC LEARNING DISABILITY.—
‘‘(A) IN GENERAL.—The term ‘specific learning disability’
means a disorder in 1 or more of the basic psychological
processes involved in understanding or in using
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118 STAT. 2658 PUBLIC LAW 108–446—DEC. 3, 2004
language, spoken or written, which disorder may manifest
itself in the imperfect ability to listen, think, speak, read,
write, spell, or do mathematical calculations.
‘‘(B) DISORDERS INCLUDED.—Such term includes such
conditions as perceptual disabilities, brain injury, minimal
brain dysfunction, dyslexia, and developmental aphasia.
‘‘(C) DISORDERS NOT INCLUDED.—Such term does not
include a learning problem that is primarily the result
of visual, hearing, or motor disabilities, of mental retardation,
of emotional disturbance, or of environmental, cultural,
or economic disadvantage.
‘‘(31) STATE.—The term ‘State’ means each of the 50 States,
the District of Columbia, the Commonwealth of Puerto Rico,
and each of the outlying areas.
‘‘(32) STATE EDUCATIONAL AGENCY.—The term ‘State educational
agency’ means the State board of education or other
agency or officer primarily responsible for the State supervision
of public elementary schools and secondary schools, or, if there
is no such officer or agency, an officer or agency designated
by the Governor or by State law.
‘‘(33) SUPPLEMENTARY AIDS AND SERVICES.—The term
‘supplementary aids and services’ means aids, services, and
other supports that are provided in regular education classes
or other education-related settings to enable children with
disabilities to be educated with nondisabled children to the
maximum extent appropriate in accordance with section
612(a)(5).
‘‘(34) TRANSITION SERVICES.—The term ‘transition services’
means a coordinated set of activities for a child with a disability
that—
‘‘(A) is designed to be within a results-oriented process,
that is focused on improving the academic and functional
achievement of the child with a disability to facilitate the
child’s movement from school to post-school activities,
including post-secondary education, vocational education,
integrated employment (including supported employment),
continuing and adult education, adult services, independent
living, or community participation;
‘‘(B) is based on the individual child’s needs, taking
into account the child’s strengths, preferences, and
interests; and
‘‘(C) includes instruction, related services, community
experiences, the development of employment and other
post-school adult living objectives, and, when appropriate,
acquisition of daily living skills and functional vocational
evaluation.
‘‘(35) UNIVERSAL DESIGN.—The term ‘universal design’ has
the meaning given the term in section 3 of the Assistive Technology
Act of 1998 (29 U.S.C. 3002).
‘‘(36) WARD OF THE STATE.—
‘‘(A) IN GENERAL.—The term ‘ward of the State’ means
a child who, as determined by the State where the child
resides, is a foster child, is a ward of the State, or is
in the custody of a public child welfare agency.
‘‘(B) EXCEPTION.—The term does not include a foster
child who has a foster parent who meets the definition
of a parent in paragraph (23).
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2659
‘‘SEC. 603. OFFICE OF SPECIAL EDUCATION PROGRAMS.
‘‘(a) ESTABLISHMENT.—There shall be, within the Office of Special
Education and Rehabilitative Services in the Department of
Education, an Office of Special Education Programs, which shall
be the principal agency in the Department for administering and
carrying out this title and other programs and activities concerning
the education of children with disabilities.
‘‘(b) DIRECTOR.—The Office established under subsection (a)
shall be headed by a Director who shall be selected by the Secretary
and shall report directly to the Assistant Secretary for Special
Education and Rehabilitative Services.
‘‘(c) VOLUNTARY AND UNCOMPENSATED SERVICES.—Notwithstanding
section 1342 of title 31, United States Code, the Secretary
is authorized to accept voluntary and uncompensated services in
furtherance of the purposes of this title.
‘‘SEC. 604. ABROGATION OF STATE SOVEREIGN IMMUNITY.
‘‘(a) IN GENERAL.—A State shall not be immune under the
11th amendment to the Constitution of the United States from
suit in Federal court for a violation of this title.
‘‘(b) REMEDIES.—In a suit against a State for a violation of
this title, remedies (including remedies both at law and in equity)
are available for such a violation to the same extent as those
remedies are available for such a violation in the suit against
any public entity other than a State.
‘‘(c) EFFECTIVE DATE.—Subsections (a) and (b) apply with
respect to violations that occur in whole or part after the date
of enactment of the Education of the Handicapped Act Amendments
of 1990.
‘‘SEC. 605. ACQUISITION OF EQUIPMENT; CONSTRUCTION OR ALTERATION
OF FACILITIES.
‘‘(a) IN GENERAL.—If the Secretary determines that a program
authorized under this title will be improved by permitting program
funds to be used to acquire appropriate equipment, or to construct
new facilities or alter existing facilities, the Secretary is authorized
to allow the use of those funds for those purposes.
‘‘(b) COMPLIANCE WITH CERTAIN REGULATIONS.—Any construction
of new facilities or alteration of existing facilities under subsection
(a) shall comply with the requirements of—
‘‘(1) appendix A of part 36 of title 28, Code of Federal
Regulations (commonly known as the ‘Americans with Disabilities
Accessibility Guidelines for Buildings and Facilities’); or
‘‘(2) appendix A of subpart 101–19.6 of title 41, Code of
Federal Regulations (commonly known as the ‘Uniform Federal
Accessibility Standards’).
‘‘SEC. 606. EMPLOYMENT OF INDIVIDUALS WITH DISABILITIES.
‘‘The Secretary shall ensure that each recipient of assistance
under this title makes positive efforts to employ and advance in
employment qualified individuals with disabilities in programs
assisted under this title.
‘‘SEC. 607. REQUIREMENTS FOR PRESCRIBING REGULATIONS.
‘‘(a) IN GENERAL.—In carrying out the provisions of this title,
the Secretary shall issue regulations under this title only to the
extent that such regulations are necessary to ensure that there
is compliance with the specific requirements of this title.
20 USC 1406.
20 USC 1405.
20 USC 1404.
20 USC 1403.
20 USC 1402.
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118 STAT. 2660 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(b) PROTECTIONS PROVIDED TO CHILDREN.—The Secretary may
not implement, or publish in final form, any regulation prescribed
pursuant to this title that—
‘‘(1) violates or contradicts any provision of this title; or
‘‘(2) procedurally or substantively lessens the protections
provided to children with disabilities under this title, as
embodied in regulations in effect on July 20, 1983 (particularly
as such protections related to parental consent to initial evaluation
or initial placement in special education, least restrictive
environment, related services, timelines, attendance of evaluation
personnel at individualized education program meetings,
or qualifications of personnel), except to the extent that such
regulation reflects the clear and unequivocal intent of Congress
in legislation.
‘‘(c) PUBLIC COMMENT PERIOD.—The Secretary shall provide
a public comment period of not less than 75 days on any regulation
proposed under part B or part C on which an opportunity for
public comment is otherwise required by law.
‘‘(d) POLICY LETTERS AND STATEMENTS.—The Secretary may
not issue policy letters or other statements (including letters or
statements regarding issues of national significance) that—
‘‘(1) violate or contradict any provision of this title; or
‘‘(2) establish a rule that is required for compliance with,
and eligibility under, this title without following the requirements
of section 553 of title 5, United States Code.
‘‘(e) EXPLANATION AND ASSURANCES.—Any written response by
the Secretary under subsection (d) regarding a policy, question,
or interpretation under part B shall include an explanation in
the written response that—
‘‘(1) such response is provided as informal guidance and
is not legally binding;
‘‘(2) when required, such response is issued in compliance
with the requirements of section 553 of title 5, United States
Code; and
‘‘(3) such response represents the interpretation by the
Department of Education of the applicable statutory or regulatory
requirements in the context of the specific facts presented.
‘‘(f) CORRESPONDENCE FROM DEPARTMENT OF EDUCATION
DESCRIBING INTERPRETATIONS OF THIS TITLE.—
‘‘(1) IN GENERAL.—The Secretary shall, on a quarterly basis,
publish in the Federal Register, and widely disseminate to
interested entities through various additional forms of communication,
a list of correspondence from the Department of Education
received by individuals during the previous quarter that
describes the interpretations of the Department of Education
of this title or the regulations implemented pursuant to this
title.
‘‘(2) ADDITIONAL INFORMATION.—For each item of correspondence
published in a list under paragraph (1), the Secretary
shall—
‘‘(A) identify the topic addressed by the correspondence
and shall include such other summary information as the
Secretary determines to be appropriate; and
‘‘(B) ensure that all such correspondence is issued,
where applicable, in compliance with the requirements of
section 553 of title 5, United States Code.
Federal Register,
publication.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2661
‘‘SEC. 608. STATE ADMINISTRATION.
‘‘(a) RULEMAKING.—Each State that receives funds under this
title shall—
‘‘(1) ensure that any State rules, regulations, and policies
relating to this title conform to the purposes of this title;
‘‘(2) identify in writing to local educational agencies located
in the State and the Secretary any such rule, regulation, or
policy as a State-imposed requirement that is not required
by this title and Federal regulations; and
‘‘(3) minimize the number of rules, regulations, and policies
to which the local educational agencies and schools located
in the State are subject under this title.
‘‘(b) SUPPORT AND FACILITATION.—State rules, regulations, and
policies under this title shall support and facilitate local educational
agency and school-level system improvement designed to enable
children with disabilities to meet the challenging State student
academic achievement standards.
‘‘SEC. 609. PAPERWORK REDUCTION.
‘‘(a) PILOT PROGRAM.—
‘‘(1) PURPOSE.—The purpose of this section is to provide
an opportunity for States to identify ways to reduce paperwork
burdens and other administrative duties that are directly associated
with the requirements of this title, in order to increase
the time and resources available for instruction and other
activities aimed at improving educational and functional results
for children with disabilities.
‘‘(2) AUTHORIZATION.—
‘‘(A) IN GENERAL.—In order to carry out the purpose
of this section, the Secretary is authorized to grant waivers
of statutory requirements of, or regulatory requirements
relating to, part B for a period of time not to exceed
4 years with respect to not more than 15 States based
on proposals submitted by States to reduce excessive paperwork
and noninstructional time burdens that do not assist
in improving educational and functional results for children
with disabilities.
‘‘(B) EXCEPTION.—The Secretary shall not waive under
this section any statutory requirements of, or regulatory
requirements relating to, applicable civil rights requirements.
‘‘(C) RULE OF CONSTRUCTION.—Nothing in this section
shall be construed to—
‘‘(i) affect the right of a child with a disability
to receive a free appropriate public education under
part B; and
‘‘(ii) permit a State or local educational agency
to waive procedural safeguards under section 615.
‘‘(3) PROPOSAL.—
‘‘(A) IN GENERAL.—A State desiring to participate in
the program under this section shall submit a proposal
to the Secretary at such time and in such manner as
the Secretary may reasonably require.
‘‘(B) CONTENT.—The proposal shall include—
‘‘(i) a list of any statutory requirements of, or regulatory
requirements relating to, part B that the State
20 USC 1408.
20 USC 1407.
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118 STAT. 2662 PUBLIC LAW 108–446—DEC. 3, 2004
desires the Secretary to waive, in whole or in part;
and
‘‘(ii) a list of any State requirements that the State
proposes to waive or change, in whole or in part, to
carry out a waiver granted to the State by the Secretary.
‘‘(4) TERMINATION OF WAIVER.—The Secretary shall terminate
a State’s waiver under this section if the Secretary determines
that the State—
‘‘(A) needs assistance under section 616(d)(2)(A)(ii) and
that the waiver has contributed to or caused such need
for assistance;
‘‘(B) needs intervention under section 616(d)(2)(A)(iii)
or needs substantial intervention under section
616(d)(2)(A)(iv); or
‘‘(C) failed to appropriately implement its waiver.
‘‘(b) REPORT.—Beginning 2 years after the date of enactment
of the Individuals with Disabilities Education Improvement Act
of 2004, the Secretary shall include in the annual report to Congress
submitted pursuant to section 426 of the Department of Education
Organization Act information related to the effectiveness of waivers
granted under subsection (a), including any specific recommendations
for broader implementation of such waivers, in—
‘‘(1) reducing—
‘‘(A) the paperwork burden on teachers, principals,
administrators, and related service providers; and
‘‘(B) noninstructional time spent by teachers in complying
with part B;
‘‘(2) enhancing longer-term educational planning;
‘‘(3) improving positive outcomes for children with disabilities;
‘‘(4) promoting collaboration between IEP Team members;
and
‘‘(5) ensuring satisfaction of family members.
‘‘SEC. 610. FREELY ASSOCIATED STATES.
‘‘The Republic of the Marshall Islands, the Federated States
of Micronesia, and the Republic of Palau shall continue to be eligible
for competitive grants administered by the Secretary under this
title to the extent that such grants continue to be available to
States and local educational agencies under this title.
‘‘PART B—ASSISTANCE FOR EDUCATION OF
ALL CHILDREN WITH DISABILITIES
‘‘SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION
OF APPROPRIATIONS.
‘‘(a) GRANTS TO STATES.—
‘‘(1) PURPOSE OF GRANTS.—The Secretary shall make grants
to States, outlying areas, and freely associated States, and
provide funds to the Secretary of the Interior, to assist them
to provide special education and related services to children
with disabilities in accordance with this part.
‘‘(2) MAXIMUM AMOUNT.—The maximum amount of the
grant a State may receive under this section—
‘‘(A) for fiscal years 2005 and 2006 is—
20 USC 1411.
20 USC 1409.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2663
‘‘(i) the number of children with disabilities in
the State who are receiving special education and
related services—
‘‘(I) aged 3 through 5 if the State is eligible
for a grant under section 619; and
‘‘(II) aged 6 through 21; multiplied by
‘‘(ii) 40 percent of the average per-pupil expenditure
in public elementary schools and secondary
schools in the United States; and
‘‘(B) for fiscal year 2007 and subsequent fiscal years
is—
‘‘(i) the number of children with disabilities in
the 2004–2005 school year in the State who received
special education and related services—
‘‘(I) aged 3 through 5 if the State is eligible
for a grant under section 619; and
‘‘(II) aged 6 through 21; multiplied by
‘‘(ii) 40 percent of the average per-pupil expenditure
in public elementary schools and secondary
schools in the United States; adjusted by
‘‘(iii) the rate of annual change in the sum of—
‘‘(I) 85 percent of such State’s population
described in subsection (d)(3)(A)(i)(II); and
‘‘(II) 15 percent of such State’s population
described in subsection (d)(3)(A)(i)(III).
‘‘(b) OUTLYING AREAS AND FREELY ASSOCIATED STATES; SECRETARY
OF THE INTERIOR.—
‘‘(1) OUTLYING AREAS AND FREELY ASSOCIATED STATES.—
‘‘(A) FUNDS RESERVED.—From the amount appropriated
for any fiscal year under subsection (i), the Secretary shall
reserve not more than 1 percent, which shall be used—
‘‘(i) to provide assistance to the outlying areas
in accordance with their respective populations of
individuals aged 3 through 21; and
‘‘(ii) to provide each freely associated State a grant
in the amount that such freely associated State
received for fiscal year 2003 under this part, but only
if the freely associated State meets the applicable
requirements of this part, as well as the requirements
of section 611(b)(2)(C) as such section was in effect
on the day before the date of enactment of the Individuals
with Disabilities Education Improvement Act of
2004.
‘‘(B) SPECIAL RULE.—The provisions of Public Law 95–
134, permitting the consolidation of grants by the outlying
areas, shall not apply to funds provided to the outlying
areas or the freely associated States under this section.
‘‘(C) DEFINITION.—In this paragraph, the term ‘freely
associated States’ means the Republic of the Marshall
Islands, the Federated States of Micronesia, and the
Republic of Palau.
‘‘(2) SECRETARY OF THE INTERIOR.—From the amount appropriated
for any fiscal year under subsection (i), the Secretary
shall reserve 1.226 percent to provide assistance to the Secretary
of the Interior in accordance with subsection (h).
‘‘(c) TECHNICAL ASSISTANCE.—
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118 STAT. 2664 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(1) IN GENERAL.—The Secretary may reserve not more
than 1⁄2 of 1 percent of the amounts appropriated under this
part for each fiscal year to provide technical assistance activities
authorized under section 616(i).
‘‘(2) MAXIMUM AMOUNT.—The maximum amount the Secretary
may reserve under paragraph (1) for any fiscal year
is $25,000,000, cumulatively adjusted by the rate of inflation
as measured by the percentage increase, if any, from the preceding
fiscal year in the Consumer Price Index For All Urban
Consumers, published by the Bureau of Labor Statistics of
the Department of Labor.
‘‘(d) ALLOCATIONS TO STATES.—
‘‘(1) IN GENERAL.—After reserving funds for technical assistance,
and for payments to the outlying areas, the freely associated
States, and the Secretary of the Interior under subsections
(b) and (c) for a fiscal year, the Secretary shall allocate the
remaining amount among the States in accordance with this
subsection.
‘‘(2) SPECIAL RULE FOR USE OF FISCAL YEAR 1999 AMOUNT.—
If a State received any funds under this section for fiscal
year 1999 on the basis of children aged 3 through 5, but
does not make a free appropriate public education available
to all children with disabilities aged 3 through 5 in the State
in any subsequent fiscal year, the Secretary shall compute
the State’s amount for fiscal year 1999, solely for the purpose
of calculating the State’s allocation in that subsequent year
under paragraph (3) or (4), by subtracting the amount allocated
to the State for fiscal year 1999 on the basis of those children.
‘‘(3) INCREASE IN FUNDS.—If the amount available for allocations
to States under paragraph (1) for a fiscal year is equal
to or greater than the amount allocated to the States under
this paragraph for the preceding fiscal year, those allocations
shall be calculated as follows:
‘‘(A) ALLOCATION OF INCREASE.—
‘‘(i) IN GENERAL.—Except as provided in subparagraph
(B), the Secretary shall allocate for the fiscal
year—
‘‘(I) to each State the amount the State
received under this section for fiscal year 1999;
‘‘(II) 85 percent of any remaining funds to
States on the basis of the States’ relative populations
of children aged 3 through 21 who are
of the same age as children with disabilities for
whom the State ensures the availability of a free
appropriate public education under this part; and
‘‘(III) 15 percent of those remaining funds to
States on the basis of the States’ relative populations
of children described in subclause (II) who
are living in poverty.
‘‘(ii) DATA.—For the purpose of making grants
under this paragraph, the Secretary shall use the most
recent population data, including data on children
living in poverty, that are available and satisfactory
to the Secretary.
‘‘(B) LIMITATIONS.—Notwithstanding subparagraph (A),
allocations under this paragraph shall be subject to the
following:
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2665
‘‘(i) PRECEDING YEAR ALLOCATION.—No State’s
allocation shall be less than its allocation under this
section for the preceding fiscal year.
‘‘(ii) MINIMUM.—No State’s allocation shall be less
than the greatest of—
‘‘(I) the sum of—
‘‘(aa) the amount the State received under
this section for fiscal year 1999; and
‘‘(bb) 1⁄3 of 1 percent of the amount by
which the amount appropriated under subsection
(i) for the fiscal year exceeds the
amount appropriated for this section for fiscal
year 1999;
‘‘(II) the sum of—
‘‘(aa) the amount the State received under
this section for the preceding fiscal year; and
‘‘(bb) that amount multiplied by the
percentage by which the increase in the funds
appropriated for this section from the preceding
fiscal year exceeds 1.5 percent; or
‘‘(III) the sum of—
‘‘(aa) the amount the State received under
this section for the preceding fiscal year; and
‘‘(bb) that amount multiplied by 90 percent
of the percentage increase in the amount
appropriated for this section from the preceding
fiscal year.
‘‘(iii) MAXIMUM.—Notwithstanding clause (ii), no
State’s allocation under this paragraph shall exceed
the sum of—
‘‘(I) the amount the State received under this
section for the preceding fiscal year; and
‘‘(II) that amount multiplied by the sum of
1.5 percent and the percentage increase in the
amount appropriated under this section from the
preceding fiscal year.
‘‘(C) RATABLE REDUCTION.—If the amount available for
allocations under this paragraph is insufficient to pay those
allocations in full, those allocations shall be ratably
reduced, subject to subparagraph (B)(i).
‘‘(4) DECREASE IN FUNDS.—If the amount available for
allocations to States under paragraph (1) for a fiscal year
is less than the amount allocated to the States under this
section for the preceding fiscal year, those allocations shall
be calculated as follows:
‘‘(A) AMOUNTS GREATER THAN FISCAL YEAR 1999 ALLOCATIONS.—
If the amount available for allocations is greater
than the amount allocated to the States for fiscal year
1999, each State shall be allocated the sum of—
‘‘(i) the amount the State received under this section
for fiscal year 1999; and
‘‘(ii) an amount that bears the same relation to
any remaining funds as the increase the State received
under this section for the preceding fiscal year over
fiscal year 1999 bears to the total of all such increases
for all States.
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118 STAT. 2666 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(B) AMOUNTS EQUAL TO OR LESS THAN FISCAL YEAR
1999 ALLOCATIONS.—
‘‘(i) IN GENERAL.—If the amount available for
allocations under this paragraph is equal to or less
than the amount allocated to the States for fiscal year
1999, each State shall be allocated the amount the
State received for fiscal year 1999.
‘‘(ii) RATABLE REDUCTION.—If the amount available
for allocations under this paragraph is insufficient to
make the allocations described in clause (i), those
allocations shall be ratably reduced.
‘‘(e) STATE-LEVEL ACTIVITIES.—
‘‘(1) STATE ADMINISTRATION.—
‘‘(A) IN GENERAL.—For the purpose of administering
this part, including paragraph (3), section 619, and the
coordination of activities under this part with, and providing
technical assistance to, other programs that provide
services to children with disabilities—
‘‘(i) each State may reserve for each fiscal year
not more than the maximum amount the State was
eligible to reserve for State administration under this
section for fiscal year 2004 or $800,000 (adjusted in
accordance with subparagraph (B)), whichever is
greater; and
‘‘(ii) each outlying area may reserve for each fiscal
year not more than 5 percent of the amount the outlying
area receives under subsection (b)(1) for the fiscal
year or $35,000, whichever is greater.
‘‘(B) CUMULATIVE ANNUAL ADJUSTMENTS.—For each
fiscal year beginning with fiscal year 2005, the Secretary
shall cumulatively adjust—
‘‘(i) the maximum amount the State was eligible
to reserve for State administration under this part
for fiscal year 2004; and
‘‘(ii) $800,000,
by the rate of inflation as measured by the percentage
increase, if any, from the preceding fiscal year in the Consumer
Price Index For All Urban Consumers, published
by the Bureau of Labor Statistics of the Department of
Labor.
‘‘(C) CERTIFICATION.—Prior to expenditure of funds
under this paragraph, the State shall certify to the Secretary
that the arrangements to establish responsibility
for services pursuant to section 612(a)(12)(A) are current.
‘‘(D) PART C.—Funds reserved under subparagraph (A)
may be used for the administration of part C, if the State
educational agency is the lead agency for the State under
such part.
‘‘(2) OTHER STATE-LEVEL ACTIVITIES.—
‘‘(A) STATE-LEVEL ACTIVITIES.—
‘‘(i) IN GENERAL.—Except as provided in clause
(iii), for the purpose of carrying out State-level activities,
each State may reserve for each of the fiscal
years 2005 and 2006 not more than 10 percent from
the amount of the State’s allocation under subsection
(d) for each of the fiscal years 2005 and 2006, respectively.
For fiscal year 2007 and each subsequent fiscal
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2667
year, the State may reserve the maximum amount
the State was eligible to reserve under the preceding
sentence for fiscal year 2006 (cumulatively adjusted
by the rate of inflation as measured by the percentage
increase, if any, from the preceding fiscal year in the
Consumer Price Index For All Urban Consumers, published
by the Bureau of Labor Statistics of the Department
of Labor).
‘‘(ii) SMALL STATE ADJUSTMENT.—Notwithstanding
clause (i) and except as provided in clause (iii), in
the case of a State for which the maximum amount
reserved for State administration is not greater than
$850,000, the State may reserve for the purpose of
carrying out State-level activities for each of the fiscal
years 2005 and 2006, not more than 10.5 percent from
the amount of the State’s allocation under subsection
(d) for each of the fiscal years 2005 and 2006, respectively.
For fiscal year 2007 and each subsequent fiscal
year, such State may reserve the maximum amount
the State was eligible to reserve under the preceding
sentence for fiscal year 2006 (cumulatively adjusted
by the rate of inflation as measured by the percentage
increase, if any, from the preceding fiscal year in the
Consumer Price Index For All Urban Consumers, published
by the Bureau of Labor Statistics of the Department
of Labor).
‘‘(iii) EXCEPTION.—If a State does not reserve funds
under paragraph (3) for a fiscal year, then—
‘‘(I) in the case of a State that is not described
in clause (ii), for fiscal year 2005 or 2006, clause
(i) shall be applied by substituting ‘9.0 percent’
for ‘10 percent’; and
‘‘(II) in the case of a State that is described
in clause (ii), for fiscal year 2005 or 2006, clause
(ii) shall be applied by substituting ‘9.5 percent’
for ‘10.5 percent’.
‘‘(B) REQUIRED ACTIVITIES.—Funds reserved under
subparagraph (A) shall be used to carry out the following
activities:
‘‘(i) For monitoring, enforcement, and complaint
investigation.
‘‘(ii) To establish and implement the mediation
process required by section 615(e), including providing
for the cost of mediators and support personnel.
‘‘(C) AUTHORIZED ACTIVITIES.—Funds reserved under
subparagraph (A) may be used to carry out the following
activities:
‘‘(i) For support and direct services, including technical
assistance, personnel preparation, and professional
development and training.
‘‘(ii) To support paperwork reduction activities,
including expanding the use of technology in the IEP
process.
‘‘(iii) To assist local educational agencies in providing
positive behavioral interventions and supports
and appropriate mental health services for children
with disabilities.
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118 STAT. 2668 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(iv) To improve the use of technology in the classroom
by children with disabilities to enhance learning.
‘‘(v) To support the use of technology, including
technology with universal design principles and
assistive technology devices, to maximize accessibility
to the general education curriculum for children with
disabilities.
‘‘(vi) Development and implementation of transition
programs, including coordination of services with
agencies involved in supporting the transition of children
with disabilities to postsecondary activities.
‘‘(vii) To assist local educational agencies in
meeting personnel shortages.
‘‘(viii) To support capacity building activities and
improve the delivery of services by local educational
agencies to improve results for children with disabilities.
‘‘(ix) Alternative programming for children with
disabilities who have been expelled from school, and
services for children with disabilities in correctional
facilities, children enrolled in State-operated or Statesupported
schools, and children with disabilities in
charter schools.
‘‘(x) To support the development and provision of
appropriate accommodations for children with disabilities,
or the development and provision of alternate
assessments that are valid and reliable for assessing
the performance of children with disabilities, in accordance
with sections 1111(b) and 6111 of the Elementary
and Secondary Education Act of 1965.
‘‘(xi) To provide technical assistance to schools and
local educational agencies, and direct services,
including supplemental educational services as defined
in 1116(e) of the Elementary and Secondary Education
Act of 1965 to children with disabilities, in schools
or local educational agencies identified for improvement
under section 1116 of the Elementary and Secondary
Education Act of 1965 on the sole basis of
the assessment results of the disaggregated subgroup
of children with disabilities, including providing professional
development to special and regular education
teachers, who teach children with disabilities, based
on scientifically based research to improve educational
instruction, in order to improve academic achievement
to meet or exceed the objectives established by the
State under section 1111(b)(2)(G) the Elementary and
Secondary Education Act of 1965.
‘‘(3) LOCAL EDUCATIONAL AGENCY RISK POOL.—
‘‘(A) IN GENERAL.—
‘‘(i) RESERVATION OF FUNDS.—For the purpose of
assisting local educational agencies (including a charter
school that is a local educational agency or a consortium
of local educational agencies) in addressing the
needs of high need children with disabilities, each State
shall have the option to reserve for each fiscal year
10 percent of the amount of funds the State reserves
for State-level activities under paragraph (2)(A)—
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2669
‘‘(I) to establish and make disbursements from
the high cost fund to local educational agencies
in accordance with this paragraph during the first
and succeeding fiscal years of the high cost fund;
and
‘‘(II) to support innovative and effective ways
of cost sharing by the State, by a local educational
agency, or among a consortium of local educational
agencies, as determined by the State in coordination
with representatives from local educational
agencies, subject to subparagraph (B)(ii).
‘‘(ii) DEFINITION OF LOCAL EDUCATIONAL AGENCY.—
In this paragraph the term ‘local educational agency’
includes a charter school that is a local educational
agency, or a consortium of local educational agencies.
‘‘(B) LIMITATION ON USES OF FUNDS.—
‘‘(i) ESTABLISHMENT OF HIGH COST FUND.—A State
shall not use any of the funds the State reserves pursuant
to subparagraph (A)(i), but may use the funds
the State reserves under paragraph (1), to establish
and support the high cost fund.
‘‘(ii) INNOVATIVE AND EFFECTIVE COST SHARING.—
A State shall not use more than 5 percent of the
funds the State reserves pursuant to subparagraph
(A)(i) for each fiscal year to support innovative and
effective ways of cost sharing among consortia of local
educational agencies.
‘‘(C) STATE PLAN FOR HIGH COST FUND.—
‘‘(i) DEFINITION.—The State educational agency
shall establish the State’s definition of a high need
child with a disability, which definition shall be developed
in consultation with local educational agencies.
‘‘(ii) STATE PLAN.—The State educational agency
shall develop, not later than 90 days after the State
reserves funds under this paragraph, annually review,
and amend as necessary, a State plan for the high
cost fund. Such State plan shall—
‘‘(I) establish, in coordination with representatives
from local educational agencies, a definition
of a high need child with a disability that, at
a minimum—
‘‘(aa) addresses the financial impact a high
need child with a disability has on the budget
of the child’s local educational agency; and
‘‘(bb) ensures that the cost of the high
need child with a disability is greater than
3 times the average per pupil expenditure (as
defined in section 9101 of the Elementary and
Secondary Education Act of 1965) in that
State;
‘‘(II) establish eligibility criteria for the participation
of a local educational agency that, at a
minimum, takes into account the number and
percentage of high need children with disabilities
served by a local educational agency;
Deadline.
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118 STAT. 2670 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(III) develop a funding mechanism that provides
distributions each fiscal year to local educational
agencies that meet the criteria developed
by the State under subclause (II); and
‘‘(IV) establish an annual schedule by which
the State educational agency shall make its distributions
from the high cost fund each fiscal year.
‘‘(iii) PUBLIC AVAILABILITY.—The State shall make
its final State plan publicly available not less than
30 days before the beginning of the school year,
including dissemination of such information on the
State website.
‘‘(D) DISBURSEMENTS FROM THE HIGH COST FUND.—
‘‘(i) IN GENERAL.—Each State educational agency
shall make all annual disbursements from the high
cost fund established under subparagraph (A)(i) in
accordance with the State plan published pursuant
to subparagraph (C).
‘‘(ii) USE OF DISBURSEMENTS.—Each State educational
agency shall make annual disbursements to
eligible local educational agencies in accordance with
its State plan under subparagraph (C)(ii).
‘‘(iii) APPROPRIATE COSTS.—The costs associated
with educating a high need child with a disability
under subparagraph (C)(i) are only those costs associated
with providing direct special education and related
services to such child that are identified in such child’s
IEP.
‘‘(E) LEGAL FEES.—The disbursements under subparagraph
(D) shall not support legal fees, court costs, or other
costs associated with a cause of action brought on behalf
of a child with a disability to ensure a free appropriate
public education for such child.
‘‘(F) ASSURANCE OF A FREE APPROPRIATE PUBLIC EDUCATION.—
Nothing in this paragraph shall be construed—
‘‘(i) to limit or condition the right of a child with
a disability who is assisted under this part to receive
a free appropriate public education pursuant to section
612(a)(1) in the least restrictive environment pursuant
to section 612(a)(5); or
‘‘(ii) to authorize a State educational agency or
local educational agency to establish a limit on what
may be spent on the education of a child with a disability.
‘‘(G) SPECIAL RULE FOR RISK POOL AND HIGH NEED
ASSISTANCE PROGRAMS IN EFFECT AS OF JANUARY 1, 2004.—
Notwithstanding the provisions of subparagraphs (A)
through (F), a State may use funds reserved pursuant
to this paragraph for implementing a placement neutral
cost sharing and reimbursement program of high need,
low incidence, catastrophic, or extraordinary aid to local
educational agencies that provides services to high need
students based on eligibility criteria for such programs
that were created not later than January 1, 2004, and
are currently in operation, if such program serves children
that meet the requirement of the definition of a high need
Deadline.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2671
child with a disability as described in subparagraph
(C)(ii)(I).
‘‘(H) MEDICAID SERVICES NOT AFFECTED.—Disbursements
provided under this paragraph shall not be used
to pay costs that otherwise would be reimbursed as medical
assistance for a child with a disability under the State
medicaid program under title XIX of the Social Security
Act.
‘‘(I) REMAINING FUNDS.—Funds reserved under
subparagraph (A) in any fiscal year but not expended in
that fiscal year pursuant to subparagraph (D) shall be
allocated to local educational agencies for the succeeding
fiscal year in the same manner as funds are allocated
to local educational agencies under subsection (f) for the
succeeding fiscal year.
‘‘(4) INAPPLICABILITY OF CERTAIN PROHIBITIONS.—A State
may use funds the State reserves under paragraphs (1) and
(2) without regard to—
‘‘(A) the prohibition on commingling of funds in section
612(a)(17)(B); and
‘‘(B) the prohibition on supplanting other funds in section
612(a)(17)(C).
‘‘(5) REPORT ON USE OF FUNDS.—As part of the information
required to be submitted to the Secretary under section 612,
each State shall annually describe how amounts under this
section—
‘‘(A) will be used to meet the requirements of this
title; and
‘‘(B) will be allocated among the activities described
in this section to meet State priorities based on input
from local educational agencies.
‘‘(6) SPECIAL RULE FOR INCREASED FUNDS.—A State may
use funds the State reserves under paragraph (1)(A) as a result
of inflationary increases under paragraph (1)(B) to carry out
activities authorized under clause (i), (iii), (vii), or (viii) of
paragraph (2)(C).
‘‘(7) FLEXIBILITY IN USING FUNDS FOR PART C.—Any State
eligible to receive a grant under section 619 may use funds
made available under paragraph (1)(A), subsection (f)(3), or
section 619(f)(5) to develop and implement a State policy jointly
with the lead agency under part C and the State educational
agency to provide early intervention services (which shall
include an educational component that promotes school readiness
and incorporates preliteracy, language, and numeracy
skills) in accordance with part C to children with disabilities
who are eligible for services under section 619 and who previously
received services under part C until such children enter,
or are eligible under State law to enter, kindergarten, or
elementary school as appropriate.
‘‘(f) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—
‘‘(1) SUBGRANTS REQUIRED.—Each State that receives a
grant under this section for any fiscal year shall distribute
any funds the State does not reserve under subsection (e)
to local educational agencies (including public charter schools
that operate as local educational agencies) in the State that
have established their eligibility under section 613 for use
in accordance with this part.
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118 STAT. 2672 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(2) PROCEDURE FOR ALLOCATIONS TO LOCAL EDUCATIONAL
AGENCIES.—For each fiscal year for which funds are allocated
to States under subsection (d), each State shall allocate funds
under paragraph (1) as follows:
‘‘(A) BASE PAYMENTS.—The State shall first award each
local educational agency described in paragraph (1) the
amount the local educational agency would have received
under this section for fiscal year 1999, if the State had
distributed 75 percent of its grant for that year under
section 611(d) as section 611(d) was then in effect.
‘‘(B) ALLOCATION OF REMAINING FUNDS.—After making
allocations under subparagraph (A), the State shall—
‘‘(i) allocate 85 percent of any remaining funds
to those local educational agencies on the basis of
the relative numbers of children enrolled in public
and private elementary schools and secondary schools
within the local educational agency’s jurisdiction; and
‘‘(ii) allocate 15 percent of those remaining funds
to those local educational agencies in accordance with
their relative numbers of children living in poverty,
as determined by the State educational agency.
‘‘(3) REALLOCATION OF FUNDS.—If a State educational
agency determines that a local educational agency is adequately
providing a free appropriate public education to all children
with disabilities residing in the area served by that local educational
agency with State and local funds, the State educational
agency may reallocate any portion of the funds under
this part that are not needed by that local educational agency
to provide a free appropriate public education to other local
educational agencies in the State that are not adequately providing
special education and related services to all children
with disabilities residing in the areas served by those other
local educational agencies.
‘‘(g) DEFINITIONS.—In this section:
‘‘(1) AVERAGE PER-PUPIL EXPENDITURE IN PUBLIC
ELEMENTARY SCHOOLS AND SECONDARY SCHOOLS IN THE UNITED
STATES.—The term ‘average per-pupil expenditure in public
elementary schools and secondary schools in the United States’
means—
‘‘(A) without regard to the source of funds—
‘‘(i) the aggregate current expenditures, during the
second fiscal year preceding the fiscal year for which
the determination is made (or, if satisfactory data for
that year are not available, during the most recent
preceding fiscal year for which satisfactory data are
available) of all local educational agencies in the 50
States and the District of Columbia; plus
‘‘(ii) any direct expenditures by the State for the
operation of those agencies; divided by
‘‘(B) the aggregate number of children in average daily
attendance to whom those agencies provided free public
education during that preceding year.
‘‘(2) STATE.—The term ‘State’ means each of the 50 States,
the District of Columbia, and the Commonwealth of Puerto
Rico.
‘‘(h) USE OF AMOUNTS BY SECRETARY OF THE INTERIOR.—
‘‘(1) PROVISION OF AMOUNTS FOR ASSISTANCE.—
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2673
‘‘(A) IN GENERAL.—The Secretary of Education shall
provide amounts to the Secretary of the Interior to meet
the need for assistance for the education of children with
disabilities on reservations aged 5 to 21, inclusive, enrolled
in elementary schools and secondary schools for Indian
children operated or funded by the Secretary of the Interior.
The amount of such payment for any fiscal year shall
be equal to 80 percent of the amount allotted under subsection
(b)(2) for that fiscal year. Of the amount described
in the preceding sentence—
‘‘(i) 80 percent shall be allocated to such schools
by July 1 of that fiscal year; and
‘‘(ii) 20 percent shall be allocated to such schools
by September 30 of that fiscal year.
‘‘(B) CALCULATION OF NUMBER OF CHILDREN.—In the
case of Indian students aged 3 to 5, inclusive, who are
enrolled in programs affiliated with the Bureau of Indian
Affairs (referred to in this subsection as the ‘BIA’) schools
and that are required by the States in which such schools
are located to attain or maintain State accreditation, and
which schools have such accreditation prior to the date
of enactment of the Individuals with Disabilities Education
Act Amendments of 1991, the school shall be allowed to
count those children for the purpose of distribution of the
funds provided under this paragraph to the Secretary of
the Interior. The Secretary of the Interior shall be responsible
for meeting all of the requirements of this part for
those children, in accordance with paragraph (2).
‘‘(C) ADDITIONAL REQUIREMENT.—With respect to all
other children aged 3 to 21, inclusive, on reservations,
the State educational agency shall be responsible for
ensuring that all of the requirements of this part are implemented.
‘‘(2) SUBMISSION OF INFORMATION.—The Secretary of Education
may provide the Secretary of the Interior amounts under
paragraph (1) for a fiscal year only if the Secretary of the
Interior submits to the Secretary of Education information
that—
‘‘(A) demonstrates that the Department of the Interior
meets the appropriate requirements, as determined by the
Secretary of Education, of sections 612 (including monitoring
and evaluation activities) and 613;
‘‘(B) includes a description of how the Secretary of
the Interior will coordinate the provision of services under
this part with local educational agencies, tribes and tribal
organizations, and other private and Federal service providers;
‘‘(C) includes an assurance that there are public
hearings, adequate notice of such hearings, and an opportunity
for comment afforded to members of tribes, tribal
governing bodies, and affected local school boards before
the adoption of the policies, programs, and procedures
related to the requirements described in subparagraph (A);
‘‘(D) includes an assurance that the Secretary of the
Interior will provide such information as the Secretary
of Education may require to comply with section 618;
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118 STAT. 2674 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(E) includes an assurance that the Secretary of the
Interior and the Secretary of Health and Human Services
have entered into a memorandum of agreement, to be
provided to the Secretary of Education, for the coordination
of services, resources, and personnel between their respective
Federal, State, and local offices and with State and
local educational agencies and other entities to facilitate
the provision of services to Indian children with disabilities
residing on or near reservations (such agreement shall
provide for the apportionment of responsibilities and costs,
including child find, evaluation, diagnosis, remediation or
therapeutic measures, and (where appropriate) equipment
and medical or personal supplies as needed for a child
to remain in school or a program); and
‘‘(F) includes an assurance that the Department of
the Interior will cooperate with the Department of Education
in its exercise of monitoring and oversight of this
application, and any agreements entered into between the
Secretary of the Interior and other entities under this
part, and will fulfill its duties under this part.
‘‘(3) APPLICABILITY.—The Secretary shall withhold payments
under this subsection with respect to the information
described in paragraph (2) in the same manner as the Secretary
withholds payments under section 616(e)(6).
‘‘(4) PAYMENTS FOR EDUCATION AND SERVICES FOR INDIAN
CHILDREN WITH DISABILITIES AGED 3 THROUGH 5.—
‘‘(A) IN GENERAL.—With funds appropriated under subsection
(i), the Secretary of Education shall make payments
to the Secretary of the Interior to be distributed to tribes
or tribal organizations (as defined under section 4 of the
Indian Self-Determination and Education Assistance Act)
or consortia of tribes or tribal organizations to provide
for the coordination of assistance for special education and
related services for children with disabilities aged 3
through 5 on reservations served by elementary schools
and secondary schools for Indian children operated or
funded by the Department of the Interior. The amount
of such payments under subparagraph (B) for any fiscal
year shall be equal to 20 percent of the amount allotted
under subsection (b)(2).
‘‘(B) DISTRIBUTION OF FUNDS.—The Secretary of the
Interior shall distribute the total amount of the payment
under subparagraph (A) by allocating to each tribe, tribal
organization, or consortium an amount based on the
number of children with disabilities aged 3 through 5
residing on reservations as reported annually, divided by
the total of those children served by all tribes or tribal
organizations.
‘‘(C) SUBMISSION OF INFORMATION.—To receive a payment
under this paragraph, the tribe or tribal organization
shall submit such figures to the Secretary of the Interior
as required to determine the amounts to be allocated under
subparagraph (B). This information shall be compiled and
submitted to the Secretary of Education.
‘‘(D) USE OF FUNDS.—The funds received by a tribe
or tribal organization shall be used to assist in child find,
screening, and other procedures for the early identification
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2675
of children aged 3 through 5, parent training, and the
provision of direct services. These activities may be carried
out directly or through contracts or cooperative agreements
with the BIA, local educational agencies, and other public
or private nonprofit organizations. The tribe or tribal
organization is encouraged to involve Indian parents in
the development and implementation of these activities.
The tribe or tribal organization shall, as appropriate, make
referrals to local, State, or Federal entities for the provision
of services or further diagnosis.
‘‘(E) BIENNIAL REPORT.—To be eligible to receive a
grant pursuant to subparagraph (A), the tribe or tribal
organization shall provide to the Secretary of the Interior
a biennial report of activities undertaken under this paragraph,
including the number of contracts and cooperative
agreements entered into, the number of children contacted
and receiving services for each year, and the estimated
number of children needing services during the 2 years
following the year in which the report is made. The Secretary
of the Interior shall include a summary of this
information on a biennial basis in the report to the Secretary
of Education required under this subsection. The
Secretary of Education may require any additional information
from the Secretary of the Interior.
‘‘(F) PROHIBITIONS.—None of the funds allocated under
this paragraph may be used by the Secretary of the Interior
for administrative purposes, including child count and the
provision of technical assistance.
‘‘(5) PLAN FOR COORDINATION OF SERVICES.—The Secretary
of the Interior shall develop and implement a plan for the
coordination of services for all Indian children with disabilities
residing on reservations covered under this title. Such plan
shall provide for the coordination of services benefiting those
children from whatever source, including tribes, the Indian
Health Service, other BIA divisions, and other Federal agencies.
In developing the plan, the Secretary of the Interior shall
consult with all interested and involved parties. The plan shall
be based on the needs of the children and the system best
suited for meeting those needs, and may involve the establishment
of cooperative agreements between the BIA, other Federal
agencies, and other entities. The plan shall also be distributed
upon request to States, State educational agencies and local
educational agencies, and other agencies providing services to
infants, toddlers, and children with disabilities, to tribes, and
to other interested parties.
‘‘(6) ESTABLISHMENT OF ADVISORY BOARD.—To meet the
requirements of section 612(a)(21), the Secretary of the Interior
shall establish, under the BIA, an advisory board composed
of individuals involved in or concerned with the education and
provision of services to Indian infants, toddlers, children, and
youth with disabilities, including Indians with disabilities,
Indian parents or guardians of such children, teachers, service
providers, State and local educational officials, representatives
of tribes or tribal organizations, representatives from State
Interagency Coordinating Councils under section 641 in States
having reservations, and other members representing the various
divisions and entities of the BIA. The chairperson shall
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118 STAT. 2676 PUBLIC LAW 108–446—DEC. 3, 2004
be selected by the Secretary of the Interior. The advisory board
shall—
‘‘(A) assist in the coordination of services within the
BIA and with other local, State, and Federal agencies in
the provision of education for infants, toddlers, and children
with disabilities;
‘‘(B) advise and assist the Secretary of the Interior
in the performance of the Secretary of the Interior’s responsibilities
described in this subsection;
‘‘(C) develop and recommend policies concerning effective
inter- and intra-agency collaboration, including modifications
to regulations, and the elimination of barriers
to inter- and intra-agency programs and activities;
‘‘(D) provide assistance and disseminate information
on best practices, effective program coordination strategies,
and recommendations for improved early intervention services
or educational programming for Indian infants, toddlers,
and children with disabilities; and
‘‘(E) provide assistance in the preparation of information
required under paragraph (2)(D).
‘‘(7) ANNUAL REPORTS.—
‘‘(A) IN GENERAL.—The advisory board established
under paragraph (6) shall prepare and submit to the Secretary
of the Interior and to Congress an annual report
containing a description of the activities of the advisory
board for the preceding year.
‘‘(B) AVAILABILITY.—The Secretary of the Interior shall
make available to the Secretary of Education the report
described in subparagraph (A).
‘‘(i) AUTHORIZATION OF APPROPRIATIONS.—For the purpose of
carrying out this part, other than section 619, there are authorized
to be appropriated—
‘‘(1) $12,358,376,571 for fiscal year 2005;
‘‘(2) $14,648,647,143 for fiscal year 2006;
‘‘(3) $16,938,917,714 for fiscal year 2007;
‘‘(4) $19,229,188,286 for fiscal year 2008;
‘‘(5) $21,519,458,857 for fiscal year 2009;
‘‘(6) $23,809,729,429 for fiscal year 2010;
‘‘(7) $26,100,000,000 for fiscal year 2011; and
‘‘(8) such sums as may be necessary for fiscal year 2012
and each succeeding fiscal year.
‘‘SEC. 612. STATE ELIGIBILITY.
‘‘(a) IN GENERAL.—A State is eligible for assistance under this
part for a fiscal year if the State submits a plan that provides
assurances to the Secretary that the State has in effect policies
and procedures to ensure that the State meets each of the following
conditions:
‘‘(1) FREE APPROPRIATE PUBLIC EDUCATION.—
‘‘(A) IN GENERAL.—A free appropriate public education
is available to all children with disabilities residing in
the State between the ages of 3 and 21, inclusive, including
children with disabilities who have been suspended or
expelled from school.
‘‘(B) LIMITATION.—The obligation to make a free appropriate
public education available to all children with
disabilities does not apply with respect to children—
20 USC 1412.
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PUBLIC LAW 108–446—DEC. 3, 2004 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.—
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118 STAT. 2678 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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
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PUBLIC LAW 108–446—DEC. 3, 2004 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).
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118 STAT. 2680 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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
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PUBLIC LAW 108–446—DEC. 3, 2004 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.
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118 STAT. 2682 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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
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PUBLIC LAW 108–446—DEC. 3, 2004 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.—
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118 STAT. 2684 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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
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PUBLIC LAW 108–446—DEC. 3, 2004 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
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118 STAT. 2686 PUBLIC LAW 108–446—DEC. 3, 2004
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) 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
Reports.
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PUBLIC LAW 108–446—DEC. 3, 2004 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.
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118 STAT. 2688 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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
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PUBLIC LAW 108–446—DEC. 3, 2004 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—
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118 STAT. 2690 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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) 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
Deadline.
Contracts.
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PUBLIC LAW 108–446—DEC. 3, 2004 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).
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118 STAT. 2692 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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 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. 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) 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
Notification.
Applicability.
Termination
date.
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PUBLIC LAW 108–446—DEC. 3, 2004 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) 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
Deadlines.
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118 STAT. 2694 PUBLIC LAW 108–446—DEC. 3, 2004
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.
‘‘SEC. 613. 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—
20 USC 1413.
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PUBLIC LAW 108–446—DEC. 3, 2004 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.
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118 STAT. 2696 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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 educationrelated
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 recordkeeping, 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
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PUBLIC LAW 108–446—DEC. 3, 2004 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) 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
Deadline.
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118 STAT. 2698 PUBLIC LAW 108–446—DEC. 3, 2004
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
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PUBLIC LAW 108–446—DEC. 3, 2004 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
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118 STAT. 2700 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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—
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PUBLIC LAW 108–446—DEC. 3, 2004 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
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118 STAT. 2702 PUBLIC LAW 108–446—DEC. 3, 2004
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. 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) 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.—
Deadline.
20 USC 1414.
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PUBLIC LAW 108–446—DEC. 3, 2004 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
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118 STAT. 2704 PUBLIC LAW 108–446—DEC. 3, 2004
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
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PUBLIC LAW 108–446—DEC. 3, 2004 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—
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118 STAT. 2706 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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.
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PUBLIC LAW 108–446—DEC. 3, 2004 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—
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118 STAT. 2708 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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
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PUBLIC LAW 108–446—DEC. 3, 2004 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
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118 STAT. 2710 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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—
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PUBLIC LAW 108–446—DEC. 3, 2004 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
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118 STAT. 2712 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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.—
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PUBLIC LAW 108–446—DEC. 3, 2004 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 longterm
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
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118 STAT. 2714 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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
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PUBLIC LAW 108–446—DEC. 3, 2004 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. 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:
20 USC 1415.
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118 STAT. 2716 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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) 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
Applicability.
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PUBLIC LAW 108–446—DEC. 3, 2004 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.—
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118 STAT. 2718 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(i) LOCAL EDUCATIONAL AGENCY RESPONSE.—
‘‘(I) 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) 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) TIMING.—The party providing a hearing officer
notification under subparagraph (A) shall provide the
notification within 15 days of receiving the complaint.
‘‘(D) 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.—
Deadline.
Deadline.
Deadline.
Deadline.
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PUBLIC LAW 108–446—DEC. 3, 2004 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
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118 STAT. 2720 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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) 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
Confidential
information.
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PUBLIC LAW 108–446—DEC. 3, 2004 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) 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) 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) 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—
Deadline.
Deadline.
Deadline.
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118 STAT. 2722 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(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
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PUBLIC LAW 108–446—DEC. 3, 2004 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, crossexamine,
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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118 STAT. 2724 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(B) LIMITATION.—The party bringing the action shall
have 90 days from the date of the decision of the hearing
officer to bring such an action, or, if the State has an
explicit time limitation for bringing such action under this
part, in such time as the State law allows.
‘‘(C) ADDITIONAL REQUIREMENTS.—In any action
brought under this paragraph, the court—
‘‘(i) shall receive the records of the administrative
proceedings;
‘‘(ii) shall hear additional evidence at the request
of a party; and
‘‘(iii) basing its decision on the preponderance of
the evidence, shall grant such relief as the court determines
is appropriate.
‘‘(3) JURISDICTION OF DISTRICT COURTS; ATTORNEYS’ FEES.—
‘‘(A) IN GENERAL.—The district courts of the United
States shall have jurisdiction of actions brought under this
section without regard to the amount in controversy.
‘‘(B) AWARD OF ATTORNEYS’ FEES.—
‘‘(i) IN GENERAL.—In any action or proceeding
brought under this section, the court, in its discretion,
may award reasonable attorneys’ fees as part of the
costs—
‘‘(I) to a prevailing party who is the parent
of a child with a disability;
‘‘(II) to a prevailing party who is a State educational
agency or local educational agency against
the attorney of a parent who files a complaint
or subsequent cause of action that is frivolous,
unreasonable, or without foundation, or against
the attorney of a parent who continued to litigate
after the litigation clearly became frivolous,
unreasonable, or without foundation; or
‘‘(III) to a prevailing State educational agency
or local educational agency against the attorney
of a parent, or against the parent, if the parent’s
complaint or subsequent cause of action was presented
for any improper purpose, such as to harass,
to cause unnecessary delay, or to needlessly
increase the cost of litigation.
‘‘(ii) RULE OF CONSTRUCTION.—Nothing in this
subparagraph shall be construed to affect section 327
of the District of Columbia Appropriations Act, 2005.
‘‘(C) DETERMINATION OF AMOUNT OF ATTORNEYS’
FEES.—Fees awarded under this paragraph shall be based
on rates prevailing in the community in which the action
or proceeding arose for the kind and quality of services
furnished. No bonus or multiplier may be used in calculating
the fees awarded under this subsection.
‘‘(D) PROHIBITION OF ATTORNEYS’ FEES AND RELATED
COSTS FOR CERTAIN SERVICES.—
‘‘(i) IN GENERAL.—Attorneys’ fees may not be
awarded and related costs may not be reimbursed in
any action or proceeding under this section for services
performed subsequent to the time of a written offer
of settlement to a parent if—
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2725
‘‘(I) the offer is made within the time prescribed
by Rule 68 of the Federal Rules of Civil
Procedure or, in the case of an administrative proceeding,
at any time more than 10 days before
the proceeding begins;
‘‘(II) the offer is not accepted within 10 days;
and
‘‘(III) the court or administrative hearing
officer finds that the relief finally obtained by the
parents is not more favorable to the parents than
the offer of settlement.
‘‘(ii) IEP TEAM MEETINGS.—Attorneys’ fees may not
be awarded relating to any meeting of the IEP Team
unless such meeting is convened as a result of an
administrative proceeding or judicial action, or, at the
discretion of the State, for a mediation described in
subsection (e).
‘‘(iii) OPPORTUNITY TO RESOLVE COMPLAINTS.—A
meeting conducted pursuant to subsection (f)(1)(B)(i)
shall not be considered—
‘‘(I) a meeting convened as a result of an
administrative hearing or judicial action; or
‘‘(II) an administrative hearing or judicial
action for purposes of this paragraph.
‘‘(E) EXCEPTION TO PROHIBITION ON ATTORNEYS’ FEES
AND RELATED COSTS.—Notwithstanding subparagraph (D),
an award of attorneys’ fees and related costs may be made
to a parent who is the prevailing party and who was
substantially justified in rejecting the settlement offer.
‘‘(F) REDUCTION IN AMOUNT OF ATTORNEYS’ FEES.—
Except as provided in subparagraph (G), whenever the
court finds that—
‘‘(i) the parent, or the parent’s attorney, during
the course of the action or proceeding, unreasonably
protracted the final resolution of the controversy;
‘‘(ii) the amount of the attorneys’ fees otherwise
authorized to be awarded unreasonably exceeds the
hourly rate prevailing in the community for similar
services by attorneys of reasonably comparable skill,
reputation, and experience;
‘‘(iii) the time spent and legal services furnished
were excessive considering the nature of the action
or proceeding; or
‘‘(iv) the attorney representing the parent did not
provide to the local educational agency the appropriate
information in the notice of the complaint described
in subsection (b)(7)(A),
the court shall reduce, accordingly, the amount of the attorneys’
fees awarded under this section.
‘‘(G) EXCEPTION TO REDUCTION IN AMOUNT OF ATTORNEYS’
FEES.—The provisions of subparagraph (F) shall not
apply in any action or proceeding if the court finds that
the State or local educational agency unreasonably protracted
the final resolution of the action or proceeding
or there was a violation of this section.
‘‘(j) MAINTENANCE OF CURRENT EDUCATIONAL PLACEMENT.—
Except as provided in subsection (k)(4), during the pendency of
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118 STAT. 2726 PUBLIC LAW 108–446—DEC. 3, 2004
any proceedings conducted pursuant to this section, unless the
State or local educational agency and the parents otherwise agree,
the child shall remain in the then-current educational placement
of the child, or, if applying for initial admission to a public school,
shall, with the consent of the parents, be placed in the public
school program until all such proceedings have been completed.
‘‘(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING.—
‘‘(1) AUTHORITY OF SCHOOL PERSONNEL.—
‘‘(A) CASE-BY-CASE DETERMINATION.—School personnel
may consider any unique circumstances on a case-by-case
basis when determining whether to order a change in placement
for a child with a disability who violates a code
of student conduct.
‘‘(B) AUTHORITY.—School personnel under this subsection
may remove a child with a disability who violates
a code of student conduct from their current placement
to an appropriate interim alternative educational setting,
another setting, or suspension, for not more than 10 school
days (to the extent such alternatives are applied to children
without disabilities).
‘‘(C) ADDITIONAL AUTHORITY.—If school personnel seek
to order a change in placement that would exceed 10 school
days and the behavior that gave rise to the violation of
the school code is determined not to be a manifestation
of the child’s disability pursuant to subparagraph (E), the
relevant disciplinary procedures applicable to children
without disabilities may be applied to the child in the
same manner and for the same duration in which the
procedures would be applied to children without disabilities,
except as provided in section 612(a)(1) although it
may be provided in an interim alternative educational setting.
‘‘(D) SERVICES.—A child with a disability who is
removed from the child’s current placement under subparagraph
(G) (irrespective of whether the behavior is determined
to be a manifestation of the child’s disability) or
subparagraph (C) shall—
‘‘(i) continue to receive educational services, as provided
in section 612(a)(1), so as to enable the child
to continue to participate in the general education
curriculum, although in another setting, and to
progress toward meeting the goals set out in the child’s
IEP; and
‘‘(ii) receive, as appropriate, a functional behavioral
assessment, behavioral intervention services and modifications,
that are designed to address the behavior
violation so that it does not recur.
‘‘(E) MANIFESTATION DETERMINATION.—
‘‘(i) IN GENERAL.—Except as provided in subparagraph
(B), within 10 school days of any decision to
change the placement of a child with a disability
because of a violation of a code of student conduct,
the local educational agency, the parent, and relevant
members of the IEP Team (as determined by the parent
and the local educational agency) shall review all relevant
information in the student’s file, including the
Deadline.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2727
child’s IEP, any teacher observations, and any relevant
information provided by the parents to determine—
‘‘(I) if the conduct in question was caused by,
or had a direct and substantial relationship to,
the child’s disability; or
‘‘(II) if the conduct in question was the direct
result of the local educational agency’s failure to
implement the IEP.
‘‘(ii) MANIFESTATION.—If the local educational
agency, the parent, and relevant members of the IEP
Team determine that either subclause (I) or (II) of
clause (i) is applicable for the child, the conduct shall
be determined to be a manifestation of the child’s
disability.
‘‘(F) DETERMINATION THAT BEHAVIOR WAS A MANIFESTATION.—
If the local educational agency, the parent, and
relevant members of the IEP Team make the determination
that the conduct was a manifestation of the child’s disability,
the IEP Team shall—
‘‘(i) conduct a functional behavioral assessment,
and implement a behavioral intervention plan for such
child, provided that the local educational agency had
not conducted such assessment prior to such determination
before the behavior that resulted in a change
in placement described in subparagraph (C) or (G);
‘‘(ii) in the situation where a behavioral intervention
plan has been developed, review the behavioral
intervention plan if the child already has such a behavioral
intervention plan, and modify it, as necessary,
to address the behavior; and
‘‘(iii) except as provided in subparagraph (G),
return the child to the placement from which the child
was removed, unless the parent and the local educational
agency agree to a change of placement as
part of the modification of the behavioral intervention
plan.
‘‘(G) SPECIAL CIRCUMSTANCES.—School personnel may
remove a student to an interim alternative educational
setting for not more than 45 school days without regard
to whether the behavior is determined to be a manifestation
of the child’s disability, in cases where a child—
‘‘(i) carries or possesses a weapon to or at school,
on school premises, or to or at a school function under
the jurisdiction of a State or local educational agency;
‘‘(ii) knowingly possesses or uses illegal drugs, or
sells or solicits the sale of a controlled substance, while
at school, on school premises, or at a school function
under the jurisdiction of a State or local educational
agency; or
‘‘(iii) has inflicted serious bodily injury upon
another person while at school, on school premises,
or at a school function under the jurisdiction of a
State or local educational agency.
‘‘(H) NOTIFICATION.—Not later than the date on which
the decision to take disciplinary action is made, the local
educational agency shall notify the parents of that decision,
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118 STAT. 2728 PUBLIC LAW 108–446—DEC. 3, 2004
and of all procedural safeguards accorded under this section.
‘‘(2) DETERMINATION OF SETTING.—The interim alternative
educational setting in subparagraphs (C) and (G) of paragraph
(1) shall be determined by the IEP Team.
‘‘(3) APPEAL.—
‘‘(A) IN GENERAL.—The parent of a child with a disability
who disagrees with any decision regarding placement,
or the manifestation determination under this subsection,
or a local educational agency that believes that
maintaining the current placement of the child is substantially
likely to result in injury to the child or to others,
may request a hearing.
‘‘(B) AUTHORITY OF HEARING OFFICER.—
‘‘(i) IN GENERAL.—A hearing officer shall hear, and
make a determination regarding, an appeal requested
under subparagraph (A).
‘‘(ii) CHANGE OF PLACEMENT ORDER.—In making
the determination under clause (i), the hearing officer
may order a change in placement of a child with a
disability. In such situations, the hearing officer may—
‘‘(I) return a child with a disability to the
placement from which the child was removed; or
‘‘(II) order a change in placement of a child
with a disability to an appropriate interim alternative
educational setting for not more than 45
school days if the hearing officer determines that
maintaining the current placement of such child
is substantially likely to result in injury to the
child or to others.
‘‘(4) PLACEMENT DURING APPEALS.—When an appeal under
paragraph (3) has been requested by either the parent or the
local educational agency—
‘‘(A) the child shall remain in the interim alternative
educational setting pending the decision of the hearing
officer or until the expiration of the time period provided
for in paragraph (1)(C), whichever occurs first, unless the
parent and the State or local educational agency agree
otherwise; and
‘‘(B) the State or local educational agency shall arrange
for an expedited hearing, which shall occur within 20 school
days of the date the hearing is requested and shall result
in a determination within 10 school days after the hearing.
‘‘(5) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR
SPECIAL EDUCATION AND RELATED SERVICES.—
‘‘(A) IN GENERAL.—A child who has not been determined
to be eligible for special education and related services
under this part and who has engaged in behavior
that violates a code of student conduct, may assert any
of the protections provided for in this part if the local
educational agency had knowledge (as determined in
accordance with this paragraph) that the child was a child
with a disability before the behavior that precipitated the
disciplinary action occurred.
‘‘(B) BASIS OF KNOWLEDGE.—A local educational agency
shall be deemed to have knowledge that a child is a child
Deadlines.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2729
with a disability if, before the behavior that precipitated
the disciplinary action occurred—
‘‘(i) the parent of the child has expressed concern
in writing to supervisory or administrative personnel
of the appropriate educational agency, or a teacher
of the child, that the child is in need of special education
and related services;
‘‘(ii) the parent of the child has requested an
evaluation of the child pursuant to section 614(a)(1)(B);
or
‘‘(iii) the teacher of the child, or other personnel
of the local educational agency, has expressed specific
concerns about a pattern of behavior demonstrated
by the child, directly to the director of special education
of such agency or to other supervisory personnel of
the agency.
‘‘(C) EXCEPTION.—A local educational agency shall not
be deemed to have knowledge that the child is a child
with a disability if the parent of the child has not allowed
an evaluation of the child pursuant to section 614 or has
refused services under this part or the child has been
evaluated and it was determined that the child was not
a child with a disability under this part.
‘‘(D) CONDITIONS THAT APPLY IF NO BASIS OF KNOWLEDGE.—
‘‘(i) IN GENERAL.—If a local educational agency does
not have knowledge that a child is a child with a
disability (in accordance with subparagraph (B) or (C))
prior to taking disciplinary measures against the child,
the child may be subjected to disciplinary measures
applied to children without disabilities who engaged
in comparable behaviors consistent with clause (ii).
‘‘(ii) LIMITATIONS.—If a request is made for an
evaluation of a child during the time period in which
the child is subjected to disciplinary measures under
this subsection, the evaluation shall be conducted in
an expedited manner. If the child is determined to
be a child with a disability, taking into consideration
information from the evaluation conducted by the
agency and information provided by the parents, the
agency shall provide special education and related services
in accordance with this part, except that, pending
the results of the evaluation, the child shall remain
in the educational placement determined by school
authorities.
‘‘(6) REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND
JUDICIAL AUTHORITIES.—
‘‘(A) RULE OF CONSTRUCTION.—Nothing in this part
shall be construed to prohibit an agency from reporting
a crime committed by a child with a disability to appropriate
authorities or to prevent State law enforcement and
judicial authorities from exercising their responsibilities
with regard to the application of Federal and State law
to crimes committed by a child with a disability.
‘‘(B) TRANSMITTAL OF RECORDS.—An agency reporting
a crime committed by a child with a disability shall ensure
that copies of the special education and disciplinary records
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118 STAT. 2730 PUBLIC LAW 108–446—DEC. 3, 2004
of the child are transmitted for consideration by the appropriate
authorities to whom the agency reports the crime.
‘‘(7) DEFINITIONS.—In this subsection:
‘‘(A) CONTROLLED SUBSTANCE.—The term ‘controlled
substance’ means a drug or other substance identified
under schedule I, II, III, IV, or V in section 202(c) of
the Controlled Substances Act (21 U.S.C. 812(c)).
‘‘(B) ILLEGAL DRUG.—The term ‘illegal drug’ means a
controlled substance but does not include a controlled substance
that is legally possessed or used under the supervision
of a licensed health-care professional or that is
legally possessed or used under any other authority under
that Act or under any other provision of Federal law.
‘‘(C) WEAPON.—The term ‘weapon’ has the meaning
given the term ‘dangerous weapon’ under section 930(g)(2)
of title 18, United States Code.
‘‘(D) SERIOUS BODILY INJURY.—The term ‘serious bodily
injury’ has the meaning given the term ‘serious bodily
injury’ under paragraph (3) of subsection (h) of section
1365 of title 18, United States Code.
‘‘(l) RULE OF CONSTRUCTION.—Nothing in this title shall be
construed to restrict or limit the rights, procedures, and remedies
available under the Constitution, the Americans with Disabilities
Act of 1990, title V of the Rehabilitation Act of 1973, or other
Federal laws protecting the rights of children with disabilities,
except that before the filing of a civil action under such laws
seeking relief that is also available under this part, the procedures
under subsections (f) and (g) shall be exhausted to the same extent
as would be required had the action been brought under this part.
‘‘(m) TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY.—
‘‘(1) IN GENERAL.—A State that receives amounts from a
grant under this part may provide that, when a child with
a disability reaches the age of majority under State law (except
for a child with a disability who has been determined to be
incompetent under State law)—
‘‘(A) the agency shall provide any notice required by
this section to both the individual and the parents;
‘‘(B) all other rights accorded to parents under this
part transfer to the child;
‘‘(C) the agency shall notify the individual and the
parents of the transfer of rights; and
‘‘(D) all rights accorded to parents under this part
transfer to children who are incarcerated in an adult or
juvenile Federal, State, or local correctional institution.
‘‘(2) SPECIAL RULE.—If, under State law, a child with a
disability who has reached the age of majority under State
law, who has not been determined to be incompetent, but
who is determined not to have the ability to provide informed
consent with respect to the educational program of the child,
the State shall establish procedures for appointing the parent
of the child, or if the parent is not available, another appropriate
individual, to represent the educational interests of the
child throughout the period of eligibility of the child under
this part.
‘‘(n) ELECTRONIC MAIL.—A parent of a child with a disability
may elect to receive notices required under this section by an
Notification.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2731
electronic mail (e-mail) communication, if the agency makes such
option available.
‘‘(o) SEPARATE COMPLAINT.—Nothing in this section shall be
construed to preclude a parent from filing a separate due process
complaint on an issue separate from a due process complaint
already filed.
‘‘SEC. 616. MONITORING, TECHNICAL ASSISTANCE, AND ENFORCEMENT.
‘‘(a) FEDERAL AND STATE MONITORING.—
‘‘(1) IN GENERAL.—The Secretary shall—
‘‘(A) monitor implementation of this part through—
‘‘(i) oversight of the exercise of general supervision
by the States, as required in section 612(a)(11); and
‘‘(ii) the State performance plans, described in subsection
(b);
‘‘(B) enforce this part in accordance with subsection
(e); and
‘‘(C) require States to—
‘‘(i) monitor implementation of this part by local
educational agencies; and
‘‘(ii) enforce this part in accordance with paragraph
(3) and subsection (e).
‘‘(2) FOCUSED MONITORING.—The primary focus of Federal
and State monitoring activities described in paragraph (1) shall
be on—
‘‘(A) improving educational results and functional outcomes
for all children with disabilities; and
‘‘(B) ensuring that States meet the program requirements
under this part, with a particular emphasis on those
requirements that are most closely related to improving
educational results for children with disabilities.
‘‘(3) MONITORING PRIORITIES.—The Secretary shall monitor
the States, and shall require each State to monitor the local
educational agencies located in the State (except the State
exercise of general supervisory responsibility), using quantifiable
indicators in each of the following priority areas, and
using such qualitative indicators as are needed to adequately
measure performance in the following priority areas:
‘‘(A) Provision of a free appropriate public education
in the least restrictive environment.
‘‘(B) State exercise of general supervisory authority,
including child find, effective monitoring, the use of resolution
sessions, mediation, voluntary binding arbitration, and
a system of transition services as defined in sections
602(34) and 637(a)(9).
‘‘(C) Disproportionate representation of racial and
ethnic groups in special education and related services,
to the extent the representation is the result of inappropriate
identification.
‘‘(4) PERMISSIVE AREAS OF REVIEW.—The Secretary shall
consider other relevant information and data, including data
provided by States under section 618.
‘‘(b) STATE PERFORMANCE PLANS.—
‘‘(1) PLAN.—
20 USC 1416.
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118 STAT. 2732 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(A) IN GENERAL.—Not later than 1 year after the
date of enactment of the Individuals with Disabilities Education
Improvement Act of 2004, each State shall have
in place a performance plan that evaluates that State’s
efforts to implement the requirements and purposes of
this part and describes how the State will improve such
implementation.
‘‘(B) SUBMISSION FOR APPROVAL.—Each State shall
submit the State’s performance plan to the Secretary for
approval in accordance with the approval process described
in subsection (c).
‘‘(C) REVIEW.—Each State shall review its State
performance plan at least once every 6 years and submit
any amendments to the Secretary.
‘‘(2) TARGETS.—
‘‘(A) IN GENERAL.—As a part of the State performance
plan described under paragraph (1), each State shall establish
measurable and rigorous targets for the indicators
established under the priority areas described in subsection
(a)(3).
‘‘(B) DATA COLLECTION.—
‘‘(i) IN GENERAL.—Each State shall collect valid
and reliable information as needed to report annually
to the Secretary on the priority areas described in
subsection (a)(3).
‘‘(ii) RULE OF CONSTRUCTION.—Nothing in this title
shall be construed to authorize the development of
a nationwide database of personally identifiable
information on individuals involved in studies or other
collections of data under this part.
‘‘(C) PUBLIC REPORTING AND PRIVACY.—
‘‘(i) IN GENERAL.—The State shall use the targets
established in the plan and priority areas described
in subsection (a)(3) to analyze the performance of each
local educational agency in the State in implementing
this part.
‘‘(ii) REPORT.—
‘‘(I) PUBLIC REPORT.—The State shall report
annually to the public on the performance of each
local educational agency located in the State on
the targets in the State’s performance plan. The
State shall make the State’s performance plan
available through public means, including by
posting on the website of the State educational
agency, distribution to the media, and distribution
through public agencies.
‘‘(II) STATE PERFORMANCE REPORT.—The State
shall report annually to the Secretary on the
performance of the State under the State’s
performance plan.
‘‘(iii) PRIVACY.—The State shall not report to the
public or the Secretary any information on performance
that would result in the disclosure of personally identifiable
information about individual children or where
the available data is insufficient to yield statistically
reliable information.
‘‘(c) APPROVAL PROCESS.—
Deadline.
Deadline.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2733
‘‘(1) DEEMED APPROVAL.—The Secretary shall review
(including the specific provisions described in subsection (b))
each performance plan submitted by a State pursuant to subsection
(b)(1)(B) and the plan shall be deemed to be approved
by the Secretary unless the Secretary makes a written determination,
prior to the expiration of the 120-day period beginning
on the date on which the Secretary received the plan,
that the plan does not meet the requirements of this section,
including the specific provisions described in subsection (b).
‘‘(2) DISAPPROVAL.—The Secretary shall not finally disapprove
a performance plan, except after giving the State notice
and an opportunity for a hearing.
‘‘(3) NOTIFICATION.—If the Secretary finds that the plan
does not meet the requirements, in whole or in part, of this
section, the Secretary shall—
‘‘(A) give the State notice and an opportunity for a
hearing; and
‘‘(B) notify the State of the finding, and in such notification
shall—
‘‘(i) cite the specific provisions in the plan that
do not meet the requirements; and
‘‘(ii) request additional information, only as to the
provisions not meeting the requirements, needed for
the plan to meet the requirements of this section.
‘‘(4) RESPONSE.—If the State responds to the Secretary’s
notification described in paragraph (3)(B) during the 30-day
period beginning on the date on which the State received the
notification, and resubmits the plan with the requested information
described in paragraph (3)(B)(ii), the Secretary shall
approve or disapprove such plan prior to the later of—
‘‘(A) the expiration of the 30-day period beginning on
the date on which the plan is resubmitted; or
‘‘(B) the expiration of the 120-day period described
in paragraph (1).
‘‘(5) FAILURE TO RESPOND.—If the State does not respond
to the Secretary’s notification described in paragraph (3)(B)
during the 30-day period beginning on the date on which the
State received the notification, such plan shall be deemed to
be disapproved.
‘‘(d) SECRETARY’S REVIEW AND DETERMINATION.—
‘‘(1) REVIEW.—The Secretary shall annually review the
State performance report submitted pursuant to subsection
(b)(2)(C)(ii)(II) in accordance with this section.
‘‘(2) DETERMINATION.—
‘‘(A) IN GENERAL.—Based on the information provided
by the State in the State performance report, information
obtained through monitoring visits, and any other public
information made available, the Secretary shall determine
if the State—
‘‘(i) meets the requirements and purposes of this
part;
‘‘(ii) needs assistance in implementing the requirements
of this part;
‘‘(iii) needs intervention in implementing the
requirements of this part; or
‘‘(iv) needs substantial intervention in implementing
the requirements of this part.
Deadlines.
Deadline.
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118 STAT. 2734 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(B) NOTICE AND OPPORTUNITY FOR A HEARING.—For
determinations made under clause (iii) or (iv) of subparagraph
(A), the Secretary shall provide reasonable notice
and an opportunity for a hearing on such determination.
‘‘(e) ENFORCEMENT.—
‘‘(1) NEEDS ASSISTANCE.—If the Secretary determines, for
2 consecutive years, that a State needs assistance under subsection
(d)(2)(A)(ii) in implementing the requirements of this
part, the Secretary shall take 1 or more of the following actions:
‘‘(A) Advise the State of available sources of technical
assistance that may help the State address the areas in
which the State needs assistance, which may include assistance
from the Office of Special Education Programs, other
offices of the Department of Education, other Federal agencies,
technical assistance providers approved by the Secretary,
and other federally funded nonprofit agencies, and
require the State to work with appropriate entities. Such
technical assistance may include—
‘‘(i) the provision of advice by experts to address
the areas in which the State needs assistance,
including explicit plans for addressing the area for
concern within a specified period of time;
‘‘(ii) assistance in identifying and implementing
professional development, instructional strategies, and
methods of instruction that are based on scientifically
based research;
‘‘(iii) designating and using distinguished superintendents,
principals, special education administrators,
special education teachers, and other teachers
to provide advice, technical assistance, and support;
and
‘‘(iv) devising additional approaches to providing
technical assistance, such as collaborating with institutions
of higher education, educational service agencies,
national centers of technical assistance supported
under part D, and private providers of scientifically
based technical assistance.
‘‘(B) Direct the use of State-level funds under section
611(e) on the area or areas in which the State needs
assistance.
‘‘(C) Identify the State as a high-risk grantee and
impose special conditions on the State’s grant under this
part.
‘‘(2) NEEDS INTERVENTION.—If the Secretary determines,
for 3 or more consecutive years, that a State needs intervention
under subsection (d)(2)(A)(iii) in implementing the requirements
of this part, the following shall apply:
‘‘(A) The Secretary may take any of the actions
described in paragraph (1).
‘‘(B) The Secretary shall take 1 or more of the following
actions:
‘‘(i) Require the State to prepare a corrective action
plan or improvement plan if the Secretary determines
that the State should be able to correct the problem
within 1 year.
‘‘(ii) Require the State to enter into a compliance
agreement under section 457 of the General Education
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2735
Provisions Act, if the Secretary has reason to believe
that the State cannot correct the problem within 1
year.
‘‘(iii) For each year of the determination, withhold
not less than 20 percent and not more than 50 percent
of the State’s funds under section 611(e), until the
Secretary determines the State has sufficiently
addressed the areas in which the State needs intervention.
‘‘(iv) Seek to recover funds under section 452 of
the General Education Provisions Act.
‘‘(v) Withhold, in whole or in part, any further
payments to the State under this part pursuant to
paragraph (5).
‘‘(vi) Refer the matter for appropriate enforcement
action, which may include referral to the Department
of Justice.
‘‘(3) NEEDS SUBSTANTIAL INTERVENTION.—Notwithstanding
paragraph (1) or (2), at any time that the Secretary determines
that a State needs substantial intervention in implementing
the requirements of this part or that there is a substantial
failure to comply with any condition of a State educational
agency’s or local educational agency’s eligibility under this part,
the Secretary shall take 1 or more of the following actions:
‘‘(A) Recover funds under section 452 of the General
Education Provisions Act.
‘‘(B) Withhold, in whole or in part, any further payments
to the State under this part.
‘‘(C) Refer the case to the Office of the Inspector General
at the Department of Education.
‘‘(D) Refer the matter for appropriate enforcement
action, which may include referral to the Department of
Justice.
‘‘(4) OPPORTUNITY FOR HEARING.—
‘‘(A) WITHHOLDING FUNDS.—Prior to withholding any
funds under this section, the Secretary shall provide
reasonable notice and an opportunity for a hearing to the
State educational agency involved.
‘‘(B) SUSPENSION.—Pending the outcome of any hearing
to withhold payments under subsection (b), the Secretary
may suspend payments to a recipient, suspend the
authority of the recipient to obligate funds under this part,
or both, after such recipient has been given reasonable
notice and an opportunity to show cause why future payments
or authority to obligate funds under this part should
not be suspended.
‘‘(5) REPORT TO CONGRESS.—The Secretary shall 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 within 30 days of taking
enforcement action pursuant to paragraph (1), (2), or (3), on
the specific action taken and the reasons why enforcement
action was taken.
‘‘(6) NATURE OF WITHHOLDING.—
‘‘(A) LIMITATION.—If the Secretary withholds further
payments pursuant to paragraph (2) or (3), the Secretary
may determine—
Notification.
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118 STAT. 2736 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(i) that such withholding will be limited to programs
or projects, or portions of programs or projects,
that affected the Secretary’s determination under subsection
(d)(2); or
‘‘(ii) that the State educational agency shall not
make further payments under this part to specified
State agencies or local educational agencies that caused
or were involved in the Secretary’s determination
under subsection (d)(2).
‘‘(B) WITHHOLDING UNTIL RECTIFIED.—Until the Secretary
is satisfied that the condition that caused the initial
withholding has been substantially rectified—
‘‘(i) payments to the State under this part shall
be withheld in whole or in part; and
‘‘(ii) payments by the State educational agency
under this part shall be limited to State agencies and
local educational agencies whose actions did not cause
or were not involved in the Secretary’s determination
under subsection (d)(2), as the case may be.
‘‘(7) PUBLIC ATTENTION.—Any State that has received notice
under subsection (d)(2) shall, by means of a public notice,
take such measures as may be necessary to bring the pendency
of an action pursuant to this subsection to the attention of
the public within the State.
‘‘(8) JUDICIAL REVIEW.—
‘‘(A) IN GENERAL.—If any State is dissatisfied with
the Secretary’s action with respect to the eligibility of the
State under section 612, such State may, not later than
60 days after notice of such action, file with the United
States court of appeals for the circuit in which such State
is located a petition for review of that action. A copy of
the petition shall be transmitted by the clerk of the court
to the Secretary. The Secretary thereupon shall file in
the court the record of the proceedings upon which the
Secretary’s action was based, as provided in section 2112
of title 28, United States Code.
‘‘(B) JURISDICTION; REVIEW BY UNITED STATES SUPREME
COURT.—Upon the filing of such petition, the court shall
have jurisdiction to affirm the action of the Secretary or
to set it aside, in whole or in part. The judgment of the
court shall be subject to review by the Supreme Court
of the United States upon certiorari or certification as
provided in section 1254 of title 28, United States Code.
‘‘(C) STANDARD OF REVIEW.—The findings of fact by
the Secretary, if supported by substantial evidence, shall
be conclusive, but the court, for good cause shown, may
remand the case to the Secretary to take further evidence,
and the Secretary may thereupon make new or modified
findings of fact and may modify the Secretary’s previous
action, and shall file in the court the record of the further
proceedings. Such new or modified findings of fact shall
be conclusive if supported by substantial evidence.
‘‘(f) STATE ENFORCEMENT.—If a State educational agency determines
that a local educational agency is not meeting the requirements
of this part, including the targets in the State’s performance
Records.
Records.
Deadline.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2737
plan, the State educational agency shall prohibit the local educational
agency from reducing the local educational agency’s maintenance
of effort under section 613(a)(2)(C) for any fiscal year.
‘‘(g) RULE OF CONSTRUCTION.—Nothing in this section shall
be construed to restrict the Secretary from utilizing any authority
under the General Education Provisions Act to monitor and enforce
the requirements of this title.
‘‘(h) DIVIDED STATE AGENCY RESPONSIBILITY.—For purposes of
this section, where responsibility for ensuring that the requirements
of this part are met with respect to children with disabilities who
are convicted as adults under State law and incarcerated in adult
prisons is assigned to a public agency other than the State educational
agency pursuant to section 612(a)(11)(C), the Secretary,
in instances where the Secretary finds that the failure to comply
substantially with the provisions of this part are related to a failure
by the public agency, shall take appropriate corrective action to
ensure compliance with this part, except that—
‘‘(1) any reduction or withholding of payments to the State
shall be proportionate to the total funds allotted under section
611 to the State as the number of eligible children with disabilities
in adult prisons under the supervision of the other public
agency is proportionate to the number of eligible individuals
with disabilities in the State under the supervision of the
State educational agency; and
‘‘(2) any withholding of funds under paragraph (1) shall
be limited to the specific agency responsible for the failure
to comply with this part.
‘‘(i) DATA CAPACITY AND TECHNICAL ASSISTANCE REVIEW.—The
Secretary shall—
‘‘(1) review the data collection and analysis capacity of
States to ensure that data and information determined necessary
for implementation of this section is collected, analyzed,
and accurately reported to the Secretary; and
‘‘(2) provide technical assistance (from funds reserved under
section 611(c)), where needed, to improve the capacity of States
to meet the data collection requirements.
‘‘SEC. 617. ADMINISTRATION.
‘‘(a) RESPONSIBILITIES OF SECRETARY.—The Secretary shall—
‘‘(1) cooperate with, and (directly or by grant or contract)
furnish technical assistance necessary to, a State in matters
relating to—
‘‘(A) the education of children with disabilities; and
‘‘(B) carrying out this part; and
‘‘(2) provide short-term training programs and institutes.
‘‘(b) PROHIBITION AGAINST FEDERAL MANDATES, DIRECTION, OR
CONTROL.—Nothing in this title shall be construed to authorize
an officer or employee of the Federal Government to mandate,
direct, or control a State, local educational agency, or school’s specific
instructional content, academic achievement standards and
assessments, curriculum, or program of instruction.
‘‘(c) CONFIDENTIALITY.—The Secretary shall take appropriate
action, in accordance with section 444 of the General Education
Provisions Act, to ensure the protection of the confidentiality of
any personally identifiable data, information, and records collected
or maintained by the Secretary and by State educational agencies
and local educational agencies pursuant to this part.
20 USC 1417.
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118 STAT. 2738 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(d) PERSONNEL.—The Secretary is authorized to hire qualified
personnel necessary to carry out the Secretary’s duties under subsection
(a), under section 618, and under subpart 4 of part D,
without regard to the provisions of title 5, United States Code,
relating to appointments in the competitive service and without
regard to chapter 51 and subchapter III of chapter 53 of such
title relating to classification and general schedule pay rates, except
that no more than 20 such personnel shall be employed at any
time.
‘‘(e) MODEL FORMS.—Not later than the date that the Secretary
publishes final regulations under this title, to implement amendments
made by the Individuals with Disabilities Education Improvement
Act of 2004, the Secretary shall publish and disseminate
widely to States, local educational agencies, and parent and community
training and information centers—
‘‘(1) a model IEP form;
‘‘(2) a model individualized family service plan (IFSP) form;
‘‘(3) a model form of the notice of procedural safeguards
described in section 615(d); and
‘‘(4) a model form of the prior written notice described
in subsections (b)(3) and (c)(1) of section 615 that is consistent
with the requirements of this part and is sufficient to meet
such requirements.
‘‘SEC. 618. PROGRAM INFORMATION.
‘‘(a) IN GENERAL.—Each State that receives assistance under
this part, and the Secretary of the Interior, shall provide data
each year to the Secretary of Education and the public on the
following:
‘‘(1)(A) The number and percentage of children with disabilities,
by race, ethnicity, limited English proficiency status,
gender, and disability category, who are in each of the following
separate categories:
‘‘(i) Receiving a free appropriate public education.
‘‘(ii) Participating in regular education.
‘‘(iii) In separate classes, separate schools or facilities,
or public or private residential facilities.
‘‘(iv) For each year of age from age 14 through 21,
stopped receiving special education and related services
because of program completion (including graduation with
a regular secondary school diploma), or other reasons, and
the reasons why those children stopped receiving special
education and related services.
‘‘(v)(I) Removed to an interim alternative educational
setting under section 615(k)(1).
‘‘(II) The acts or items precipitating those
removals.
‘‘(III) The number of children with disabilities who
are subject to long-term suspensions or expulsions.
‘‘(B) The number and percentage of children with disabilities,
by race, gender, and ethnicity, who are receiving early
intervention services.
‘‘(C) The number and percentage of children with disabilities,
by race, gender, and ethnicity, who, from birth through
age 2, stopped receiving early intervention services because
of program completion or for other reasons.
20 USC 1418.
Deadline.
Public
information.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2739
‘‘(D) The incidence and duration of disciplinary actions
by race, ethnicity, limited English proficiency status, gender,
and disability category, of children with disabilities, including
suspensions of 1 day or more.
‘‘(E) The number and percentage of children with disabilities
who are removed to alternative educational settings or
expelled as compared to children without disabilities who are
removed to alternative educational settings or expelled.
‘‘(F) The number of due process complaints filed under
section 615 and the number of hearings conducted.
‘‘(G) The number of hearings requested under section 615(k)
and the number of changes in placements ordered as a result
of those hearings.
‘‘(H) The number of mediations held and the number of
settlement agreements reached through such mediations.
‘‘(2) The number and percentage of infants and toddlers,
by race, and ethnicity, who are at risk of having substantial
developmental delays (as defined in section 632), and who are
receiving early intervention services under part C.
‘‘(3) Any other information that may be required by the
Secretary.
‘‘(b) DATA REPORTING.—
‘‘(1) PROTECTION OF IDENTIFIABLE DATA.—The data
described in subsection (a) shall be publicly reported by each
State in a manner that does not result in the disclosure of
data identifiable to individual children.
‘‘(2) SAMPLING.—The Secretary may permit States and the
Secretary of the Interior to obtain the data described in subsection
(a) through sampling.
‘‘(c) TECHNICAL ASSISTANCE.—The Secretary may provide technical
assistance to States to ensure compliance with the data collection
and reporting requirements under this title.
‘‘(d) DISPROPORTIONALITY.—
‘‘(1) IN GENERAL.—Each State that receives assistance
under this part, and the Secretary of the Interior, shall provide
for the collection and examination of data to determine if significant
disproportionality based on race and ethnicity is occurring
in the State and the local educational agencies of the State
with respect to—
‘‘(A) the identification of children as children with
disabilities, including the identification of children as children
with disabilities in accordance with a particular
impairment described in section 602(3);
‘‘(B) the placement in particular educational settings
of such children; and
‘‘(C) the incidence, duration, and type of disciplinary
actions, including suspensions and expulsions.
‘‘(2) REVIEW AND REVISION OF POLICIES, PRACTICES, AND
PROCEDURES.—In the case of a determination of significant
disproportionality with respect to the identification of children
as children with disabilities, or the placement in particular
educational settings of such children, in accordance with paragraph
(1), the State or the Secretary of the Interior, as the
case may be, shall—
‘‘(A) provide for the review and, if appropriate, revision
of the policies, procedures, and practices used in such
identification or placement to ensure that such policies,
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118 STAT. 2740 PUBLIC LAW 108–446—DEC. 3, 2004
procedures, and practices comply with the requirements
of this title;
‘‘(B) require any local educational agency identified
under paragraph (1) to reserve the maximum amount of
funds under section 613(f) to provide comprehensive coordinated
early intervening services to serve children in the
local educational agency, particularly children in those
groups that were significantly overidentified under paragraph
(1); and
‘‘(C) require the local educational agency to publicly
report on the revision of policies, practices, and procedures
described under subparagraph (A).
‘‘SEC. 619. PRESCHOOL GRANTS.
‘‘(a) IN GENERAL.—The Secretary shall provide grants under
this section to assist States to provide special education and related
services, in accordance with this part—
‘‘(1) to children with disabilities aged 3 through 5, inclusive;
and
‘‘(2) at the State’s discretion, to 2-year-old children with
disabilities who will turn 3 during the school year.
‘‘(b) ELIGIBILITY.—A State shall be eligible for a grant under
this section if such State—
‘‘(1) is eligible under section 612 to receive a grant under
this part; and
‘‘(2) makes a free appropriate public education available
to all children with disabilities, aged 3 through 5, residing
in the State.
‘‘(c) ALLOCATIONS TO STATES.—
‘‘(1) IN GENERAL.—The Secretary shall allocate the amount
made available to carry out this section for a fiscal year among
the States in accordance with paragraph (2) or (3), as the
case may be.
‘‘(2) INCREASE IN FUNDS.—If the amount available for allocations
to States under paragraph (1) for a fiscal year is equal
to or greater than the amount allocated to the States under
this section for the preceding fiscal year, those allocations shall
be calculated as follows:
‘‘(A) ALLOCATION.—
‘‘(i) IN GENERAL.—Except as provided in subparagraph
(B), the Secretary shall—
‘‘(I) allocate to each State the amount the State
received under this section for fiscal year 1997;
‘‘(II) allocate 85 percent of any remaining
funds to States on the basis of the States’ relative
populations of children aged 3 through 5; and
‘‘(III) allocate 15 percent of those remaining
funds to States on the basis of the States’ relative
populations of all children aged 3 through 5 who
are living in poverty.
‘‘(ii) DATA.—For the purpose of making grants
under this paragraph, the Secretary shall use the most
recent population data, including data on children
living in poverty, that are available and satisfactory
to the Secretary.
20 USC 1419.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2741
‘‘(B) LIMITATIONS.—Notwithstanding subparagraph (A),
allocations under this paragraph shall be subject to the
following:
‘‘(i) PRECEDING YEARS.—No State’s allocation shall
be less than its allocation under this section for the
preceding fiscal year.
‘‘(ii) MINIMUM.—No State’s allocation shall be less
than the greatest of—
‘‘(I) the sum of—
‘‘(aa) the amount the State received under
this section for fiscal year 1997; and
‘‘(bb) 1⁄3 of 1 percent of the amount by
which the amount appropriated under subsection
(j) for the fiscal year exceeds the
amount appropriated for this section for fiscal
year 1997;
‘‘(II) the sum of—
‘‘(aa) the amount the State received under
this section for the preceding fiscal year; and
‘‘(bb) that amount multiplied by the
percentage by which the increase in the funds
appropriated under this section from the preceding
fiscal year exceeds 1.5 percent; or
‘‘(III) the sum of—
‘‘(aa) the amount the State received under
this section for the preceding fiscal year; and
‘‘(bb) that amount multiplied by 90 percent
of the percentage increase in the amount
appropriated under this section from the preceding
fiscal year.
‘‘(iii) MAXIMUM.—Notwithstanding clause (ii), no
State’s allocation under this paragraph shall exceed
the sum of—
‘‘(I) the amount the State received under this
section for the preceding fiscal year; and
‘‘(II) that amount multiplied by the sum of
1.5 percent and the percentage increase in the
amount appropriated under this section from the
preceding fiscal year.
‘‘(C) RATABLE REDUCTIONS.—If the amount available
for allocations under this paragraph is insufficient to pay
those allocations in full, those allocations shall be ratably
reduced, subject to subparagraph (B)(i).
‘‘(3) DECREASE IN FUNDS.—If the amount available for
allocations to States under paragraph (1) for a fiscal year
is less than the amount allocated to the States under this
section for the preceding fiscal year, those allocations shall
be calculated as follows:
‘‘(A) ALLOCATIONS.—If the amount available for allocations
is greater than the amount allocated to the States
for fiscal year 1997, each State shall be allocated the sum
of—
‘‘(i) the amount the State received under this section
for fiscal year 1997; and
‘‘(ii) an amount that bears the same relation to
any remaining funds as the increase the State received
under this section for the preceding fiscal year over
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118 STAT. 2742 PUBLIC LAW 108–446—DEC. 3, 2004
fiscal year 1997 bears to the total of all such increases
for all States.
‘‘(B) RATABLE REDUCTIONS.—If the amount available
for allocations is equal to or less than the amount allocated
to the States for fiscal year 1997, each State shall be
allocated the amount the State received for fiscal year
1997, ratably reduced, if necessary.
‘‘(d) RESERVATION FOR STATE ACTIVITIES.—
‘‘(1) IN GENERAL.—Each State may reserve not more than
the amount described in paragraph (2) for administration and
other State-level activities in accordance with subsections (e)
and (f).
‘‘(2) AMOUNT DESCRIBED.—For each fiscal year, the Secretary
shall determine and report to the State educational
agency an amount that is 25 percent of the amount the State
received under this section for fiscal year 1997, cumulatively
adjusted by the Secretary for each succeeding fiscal year by
the lesser of—
‘‘(A) the percentage increase, if any, from the preceding
fiscal year in the State’s allocation under this section;
or
‘‘(B) the percentage increase, if any, from the preceding
fiscal year in the Consumer Price Index For All Urban
Consumers published by the Bureau of Labor Statistics
of the Department of Labor.
‘‘(e) STATE ADMINISTRATION.—
‘‘(1) IN GENERAL.—For the purpose of administering this
section (including the coordination of activities under this part
with, and providing technical assistance to, other programs
that provide services to children with disabilities) a State may
use not more than 20 percent of the maximum amount the
State may reserve under subsection (d) for any fiscal year.
‘‘(2) ADMINISTRATION OF PART C.—Funds described in paragraph
(1) may also be used for the administration of part
C.
‘‘(f) OTHER STATE-LEVEL ACTIVITIES.—Each State shall use any
funds the State reserves under subsection (d) and does not use
for administration under subsection (e)—
‘‘(1) for support services (including establishing and implementing
the mediation process required by section 615(e)),
which may benefit children with disabilities younger than 3
or older than 5 as long as those services also benefit children
with disabilities aged 3 through 5;
‘‘(2) for direct services for children eligible for services
under this section;
‘‘(3) for activities at the State and local levels to meet
the performance goals established by the State under section
612(a)(15);
‘‘(4) to supplement other funds used to develop and implement
a statewide coordinated services system designed to
improve results for children and families, including children
with disabilities and their families, but not more than 1 percent
of the amount received by the State under this section for
a fiscal year;
‘‘(5) to provide early intervention services (which shall
include an educational component that promotes school readiness
and incorporates preliteracy, language, and numeracy
Reports.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2743
skills) in accordance with part C to children with disabilities
who are eligible for services under this section and who previously
received services under part C until such children enter,
or are eligible under State law to enter, kindergarten; or
‘‘(6) at the State’s discretion, to continue service coordination
or case management for families who receive services under
part C.
‘‘(g) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—
‘‘(1) SUBGRANTS REQUIRED.—Each State that receives a
grant under this section for any fiscal year shall distribute
all of the grant funds that the State does not reserve under
subsection (d) to local educational agencies in the State that
have established their eligibility under section 613, as follows:
‘‘(A) BASE PAYMENTS.—The State shall first award each
local educational agency described in paragraph (1) the
amount that agency would have received under this section
for fiscal year 1997 if the State had distributed 75 percent
of its grant for that year under section 619(c)(3), as such
section was then in effect.
‘‘(B) ALLOCATION OF REMAINING FUNDS.—After making
allocations under subparagraph (A), the State shall—
‘‘(i) allocate 85 percent of any remaining funds
to those local educational agencies on the basis of
the relative numbers of children enrolled in public
and private elementary schools and secondary schools
within the local educational agency’s jurisdiction; and
‘‘(ii) allocate 15 percent of those remaining funds
to those local educational agencies in accordance with
their relative numbers of children living in poverty,
as determined by the State educational agency.
‘‘(2) REALLOCATION OF FUNDS.—If a State educational
agency determines that a local educational agency is adequately
providing a free appropriate public education to all children
with disabilities aged 3 through 5 residing in the area served
by the local educational agency with State and local funds,
the State educational agency may reallocate any portion of
the funds under this section that are not needed by that local
educational agency to provide a free appropriate public education
to other local educational agencies in the State that
are not adequately providing special education and related
services to all children with disabilities aged 3 through 5
residing in the areas the other local educational agencies serve.
‘‘(h) PART C INAPPLICABLE.—Part C does not apply to any
child with a disability receiving a free appropriate public education,
in accordance with this part, with funds received under this section.
‘‘(i) STATE DEFINED.—In this section, the term ‘State’ means
each of the 50 States, the District of Columbia, and the Commonwealth
of Puerto Rico.
‘‘(j) AUTHORIZATION OF APPROPRIATIONS.—There are authorized
to be appropriated to carry out this section such sums as may
be necessary.
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118 STAT. 2744 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘PART C—INFANTS AND TODDLERS WITH
DISABILITIES
‘‘SEC. 631. FINDINGS AND POLICY.
‘‘(a) FINDINGS.—Congress finds that there is an urgent and
substantial need—
‘‘(1) to enhance the development of infants and toddlers
with disabilities, to minimize their potential for developmental
delay, and to recognize the significant brain development that
occurs during a child’s first 3 years of life;
‘‘(2) to reduce the educational costs to our society, including
our Nation’s schools, by minimizing the need for special education
and related services after infants and toddlers with
disabilities reach school age;
‘‘(3) to maximize the potential for individuals with disabilities
to live independently in society;
‘‘(4) to enhance the capacity of families to meet the special
needs of their infants and toddlers with disabilities; and
‘‘(5) to enhance the capacity of State and local agencies
and service providers to identify, evaluate, and meet the needs
of all children, particularly minority, low-income, inner city,
and rural children, and infants and toddlers in foster care.
‘‘(b) POLICY.—It is the policy of the United States to provide
financial assistance to States—
‘‘(1) to develop and implement a statewide, comprehensive,
coordinated, multidisciplinary, interagency system that provides
early intervention services for infants and toddlers with
disabilities and their families;
‘‘(2) to facilitate the coordination of payment for early intervention
services from Federal, State, local, and private sources
(including public and private insurance coverage);
‘‘(3) to enhance State capacity to provide quality early
intervention services and expand and improve existing early
intervention services being provided to infants and toddlers
with disabilities and their families; and
‘‘(4) to encourage States to expand opportunities for children
under 3 years of age who would be at risk of having
substantial developmental delay if they did not receive early
intervention services.
‘‘SEC. 632. DEFINITIONS.
‘‘In this part:
‘‘(1) AT-RISK INFANT OR TODDLER.—The term ‘at-risk infant
or toddler’ means an individual under 3 years of age who
would be at risk of experiencing a substantial developmental
delay if early intervention services were not provided to the
individual.
‘‘(2) COUNCIL.—The term ‘council’ means a State interagency
coordinating council established under section 641.
‘‘(3) DEVELOPMENTAL DELAY.—The term ‘developmental
delay’, when used with respect to an individual residing in
a State, has the meaning given such term by the State under
section 635(a)(1).
‘‘(4) EARLY INTERVENTION SERVICES.—The term ‘early intervention
services’ means developmental services that—
‘‘(A) are provided under public supervision;
20 USC 1432.
20 USC 1431.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2745
‘‘(B) are provided at no cost except where Federal or
State law provides for a system of payments by families,
including a schedule of sliding fees;
‘‘(C) are designed to meet the developmental needs
of an infant or toddler with a disability, as identified by
the individualized family service plan team, in any 1 or
more of the following areas:
‘‘(i) physical development;
‘‘(ii) cognitive development;
‘‘(iii) communication development;
‘‘(iv) social or emotional development; or
‘‘(v) adaptive development;
‘‘(D) meet the standards of the State in which the
services are provided, including the requirements of this
part;
‘‘(E) include—
‘‘(i) family training, counseling, and home visits;
‘‘(ii) special instruction;
‘‘(iii) speech-language pathology and audiology
services, and sign language and cued language services;
‘‘(iv) occupational therapy;
‘‘(v) physical therapy;
‘‘(vi) psychological services;
‘‘(vii) service coordination services;
‘‘(viii) medical services only for diagnostic or
evaluation purposes;
‘‘(ix) early identification, screening, and assessment
services;
‘‘(x) health services necessary to enable the infant
or toddler to benefit from the other early intervention
services;
‘‘(xi) social work services;
‘‘(xii) vision services;
‘‘(xiii) assistive technology devices and assistive
technology services; and
‘‘(xiv) transportation and related costs that are
necessary to enable an infant or toddler and the
infant’s or toddler’s family to receive another service
described in this paragraph;
‘‘(F) are provided by qualified personnel, including—
‘‘(i) special educators;
‘‘(ii) speech-language pathologists and audiologists;
‘‘(iii) occupational therapists;
‘‘(iv) physical therapists;
‘‘(v) psychologists;
‘‘(vi) social workers;
‘‘(vii) nurses;
‘‘(viii) registered dietitians;
‘‘(ix) family therapists;
‘‘(x) vision specialists, including ophthalmologists
and optometrists;
‘‘(xi) orientation and mobility specialists; and
‘‘(xii) pediatricians and other physicians;
‘‘(G) to the maximum extent appropriate, are provided
in natural environments, including the home, and community
settings in which children without disabilities participate;
and
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118 STAT. 2746 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(H) are provided in conformity with an individualized
family service plan adopted in accordance with section
636.
‘‘(5) INFANT OR TODDLER WITH A DISABILITY.—The term
‘infant or toddler with a disability’—
‘‘(A) means an individual under 3 years of age who
needs early intervention services because the individual—
‘‘(i) is experiencing developmental delays, as measured
by appropriate diagnostic instruments and procedures
in 1 or more of the areas of cognitive development,
physical development, communication development,
social or emotional development, and adaptive
development; or
‘‘(ii) has a diagnosed physical or mental condition
that has a high probability of resulting in developmental
delay; and
‘‘(B) may also include, at a State’s discretion—
‘‘(i) at-risk infants and toddlers; and
‘‘(ii) children with disabilities who are eligible for
services under section 619 and who previously received
services under this part until such children enter, or
are eligible under State law to enter, kindergarten
or elementary school, as appropriate, provided that
any programs under this part serving such children
shall include—
‘‘(I) an educational component that promotes
school readiness and incorporates pre-literacy, language,
and numeracy skills; and
‘‘(II) a written notification to parents of their
rights and responsibilities in determining whether
their child will continue to receive services under
this part or participate in preschool programs
under section 619.
‘‘SEC. 633. GENERAL AUTHORITY.
‘‘The Secretary shall, in accordance with this part, make grants
to States (from their allotments under section 643) to assist each
State to maintain and implement a statewide, comprehensive,
coordinated, multidisciplinary, interagency system to provide early
intervention services for infants and toddlers with disabilities and
their families.
‘‘SEC. 634. ELIGIBILITY.
‘‘In order to be eligible for a grant under section 633, a State
shall provide assurances to the Secretary that the State—
‘‘(1) has adopted a policy that appropriate early intervention
services are available to all infants and toddlers with
disabilities in the State and their families, including Indian
infants and toddlers with disabilities and their families residing
on a reservation geographically located in the State, infants
and toddlers with disabilities who are homeless children and
their families, and infants and toddlers with disabilities who
are wards of the State; and
‘‘(2) has in effect a statewide system that meets the requirements
of section 635.
20 USC 1434.
Grants.
20 USC 1433.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2747
‘‘SEC. 635. REQUIREMENTS FOR STATEWIDE SYSTEM.
‘‘(a) IN GENERAL.—A statewide system described in section
633 shall include, at a minimum, the following components:
‘‘(1) A rigorous definition of the term ‘developmental delay’
that will be used by the State in carrying out programs under
this part in order to appropriately identify infants and toddlers
with disabilities that are in need of services under this part.
‘‘(2) A State policy that is in effect and that ensures that
appropriate early intervention services based on scientifically
based research, to the extent practicable, are available to all
infants and toddlers with disabilities and their families,
including Indian infants and toddlers with disabilities and their
families residing on a reservation geographically located in
the State and infants and toddlers with disabilities who are
homeless children and their families.
‘‘(3) A timely, comprehensive, multidisciplinary evaluation
of the functioning of each infant or toddler with a disability
in the State, and a family-directed identification of the needs
of each family of such an infant or toddler, to assist appropriately
in the development of the infant or toddler.
‘‘(4) For each infant or toddler with a disability in the
State, an individualized family service plan in accordance with
section 636, including service coordination services in accordance
with such service plan.
‘‘(5) A comprehensive child find system, consistent with
part B, including a system for making referrals to service
providers that includes timelines and provides for participation
by primary referral sources and that ensures rigorous standards
for appropriately identifying infants and toddlers with disabilities
for services under this part that will reduce the need
for future services.
‘‘(6) A public awareness program focusing on early identification
of infants and toddlers with disabilities, including the
preparation and dissemination by the lead agency designated
or established under paragraph (10) to all primary referral
sources, especially hospitals and physicians, of information to
be given to parents, especially to inform parents with premature
infants, or infants with other physical risk factors associated
with learning or developmental complications, on the availability
of early intervention services under this part and of
services under section 619, and procedures for assisting such
sources in disseminating such information to parents of infants
and toddlers with disabilities.
‘‘(7) A central directory that includes information on early
intervention services, resources, and experts available in the
State and research and demonstration projects being conducted
in the State.
‘‘(8) A comprehensive system of personnel development,
including the training of paraprofessionals and the training
of primary referral sources with respect to the basic components
of early intervention services available in the State that—
‘‘(A) shall include—
‘‘(i) implementing innovative strategies and activities
for the recruitment and retention of early education
service providers;
‘‘(ii) promoting the preparation of early intervention
providers who are fully and appropriately qualified
20 USC 1435.
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118 STAT. 2748 PUBLIC LAW 108–446—DEC. 3, 2004
to provide early intervention services under this part;
and
‘‘(iii) training personnel to coordinate transition
services for infants and toddlers served under this
part from a program providing early intervention services
under this part and under part B (other than
section 619), to a preschool program receiving funds
under section 619, or another appropriate program;
and
‘‘(B) may include—
‘‘(i) training personnel to work in rural and innercity
areas; and
‘‘(ii) training personnel in the emotional and social
development of young children.
‘‘(9) Policies and procedures relating to the establishment
and maintenance of qualifications to ensure that personnel
necessary to carry out this part are appropriately and adequately
prepared and trained, including the establishment and
maintenance of qualifications that are consistent with any
State-approved or recognized certification, licensing, registration,
or other comparable requirements that apply to the area
in which such personnel are providing early intervention services,
except that nothing in this part (including this paragraph)
shall be construed to prohibit the use of paraprofessionals and
assistants who are appropriately trained and supervised in
accordance with State law, regulation, or written policy, to
assist in the provision of early intervention services under
this part to infants and toddlers with disabilities.
‘‘(10) A single line of responsibility in a lead agency designated
or established by the Governor for carrying out—
‘‘(A) the general administration and supervision of programs
and activities receiving assistance under section 633,
and the monitoring of programs and activities used by
the State to carry out this part, whether or not such programs
or activities are receiving assistance made available
under section 633, to ensure that the State complies with
this part;
‘‘(B) the identification and coordination of all available
resources within the State from Federal, State, local, and
private sources;
‘‘(C) the assignment of financial responsibility in
accordance with section 637(a)(2) to the appropriate agencies;
‘‘(D) the development of procedures to ensure that services
are provided to infants and toddlers with disabilities
and their families under this part in a timely manner
pending the resolution of any disputes among public agencies
or service providers;
‘‘(E) the resolution of intra- and interagency disputes;
and
‘‘(F) the entry into formal interagency agreements that
define the financial responsibility of each agency for paying
for early intervention services (consistent with State law)
and procedures for resolving disputes and that include
all additional components necessary to ensure meaningful
cooperation and coordination.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2749
‘‘(11) A policy pertaining to the contracting or making of
other arrangements with service providers to provide early
intervention services in the State, consistent with the provisions
of this part, including the contents of the application used
and the conditions of the contract or other arrangements.
‘‘(12) A procedure for securing timely reimbursements of
funds used under this part in accordance with section 640(a).
‘‘(13) Procedural safeguards with respect to programs under
this part, as required by section 639.
‘‘(14) A system for compiling data requested by the Secretary
under section 618 that relates to this part.
‘‘(15) A State interagency coordinating council that meets
the requirements of section 641.
‘‘(16) Policies and procedures to ensure that, consistent
with section 636(d)(5)—
‘‘(A) to the maximum extent appropriate, early intervention
services are provided in natural environments; and
‘‘(B) the provision of early intervention services for
any infant or toddler with a disability occurs in a setting
other than a natural environment that is most appropriate,
as determined by the parent and the individualized family
service plan team, only when early intervention cannot
be achieved satisfactorily for the infant or toddler in a
natural environment.
‘‘(b) POLICY.—In implementing subsection (a)(9), a State may
adopt a policy that includes making ongoing good-faith efforts to
recruit and hire appropriately and adequately trained personnel
to provide early intervention services to infants and toddlers with
disabilities, including, in a geographic area of the State where
there is a shortage of such personnel, the most qualified individuals
available who are making satisfactory progress toward completing
applicable course work necessary to meet the standards described
in subsection (a)(9).
‘‘(c) FLEXIBILITY TO SERVE CHILDREN 3 YEARS OF AGE UNTIL
ENTRANCE INTO ELEMENTARY SCHOOL.—
‘‘(1) IN GENERAL.—A statewide system described in section
633 may include a State policy, developed and implemented
jointly by the lead agency and the State educational agency,
under which parents of children with disabilities who are
eligible for services under section 619 and previously received
services under this part, may choose the continuation of early
intervention services (which shall include an educational
component that promotes school readiness and incorporates
preliteracy, language, and numeracy skills) for such children
under this part until such children enter, or are eligible under
State law to enter, kindergarten.
‘‘(2) REQUIREMENTS.—If a statewide system includes a State
policy described in paragraph (1), the statewide system shall
ensure that—
‘‘(A) parents of children with disabilities served pursuant
to this subsection are provided annual notice that
contains—
‘‘(i) a description of the rights of such parents
to elect to receive services pursuant to this subsection
or under part B; and
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118 STAT. 2750 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(ii) an explanation of the differences between services
provided pursuant to this subsection and services
provided under part B, including—
‘‘(I) types of services and the locations at which
the services are provided;
‘‘(II) applicable procedural safeguards; and
‘‘(III) possible costs (including any fees to be
charged to families as described in section
632(4)(B)), if any, to parents of infants or toddlers
with disabilities;
‘‘(B) services provided pursuant to this subsection
include an educational component that promotes school
readiness and incorporates preliteracy, language, and
numeracy skills;
‘‘(C) the State policy will not affect the right of any
child served pursuant to this subsection to instead receive
a free appropriate public education under part B;
‘‘(D) all early intervention services outlined in the
child’s individualized family service plan under section 636
are continued while any eligibility determination is being
made for services under this subsection;
‘‘(E) the parents of infants or toddlers with disabilities
(as defined in section 632(5)(A)) provide informed written
consent to the State, before such infants or toddlers reach
3 years of age, as to whether such parents intend to choose
the continuation of early intervention services pursuant
to this subsection for such infants or toddlers;
‘‘(F) the requirements under section 637(a)(9) shall not
apply with respect to a child who is receiving services
in accordance with this subsection until not less than 90
days (and at the discretion of the parties to the conference,
not more than 9 months) before the time the child will
no longer receive those services; and
‘‘(G) there will be a referral for evaluation for early
intervention services of a child who experiences a substantiated
case of trauma due to exposure to family violence
(as defined in section 320 of the Family Violence Prevention
and Services Act).
‘‘(3) REPORTING REQUIREMENT.—If a statewide system
includes a State policy described in paragraph (1), the State
shall submit to the Secretary, in the State’s report under section
637(b)(4)(A), a report on the number and percentage of children
with disabilities who are eligible for services under section
619 but whose parents choose for such children to continue
to receive early intervention services under this part.
‘‘(4) AVAILABLE FUNDS.—If a statewide system includes a
State policy described in paragraph (1), the policy shall describe
the funds (including an identification as Federal, State, or
local funds) that will be used to ensure that the option described
in paragraph (1) is available to eligible children and families
who provide the consent described in paragraph (2)(E),
including fees (if any) to be charged to families as described
in section 632(4)(B).
‘‘(5) RULES OF CONSTRUCTION.—
‘‘(A) SERVICES UNDER PART B.—If a statewide system
includes a State policy described in paragraph (1), a State
that provides services in accordance with this subsection
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2751
to a child with a disability who is eligible for services
under section 619 shall not be required to provide the
child with a free appropriate public education under part
B for the period of time in which the child is receiving
services under this part.
‘‘(B) SERVICES UNDER THIS PART.—Nothing in this subsection
shall be construed to require a provider of services
under this part to provide a child served under this part
with a free appropriate public education.
‘‘SEC. 636. INDIVIDUALIZED FAMILY SERVICE PLAN.
‘‘(a) ASSESSMENT AND PROGRAM DEVELOPMENT.—A statewide
system described in section 633 shall provide, at a minimum, for
each infant or toddler with a disability, and the infant’s or toddler’s
family, to receive—
‘‘(1) a multidisciplinary assessment of the unique strengths
and needs of the infant or toddler and the identification of
services appropriate to meet such needs;
‘‘(2) a family-directed assessment of the resources, priorities,
and concerns of the family and the identification of the
supports and services necessary to enhance the family’s capacity
to meet the developmental needs of the infant or toddler; and
‘‘(3) a written individualized family service plan developed
by a multidisciplinary team, including the parents, as required
by subsection (e), including a description of the appropriate
transition services for the infant or toddler.
‘‘(b) PERIODIC REVIEW.—The individualized family service plan
shall be evaluated once a year and the family shall be provided
a review of the plan at 6-month intervals (or more often where
appropriate based on infant or toddler and family needs).
‘‘(c) PROMPTNESS AFTER ASSESSMENT.—The individualized
family service plan shall be developed within a reasonable time
after the assessment required by subsection (a)(1) is completed.
With the parents’ consent, early intervention services may commence
prior to the completion of the assessment.
‘‘(d) CONTENT OF PLAN.—The individualized family service plan
shall be in writing and contain—
‘‘(1) a statement of the infant’s or toddler’s present levels
of physical development, cognitive development, communication
development, social or emotional development, and adaptive
development, based on objective criteria;
‘‘(2) a statement of the family’s resources, priorities, and
concerns relating to enhancing the development of the family’s
infant or toddler with a disability;
‘‘(3) a statement of the measurable results or outcomes
expected to be achieved for the infant or toddler and the family,
including pre-literacy and language skills, as developmentally
appropriate for the child, and the criteria, procedures, and
timelines used to determine the degree to which progress
toward achieving the results or outcomes is being made and
whether modifications or revisions of the results or outcomes
or services are necessary;
‘‘(4) a statement of specific early intervention services based
on peer-reviewed research, to the extent practicable, necessary
to meet the unique needs of the infant or toddler and the
family, including the frequency, intensity, and method of delivering
services;
20 USC 1436.
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118 STAT. 2752 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(5) a statement of the natural environments in which
early intervention services will appropriately be provided,
including a justification of the extent, if any, to which the
services will not be provided in a natural environment;
‘‘(6) the projected dates for initiation of services and the
anticipated length, duration, and frequency of the services;
‘‘(7) the identification of the service coordinator from the
profession most immediately relevant to the infant’s or toddler’s
or family’s needs (or who is otherwise qualified to carry out
all applicable responsibilities under this part) who will be
responsible for the implementation of the plan and coordination
with other agencies and persons, including transition services;
and
‘‘(8) the steps to be taken to support the transition of
the toddler with a disability to preschool or other appropriate
services.
‘‘(e) PARENTAL CONSENT.—The contents of the individualized
family service plan shall be fully explained to the parents and
informed written consent from the parents shall be obtained prior
to the provision of early intervention services described in such
plan. If the parents do not provide consent with respect to a particular
early intervention service, then only the early intervention
services to which consent is obtained shall be provided.
‘‘SEC. 637. STATE APPLICATION AND ASSURANCES.
‘‘(a) APPLICATION.—A State desiring to receive a grant under
section 633 shall submit an application to the Secretary at such
time and in such manner as the Secretary may reasonably require.
The application shall contain—
‘‘(1) a designation of the lead agency in the State that
will be responsible for the administration of funds provided
under section 633;
‘‘(2) a certification to the Secretary that the arrangements
to establish financial responsibility for services provided under
this part pursuant to section 640(b) are current as of the
date of submission of the certification;
‘‘(3) information demonstrating eligibility of the State under
section 634, including—
‘‘(A) information demonstrating to the Secretary’s satisfaction
that the State has in effect the statewide system
required by section 633; and
‘‘(B) a description of services to be provided to infants
and toddlers with disabilities and their families through
the system;
‘‘(4) if the State provides services to at-risk infants and
toddlers through the statewide system, a description of such
services;
‘‘(5) a description of the uses for which funds will be
expended in accordance with this part;
‘‘(6) a description of the State policies and procedures that
require the referral for early intervention services under this
part of a child under the age of 3 who—
‘‘(A) is involved in a substantiated case of child abuse
or neglect; or
‘‘(B) is identified as affected by illegal substance abuse,
or withdrawal symptoms resulting from prenatal drug exposure;
20 USC 1437.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2753
‘‘(7) a description of the procedure used to ensure that
resources are made available under this part for all geographic
areas within the State;
‘‘(8) a description of State policies and procedures that
ensure that, prior to the adoption by the State of any other
policy or procedure necessary to meet the requirements of this
part, there are public hearings, adequate notice of the hearings,
and an opportunity for comment available to the general public,
including individuals with disabilities and parents of infants
and toddlers with disabilities;
‘‘(9) a description of the policies and procedures to be used—
‘‘(A) to ensure a smooth transition for toddlers receiving
early intervention services under this part (and children
receiving those services under section 635(c)) to preschool,
school, other appropriate services, or exiting the program,
including a description of how—
‘‘(i) the families of such toddlers and children will
be included in the transition plans required by
subparagraph (C); and
‘‘(ii) the lead agency designated or established
under section 635(a)(10) will—
‘‘(I) notify the local educational agency for the
area in which such a child resides that the child
will shortly reach the age of eligibility for preschool
services under part B, as determined in accordance
with State law;
‘‘(II) in the case of a child who may be eligible
for such preschool services, with the approval of
the family of the child, convene a conference among
the lead agency, the family, and the local educational
agency not less than 90 days (and at
the discretion of all such parties, not more than
9 months) before the child is eligible for the preschool
services, to discuss any such services that
the child may receive; and
‘‘(III) in the case of a child who may not be
eligible for such preschool services, with the
approval of the family, make reasonable efforts
to convene a conference among the lead agency,
the family, and providers of other appropriate services
for children who are not eligible for preschool
services under part B, to discuss the appropriate
services that the child may receive;
‘‘(B) to review the child’s program options for the period
from the child’s third birthday through the remainder of
the school year; and
‘‘(C) to establish a transition plan, including, as appropriate,
steps to exit from the program;
‘‘(10) a description of State efforts to promote collaboration
among Early Head Start programs under section 645A of the
Head Start Act, early education and child care programs, and
services under part C; and
‘‘(11) such other information and assurances as the Secretary
may reasonably require.
‘‘(b) ASSURANCES.—The application described in subsection (a)—
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118 STAT. 2754 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(1) shall provide satisfactory assurance that Federal funds
made available under section 643 to the State will be expended
in accordance with this part;
‘‘(2) shall contain an assurance that the State will comply
with the requirements of section 640;
‘‘(3) shall provide satisfactory assurance that the control
of funds provided under section 643, and title to property
derived from those funds, will be in a public agency for the
uses and purposes provided in this part and that a public
agency will administer such funds and property;
‘‘(4) shall provide for—
‘‘(A) making such reports in such form and containing
such information as the Secretary may require to carry
out the Secretary’s functions under this part; and
‘‘(B) keeping such reports and affording such access
to the reports as the Secretary may find necessary to
ensure the correctness and verification of those reports
and proper disbursement of Federal funds under this part;
‘‘(5) provide satisfactory assurance that Federal funds made
available under section 643 to the State—
‘‘(A) will not be commingled with State funds; and
‘‘(B) will be used so as to supplement the level of
State and local funds expended for infants and toddlers
with disabilities and their families and in no case to supplant
those State and local funds;
‘‘(6) shall provide satisfactory assurance that such fiscal
control and fund accounting procedures will be adopted as
may be necessary to ensure proper disbursement of, and
accounting for, Federal funds paid under section 643 to the
State;
‘‘(7) shall provide satisfactory assurance that policies and
procedures have been adopted to ensure meaningful involvement
of underserved groups, including minority, low-income,
homeless, and rural families and children with disabilities who
are wards of the State, in the planning and implementation
of all the requirements of this part; and
‘‘(8) shall contain such other information and assurances
as the Secretary may reasonably require by regulation.
‘‘(c) STANDARD FOR DISAPPROVAL OF APPLICATION.—The Secretary
may not disapprove such an application unless the Secretary
determines, after notice and opportunity for a hearing, that the
application fails to comply with the requirements of this section.
‘‘(d) SUBSEQUENT STATE APPLICATION.—If a State has on file
with the Secretary a policy, procedure, or assurance that demonstrates
that the State meets a requirement of this section,
including any policy or procedure filed under this part (as in effect
before the date of enactment of the Individuals with Disabilities
Education Improvement Act of 2004), the Secretary shall consider
the State to have met the requirement for purposes of receiving
a grant under this part.
‘‘(e) MODIFICATION OF APPLICATION.—An application submitted
by a State in accordance with this section shall remain in effect
until the State submits to the Secretary such modifications as
the State determines necessary. This section shall apply to a modification
of an application to the same extent and in the same
manner as this section applies to the original application.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2755
‘‘(f) MODIFICATIONS REQUIRED BY THE SECRETARY.—The Secretary
may require a State to modify its application under this
section, but only to the extent necessary to ensure the State’s
compliance with this part, if—
‘‘(1) an amendment is made to this title, or a Federal
regulation issued under this title;
‘‘(2) a new interpretation of this title is made by a Federal
court or the State’s highest court; or
‘‘(3) an official finding of noncompliance with Federal law
or regulations is made with respect to the State.
‘‘SEC. 638. USES OF FUNDS.
‘‘In addition to using funds provided under section 633 to maintain
and implement the statewide system required by such section,
a State may use such funds—
‘‘(1) for direct early intervention services for infants and
toddlers with disabilities, and their families, under this part
that are not otherwise funded through other public or private
sources;
‘‘(2) to expand and improve on services for infants and
toddlers and their families under this part that are otherwise
available;
‘‘(3) to provide a free appropriate public education, in
accordance with part B, to children with disabilities from their
third birthday to the beginning of the following school year;
‘‘(4) with the written consent of the parents, to continue
to provide early intervention services under this part to children
with disabilities from their 3rd birthday until such children
enter, or are eligible under State law to enter, kindergarten,
in lieu of a free appropriate public education provided in accordance
with part B; and
‘‘(5) in any State that does not provide services for atrisk
infants and toddlers under section 637(a)(4), to strengthen
the statewide system by initiating, expanding, or improving
collaborative efforts related to at-risk infants and toddlers,
including establishing linkages with appropriate public or private
community-based organizations, services, and personnel
for the purposes of—
‘‘(A) identifying and evaluating at-risk infants and toddlers;
‘‘(B) making referrals of the infants and toddlers identified
and evaluated under subparagraph (A); and
‘‘(C) conducting periodic follow-up on each such referral
to determine if the status of the infant or toddler involved
has changed with respect to the eligibility of the infant
or toddler for services under this part.
‘‘SEC. 639. PROCEDURAL SAFEGUARDS.
‘‘(a) MINIMUM PROCEDURES.—The procedural safeguards
required to be included in a statewide system under section
635(a)(13) shall provide, at a minimum, the following:
‘‘(1) The timely administrative resolution of complaints by
parents. Any party aggrieved by the findings and decision
regarding an administrative complaint shall have the right
to bring a civil action with respect to the complaint in any
State court of competent jurisdiction or in a district court
of the United States without regard to the amount in controversy.
In any action brought under this paragraph, the court
20 USC 1439.
20 USC 1438.
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118 STAT. 2756 PUBLIC LAW 108–446—DEC. 3, 2004
shall receive the records of the administrative proceedings,
shall hear additional evidence at the request of a party, and,
basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate.
‘‘(2) The right to confidentiality of personally identifiable
information, including the right of parents to written notice
of and written consent to the exchange of such information
among agencies consistent with Federal and State law.
‘‘(3) The right of the parents to determine whether they,
their infant or toddler, or other family members will accept
or decline any early intervention service under this part in
accordance with State law without jeopardizing other early
intervention services under this part.
‘‘(4) The opportunity for parents to examine records relating
to assessment, screening, eligibility determinations, and the
development and implementation of the individualized family
service plan.
‘‘(5) Procedures to protect the rights of the infant or toddler
whenever the parents of the infant or toddler are not known
or cannot be found or the infant or toddler is a ward of the
State, including the assignment of an individual (who shall
not be an employee of the State lead agency, or other State
agency, and who shall not be any person, or any employee
of a person, providing early intervention services to the infant
or toddler or any family member of the infant or toddler)
to act as a surrogate for the parents.
‘‘(6) Written prior notice to the parents of the infant or
toddler with a disability whenever the State agency or service
provider proposes to initiate or change, or refuses to initiate
or change, the identification, evaluation, or placement of the
infant or toddler with a disability, or the provision of appropriate
early intervention services to the infant or toddler.
‘‘(7) Procedures designed to ensure that the notice required
by paragraph (6) fully informs the parents, in the parents’
native language, unless it clearly is not feasible to do so,
of all procedures available pursuant to this section.
‘‘(8) The right of parents to use mediation in accordance
with section 615, except that—
‘‘(A) any reference in the section to a State educational
agency shall be considered to be a reference to a State’s
lead agency established or designated under section
635(a)(10);
‘‘(B) any reference in the section to a local educational
agency shall be considered to be a reference to a local
service provider or the State’s lead agency under this part,
as the case may be; and
‘‘(C) any reference in the section to the provision of
a free appropriate public education to children with disabilities
shall be considered to be a reference to the provision
of appropriate early intervention services to infants and
toddlers with disabilities.
‘‘(b) SERVICES DURING PENDENCY OF PROCEEDINGS.—During
the pendency of any proceeding or action involving a complaint
by the parents of an infant or toddler with a disability, unless
the State agency and the parents otherwise agree, the infant or
toddler shall continue to receive the appropriate early intervention
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2757
services currently being provided or, if applying for initial services,
shall receive the services not in dispute.
‘‘SEC. 640. PAYOR OF LAST RESORT.
‘‘(a) NONSUBSTITUTION.—Funds provided under section 643 may
not be used to satisfy a financial commitment for services that
would have been paid for from another public or private source,
including any medical program administered by the Secretary of
Defense, but for the enactment of this part, except that whenever
considered necessary to prevent a delay in the receipt of appropriate
early intervention services by an infant, toddler, or family in a
timely fashion, funds provided under section 643 may be used
to pay the provider of services pending reimbursement from the
agency that has ultimate responsibility for the payment.
‘‘(b) OBLIGATIONS RELATED TO AND METHODS OF ENSURING
SERVICES.—
‘‘(1) ESTABLISHING FINANCIAL RESPONSIBILITY FOR SERVICES.—
‘‘(A) IN GENERAL.—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 and
the designated lead agency, in order to ensure—
‘‘(i) the provision of, and financial responsibility
for, services provided under this part; and
‘‘(ii) such services are consistent with the requirements
of section 635 and the State’s application pursuant
to section 637, including the provision of such
services during the pendency of any such dispute.
‘‘(B) CONSISTENCY BETWEEN AGREEMENTS OR MECHANISMS
UNDER PART B.—The Chief Executive Officer of a
State or designee of the officer shall ensure that the terms
and conditions of such agreement or mechanism are consistent
with the terms and conditions of the State’s agreement
or mechanism under section 612(a)(12), where appropriate.
‘‘(2) REIMBURSEMENT FOR SERVICES BY PUBLIC AGENCY.—
‘‘(A) IN GENERAL.—If a public agency other than an
educational agency fails to provide or pay for the services
pursuant to an agreement required under paragraph (1),
the local educational agency or State agency (as determined
by the Chief Executive Officer or designee) shall provide
or pay for the provision of such services to the child.
‘‘(B) REIMBURSEMENT.—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 required under paragraph (1).
‘‘(3) SPECIAL RULE.—The requirements of paragraph (1)
may be met through—
‘‘(A) State statute or regulation;
‘‘(B) signed agreements between respective agency officials
that clearly identify the responsibilities of each agency
relating to the provision of services; or
20 USC 1440.
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118 STAT. 2758 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(C) other appropriate written methods as determined
by the Chief Executive Officer of the State or designee
of the officer and approved by the Secretary through the
review and approval of the State’s application pursuant
to section 637.
‘‘(c) REDUCTION OF OTHER BENEFITS.—Nothing in this part
shall be construed to permit the State to reduce medical or other
assistance available or to alter eligibility under title V of the Social
Security Act (relating to maternal and child health) or title XIX
of the Social Security Act (relating to medicaid for infants or toddlers
with disabilities) within the State.
‘‘SEC. 641. STATE INTERAGENCY COORDINATING COUNCIL.
‘‘(a) ESTABLISHMENT.—
‘‘(1) IN GENERAL.—A State that desires to receive financial
assistance under this part shall establish a State interagency
coordinating council.
‘‘(2) APPOINTMENT.—The council shall be appointed by the
Governor. In making appointments to the council, the Governor
shall ensure that the membership of the council reasonably
represents the population of the State.
‘‘(3) CHAIRPERSON.—The Governor shall designate a
member of the council to serve as the chairperson of the council,
or shall require the council to so designate such a member.
Any member of the council who is a representative of the
lead agency designated under section 635(a)(10) may not serve
as the chairperson of the council.
‘‘(b) COMPOSITION.—
‘‘(1) IN GENERAL.—The council shall be composed as follows:
‘‘(A) PARENTS.—Not less than 20 percent of the members
shall be parents of infants or toddlers with disabilities
or children with disabilities aged 12 or younger, with
knowledge of, or experience with, programs for infants
and toddlers with disabilities. Not less than 1 such member
shall be a parent of an infant or toddler with a disability
or a child with a disability aged 6 or younger.
‘‘(B) SERVICE PROVIDERS.—Not less than 20 percent
of the members shall be public or private providers of
early intervention services.
‘‘(C) STATE LEGISLATURE.—Not less than 1 member
shall be from the State legislature.
‘‘(D) PERSONNEL PREPARATION.—Not less than 1
member shall be involved in personnel preparation.
‘‘(E) AGENCY FOR EARLY INTERVENTION SERVICES.—Not
less than 1 member shall be from each of the State agencies
involved in the provision of, or payment for, early intervention
services to infants and toddlers with disabilities and
their families and shall have sufficient authority to engage
in policy planning and implementation on behalf of such
agencies.
‘‘(F) AGENCY FOR PRESCHOOL SERVICES.—Not less than
1 member shall be from the State educational agency
responsible for preschool services to children with disabilities
and shall have sufficient authority to engage in policy
planning and implementation on behalf of such agency.
20 USC 1441.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2759
‘‘(G) STATE MEDICAID AGENCY.—Not less than 1 member
shall be from the agency responsible for the State medicaid
program.
‘‘(H) HEAD START AGENCY.—Not less than 1 member
shall be a representative from a Head Start agency or
program in the State.
‘‘(I) CHILD CARE AGENCY.—Not less than 1 member
shall be a representative from a State agency responsible
for child care.
‘‘(J) AGENCY FOR HEALTH INSURANCE.—Not less than
1 member shall be from the agency responsible for the
State regulation of health insurance.
‘‘(K) OFFICE OF THE COORDINATOR OF EDUCATION OF
HOMELESS CHILDREN AND YOUTH.—Not less than 1 member
shall be a representative designated by the Office of Coordinator
for Education of Homeless Children and Youths.
‘‘(L) STATE FOSTER CARE REPRESENTATIVE.—Not less
than 1 member shall be a representative from the State
child welfare agency responsible for foster care.
‘‘(M) MENTAL HEALTH AGENCY.—Not less than 1
member shall be a representative from the State agency
responsible for children’s mental health.
‘‘(2) OTHER MEMBERS.—The council may include other members
selected by the Governor, including a representative from
the Bureau of Indian Affairs (BIA), or where there is no BIAoperated
or BIA-funded school, from the Indian Health Service
or the tribe or tribal council.
‘‘(c) MEETINGS.—The council shall meet, at a minimum, on
a quarterly basis, and in such places as the council determines
necessary. The meetings shall be publicly announced, and, to the
extent appropriate, open and accessible to the general public.
‘‘(d) MANAGEMENT AUTHORITY.—Subject to the approval of the
Governor, the council may prepare and approve a budget using
funds under this part to conduct hearings and forums, to reimburse
members of the council for reasonable and necessary expenses for
attending council meetings and performing council duties (including
child care for parent representatives), to pay compensation to a
member of the council if the member is not employed or must
forfeit wages from other employment when performing official
council business, to hire staff, and to obtain the services of such
professional, technical, and clerical personnel as may be necessary
to carry out its functions under this part.
‘‘(e) FUNCTIONS OF COUNCIL.—
‘‘(1) DUTIES.—The council shall—
‘‘(A) advise and assist the lead agency designated or
established under section 635(a)(10) in the performance
of the responsibilities set forth in such section, particularly
the identification of the sources of fiscal and other support
for services for early intervention programs, assignment
of financial responsibility to the appropriate agency, and
the promotion of the interagency agreements;
‘‘(B) advise and assist the lead agency in the preparation
of applications and amendments thereto;
‘‘(C) advise and assist the State educational agency
regarding the transition of toddlers with disabilities to
preschool and other appropriate services; and
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118 STAT. 2760 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(D) prepare and submit an annual report to the Governor
and to the Secretary on the status of early intervention
programs for infants and toddlers with disabilities
and their families operated within the State.
‘‘(2) AUTHORIZED ACTIVITY.—The council may advise and
assist the lead agency and the State educational agency
regarding the provision of appropriate services for children
from birth through age 5. The council may advise appropriate
agencies in the State with respect to the integration of services
for infants and toddlers with disabilities and at-risk infants
and toddlers and their families, regardless of whether at-risk
infants and toddlers are eligible for early intervention services
in the State.
‘‘(f) CONFLICT OF INTEREST.—No member of the council shall
cast a vote on any matter that is likely to provide a direct financial
benefit to that member or otherwise give the appearance of a
conflict of interest under State law.
‘‘SEC. 642. FEDERAL ADMINISTRATION.
‘‘Sections 616, 617, and 618 shall, to the extent not inconsistent
with this part, apply to the program authorized by this part, except
that—
‘‘(1) any reference in such sections to a State educational
agency shall be considered to be a reference to a State’s lead
agency established or designated under section 635(a)(10);
‘‘(2) any reference in such sections to a local educational
agency, educational service agency, or a State agency shall
be considered to be a reference to an early intervention service
provider under this part; and
‘‘(3) any reference to the education of children with disabilities
or the education of all children with disabilities shall
be considered to be a reference to the provision of appropriate
early intervention services to infants and toddlers with disabilities.
‘‘SEC. 643. ALLOCATION OF FUNDS.
‘‘(a) RESERVATION OF FUNDS FOR OUTLYING AREAS.—
‘‘(1) IN GENERAL.—From the sums appropriated to carry
out this part for any fiscal year, the Secretary may reserve
not more than 1 percent for payments to Guam, American
Samoa, the United States Virgin Islands, and the Commonwealth
of the Northern Mariana Islands in accordance with
their respective needs for assistance under this part.
‘‘(2) CONSOLIDATION OF FUNDS.—The provisions of Public
Law 95–134, permitting the consolidation of grants to the outlying
areas, shall not apply to funds those areas receive under
this part.
‘‘(b) PAYMENTS TO INDIANS.—
‘‘(1) IN GENERAL.—The Secretary shall, subject to this subsection,
make payments to the Secretary of the Interior to
be distributed to tribes, tribal organizations (as defined under
section 4 of the Indian Self-Determination and Education
Assistance Act), or consortia of the above entities for the
coordination of assistance in the provision of early intervention
services by the States to infants and toddlers with disabilities
and their families on reservations served by elementary schools
and secondary schools for Indian children operated or funded
by the Department of the Interior. The amount of such payment
20 USC 1443.
Applicability.
20 USC 1442.
Reports.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2761
for any fiscal year shall be 1.25 percent of the aggregate of
the amount available to all States under this part for such
fiscal year.
‘‘(2) ALLOCATION.—For each fiscal year, the Secretary of
the Interior shall distribute the entire payment received under
paragraph (1) by providing to each tribe, tribal organization,
or consortium an amount based on the number of infants and
toddlers residing on the reservation, as determined annually,
divided by the total of such children served by all tribes, tribal
organizations, or consortia.
‘‘(3) INFORMATION.—To receive a payment under this subsection,
the tribe, tribal organization, or consortium shall
submit such information to the Secretary of the Interior as
is needed to determine the amounts to be distributed under
paragraph (2).
‘‘(4) USE OF FUNDS.—The funds received by a tribe, tribal
organization, or consortium shall be used to assist States in
child find, screening, and other procedures for the early identification
of Indian children under 3 years of age and for parent
training. Such funds may also be used to provide early intervention
services in accordance with this part. Such activities may
be carried out directly or through contracts or cooperative agreements
with the Bureau of Indian Affairs, local educational
agencies, and other public or private nonprofit organizations.
The tribe, tribal organization, or consortium is encouraged to
involve Indian parents in the development and implementation
of these activities. The above entities shall, as appropriate,
make referrals to local, State, or Federal entities for the provision
of services or further diagnosis.
‘‘(5) REPORTS.—To be eligible to receive a payment under
paragraph (2), a tribe, tribal organization, or consortium shall
make a biennial report to the Secretary of the Interior of
activities undertaken under this subsection, including the
number of contracts and cooperative agreements entered into,
the number of infants and toddlers contacted and receiving
services for each year, and the estimated number of infants
and toddlers needing services during the 2 years following
the year in which the report is made. The Secretary of the
Interior shall include a summary of this information on a
biennial basis to the Secretary of Education along with such
other information as required under section 611(h)(3)(E). The
Secretary of Education may require any additional information
from the Secretary of the Interior.
‘‘(6) PROHIBITED USES OF FUNDS.—None of the funds under
this subsection may be used by the Secretary of the Interior
for administrative purposes, including child count, and the
provision of technical assistance.
‘‘(c) STATE ALLOTMENTS.—
‘‘(1) IN GENERAL.—Except as provided in paragraphs (2)
and (3), from the funds remaining for each fiscal year after
the reservation and payments under subsections (a), (b), and
(e), the Secretary shall first allot to each State an amount
that bears the same ratio to the amount of such remainder
as the number of infants and toddlers in the State bears to
the number of infants and toddlers in all States.
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118 STAT. 2762 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(2) MINIMUM ALLOTMENTS.—Except as provided in paragraph
(3), no State shall receive an amount under this section
for any fiscal year that is less than the greater of—
‘‘(A) 1⁄2 of 1 percent of the remaining amount described
in paragraph (1); or
‘‘(B) $500,000.
‘‘(3) RATABLE REDUCTION.—
‘‘(A) IN GENERAL.—If the sums made available under
this part for any fiscal year are insufficient to pay the
full amounts that all States are eligible to receive under
this subsection for such year, the Secretary shall ratably
reduce the allotments to such States for such year.
‘‘(B) ADDITIONAL FUNDS.—If additional funds become
available for making payments under this subsection for
a fiscal year, allotments that were reduced under subparagraph
(A) shall be increased on the same basis the allotments
were reduced.
‘‘(4) DEFINITIONS.—In this subsection—
‘‘(A) the terms ‘infants’ and ‘toddlers’ mean children
under 3 years of age; and
‘‘(B) the term ‘State’ means each of the 50 States,
the District of Columbia, and the Commonwealth of Puerto
Rico.
‘‘(d) REALLOTMENT OF FUNDS.—If a State elects not to receive
its allotment under subsection (c), the Secretary shall reallot, among
the remaining States, amounts from such State in accordance with
such subsection.
‘‘(e) RESERVATION FOR STATE INCENTIVE GRANTS.—
‘‘(1) IN GENERAL.—For any fiscal year for which the amount
appropriated pursuant to the authorization of appropriations
under section 644 exceeds $460,000,000, the Secretary shall
reserve 15 percent of such appropriated amount to provide
grants to States that are carrying out the policy described
in section 635(c) in order to facilitate the implementation of
such policy.
‘‘(2) AMOUNT OF GRANT.—
‘‘(A) IN GENERAL.—Notwithstanding paragraphs (2) and
(3) of subsection (c), the Secretary shall provide a grant
to each State under paragraph (1) in an amount that
bears the same ratio to the amount reserved under such
paragraph as the number of infants and toddlers in the
State bears to the number of infants and toddlers in all
States receiving grants under such paragraph.
‘‘(B) MAXIMUM AMOUNT.—No State shall receive a grant
under paragraph (1) for any fiscal year in an amount
that is greater than 20 percent of the amount reserved
under such paragraph for the fiscal year.
‘‘(3) CARRYOVER OF AMOUNTS.—
‘‘(A) FIRST SUCCEEDING FISCAL YEAR.—Pursuant to section
421(b) of the General Education Provisions Act,
amounts under a grant provided under paragraph (1) that
are not obligated and expended prior to the beginning
of the first fiscal year succeeding the fiscal year for which
such amounts were appropriated shall remain available
for obligation and expenditure during such first succeeding
fiscal year.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2763
‘‘(B) SECOND SUCCEEDING FISCAL YEAR.—Amounts
under a grant provided under paragraph (1) that are not
obligated and expended prior to the beginning of the second
fiscal year succeeding the fiscal year for which such
amounts were appropriated shall be returned to the Secretary
and used to make grants to States under section
633 (from their allotments under this section) during such
second succeeding fiscal year.
‘‘SEC. 644. AUTHORIZATION OF APPROPRIATIONS.
‘‘For the purpose of carrying out this part, there are authorized
to be appropriated such sums as may be necessary for each of
the fiscal years 2005 through 2010.
‘‘PART D—NATIONAL ACTIVITIES TO IMPROVE
EDUCATION OF CHILDREN WITH DISABILITIES
‘‘SEC. 650. FINDINGS.
‘‘Congress finds the following:
‘‘(1) The Federal Government has an ongoing obligation
to support activities that contribute to positive results for children
with disabilities, enabling those children to lead productive
and independent adult lives.
‘‘(2) Systemic change benefiting all students, including children
with disabilities, requires the involvement of States, local
educational agencies, parents, individuals with disabilities and
their families, teachers and other service providers, and other
interested individuals and organizations to develop and implement
comprehensive strategies that improve educational results
for children with disabilities.
‘‘(3) State educational agencies, in partnership with local
educational agencies, parents of children with disabilities, and
other individuals and organizations, are in the best position
to improve education for children with disabilities and to
address their special needs.
‘‘(4) An effective educational system serving students with
disabilities should—
‘‘(A) maintain high academic achievement standards
and clear performance goals for children with disabilities,
consistent with the standards and expectations for all students
in the educational system, and provide for appropriate
and effective strategies and methods to ensure that
all children with disabilities have the opportunity to
achieve those standards and goals;
‘‘(B) clearly define, in objective, measurable terms, the
school and post-school results that children with disabilities
are expected to achieve; and
‘‘(C) promote transition services and coordinate State
and local education, social, health, mental health, and other
services, in addressing the full range of student needs,
particularly the needs of children with disabilities who
need significant levels of support to participate and learn
in school and the community.
‘‘(5) The availability of an adequate number of qualified
personnel is critical—
‘‘(A) to serve effectively children with disabilities;
20 USC 1450.
20 USC 1444.
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118 STAT. 2764 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(B) to assume leadership positions in administration
and direct services;
‘‘(C) to provide teacher training; and
‘‘(D) to conduct high quality research to improve special
education.
‘‘(6) High quality, comprehensive professional development
programs are essential to ensure that the persons responsible
for the education or transition of children with disabilities
possess the skills and knowledge necessary to address the educational
and related needs of those children.
‘‘(7) Models of professional development should be scientifically
based and reflect successful practices, including strategies
for recruiting, preparing, and retaining personnel.
‘‘(8) Continued support is essential for the development
and maintenance of a coordinated and high quality program
of research to inform successful teaching practices and model
curricula for educating children with disabilities.
‘‘(9) Training, technical assistance, support, and dissemination
activities are necessary to ensure that parts B and C
are fully implemented and achieve high quality early intervention,
educational, and transitional results for children with
disabilities and their families.
‘‘(10) Parents, teachers, administrators, and related services
personnel need technical assistance and information in a timely,
coordinated, and accessible manner in order to improve early
intervention, educational, and transitional services and results
at the State and local levels for children with disabilities and
their families.
‘‘(11) Parent training and information activities assist parents
of a child with a disability in dealing with the multiple
pressures of parenting such a child and are of particular importance
in—
‘‘(A) playing a vital role in creating and preserving
constructive relationships between parents of children with
disabilities and schools by facilitating open communication
between the parents and schools; encouraging dispute resolution
at the earliest possible point in time; and discouraging
the escalation of an adversarial process between
the parents and schools;
‘‘(B) ensuring the involvement of parents in planning
and decisionmaking with respect to early intervention, educational,
and transitional services;
‘‘(C) achieving high quality early intervention, educational,
and transitional results for children with disabilities;
‘‘(D) providing such parents information on their rights,
protections, and responsibilities under this title to ensure
improved early intervention, educational, and transitional
results for children with disabilities;
‘‘(E) assisting such parents in the development of skills
to participate effectively in the education and development
of their children and in the transitions described in section
673(b)(6);
‘‘(F) supporting the roles of such parents as participants
within partnerships seeking to improve early intervention,
educational, and transitional services and results
for children with disabilities and their families; and
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2765
‘‘(G) supporting such parents who may have limited
access to services and supports, due to economic, cultural,
or linguistic barriers.
‘‘(12) Support is needed to improve technological resources
and integrate technology, including universally designed technologies,
into the lives of children with disabilities, parents
of children with disabilities, school personnel, and others
through curricula, services, and assistive technologies.
‘‘Subpart 1—State Personnel Development Grants
‘‘SEC. 651. PURPOSE; DEFINITION OF PERSONNEL; PROGRAM
AUTHORITY.
‘‘(a) PURPOSE.—The purpose of this subpart is to assist State
educational agencies in reforming and improving their systems
for personnel preparation and professional development in early
intervention, educational, and transition services in order to
improve results for children with disabilities.
‘‘(b) DEFINITION OF PERSONNEL.—In this subpart the term ‘personnel’
means special education teachers, regular education
teachers, principals, administrators, related services personnel,
paraprofessionals, and early intervention personnel serving infants,
toddlers, preschoolers, or children with disabilities, except where
a particular category of personnel, such as related services personnel,
is identified.
‘‘(c) COMPETITIVE GRANTS.—
‘‘(1) IN GENERAL.—Except as provided in subsection (d),
for any fiscal year for which the amount appropriated under
section 655, that remains after the Secretary reserves funds
under subsection (e) for the fiscal year, is less than
$100,000,000, the Secretary shall award grants, on a competitive
basis, to State educational agencies to carry out the activities
described in the State plan submitted under section 653.
‘‘(2) PRIORITY.—In awarding grants under paragraph (1),
the Secretary may give priority to State educational agencies
that—
‘‘(A) are in States with the greatest personnel shortages;
or
‘‘(B) demonstrate the greatest difficulty meeting the
requirements of section 612(a)(14).
‘‘(3) MINIMUM AMOUNT.—The Secretary shall make a grant
to each State educational agency selected under paragraph
(1) in an amount for each fiscal year that is—
‘‘(A) not less than $500,000, nor more than $4,000,000,
in the case of the 50 States, the District of Columbia,
and the Commonwealth of Puerto Rico; and
‘‘(B) not less than $80,000 in the case of an outlying
area.
‘‘(4) INCREASE IN AMOUNT.—The Secretary may increase
the amounts of grants under paragraph (4) to account for
inflation.
‘‘(5) FACTORS.—The Secretary shall determine the amount
of a grant under paragraph (1) after considering—
‘‘(A) the amount of funds available for making the
grants;
‘‘(B) the relative population of the State or outlying
area;
20 USC 1451.
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118 STAT. 2766 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(C) the types of activities proposed by the State or
outlying area;
‘‘(D) the alignment of proposed activities with section
612(a)(14);
‘‘(E) the alignment of proposed activities with the State
plans and applications submitted under sections 1111 and
2112, respectively, of the Elementary and Secondary Education
Act of 1965; and
‘‘(F) the use, as appropriate, of scientifically based
research activities.
‘‘(d) FORMULA GRANTS.—
‘‘(1) IN GENERAL.—Except as provided in paragraphs (2)
and (3), for the first fiscal year for which the amount appropriated
under section 655, that remains after the Secretary
reserves funds under subsection (e) for the fiscal year, is equal
to or greater than $100,000,000, and for each fiscal year thereafter,
the Secretary shall allot to each State educational agency,
whose application meets the requirements of this subpart, an
amount that bears the same relation to the amount remaining
as the amount the State received under section 611(d) for
that fiscal year bears to the amount of funds received by all
States (whose applications meet the requirements of this subpart)
under section 611(d) for that fiscal year.
‘‘(2) MINIMUM ALLOTMENTS FOR STATES THAT RECEIVED
COMPETITIVE GRANTS.—
‘‘(A) IN GENERAL.—The amount allotted under this subsection
to any State educational agency that received a
competitive multi-year grant under subsection (c) for which
the grant period has not expired shall be not less than
the amount specified for that fiscal year in the State educational
agency’s grant award document under that subsection.
‘‘(B) SPECIAL RULE.—Each such State educational
agency shall use the minimum amount described in
subparagraph (A) for the activities described in the State
educational agency’s competitive grant award document
for that year, unless the Secretary approves a request
from the State educational agency to spend the funds on
other activities.
‘‘(3) MINIMUM ALLOTMENT.—The amount of any State educational
agency’s allotment under this subsection for any fiscal
year shall not be less than—
‘‘(A) the greater of $500,000 or 1⁄2 of 1 percent of
the total amount available under this subsection for that
year, in the case of each of the 50 States, the District
of Columbia, and the Commonwealth of Puerto Rico; and
‘‘(B) $80,000, in the case of an outlying area.
‘‘(4) DIRECT BENEFIT.—In using grant funds allotted under
paragraph (1), a State educational agency shall, through grants,
contracts, or cooperative agreements, undertake activities that
significantly and directly benefit the local educational agencies
in the State.
‘‘(e) CONTINUATION AWARDS.—
‘‘(1) IN GENERAL.—Notwithstanding any other provision of
this subpart, from funds appropriated under section 655 for
each fiscal year, the Secretary shall reserve the amount that
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2767
is necessary to make a continuation award to any State educational
agency (at the request of the State educational agency)
that received a multi-year award under this part (as this part
was in effect on the day before the date of enactment of the
Individuals with Disabilities Education Improvement Act of
2004), to enable the State educational agency to carry out
activities in accordance with the terms of the multi-year award.
‘‘(2) PROHIBITION.—A State educational agency that
receives a continuation award under paragraph (1) for any
fiscal year may not receive any other award under this subpart
for that fiscal year.
‘‘SEC. 652. ELIGIBILITY AND COLLABORATIVE PROCESS.
‘‘(a) ELIGIBLE APPLICANTS.—A State educational agency may
apply for a grant under this subpart for a grant period of not
less than 1 year and not more than 5 years.
‘‘(b) PARTNERS.—
‘‘(1) IN GENERAL.—In order to be considered for a grant
under this subpart, a State educational agency shall establish
a partnership with local educational agencies and other State
agencies involved in, or concerned with, the education of children
with disabilities, including—
‘‘(A) not less than 1 institution of higher education;
and
‘‘(B) the State agencies responsible for administering
part C, early education, child care, and vocational
rehabilitation programs.
‘‘(2) OTHER PARTNERS.—In order to be considered for a
grant under this subpart, a State educational agency shall
work in partnership with other persons and organizations
involved in, and concerned with, the education of children with
disabilities, which may include—
‘‘(A) the Governor;
‘‘(B) parents of children with disabilities ages birth
through 26;
‘‘(C) parents of nondisabled children ages birth through
26;
‘‘(D) individuals with disabilities;
‘‘(E) parent training and information centers or community
parent resource centers funded under sections 671
and 672, respectively;
‘‘(F) community based and other nonprofit organizations
involved in the education and employment of individuals
with disabilities;
‘‘(G) personnel as defined in section 651(b);
‘‘(H) the State advisory panel established under part
B;
‘‘(I) the State interagency coordinating council established
under part C;
‘‘(J) individuals knowledgeable about vocational education;
‘‘(K) the State agency for higher education;
‘‘(L) public agencies with jurisdiction in the areas of
health, mental health, social services, and juvenile justice;
‘‘(M) other providers of professional development that
work with infants, toddlers, preschoolers, and children with
disabilities; and
20 USC 1452.
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118 STAT. 2768 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(N) other individuals.
‘‘(3) REQUIRED PARTNER.—If State law assigns responsibility
for teacher preparation and certification to an individual,
entity, or agency other than the State educational agency,
the State educational agency shall—
‘‘(A) include that individual, entity, or agency as a
partner in the partnership under this subsection; and
‘‘(B) ensure that any activities the State educational
agency will carry out under this subpart that are within
that partner’s jurisdiction (which may include activities
described in section 654(b)) are carried out by that partner.
‘‘SEC. 653. APPLICATIONS.
‘‘(a) IN GENERAL.—
‘‘(1) SUBMISSION.—A State educational agency that desires
to receive a grant under this subpart shall submit to the
Secretary an application at such time, in such manner, and
including such information as the Secretary may require.
‘‘(2) STATE PLAN.—The application shall include a plan
that identifies and addresses the State and local needs for
the personnel preparation and professional development of personnel,
as well as individuals who provide direct supplementary
aids and services to children with disabilities, and that—
‘‘(A) is designed to enable the State to meet the requirements
of section 612(a)(14) and section 635(a) (8) and (9);
‘‘(B) is based on an assessment of State and local
needs that identifies critical aspects and areas in need
of improvement related to the preparation, ongoing
training, and professional development of personnel who
serve infants, toddlers, preschoolers, and children with
disabilities within the State, including—
‘‘(i) current and anticipated personnel vacancies
and shortages; and
‘‘(ii) the number of preservice and inservice programs;
and
‘‘(C) is integrated and aligned, to the maximum extent
possible, with State plans and activities under the
Elementary and Secondary Education Act of 1965, the
Rehabilitation Act of 1973, and the Higher Education Act
of 1965.
‘‘(3) REQUIREMENT.—The State application shall contain
an assurance that the State educational agency will carry out
each of the strategies described in subsection (b)(4).
‘‘(b) ELEMENTS OF STATE PERSONNEL DEVELOPMENT PLAN.—
Each State personnel development plan under subsection (a)(2)
shall—
‘‘(1) describe a partnership agreement that is in effect
for the period of the grant, which agreement shall specify—
‘‘(A) the nature and extent of the partnership described
in section 652(b) and the respective roles of each member
of the partnership, including the partner described in section
652(b)(3) if applicable; and
‘‘(B) how the State educational agency will work with
other persons and organizations involved in, and concerned
with, the education of children with disabilities, including
the respective roles of each of the persons and organizations;
20 USC 1453.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2769
‘‘(2) describe how the strategies and activities described
in paragraph (4) will be coordinated with activities supported
with other public resources (including part B and part C funds
retained for use at the State level for personnel and professional
development purposes) and private resources;
‘‘(3) describe how the State educational agency will align
its personnel development plan under this subpart with the
plan and application submitted under sections 1111 and 2112,
respectively, of the Elementary and Secondary Education Act
of 1965;
‘‘(4) describe those strategies the State educational agency
will use to address the professional development and personnel
needs identified under subsection (a)(2) and how such strategies
will be implemented, including—
‘‘(A) a description of the programs and activities to
be supported under this subpart that will provide personnel
with the knowledge and skills to meet the needs of, and
improve the performance and achievement of, infants, toddlers,
preschoolers, and children with disabilities; and
‘‘(B) how such strategies will be integrated, to the
maximum extent possible, with other activities supported
by grants funded under section 662;
‘‘(5) provide an assurance that the State educational agency
will provide technical assistance to local educational agencies
to improve the quality of professional development available
to meet the needs of personnel who serve children with disabilities;
‘‘(6) provide an assurance that the State educational agency
will provide technical assistance to entities that provide services
to infants and toddlers with disabilities to improve the quality
of professional development available to meet the needs of
personnel serving such children;
‘‘(7) describe how the State educational agency will recruit
and retain highly qualified teachers and other qualified personnel
in geographic areas of greatest need;
‘‘(8) describe the steps the State educational agency will
take to ensure that poor and minority children are not taught
at higher rates by teachers who are not highly qualified; and
‘‘(9) describe how the State educational agency will assess,
on a regular basis, the extent to which the strategies implemented
under this subpart have been effective in meeting the
performance goals described in section 612(a)(15).
‘‘(c) PEER REVIEW.—
‘‘(1) IN GENERAL.—The Secretary shall use a panel of
experts who are competent, by virtue of their training, expertise,
or experience, to evaluate applications for grants under
section 651(c)(1).
‘‘(2) COMPOSITION OF PANEL.—A majority of a panel
described in paragraph (1) shall be composed of individuals
who are not employees of the Federal Government.
‘‘(3) PAYMENT OF FEES AND EXPENSES OF CERTAIN MEMBERS.—
The Secretary may use available funds appropriated
to carry out this subpart to pay the expenses and fees of
panel members who are not employees of the Federal Government.
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118 STAT. 2770 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(d) REPORTING PROCEDURES.—Each State educational agency
that receives a grant under this subpart shall submit annual
performance reports to the Secretary. The reports shall—
‘‘(1) describe the progress of the State educational agency
in implementing its plan;
‘‘(2) analyze the effectiveness of the State educational
agency’s activities under this subpart and of the State educational
agency’s strategies for meeting its goals under section
612(a)(15); and
‘‘(3) identify changes in the strategies used by the State
educational agency and described in subsection (b)(4), if any,
to improve the State educational agency’s performance.
‘‘SEC. 654. USE OF FUNDS.
‘‘(a) PROFESSIONAL DEVELOPMENT ACTIVITIES.—A State educational
agency that receives a grant under this subpart shall
use the grant funds to support activities in accordance with the
State’s plan described in section 653, including 1 or more of the
following:
‘‘(1) Carrying out programs that provide support to both
special education and regular education teachers of children
with disabilities and principals, such as programs that—
‘‘(A) provide teacher mentoring, team teaching, reduced
class schedules and case loads, and intensive professional
development;
‘‘(B) use standards or assessments for guiding beginning
teachers that are consistent with challenging State
student academic achievement and functional standards
and with the requirements for professional development,
as defined in section 9101 of the Elementary and Secondary
Education Act of 1965; and
‘‘(C) encourage collaborative and consultative models
of providing early intervention, special education, and
related services.
‘‘(2) Encouraging and supporting the training of special
education and regular education teachers and administrators
to effectively use and integrate technology—
‘‘(A) into curricula and instruction, including training
to improve the ability to collect, manage, and analyze data
to improve teaching, decisionmaking, school improvement
efforts, and accountability;
‘‘(B) to enhance learning by children with disabilities;
and
‘‘(C) to effectively communicate with parents.
‘‘(3) Providing professional development activities that—
‘‘(A) improve the knowledge of special education and
regular education teachers concerning—
‘‘(i) the academic and developmental or functional
needs of students with disabilities; or
‘‘(ii) effective instructional strategies, methods, and
skills, and the use of State academic content standards
and student academic achievement and functional
standards, and State assessments, to improve teaching
practices and student academic achievement;
20 USC 1454.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2771
‘‘(B) improve the knowledge of special education and
regular education teachers and principals and, in appropriate
cases, paraprofessionals, concerning effective instructional
practices, and that—
‘‘(i) provide training in how to teach and address
the needs of children with different learning styles
and children who are limited English proficient;
‘‘(ii) involve collaborative groups of teachers,
administrators, and, in appropriate cases, related services
personnel;
‘‘(iii) provide training in methods of—
‘‘(I) positive behavioral interventions and supports
to improve student behavior in the classroom;
‘‘(II) scientifically based reading instruction,
including early literacy instruction;
‘‘(III) early and appropriate interventions to
identify and help children with disabilities;
‘‘(IV) effective instruction for children with low
incidence disabilities;
‘‘(V) successful transitioning to postsecondary
opportunities; and
‘‘(VI) using classroom-based techniques to
assist children prior to referral for special education;
‘‘(iv) provide training to enable personnel to work
with and involve parents in their child’s education,
including parents of low income and limited English
proficient children with disabilities;
‘‘(v) provide training for special education personnel
and regular education personnel in planning,
developing, and implementing effective and appropriate
IEPs; and
‘‘(vi) provide training to meet the needs of students
with significant health, mobility, or behavioral needs
prior to serving such students;
‘‘(C) train administrators, principals, and other relevant
school personnel in conducting effective IEP
meetings; and
‘‘(D) train early intervention, preschool, and related
services providers, and other relevant school personnel,
in conducting effective individualized family service plan
(IFSP) meetings.
‘‘(4) Developing and implementing initiatives to promote
the recruitment and retention of highly qualified special education
teachers, particularly initiatives that have been proven
effective in recruiting and retaining highly qualified teachers,
including programs that provide—
‘‘(A) teacher mentoring from exemplary special education
teachers, principals, or superintendents;
‘‘(B) induction and support for special education
teachers during their first 3 years of employment as
teachers; or
‘‘(C) incentives, including financial incentives, to retain
special education teachers who have a record of success
in helping students with disabilities.
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118 STAT. 2772 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(5) Carrying out programs and activities that are designed
to improve the quality of personnel who serve children with
disabilities, such as—
‘‘(A) innovative professional development programs
(which may be provided through partnerships that include
institutions of higher education), including programs that
train teachers and principals to integrate technology into
curricula and instruction to improve teaching, learning,
and technology literacy, which professional development
shall be consistent with the definition of professional
development in section 9101 of the Elementary and Secondary
Education Act of 1965; and
‘‘(B) the development and use of proven, cost effective
strategies for the implementation of professional development
activities, such as through the use of technology
and distance learning.
‘‘(6) Carrying out programs and activities that are designed
to improve the quality of early intervention personnel, including
paraprofessionals and primary referral sources, such as—
‘‘(A) professional development programs to improve the
delivery of early intervention services;
‘‘(B) initiatives to promote the recruitment and retention
of early intervention personnel; and
‘‘(C) interagency activities to ensure that early intervention
personnel are adequately prepared and trained.
‘‘(b) OTHER ACTIVITIES.—A State educational agency that
receives a grant under this subpart shall use the grant funds
to support activities in accordance with the State’s plan described
in section 653, including 1 or more of the following:
‘‘(1) Reforming special education and regular education
teacher certification (including recertification) or licensing
requirements to ensure that—
‘‘(A) special education and regular education teachers
have—
‘‘(i) the training and information necessary to
address the full range of needs of children with disabilities
across disability categories; and
‘‘(ii) the necessary subject matter knowledge and
teaching skills in the academic subjects that the
teachers teach;
‘‘(B) special education and regular education teacher
certification (including recertification) or licensing requirements
are aligned with challenging State academic content
standards; and
‘‘(C) special education and regular education teachers
have the subject matter knowledge and teaching skills,
including technology literacy, necessary to help students
with disabilities meet challenging State student academic
achievement and functional standards.
‘‘(2) Programs that establish, expand, or improve alternative
routes for State certification of special education teachers
for highly qualified individuals with a baccalaureate or master’s
degree, including mid-career professionals from other occupations,
paraprofessionals, and recent college or university graduates
with records of academic distinction who demonstrate
the potential to become highly effective special education
teachers.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2773
‘‘(3) Teacher advancement initiatives for special education
teachers that promote professional growth and emphasize multiple
career paths (such as paths to becoming a career teacher,
mentor teacher, or exemplary teacher) and pay differentiation.
‘‘(4) Developing and implementing mechanisms to assist
local educational agencies and schools in effectively recruiting
and retaining highly qualified special education teachers.
‘‘(5) Reforming tenure systems, implementing teacher
testing for subject matter knowledge, and implementing teacher
testing for State certification or licensing, consistent with title
II of the Higher Education Act of 1965.
‘‘(6) Funding projects to promote reciprocity of teacher certification
or licensing between or among States for special education
teachers, except that no reciprocity agreement developed
under this paragraph or developed using funds provided under
this subpart may lead to the weakening of any State teaching
certification or licensing requirement.
‘‘(7) Assisting local educational agencies to serve children
with disabilities through the development and use of proven,
innovative strategies to deliver intensive professional development
programs that are both cost effective and easily accessible,
such as strategies that involve delivery through the use of
technology, peer networks, and distance learning.
‘‘(8) Developing, or assisting local educational agencies in
developing, merit based performance systems, and strategies
that provide differential and bonus pay for special education
teachers.
‘‘(9) Supporting activities that ensure that teachers are
able to use challenging State academic content standards and
student academic achievement and functional standards, and
State assessments for all children with disabilities, to improve
instructional practices and improve the academic achievement
of children with disabilities.
‘‘(10) When applicable, coordinating with, and expanding
centers established under, section 2113(c)(18) of the Elementary
and Secondary Education Act of 1965 to benefit special education
teachers.
‘‘(c) CONTRACTS AND SUBGRANTS.—A State educational agency
that receives a grant under this subpart—
‘‘(1) shall award contracts or subgrants to local educational
agencies, institutions of higher education, parent training and
information centers, or community parent resource centers, as
appropriate, to carry out its State plan under this subpart;
and
‘‘(2) may award contracts and subgrants to other public
and private entities, including the lead agency under part C,
to carry out the State plan.
‘‘(d) USE OF FUNDS FOR PROFESSIONAL DEVELOPMENT.—A State
educational agency that receives a grant under this subpart shall
use—
‘‘(1) not less than 90 percent of the funds the State educational
agency receives under the grant for any fiscal year
for activities under subsection (a); and
‘‘(2) not more than 10 percent of the funds the State educational
agency receives under the grant for any fiscal year
for activities under subsection (b).
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118 STAT. 2774 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(e) GRANTS TO OUTLYING AREAS.—Public Law 95–134, permitting
the consolidation of grants to the outlying areas, shall not
apply to funds received under this subpart.
‘‘SEC. 655. AUTHORIZATION OF APPROPRIATIONS.
‘‘There are authorized to be appropriated to carry out this
subpart such sums as may be necessary for each of the fiscal
years 2005 through 2010.
‘‘Subpart 2—Personnel Preparation, Technical Assistance,
Model Demonstration Projects, and
Dissemination of Information
‘‘SEC. 661. PURPOSE; DEFINITION OF ELIGIBLE ENTITY.
‘‘(a) PURPOSE.—The purpose of this subpart is—
‘‘(1) to provide Federal funding for personnel preparation,
technical assistance, model demonstration projects, information
dissemination, and studies and evaluations, in order to improve
early intervention, educational, and transitional results for children
with disabilities; and
‘‘(2) to assist State educational agencies and local educational
agencies in improving their education systems for children
with disabilities.
‘‘(b) DEFINITION OF ELIGIBLE ENTITY.—
‘‘(1) IN GENERAL.—In this subpart, the term ‘eligible entity’
means—
‘‘(A) a State educational agency;
‘‘(B) a local educational agency;
‘‘(C) a public charter school that is a local educational
agency under State law;
‘‘(D) an institution of higher education;
‘‘(E) a public agency not described in subparagraphs
(A) through (D);
‘‘(F) a private nonprofit organization;
‘‘(G) an outlying area;
‘‘(H) an Indian tribe or a tribal organization (as defined
under section 4 of the Indian Self-Determination and Education
Assistance Act); or
‘‘(I) a for-profit organization, if the Secretary finds
it appropriate in light of the purposes of a particular competition
for a grant, contract, or cooperative agreement
under this subpart.
‘‘(2) SPECIAL RULE.—The Secretary may limit which eligible
entities described in paragraph (1) are eligible for a grant,
contract, or cooperative agreement under this subpart to 1
or more of the categories of eligible entities described in paragraph
(1).
‘‘SEC. 662. PERSONNEL DEVELOPMENT TO IMPROVE SERVICES AND
RESULTS FOR CHILDREN WITH DISABILITIES.
‘‘(a) IN GENERAL.—The Secretary, on a competitive basis, shall
award grants to, or enter into contracts or cooperative agreements
with, eligible entities to carry out 1 or more of the following objectives:
‘‘(1) To help address the needs identified in the State plan
described in section 653(a)(2) for highly qualified personnel,
as defined in section 651(b), to work with infants or toddlers
20 USC 1462.
20 USC 1461.
20 USC 1455.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2775
with disabilities, or children with disabilities, consistent with
the qualifications described in section 612(a)(14).
‘‘(2) To ensure that those personnel have the necessary
skills and knowledge, derived from practices that have been
determined, through scientifically based research, to be successful
in serving those children.
‘‘(3) To encourage increased focus on academics and core
content areas in special education personnel preparation programs.
‘‘(4) To ensure that regular education teachers have the
necessary skills and knowledge to provide instruction to students
with disabilities in the regular education classroom.
‘‘(5) To ensure that all special education teachers are highly
qualified.
‘‘(6) To ensure that preservice and in-service personnel
preparation programs include training in—
‘‘(A) the use of new technologies;
‘‘(B) the area of early intervention, educational, and
transition services;
‘‘(C) effectively involving parents; and
‘‘(D) positive behavioral supports.
‘‘(7) To provide high-quality professional development for
principals, superintendents, and other administrators, including
training in—
‘‘(A) instructional leadership;
‘‘(B) behavioral supports in the school and classroom;
‘‘(C) paperwork reduction;
‘‘(D) promoting improved collaboration between special
education and general education teachers;
‘‘(E) assessment and accountability;
‘‘(F) ensuring effective learning environments; and
‘‘(G) fostering positive relationships with parents.
‘‘(b) PERSONNEL DEVELOPMENT; ENHANCED SUPPORT FOR BEGINNING
SPECIAL EDUCATORS.—
‘‘(1) IN GENERAL.—In carrying out this section, the Secretary
shall support activities—
‘‘(A) for personnel development, including activities for
the preparation of personnel who will serve children with
high incidence and low incidence disabilities, to prepare
special education and general education teachers, principals,
administrators, and related services personnel (and
school board members, when appropriate) to meet the
diverse and individualized instructional needs of children
with disabilities and improve early intervention, educational,
and transitional services and results for children
with disabilities, consistent with the objectives described
in subsection (a); and
‘‘(B) for enhanced support for beginning special educators,
consistent with the objectives described in subsection
(a).
‘‘(2) PERSONNEL DEVELOPMENT.—In carrying out paragraph
(1)(A), the Secretary shall support not less than 1 of the following
activities:
‘‘(A) Assisting effective existing, improving existing,
or developing new, collaborative personnel preparation
activities undertaken by institutions of higher education,
local educational agencies, and other local entities that
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118 STAT. 2776 PUBLIC LAW 108–446—DEC. 3, 2004
incorporate best practices and scientifically based research,
where applicable, in providing special education and general
education teachers, principals, administrators, and
related services personnel with the knowledge and skills
to effectively support students with disabilities, including—
‘‘(i) working collaboratively in regular classroom
settings;
‘‘(ii) using appropriate supports, accommodations,
and curriculum modifications;
‘‘(iii) implementing effective teaching strategies,
classroom-based techniques, and interventions to
ensure appropriate identification of students who may
be eligible for special education services, and to prevent
the misidentification, inappropriate overidentification,
or underidentification of children as having a disability,
especially minority and limited English proficient children;
‘‘(iv) effectively working with and involving parents
in the education of their children;
‘‘(v) utilizing strategies, including positive behavioral
interventions, for addressing the conduct of children
with disabilities that impedes their learning and
that of others in the classroom;
‘‘(vi) effectively constructing IEPs, participating in
IEP meetings, and implementing IEPs;
‘‘(vii) preparing children with disabilities to participate
in statewide assessments (with or without accommodations)
and alternate assessments, as appropriate,
and to ensure that all children with disabilities are
a part of all accountability systems under the
Elementary and Secondary Education Act of 1965; and
‘‘(viii) working in high need elementary schools
and secondary schools, including urban schools, rural
schools, and schools operated by an entity described
in section 7113(d)(1)(A)(ii) of the Elementary and Secondary
Education Act of 1965, and schools that serve
high numbers or percentages of limited English proficient
children.
‘‘(B) Developing, evaluating, and disseminating innovative
models for the recruitment, induction, retention, and
assessment of new, highly qualified teachers to reduce
teacher shortages, especially from groups that are underrepresented
in the teaching profession, including individuals
with disabilities.
‘‘(C) Providing continuous personnel preparation,
training, and professional development designed to provide
support and ensure retention of special education and general
education teachers and personnel who teach and provide
related services to children with disabilities.
‘‘(D) Developing and improving programs for paraprofessionals
to become special education teachers, related
services personnel, and early intervention personnel,
including interdisciplinary training to enable the paraprofessionals
to improve early intervention, educational,
and transitional results for children with disabilities.
‘‘(E) In the case of principals and superintendents,
providing activities to promote instructional leadership and
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2777
improved collaboration between general educators, special
education teachers, and related services personnel.
‘‘(F) Supporting institutions of higher education with
minority enrollments of not less than 25 percent for the
purpose of preparing personnel to work with children with
disabilities.
‘‘(G) Developing and improving programs to train special
education teachers to develop an expertise in autism
spectrum disorders.
‘‘(H) Providing continuous personnel preparation,
training, and professional development designed to provide
support and improve the qualifications of personnel who
provide related services to children with disabilities,
including to enable such personnel to obtain advanced
degrees.
‘‘(3) ENHANCED SUPPORT FOR BEGINNING SPECIAL EDUCATORS.—
In carrying out paragraph (1)(B), the Secretary shall
support not less than 1 of the following activities:
‘‘(A) Enhancing and restructuring existing programs
or developing preservice teacher education programs to
prepare special education teachers, at colleges or departments
of education within institutions of higher education,
by incorporating an extended (such as an additional 5th
year) clinical learning opportunity, field experience, or
supervised practicum into such programs.
‘‘(B) Creating or supporting teacher-faculty partnerships
(such as professional development schools) that—
‘‘(i) consist of not less than—
‘‘(I) 1 or more institutions of higher education
with special education personnel preparation programs;
‘‘(II) 1 or more local educational agencies that
serve high numbers or percentages of low-income
students; or
‘‘(III) 1 or more elementary schools or secondary
schools, particularly schools that have
failed to make adequate yearly progress on the
basis, in whole and in part, of the assessment
results of the disaggregated subgroup of students
with disabilities;
‘‘(ii) may include other entities eligible for assistance
under this part; and
‘‘(iii) provide—
‘‘(I) high-quality mentoring and induction
opportunities with ongoing support for beginning
special education teachers; or
‘‘(II) inservice professional development to
beginning and veteran special education teachers
through the ongoing exchange of information and
instructional strategies with faculty.
‘‘(c) LOW INCIDENCE DISABILITIES; AUTHORIZED ACTIVITIES.—
‘‘(1) IN GENERAL.—In carrying out this section, the Secretary
shall support activities, consistent with the objectives
described in subsection (a), that benefit children with low
incidence disabilities.
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118 STAT. 2778 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(2) AUTHORIZED ACTIVITIES.—Activities that may be carried
out under this subsection include activities such as the
following:
‘‘(A) Preparing persons who—
‘‘(i) have prior training in educational and other
related service fields; and
‘‘(ii) are studying to obtain degrees, certificates,
or licensure that will enable the persons to assist children
with low incidence disabilities to achieve the
objectives set out in their individualized education programs
described in section 614(d), or to assist infants
and toddlers with low incidence disabilities to achieve
the outcomes described in their individualized family
service plans described in section 636.
‘‘(B) Providing personnel from various disciplines with
interdisciplinary training that will contribute to improvement
in early intervention, educational, and transitional
results for children with low incidence disabilities.
‘‘(C) Preparing personnel in the innovative uses and
application of technology, including universally designed
technologies, assistive technology devices, and assistive
technology services—
‘‘(i) to enhance learning by children with low
incidence disabilities through early intervention, educational,
and transitional services; and
‘‘(ii) to improve communication with parents.
‘‘(D) Preparing personnel who provide services to visually
impaired or blind children to teach and use Braille
in the provision of services to such children.
‘‘(E) Preparing personnel to be qualified educational
interpreters, to assist children with low incidence disabilities,
particularly deaf and hard of hearing children in
school and school related activities, and deaf and hard
of hearing infants and toddlers and preschool children in
early intervention and preschool programs.
‘‘(F) Preparing personnel who provide services to children
with significant cognitive disabilities and children
with multiple disabilities.
‘‘(G) Preparing personnel who provide services to children
with low incidence disabilities and limited English
proficient children.
‘‘(3) DEFINITION.—In this section, the term ‘low incidence
disability’ means—
‘‘(A) a visual or hearing impairment, or simultaneous
visual and hearing impairments;
‘‘(B) a significant cognitive impairment; or
‘‘(C) any impairment for which a small number of
personnel with highly specialized skills and knowledge are
needed in order for children with that impairment to
receive early intervention services or a free appropriate
public education.
‘‘(4) SELECTION OF RECIPIENTS.—In selecting eligible entities
for assistance under this subsection, the Secretary may
give preference to eligible entities submitting applications that
include 1 or more of the following:
‘‘(A) A proposal to prepare personnel in more than
1 low incidence disability, such as deafness and blindness.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2779
‘‘(B) A demonstration of an effective collaboration
between an eligible entity and a local educational agency
that promotes recruitment and subsequent retention of
highly qualified personnel to serve children with low
incidence disabilities.
‘‘(5) PREPARATION IN USE OF BRAILLE.—The Secretary shall
ensure that all recipients of awards under this subsection who
will use that assistance to prepare personnel to provide services
to visually impaired or blind children that can appropriately
be provided in Braille, will prepare those individuals to provide
those services in Braille.
‘‘(d) LEADERSHIP PREPARATION; AUTHORIZED ACTIVITIES.—
‘‘(1) IN GENERAL.—In carrying out this section, the Secretary
shall support leadership preparation activities that are
consistent with the objectives described in subsection (a).
‘‘(2) AUTHORIZED ACTIVITIES.—Activities that may be carried
out under this subsection include activities such as the
following:
‘‘(A) Preparing personnel at the graduate, doctoral,
and postdoctoral levels of training to administer, enhance,
or provide services to improve results for children with
disabilities.
‘‘(B) Providing interdisciplinary training for various
types of leadership personnel, including teacher preparation
faculty, related services faculty, administrators,
researchers, supervisors, principals, and other persons
whose work affects early intervention, educational, and
transitional services for children with disabilities, including
children with disabilities who are limited English proficient
children.
‘‘(e) APPLICATIONS.—
‘‘(1) IN GENERAL.—An eligible entity that wishes to receive
a grant, or enter into a contract or cooperative agreement,
under this section shall submit an application to the Secretary
at such time, in such manner, and containing such information
as the Secretary may require.
‘‘(2) IDENTIFIED STATE NEEDS.—
‘‘(A) REQUIREMENT TO ADDRESS IDENTIFIED NEEDS.—
An application for assistance under subsection (b), (c), or
(d) shall include information demonstrating to the satisfaction
of the Secretary that the activities described in the
application will address needs identified by the State or
States the eligible entity proposes to serve.
‘‘(B) COOPERATION WITH STATE EDUCATIONAL AGENCIES.—
An eligible entity that is not a local educational
agency or a State educational agency shall include in the
eligible entity’s application information demonstrating to
the satisfaction of the Secretary that the eligible entity
and 1 or more State educational agencies or local educational
agencies will cooperate in carrying out and monitoring
the proposed project.
‘‘(3) ACCEPTANCE BY STATES OF PERSONNEL PREPARATION
REQUIREMENTS.—The Secretary may require eligible entities
to provide in the eligible entities’ applications assurances from
1 or more States that such States intend to accept successful
completion of the proposed personnel preparation program as
meeting State personnel standards or other requirements in
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118 STAT. 2780 PUBLIC LAW 108–446—DEC. 3, 2004
State law or regulation for serving children with disabilities
or serving infants and toddlers with disabilities.
‘‘(f) SELECTION OF RECIPIENTS.—
‘‘(1) IMPACT OF PROJECT.—In selecting eligible entities for
assistance under this section, the Secretary shall consider the
impact of the proposed project described in the application
in meeting the need for personnel identified by the States.
‘‘(2) REQUIREMENT FOR ELIGIBLE ENTITIES TO MEET STATE
AND PROFESSIONAL QUALIFICATIONS.—The Secretary shall make
grants and enter into contracts and cooperative agreements
under this section only to eligible entities that meet State
and professionally recognized qualifications for the preparation
of special education and related services personnel, if the purpose
of the project is to assist personnel in obtaining degrees.
‘‘(3) PREFERENCES.—In selecting eligible entities for assistance
under this section, the Secretary may give preference
to eligible entities that are institutions of higher education
that are—
‘‘(A) educating regular education personnel to meet
the needs of children with disabilities in integrated settings;
‘‘(B) educating special education personnel to work in
collaboration with regular educators in integrated settings;
and
‘‘(C) successfully recruiting and preparing individuals
with disabilities and individuals from groups that are
underrepresented in the profession for which the institution
of higher education is preparing individuals.
‘‘(g) SCHOLARSHIPS.—The Secretary may include funds for scholarships,
with necessary stipends and allowances, in awards under
subsections (b), (c), and (d).
‘‘(h) SERVICE OBLIGATION.—
‘‘(1) IN GENERAL.—Each application for assistance under
subsections (b), (c), and (d) shall include an assurance that
the eligible entity will ensure that individuals who receive
a scholarship under the proposed project agree to subsequently
provide special education and related services to children with
disabilities, or in the case of leadership personnel to subsequently
work in the appropriate field, for a period of 2 years
for every year for which the scholarship was received or repay
all or part of the amount of the scholarship, in accordance
with regulations issued by the Secretary.
‘‘(2) SPECIAL RULE.—Notwithstanding paragraph (1), the
Secretary may reduce or waive the service obligation requirement
under paragraph (1) if the Secretary determines that
the service obligation is acting as a deterrent to the recruitment
of students into special education or a related field.
‘‘(3) SECRETARY’S RESPONSIBILITY.—The Secretary—
‘‘(A) shall ensure that individuals described in paragraph
(1) comply with the requirements of that paragraph;
and
‘‘(B) may use not more than 0.5 percent of the funds
appropriated under subsection (i) for each fiscal year, to
carry out subparagraph (A), in addition to any other funds
that are available for that purpose.
Grants.
Contracts.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2781
‘‘(i) AUTHORIZATION OF APPROPRIATIONS.—There are authorized
to be appropriated to carry out this section such sums as may
be necessary for each of the fiscal years 2005 through 2010.
‘‘SEC. 663. TECHNICAL ASSISTANCE, DEMONSTRATION PROJECTS,
DISSEMINATION OF INFORMATION, AND IMPLEMENTATION
OF SCIENTIFICALLY BASED RESEARCH.
‘‘(a) IN GENERAL.—The Secretary shall make competitive grants
to, or enter into contracts or cooperative agreements with, eligible
entities to provide technical assistance, support model demonstration
projects, disseminate useful information, and implement activities
that are supported by scientifically based research.
‘‘(b) REQUIRED ACTIVITIES.—Funds received under this section
shall be used to support activities to improve services provided
under this title, including the practices of professionals and others
involved in providing such services to children with disabilities,
that promote academic achievement and improve results for children
with disabilities through—
‘‘(1) implementing effective strategies for addressing
inappropriate behavior of students with disabilities in schools,
including strategies to prevent children with emotional and
behavioral problems from developing emotional disturbances
that require the provision of special education and related
services;
‘‘(2) improving the alignment, compatibility, and development
of valid and reliable assessments and alternate assessments
for assessing adequate yearly progress, as described
under section 1111(b)(2)(B) of the Elementary and Secondary
Education Act of 1965;
‘‘(3) providing training for both regular education teachers
and special education teachers to address the needs of students
with different learning styles;
‘‘(4) disseminating information about innovative, effective,
and efficient curricula designs, instructional approaches, and
strategies, and identifying positive academic and social learning
opportunities, that—
‘‘(A) provide effective transitions between educational
settings or from school to post school settings; and
‘‘(B) improve educational and transitional results at
all levels of the educational system in which the activities
are carried out and, in particular, that improve the progress
of children with disabilities, as measured by assessments
within the general education curriculum involved; and
‘‘(5) applying scientifically based findings to facilitate systemic
changes, related to the provision of services to children
with disabilities, in policy, procedure, practice, and the training
and use of personnel.
‘‘(c) AUTHORIZED ACTIVITIES.—Activities that may be carried
out under this section include activities to improve services provided
under this title, including the practices of professionals and others
involved in providing such services to children with disabilities,
that promote academic achievement and improve results for children
with disabilities through—
‘‘(1) applying and testing research findings in typical settings
where children with disabilities receive services to determine
the usefulness, effectiveness, and general applicability
Grants.
Contracts.
20 USC 1463.
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118 STAT. 2782 PUBLIC LAW 108–446—DEC. 3, 2004
of such research findings in such areas as improving instructional
methods, curricula, and tools, such as textbooks and
media;
‘‘(2) supporting and promoting the coordination of early
intervention and educational services for children with disabilities
with services provided by health, rehabilitation, and social
service agencies;
‘‘(3) promoting improved alignment and compatibility of
general and special education reforms concerned with curricular
and instructional reform, and evaluation of such reforms;
‘‘(4) enabling professionals, parents of children with disabilities,
and other persons to learn about, and implement, the
findings of scientifically based research, and successful practices
developed in model demonstration projects, relating to the
provision of services to children with disabilities;
‘‘(5) conducting outreach, and disseminating information,
relating to successful approaches to overcoming systemic barriers
to the effective and efficient delivery of early intervention,
educational, and transitional services to personnel who provide
services to children with disabilities;
‘‘(6) assisting States and local educational agencies with
the process of planning systemic changes that will promote
improved early intervention, educational, and transitional
results for children with disabilities;
‘‘(7) promoting change through a multistate or regional
framework that benefits States, local educational agencies, and
other participants in partnerships that are in the process of
achieving systemic-change outcomes;
‘‘(8) focusing on the needs and issues that are specific
to a population of children with disabilities, such as providing
single-State and multi-State technical assistance and in-service
training—
‘‘(A) to schools and agencies serving deaf-blind children
and their families;
‘‘(B) to programs and agencies serving other groups
of children with low incidence disabilities and their families;
‘‘(C) addressing the postsecondary education needs of
individuals who are deaf or hard-of-hearing; and
‘‘(D) to schools and personnel providing special education
and related services for children with autism spectrum
disorders;
‘‘(9) demonstrating models of personnel preparation to
ensure appropriate placements and services for all students
and to reduce disproportionality in eligibility, placement, and
disciplinary actions for minority and limited English proficient
children; and
‘‘(10) disseminating information on how to reduce inappropriate
racial and ethnic disproportionalities identified under
section 618.
‘‘(d) BALANCE AMONG ACTIVITIES AND AGE RANGES.—In carrying
out this section, the Secretary shall ensure that there is an appropriate
balance across all age ranges of children with disabilities.
‘‘(e) LINKING STATES TO INFORMATION SOURCES.—In carrying
out this section, the Secretary shall support projects that link
States to technical assistance resources, including special education
and general education resources, and shall make research and
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2783
related products available through libraries, electronic networks,
parent training projects, and other information sources, including
through the activities of the National Center for Education Evaluation
and Regional Assistance established under part D of the Education
Sciences Reform Act of 2002.
‘‘(f) APPLICATIONS.—
‘‘(1) IN GENERAL.—An eligible entity that wishes to receive
a grant, or enter into a contract or cooperative agreement,
under this section shall submit an application to the Secretary
at such time, in such manner, and containing such information
as the Secretary may require.
‘‘(2) STANDARDS.—To the maximum extent feasible, each
eligible entity shall demonstrate that the project described in
the eligible entity’s application is supported by scientifically
valid research that has been carried out in accordance with
the standards for the conduct and evaluation of all relevant
research and development established by the National Center
for Education Research.
‘‘(3) PRIORITY.—As appropriate, the Secretary shall give
priority to applications that propose to serve teachers and school
personnel directly in the school environment.
‘‘SEC. 664. STUDIES AND EVALUATIONS.
‘‘(a) STUDIES AND EVALUATIONS.—
‘‘(1) DELEGATION.—The Secretary shall delegate to the
Director of the Institute of Education Sciences responsibility
to carry out this section, other than subsections (d) and (f).
‘‘(2) ASSESSMENT.—The Secretary shall, directly or through
grants, contracts, or cooperative agreements awarded to eligible
entities on a competitive basis, assess the progress in the
implementation of this title, including the effectiveness of State
and local efforts to provide—
‘‘(A) a free appropriate public education to children
with disabilities; and
‘‘(B) early intervention services to infants and toddlers
with disabilities, and infants and toddlers who would be
at risk of having substantial developmental delays if early
intervention services were not provided to the infants and
toddlers.
‘‘(b) ASSESSMENT OF NATIONAL ACTIVITIES.—
‘‘(1) IN GENERAL.—The Secretary shall carry out a national
assessment of activities carried out with Federal funds under
this title in order—
‘‘(A) to determine the effectiveness of this title in
achieving the purposes of this title;
‘‘(B) to provide timely information to the President,
Congress, the States, local educational agencies, and the
public on how to implement this title more effectively;
and
‘‘(C) to provide the President and Congress with
information that will be useful in developing legislation
to achieve the purposes of this title more effectively.
‘‘(2) SCOPE OF ASSESSMENT.—The national assessment shall
assess activities supported under this title, including—
‘‘(A) the implementation of programs assisted under
this title and the impact of such programs on addressing
the developmental needs of, and improving the academic
20 USC 1464.
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118 STAT. 2784 PUBLIC LAW 108–446—DEC. 3, 2004
achievement of, children with disabilities to enable the
children to reach challenging developmental goals and challenging
State academic content standards based on State
academic assessments;
‘‘(B) the types of programs and services that have
demonstrated the greatest likelihood of helping students
reach the challenging State academic content standards
and developmental goals;
‘‘(C) the implementation of the professional development
activities assisted under this title and the impact
on instruction, student academic achievement, and teacher
qualifications to enhance the ability of special education
teachers and regular education teachers to improve results
for children with disabilities; and
‘‘(D) the effectiveness of schools, local educational agencies,
States, other recipients of assistance under this title,
and the Secretary in achieving the purposes of this title
by—
‘‘(i) improving the academic achievement of children
with disabilities and their performance on regular
statewide assessments as compared to nondisabled
children, and the performance of children with disabilities
on alternate assessments;
‘‘(ii) improving the participation of children with
disabilities in the general education curriculum;
‘‘(iii) improving the transitions of children with
disabilities at natural transition points;
‘‘(iv) placing and serving children with disabilities,
including minority children, in the least restrictive
environment appropriate;
‘‘(v) preventing children with disabilities, especially
children with emotional disturbances and specific
learning disabilities, from dropping out of school;
‘‘(vi) addressing the reading and literacy needs
of children with disabilities;
‘‘(vii) reducing the inappropriate overidentification
of children, especially minority and limited English
proficient children, as having a disability;
‘‘(viii) improving the participation of parents of
children with disabilities in the education of their children;
and
‘‘(ix) resolving disagreements between education
personnel and parents through alternate dispute resolution
activities, including mediation.
‘‘(3) INTERIM AND FINAL REPORTS.—The Secretary shall
submit to the President and Congress—
‘‘(A) an interim report that summarizes the preliminary
findings of the assessment not later than 3 years after
the date of enactment of the Individuals with Disabilities
Education Improvement Act of 2004; and
‘‘(B) a final report of the findings of the assessment
not later than 5 years after the date of enactment of
such Act.
‘‘(c) STUDY ON ENSURING ACCOUNTABILITY FOR STUDENTS WHO
ARE HELD TO ALTERNATIVE ACHIEVEMENT STANDARDS.—The Secretary
shall carry out a national study or studies to examine—
‘‘(1) the criteria that States use to determine—
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2785
‘‘(A) eligibility for alternate assessments; and
‘‘(B) the number and type of children who take those
assessments and are held accountable to alternative
achievement standards;
‘‘(2) the validity and reliability of alternate assessment
instruments and procedures;
‘‘(3) the alignment of alternate assessments and alternative
achievement standards to State academic content standards
in reading, mathematics, and science; and
‘‘(4) the use and effectiveness of alternate assessments
in appropriately measuring student progress and outcomes specific
to individualized instructional need.
‘‘(d) ANNUAL REPORT.—The Secretary shall provide an annual
report to Congress that—
‘‘(1) summarizes the research conducted under part E of
the Education Sciences Reform Act of 2002;
‘‘(2) analyzes and summarizes the data reported by the
States and the Secretary of the Interior under section 618;
‘‘(3) summarizes the studies and evaluations conducted
under this section and the timeline for their completion;
‘‘(4) describes the extent and progress of the assessment
of national activities; and
‘‘(5) describes the findings and determinations resulting
from reviews of State implementation of this title.
‘‘(e) AUTHORIZED ACTIVITIES.—In carrying out this section, the
Secretary may support objective studies, evaluations, and assessments,
including studies that—
‘‘(1) analyze measurable impact, outcomes, and results
achieved by State educational agencies and local educational
agencies through their activities to reform policies, procedures,
and practices designed to improve educational and transitional
services and results for children with disabilities;
‘‘(2) analyze State and local needs for professional development,
parent training, and other appropriate activities that
can reduce the need for disciplinary actions involving children
with disabilities;
‘‘(3) assess educational and transitional services and results
for children with disabilities from minority backgrounds,
including—
‘‘(A) data on—
‘‘(i) the number of minority children who are
referred for special education evaluation;
‘‘(ii) the number of minority children who are
receiving special education and related services and
their educational or other service placement;
‘‘(iii) the number of minority children who graduated
from secondary programs with a regular diploma
in the standard number of years; and
‘‘(iv) the number of minority children who drop
out of the educational system; and
‘‘(B) the performance of children with disabilities from
minority backgrounds on State assessments and other
performance indicators established for all students;
‘‘(4) measure educational and transitional services and
results for children with disabilities served under this title,
including longitudinal studies that—
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118 STAT. 2786 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(A) examine educational and transitional services and
results for children with disabilities who are 3 through
17 years of age and are receiving special education and
related services under this title, using a national, representative
sample of distinct age cohorts and disability
categories; and
‘‘(B) examine educational results, transition services,
postsecondary placement, and employment status for
individuals with disabilities, 18 through 21 years of age,
who are receiving or have received special education and
related services under this title; and
‘‘(5) identify and report on the placement of children with
disabilities by disability category.
‘‘(f) STUDY.—The Secretary shall study, and report to Congress
regarding, the extent to which States adopt policies described in
section 635(c)(1) and on the effects of those policies.
‘‘SEC. 665. INTERIM ALTERNATIVE EDUCATIONAL SETTINGS, BEHAVIORAL
SUPPORTS, AND SYSTEMIC SCHOOL INTERVENTIONS.
‘‘(a) PROGRAM AUTHORIZED.—The Secretary may award grants,
and enter into contracts and cooperative agreements, to support
safe learning environments that support academic achievement for
all students by—
‘‘(1) improving the quality of interim alternative educational
settings; and
‘‘(2) providing increased behavioral supports and researchbased,
systemic interventions in schools.
‘‘(b) AUTHORIZED ACTIVITIES.—In carrying out this section, the
Secretary may support activities to—
‘‘(1) establish, expand, or increase the scope of behavioral
supports and systemic interventions by providing for effective,
research-based practices, including—
‘‘(A) training for school staff on early identification,
prereferral, and referral procedures;
‘‘(B) training for administrators, teachers, related services
personnel, behavioral specialists, and other school staff
in positive behavioral interventions and supports, behavioral
intervention planning, and classroom and student
management techniques;
‘‘(C) joint training for administrators, parents, teachers,
related services personnel, behavioral specialists, and other
school staff on effective strategies for positive behavioral
interventions and behavior management strategies that
focus on the prevention of behavior problems;
‘‘(D) developing or implementing specific curricula, programs,
or interventions aimed at addressing behavioral
problems;
‘‘(E) stronger linkages between school-based services
and community-based resources, such as community mental
health and primary care providers; or
‘‘(F) using behavioral specialists, related services personnel,
and other staff necessary to implement behavioral
supports; or
‘‘(2) improve interim alternative educational settings by—
‘‘(A) improving the training of administrators, teachers,
related services personnel, behavioral specialists, and other
20 USC 1465.
Reports.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2787
school staff (including ongoing mentoring of new teachers)
in behavioral supports and interventions;
‘‘(B) attracting and retaining a high quality, diverse
staff;
‘‘(C) providing for referral to counseling services;
‘‘(D) utilizing research-based interventions, curriculum,
and practices;
‘‘(E) allowing students to use instructional technology
that provides individualized instruction;
‘‘(F) ensuring that the services are fully consistent
with the goals of the individual student’s IEP;
‘‘(G) promoting effective case management and
collaboration among parents, teachers, physicians, related
services personnel, behavioral specialists, principals,
administrators, and other school staff;
‘‘(H) promoting interagency coordination and coordinated
service delivery among schools, juvenile courts, child
welfare agencies, community mental health providers, primary
care providers, public recreation agencies, and
community-based organizations; or
‘‘(I) providing for behavioral specialists to help students
transitioning from interim alternative educational settings
reintegrate into their regular classrooms.
‘‘(c) DEFINITION OF ELIGIBLE ENTITY.—In this section, the term
‘‘eligible entity’’ means—
‘‘(1) a local educational agency; or
‘‘(2) a consortium consisting of a local educational agency
and 1 or more of the following entities:
‘‘(A) Another local educational agency.
‘‘(B) A community-based organization with a demonstrated
record of effectiveness in helping children with
disabilities who have behavioral challenges succeed.
‘‘(C) An institution of higher education.
‘‘(D) A community mental health provider.
‘‘(E) An educational service agency.
‘‘(d) APPLICATIONS.—Any eligible entity that wishes to receive
a grant, or enter into a contract or cooperative agreement, under
this section shall—
‘‘(1) submit an application to the Secretary at such time,
in such manner, and containing such information as the Secretary
may require; and
‘‘(2) involve parents of participating students in the design
and implementation of the activities funded under this section.
‘‘(e) REPORT AND EVALUATION.—Each eligible entity receiving
a grant under this section shall prepare and submit annually to
the Secretary a report on the outcomes of the activities assisted
under the grant.
‘‘SEC. 667. AUTHORIZATION OF APPROPRIATIONS.
‘‘(a) IN GENERAL.—There are authorized to be appropriated
to carry out this subpart (other than section 662) such sums as
may be necessary for each of the fiscal years 2005 through 2010.
‘‘(b) RESERVATION.—From amounts appropriated under subsection
(a) for fiscal year 2005, the Secretary shall reserve
$1,000,000 to carry out the study authorized in section 664(c).
From amounts appropriated under subsection (a) for a succeeding
fiscal year, the Secretary may reserve an additional amount to
20 USC 1466.
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118 STAT. 2788 PUBLIC LAW 108–446—DEC. 3, 2004
carry out such study if the Secretary determines the additional
amount is necessary.
‘‘Subpart 3—Supports To Improve Results for
Children With Disabilities
‘‘SEC. 670. PURPOSES.
‘‘The purposes of this subpart are to ensure that—
‘‘(1) children with disabilities and their parents receive
training and information designed to assist the children in
meeting developmental and functional goals and challenging
academic achievement goals, and in preparing to lead productive
independent adult lives;
‘‘(2) children with disabilities and their parents receive
training and information on their rights, responsibilities, and
protections under this title, in order to develop the skills necessary
to cooperatively and effectively participate in planning
and decision making relating to early intervention, educational,
and transitional services;
‘‘(3) parents, teachers, administrators, early intervention
personnel, related services personnel, and transition personnel
receive coordinated and accessible technical assistance and
information to assist such personnel in improving early intervention,
educational, and transitional services and results for
children with disabilities and their families; and
‘‘(4) appropriate technology and media are researched,
developed, and demonstrated, to improve and implement early
intervention, educational, and transitional services and results
for children with disabilities and their families.
‘‘SEC. 671. PARENT TRAINING AND INFORMATION CENTERS.
‘‘(a) PROGRAM AUTHORIZED.—
‘‘(1) IN GENERAL.—The Secretary may award grants to,
and enter into contracts and cooperative agreements with,
parent organizations to support parent training and information
centers to carry out activities under this section.
‘‘(2) DEFINITION OF PARENT ORGANIZATION.—In this section,
the term ‘parent organization’ means a private nonprofit
organization (other than an institution of higher education)
that—
‘‘(A) has a board of directors—
‘‘(i) the majority of whom are parents of children
with disabilities ages birth through 26;
‘‘(ii) that includes—
‘‘(I) individuals working in the fields of special
education, related services, and early intervention;
and
‘‘(II) individuals with disabilities; and
‘‘(iii) the parent and professional members of which
are broadly representative of the population to be
served, including low-income parents and parents of
limited English proficient children; and
‘‘(B) has as its mission serving families of children
with disabilities who—
‘‘(i) are ages birth through 26; and
‘‘(ii) have the full range of disabilities described
in section 602(3).
20 USC 1471.
20 USC 1470.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2789
‘‘(b) REQUIRED ACTIVITIES.—Each parent training and information
center that receives assistance under this section shall—
‘‘(1) provide training and information that meets the needs
of parents of children with disabilities living in the area served
by the center, particularly underserved parents and parents
of children who may be inappropriately identified, to enable
their children with disabilities to—
‘‘(A) meet developmental and functional goals, and
challenging academic achievement goals that have been
established for all children; and
‘‘(B) be prepared to lead productive independent adult
lives, to the maximum extent possible;
‘‘(2) serve the parents of infants, toddlers, and children
with the full range of disabilities described in section 602(3);
‘‘(3) ensure that the training and information provided
meets the needs of low-income parents and parents of limited
English proficient children;
‘‘(4) assist parents to—
‘‘(A) better understand the nature of their children’s
disabilities and their educational, developmental, and
transitional needs;
‘‘(B) communicate effectively and work collaboratively
with personnel responsible for providing special education,
early intervention services, transition services, and related
services;
‘‘(C) participate in decisionmaking processes and the
development of individualized education programs under
part B and individualized family service plans under part
C;
‘‘(D) obtain appropriate information about the range,
type, and quality of—
‘‘(i) options, programs, services, technologies, practices
and interventions based on scientifically based
research, to the extent practicable; and
‘‘(ii) resources available to assist children with
disabilities and their families in school and at home;
‘‘(E) understand the provisions of this title for the
education of, and the provision of early intervention services
to, children with disabilities;
‘‘(F) participate in activities at the school level that
benefit their children; and
‘‘(G) participate in school reform activities;
‘‘(5) in States where the State elects to contract with the
parent training and information center, contract with State
educational agencies to provide, consistent with subparagraphs
(B) and (D) of section 615(e)(2), individuals who meet with
parents to explain the mediation process to the parents;
‘‘(6) assist parents in resolving disputes in the most expeditious
and effective way possible, including encouraging the
use, and explaining the benefits, of alternative methods of
dispute resolution, such as the mediation process described
in section 615(e);
‘‘(7) assist parents and students with disabilities to understand
their rights and responsibilities under this title, including
those under section 615(m) upon the student’s reaching the
age of majority (as appropriate under State law);
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118 STAT. 2790 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(8) assist parents to understand the availability of, and
how to effectively use, procedural safeguards under this title,
including the resolution session described in section 615(e);
‘‘(9) assist parents in understanding, preparing for, and
participating in, the process described in section 615(f)(1)(B);
‘‘(10) establish cooperative partnerships with community
parent resource centers funded under section 672;
‘‘(11) network with appropriate clearinghouses, including
organizations conducting national dissemination activities
under section 663 and the Institute of Education Sciences,
and with other national, State, and local organizations and
agencies, such as protection and advocacy agencies, that serve
parents and families of children with the full range of disabilities
described in section 602(3); and
‘‘(12) annually report to the Secretary on—
‘‘(A) the number and demographics of parents to whom
the center provided information and training in the most
recently concluded fiscal year;
‘‘(B) the effectiveness of strategies used to reach and
serve parents, including underserved parents of children
with disabilities; and
‘‘(C) the number of parents served who have resolved
disputes through alternative methods of dispute resolution.
‘‘(c) OPTIONAL ACTIVITIES.—A parent training and information
center that receives assistance under this section may provide
information to teachers and other professionals to assist the
teachers and professionals in improving results for children with
disabilities.
‘‘(d) APPLICATION REQUIREMENTS.—Each application for assistance
under this section shall identify with specificity the special
efforts that the parent organization will undertake—
‘‘(1) to ensure that the needs for training and information
of underserved parents of children with disabilities in the area
to be served are effectively met; and
‘‘(2) to work with community based organizations, including
community based organizations that work with low-income parents
and parents of limited English proficient children.
‘‘(e) DISTRIBUTION OF FUNDS.—
‘‘(1) IN GENERAL.—The Secretary shall—
‘‘(A) make not less than 1 award to a parent organization
in each State for a parent training and information
center that is designated as the statewide parent training
and information center; or
‘‘(B) in the case of a large State, make awards to
multiple parent training and information centers, but only
if the centers demonstrate that coordinated services and
supports will occur among the multiple centers.
‘‘(2) SELECTION REQUIREMENT.—The Secretary shall select
among applications submitted by parent organizations in a
State in a manner that ensures the most effective assistance
to parents, including parents in urban and rural areas, in
the State.
‘‘(f) QUARTERLY REVIEW.—
‘‘(1) MEETINGS.—The board of directors of each parent
organization that receives an award under this section shall
meet not less than once in each calendar quarter to review
the activities for which the award was made.
Reports.
Deadlines.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2791
‘‘(2) CONTINUATION AWARD.—When a parent organization
requests a continuation award under this section, the board
of directors shall submit to the Secretary a written review
of the parent training and information program conducted by
the parent organization during the preceding fiscal year.
‘‘SEC. 672. COMMUNITY PARENT RESOURCE CENTERS.
‘‘(a) PROGRAM AUTHORIZED.—
‘‘(1) IN GENERAL.—The Secretary may award grants to,
and enter into contracts and cooperative agreements with, local
parent organizations to support community parent resource
centers that will help ensure that underserved parents of children
with disabilities, including low income parents, parents
of limited English proficient children, and parents with disabilities,
have the training and information the parents need to
enable the parents to participate effectively in helping their
children with disabilities—
‘‘(A) to meet developmental and functional goals, and
challenging academic achievement goals that have been
established for all children; and
‘‘(B) to be prepared to lead productive independent
adult lives, to the maximum extent possible.
‘‘(2) DEFINITION OF LOCAL PARENT ORGANIZATION.—In this
section, the term ‘local parent organization’ means a parent
organization, as defined in section 671(a)(2), that—
‘‘(A) has a board of directors the majority of whom
are parents of children with disabilities ages birth through
26 from the community to be served; and
‘‘(B) has as its mission serving parents of children
with disabilities who—
‘‘(i) are ages birth through 26; and
‘‘(ii) have the full range of disabilities described
in section 602(3).
‘‘(b) REQUIRED ACTIVITIES.—Each community parent resource
center assisted under this section shall—
‘‘(1) provide training and information that meets the
training and information needs of parents of children with
disabilities proposed to be served by the grant, contract, or
cooperative agreement;
‘‘(2) carry out the activities required of parent training
and information centers under paragraphs (2) through (9) of
section 671(b);
‘‘(3) establish cooperative partnerships with the parent
training and information centers funded under section 671;
and
‘‘(4) be designed to meet the specific needs of families
who experience significant isolation from available sources of
information and support.
‘‘SEC. 673. TECHNICAL ASSISTANCE FOR PARENT TRAINING AND
INFORMATION CENTERS.
‘‘(a) PROGRAM AUTHORIZED.—
‘‘(1) IN GENERAL.—The Secretary may, directly or through
awards to eligible entities, provide technical assistance for
developing, assisting, and coordinating parent training and
information programs carried out by parent training and
information centers receiving assistance under section 671 and
20 USC 1473.
20 USC 1472.
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118 STAT. 2792 PUBLIC LAW 108–446—DEC. 3, 2004
community parent resource centers receiving assistance under
section 672.
‘‘(2) DEFINITION OF ELIGIBLE ENTITY.—In this section, the
term ‘eligible entity’ has the meaning given the term in section
661(b).
‘‘(b) AUTHORIZED ACTIVITIES.—The Secretary may provide technical
assistance to a parent training and information center or
a community parent resource center under this section in areas
such as—
‘‘(1) effective coordination of parent training efforts;
‘‘(2) dissemination of scientifically based research and
information;
‘‘(3) promotion of the use of technology, including assistive
technology devices and assistive technology services;
‘‘(4) reaching underserved populations, including parents
of low-income and limited English proficient children with
disabilities;
‘‘(5) including children with disabilities in general education
programs;
‘‘(6) facilitation of transitions from—
‘‘(A) early intervention services to preschool;
‘‘(B) preschool to elementary school;
‘‘(C) elementary school to secondary school; and
‘‘(D) secondary school to postsecondary environments;
and
‘‘(7) promotion of alternative methods of dispute resolution,
including mediation.
‘‘(c) COLLABORATION WITH THE RESOURCE CENTERS.—Each
eligible entity receiving an award under subsection (a) shall develop
collaborative agreements with the geographically appropriate
regional resource center and, as appropriate, the regional educational
laboratory supported under section 174 of the Education
Sciences Reform Act of 2002, to further parent and professional
collaboration.
‘‘SEC. 674. TECHNOLOGY DEVELOPMENT, DEMONSTRATION, AND UTILIZATION;
MEDIA SERVICES; AND INSTRUCTIONAL MATERIALS.
‘‘(a) PROGRAM AUTHORIZED.—
‘‘(1) IN GENERAL.—The Secretary, on a competitive basis,
shall award grants to, and enter into contracts and cooperative
agreements with, eligible entities to support activities described
in subsections (b) and (c).
‘‘(2) DEFINITION OF ELIGIBLE ENTITY.—In this section, the
term ‘eligible entity’ has the meaning given the term in section
661(b).
‘‘(b) TECHNOLOGY DEVELOPMENT, DEMONSTRATION, AND USE.—
‘‘(1) IN GENERAL.—In carrying out this section, the Secretary
shall support activities to promote the development,
demonstration, and use of technology.
‘‘(2) AUTHORIZED ACTIVITIES.—The following activities may
be carried out under this subsection:
‘‘(A) Conducting research on and promoting the demonstration
and use of innovative, emerging, and universally
designed technologies for children with disabilities, by
improving the transfer of technology from research and
development to practice.
Grants.
Contracts.
20 USC 1474.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2793
‘‘(B) Supporting research, development, and dissemination
of technology with universal design features, so that
the technology is accessible to the broadest range of individuals
with disabilities without further modification or
adaptation.
‘‘(C) Demonstrating the use of systems to provide parents
and teachers with information and training concerning
early diagnosis of, intervention for, and effective teaching
strategies for, young children with reading disabilities.
‘‘(D) Supporting the use of Internet-based communications
for students with cognitive disabilities in order to
maximize their academic and functional skills.
‘‘(c) EDUCATIONAL MEDIA SERVICES.—
‘‘(1) IN GENERAL.—In carrying out this section, the Secretary
shall support—
‘‘(A) educational media activities that are designed to
be of educational value in the classroom setting to children
with disabilities;
‘‘(B) providing video description, open captioning, or
closed captioning, that is appropriate for use in the classroom
setting, of—
‘‘(i) television programs;
‘‘(ii) videos;
‘‘(iii) other materials, including programs and
materials associated with new and emerging technologies,
such as CDs, DVDs, video streaming, and
other forms of multimedia; or
‘‘(iv) news (but only until September 30, 2006);
‘‘(C) distributing materials described in subparagraphs
(A) and (B) through such mechanisms as a loan service;
and
‘‘(D) providing free educational materials, including
textbooks, in accessible media for visually impaired and
print disabled students in elementary schools and secondary
schools, postsecondary schools, and graduate
schools.
‘‘(2) LIMITATION.—The video description, open captioning,
or closed captioning described in paragraph (1)(B) shall be
provided only when the description or captioning has not been
previously provided by the producer or distributor, or has not
been fully funded by other sources.
‘‘(d) APPLICATIONS.—
‘‘(1) IN GENERAL.—Any eligible entity that wishes to receive
a grant, or enter into a contract or cooperative agreement,
under subsection (b) or (c) shall submit an application to the
Secretary at such time, in such manner, and containing such
information as the Secretary may require.
‘‘(2) SPECIAL RULE.—For the purpose of an application for
an award to carry out activities described in subsection (c)(1)(D),
such eligible entity shall—
‘‘(A) be a national, nonprofit entity with a proven track
record of meeting the needs of students with print disabilities
through services described in subsection (c)(1)(D);
‘‘(B) have the capacity to produce, maintain, and distribute
in a timely fashion, up-to-date textbooks in digital
audio formats to qualified students; and
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118 STAT. 2794 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(C) have a demonstrated ability to significantly leverage
Federal funds through other public and private contributions,
as well as through the expansive use of volunteers.
‘‘(e) NATIONAL INSTRUCTIONAL MATERIALS ACCESS CENTER.—
‘‘(1) IN GENERAL.—The Secretary shall establish and support,
through the American Printing House for the Blind, a
center to be known as the ‘National Instructional Materials
Access Center’ not later than 1 year after the date of enactment
of the Individuals with Disabilities Education Improvement
Act of 2004.
‘‘(2) DUTIES.—The duties of the National Instructional
Materials Access Center are the following:
‘‘(A) To receive and maintain a catalog of print instructional
materials prepared in the National Instructional
Materials Accessibility Standard, as established by the Secretary,
made available to such center by the textbook publishing
industry, State educational agencies, and local educational
agencies.
‘‘(B) To provide access to print instructional materials,
including textbooks, in accessible media, free of charge,
to blind or other persons with print disabilities in
elementary schools and secondary schools, in accordance
with such terms and procedures as the National Instructional
Materials Access Center may prescribe.
‘‘(C) To develop, adopt and publish procedures to protect
against copyright infringement, with respect to the
print instructional materials provided under sections
612(a)(23) and 613(a)(6).
‘‘(3) DEFINITIONS.—In this subsection:
‘‘(A) BLIND OR OTHER PERSONS WITH PRINT DISABILITIES.—
The term ‘blind or other persons with print disabilities’
means children served under this Act and who may
qualify in accordance with the Act entitled ‘An Act to
provide books for the adult blind’, approved March 3, 1931
(2 U.S.C. 135a; 46 Stat. 1487) to receive books and other
publications produced in specialized formats.
‘‘(B) NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY
STANDARD.—The term ‘National Instructional Materials
Accessibility Standard’ means the standard established
by the Secretary to be used in the preparation of
electronic files suitable and used solely for efficient conversion
into specialized formats.
‘‘(C) PRINT INSTRUCTIONAL MATERIALS.—The term ‘print
instructional materials’ means printed textbooks and
related printed core materials that are written and published
primarily for use in elementary school and secondary
school instruction and are required by a State educational
agency or local educational agency for use by students
in the classroom.
‘‘(D) SPECIALIZED FORMATS.—The term ‘specialized formats’
has the meaning given the term in section 121(d)(3)
of title 17, United States Code.
‘‘(4) APPLICABILITY.—This subsection shall apply to print
instructional materials published after the date on which the
final rule establishing the National Instructional Materials
Accessibility Standard was published in the Federal Register.
Establishment.
Deadline.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2795
‘‘(5) LIABILITY OF THE SECRETARY.—Nothing in this subsection
shall be construed to establish a private right of action
against the Secretary for failure to provide instructional materials
directly, or for failure by the National Instructional Materials
Access Center to perform the duties of such center, or
to otherwise authorize a private right of action related to the
performance by such center, including through the application
of the rights of children and parents established under this
Act.
‘‘(6) INAPPLICABILITY.—Subsections (a) through (d) shall not
apply to this subsection.
‘‘SEC. 675. AUTHORIZATION OF APPROPRIATIONS.
‘‘There are authorized to be appropriated to carry out this
subpart such sums as may be necessary for each of the fiscal
years 2005 through 2010.
‘‘Subpart 4—General Provisions
‘‘SEC. 681. COMPREHENSIVE PLAN FOR SUBPARTS 2 AND 3.
‘‘(a) COMPREHENSIVE PLAN.—
‘‘(1) IN GENERAL.—After receiving input from interested
individuals with relevant expertise, the Secretary shall develop
and implement a comprehensive plan for activities carried out
under subparts 2 and 3 in order to enhance the provision
of early intervention services, educational services, related services,
and transitional services to children with disabilities under
parts B and C. To the extent practicable, the plan shall be
coordinated with the plan developed pursuant to section 178(c)
of the Education Sciences Reform Act of 2002 and shall include
mechanisms to address early intervention, educational, related
service and transitional needs identified by State educational
agencies in applications submitted for State personnel development
grants under subpart 1 and for grants under subparts
2 and 3.
‘‘(2) PUBLIC COMMENT.—The Secretary shall provide a
public comment period of not less than 45 days on the plan.
‘‘(3) DISTRIBUTION OF FUNDS.—In implementing the plan,
the Secretary shall, to the extent appropriate, ensure that
funds awarded under subparts 2 and 3 are used to carry out
activities that benefit, directly or indirectly, children with the
full range of disabilities and of all ages.
‘‘(4) REPORTS TO CONGRESS.—The Secretary shall annually
report to Congress on the Secretary’s activities under subparts
2 and 3, including an initial report not later than 12 months
after the date of enactment of the Individuals with Disabilities
Education Improvement Act of 2004.
‘‘(b) ASSISTANCE AUTHORIZED.—The Secretary is authorized to
award grants to, or enter into contracts or cooperative agreements
with, eligible entities to enable the eligible entities to carry out
the purposes of such subparts in accordance with the comprehensive
plan described in subsection (a).
‘‘(c) SPECIAL POPULATIONS.—
‘‘(1) APPLICATION REQUIREMENT.—In making an award of
a grant, contract, or cooperative agreement under subpart 2
or 3, the Secretary shall, as appropriate, require an eligible
20 USC 1481.
20 USC 1475.
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118 STAT. 2796 PUBLIC LAW 108–446—DEC. 3, 2004
entity to demonstrate how the eligible entity will address the
needs of children with disabilities from minority backgrounds.
‘‘(2) REQUIRED OUTREACH AND TECHNICAL ASSISTANCE.—
Notwithstanding any other provision of this title, the Secretary
shall reserve not less than 2 percent of the total amount of
funds appropriated to carry out subparts 2 and 3 for either
or both of the following activities:
‘‘(A) Providing outreach and technical assistance to
historically Black colleges and universities, and to institutions
of higher education with minority enrollments of not
less than 25 percent, to promote the participation of such
colleges, universities, and institutions in activities under
this subpart.
‘‘(B) Enabling historically Black colleges and universities,
and the institutions described in subparagraph (A),
to assist other colleges, universities, institutions, and agencies
in improving educational and transitional results for
children with disabilities, if the historically Black colleges
and universities and the institutions of higher education
described in subparagraph (A) meet the criteria established
by the Secretary under this subpart.
‘‘(d) PRIORITIES.—The Secretary, in making an award of a grant,
contract, or cooperative agreement under subpart 2 or 3, may,
without regard to the rulemaking procedures under section 553
of title 5, United States Code, limit competitions to, or otherwise
give priority to—
‘‘(1) projects that address 1 or more—
‘‘(A) age ranges;
‘‘(B) disabilities;
‘‘(C) school grades;
‘‘(D) types of educational placements or early intervention
environments;
‘‘(E) types of services;
‘‘(F) content areas, such as reading; or
‘‘(G) effective strategies for helping children with
disabilities learn appropriate behavior in the school and
other community based educational settings;
‘‘(2) projects that address the needs of children based on
the severity or incidence of their disability;
‘‘(3) projects that address the needs of—
‘‘(A) low achieving students;
‘‘(B) underserved populations;
‘‘(C) children from low income families;
‘‘(D) limited English proficient children;
‘‘(E) unserved and underserved areas;
‘‘(F) rural or urban areas;
‘‘(G) children whose behavior interferes with their
learning and socialization;
‘‘(H) children with reading difficulties;
‘‘(I) children in public charter schools;
‘‘(J) children who are gifted and talented; or
‘‘(K) children with disabilities served by local educational
agencies that receive payments under title VIII
of the Elementary and Secondary Education Act of 1965;
‘‘(4) projects to reduce inappropriate identification of children
as children with disabilities, particularly among minority
children;
Historically
Black colleges
and universities.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2797
‘‘(5) projects that are carried out in particular areas of
the country, to ensure broad geographic coverage;
‘‘(6) projects that promote the development and use of technologies
with universal design, assistive technology devices,
and assistive technology services to maximize children with
disabilities’ access to and participation in the general education
curriculum; and
‘‘(7) any activity that is authorized in subpart 2 or 3.
‘‘(e) ELIGIBILITY FOR FINANCIAL ASSISTANCE.—No State or local
educational agency, or other public institution or agency, may
receive a grant or enter into a contract or cooperative agreement
under subpart 2 or 3 that relates exclusively to programs, projects,
and activities pertaining to children aged 3 through 5, inclusive,
unless the State is eligible to receive a grant under section 619(b).
‘‘SEC. 682. ADMINISTRATIVE PROVISIONS.
‘‘(a) APPLICANT AND RECIPIENT RESPONSIBILITIES.—
‘‘(1) DEVELOPMENT AND ASSESSMENT OF PROJECTS.—The
Secretary shall require that an applicant for, and a recipient
of, a grant, contract, or cooperative agreement for a project
under subpart 2 or 3—
‘‘(A) involve individuals with disabilities or parents
of individuals with disabilities ages birth through 26 in
planning, implementing, and evaluating the project; and
‘‘(B) where appropriate, determine whether the project
has any potential for replication and adoption by other
entities.
‘‘(2) ADDITIONAL RESPONSIBILITIES.—The Secretary may
require a recipient of a grant, contract, or cooperative agreement
under subpart 2 or 3 to—
‘‘(A) share in the cost of the project;
‘‘(B) prepare any findings and products from the project
in formats that are useful for specific audiences, including
parents, administrators, teachers, early intervention personnel,
related services personnel, and individuals with
disabilities;
‘‘(C) disseminate such findings and products; and
‘‘(D) collaborate with other such recipients in carrying
out subparagraphs (B) and (C).
‘‘(b) APPLICATION MANAGEMENT.—
‘‘(1) STANDING PANEL.—
‘‘(A) IN GENERAL.—The Secretary shall establish and
use a standing panel of experts who are qualified, by virtue
of their training, expertise, or experience, to evaluate each
application under subpart 2 or 3 that requests more than
$75,000 per year in Federal financial assistance.
‘‘(B) MEMBERSHIP.—The standing panel shall include,
at a minimum—
‘‘(i) individuals who are representatives of institutions
of higher education that plan, develop, and carry
out high quality programs of personnel preparation;
‘‘(ii) individuals who design and carry out scientifically
based research targeted to the improvement of
special education programs and services;
20 USC 1482.
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118 STAT. 2798 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(iii) individuals who have recognized experience
and knowledge necessary to integrate and apply scientifically
based research findings to improve educational
and transitional results for children with
disabilities;
‘‘(iv) individuals who administer programs at the
State or local level in which children with disabilities
participate;
‘‘(v) individuals who prepare parents of children
with disabilities to participate in making decisions
about the education of their children;
‘‘(vi) individuals who establish policies that affect
the delivery of services to children with disabilities;
‘‘(vii) individuals who are parents of children with
disabilities ages birth through 26 who are benefiting,
or have benefited, from coordinated research, personnel
preparation, and technical assistance; and
‘‘(viii) individuals with disabilities.
‘‘(C) TERM.—No individual shall serve on the standing
panel for more than 3 consecutive years.
‘‘(2) PEER-REVIEW PANELS FOR PARTICULAR COMPETITIONS.—
‘‘(A) COMPOSITION.—The Secretary shall ensure that
each subpanel selected from the standing panel that
reviews an application under subpart 2 or 3 includes—
‘‘(i) individuals with knowledge and expertise on
the issues addressed by the activities described in the
application; and
‘‘(ii) to the extent practicable, parents of children
with disabilities ages birth through 26, individuals
with disabilities, and persons from diverse backgrounds.
‘‘(B) FEDERAL EMPLOYMENT LIMITATION.—A majority of
the individuals on each subpanel that reviews an application
under subpart 2 or 3 shall be individuals who are
not employees of the Federal Government.
‘‘(3) USE OF DISCRETIONARY FUNDS FOR ADMINISTRATIVE
PURPOSES.—
‘‘(A) EXPENSES AND FEES OF NON-FEDERAL PANEL MEMBERS.—
The Secretary may use funds available under subpart
2 or 3 to pay the expenses and fees of the panel
members who are not officers or employees of the Federal
Government.
‘‘(B) ADMINISTRATIVE SUPPORT.—The Secretary may use
not more than 1 percent of the funds appropriated to carry
out subpart 2 or 3 to pay non-Federal entities for administrative
support related to management of applications submitted
under subpart 2 or 3, respectively.
‘‘(c) PROGRAM EVALUATION.—The Secretary may use funds made
available to carry out subpart 2 or 3 to evaluate activities carried
out under subpart 2 or 3, respectively.
‘‘(d) MINIMUM FUNDING REQUIRED.—
‘‘(1) IN GENERAL.—Subject to paragraph (2), the Secretary
shall ensure that, for each fiscal year, not less than the following
amounts are provided under subparts 2 and 3 to address
the following needs:
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2799
‘‘(A) $12,832,000 to address the educational, related
services, transitional, and early intervention needs of children
with deaf-blindness.
‘‘(B) $4,000,000 to address the postsecondary, vocational,
technical, continuing, and adult education needs
of individuals with deafness.
‘‘(C) $4,000,000 to address the educational, related
services, and transitional needs of children with an emotional
disturbance and those who are at risk of developing
an emotional disturbance.
‘‘(2) RATABLE REDUCTION.—If the sum of the amount appropriated
to carry out subparts 2 and 3, and part E of the
Education Sciences Reform Act of 2002 for any fiscal year
is less than $130,000,000, the amounts listed in paragraph
(1) shall be ratably reduced for the fiscal year.’’.
TITLE II—NATIONAL CENTER FOR
SPECIAL EDUCATION RESEARCH
SEC. 201. NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH.
(a) AMENDMENT.—The Education Sciences Reform Act of 2002
(20 U.S.C. 9501 et seq.) is amended—
(1) by redesignating part E as part F; and
(2) by inserting after part D the following:
‘‘PART E—NATIONAL CENTER FOR SPECIAL
EDUCATION RESEARCH
‘‘SEC. 175. ESTABLISHMENT.
‘‘(a) ESTABLISHMENT.—There is established in the Institute a
National Center for Special Education Research (in this part
referred to as the ‘Special Education Research Center’).
‘‘(b) MISSION.—The mission of the Special Education Research
Center is—
‘‘(1) to sponsor research to expand knowledge and understanding
of the needs of infants, toddlers, and children with
disabilities in order to improve the developmental, educational,
and transitional results of such individuals;
‘‘(2) to sponsor research to improve services provided under,
and support the implementation of, the Individuals with
Disabilities Education Act (20 U.S.C. 1400 et seq.); and
‘‘(3) to evaluate the implementation and effectiveness of
the Individuals with Disabilities Education Act in coordination
with the National Center for Education Evaluation and
Regional Assistance.
‘‘(c) APPLICABILITY OF EDUCATION SCIENCES REFORM ACT OF
2002.—Parts A and F, and the standards for peer review of applications
and for the conduct and evaluation of research under sections
133(a) and 134, respectively, shall apply to the Secretary, the
Director, and the Commissioner in carrying out this part.
‘‘SEC. 176. COMMISSIONER FOR SPECIAL EDUCATION RESEARCH.
‘‘The Special Education Research Center shall be headed by
a Commissioner for Special Education Research (in this part
referred to as the ‘Special Education Research Commissioner’) who
20 USC 9567a.
20 USC 9567.
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118 STAT. 2800 PUBLIC LAW 108–446—DEC. 3, 2004
shall have substantial knowledge of the Special Education Research
Center’s activities, including a high level of expertise in the fields
of research, research management, and the education of children
with disabilities.
‘‘SEC. 177. DUTIES.
‘‘(a) GENERAL DUTIES.—The Special Education Research Center
shall carry out research activities under this part consistent with
the mission described in section 175(b), such as activities that—
‘‘(1) improve services provided under the Individuals with
Disabilities Education Act in order to improve—
‘‘(A) academic achievement, functional outcomes, and
educational results for children with disabilities; and
‘‘(B) developmental outcomes for infants or toddlers
with disabilities;
‘‘(2) identify scientifically based educational practices that
support learning and improve academic achievement, functional
outcomes, and educational results for all students with disabilities;
‘‘(3) examine the special needs of preschool aged children,
infants, and toddlers with disabilities, including factors that
may result in developmental delays;
‘‘(4) identify scientifically based related services and interventions
that promote participation and progress in the general
education curriculum and general education settings;
‘‘(5) improve the alignment, compatibility, and development
of valid and reliable assessments, including alternate assessments,
as required by section 1111(b) of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6311(b));
‘‘(6) examine State content standards and alternate assessments
for students with significant cognitive impairment in
terms of academic achievement, individualized instructional
need, appropriate education settings, and improved post-school
results;
‘‘(7) examine the educational, developmental, and transitional
needs of children with high incidence and low incidence
disabilities;
‘‘(8) examine the extent to which overidentification and
underidentification of children with disabilities occurs, and the
causes thereof;
‘‘(9) improve reading and literacy skills of children with
disabilities;
‘‘(10) examine and improve secondary and postsecondary
education and transitional outcomes and results for children
with disabilities;
‘‘(11) examine methods of early intervention for children
with disabilities, including children with multiple or complex
developmental delays;
‘‘(12) examine and incorporate universal design concepts
in the development of standards, assessments, curricula, and
instructional methods to improve educational and transitional
results for children with disabilities;
‘‘(13) improve the preparation of personnel, including early
intervention personnel, who provide educational and related
services to children with disabilities to increase the academic
achievement and functional performance of students with
disabilities;
20 USC 9567b.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2801
‘‘(14) examine the excess costs of educating a child with
a disability and expenses associated with high cost special
education and related services;
‘‘(15) help parents improve educational results for their
children, particularly related to transition issues;
‘‘(16) address the unique needs of children with significant
cognitive disabilities; and
‘‘(17) examine the special needs of limited English proficient
children with disabilities.
‘‘(b) STANDARDS.—The Special Education Research Commissioner
shall ensure that activities assisted under this section—
‘‘(1) conform to high standards of quality, integrity,
accuracy, validity, and reliability;
‘‘(2) are carried out in accordance with the standards for
the conduct and evaluation of all research and development
established by the National Center for Education Research;
and
‘‘(3) are objective, secular, neutral, and nonideological, and
are free of partisan political influence, and racial, cultural,
gender, regional, or disability bias.
‘‘(c) PLAN.—The Special Education Research Commissioner
shall propose to the Director a research plan, developed in collaboration
with the Assistant Secretary for Special Education and
Rehabilitative Services, that—
‘‘(1) is consistent with the priorities and mission of the
Institute and the mission of the Special Education Research
Center;
‘‘(2) is carried out, updated, and modified, as appropriate;
‘‘(3) is consistent with the purposes of the Individuals with
Disabilities Education Act;
‘‘(4) contains an appropriate balance across all age ranges
and types of children with disabilities;
‘‘(5) provides for research that is objective and uses measurable
indicators to assess its progress and results; and
‘‘(6) is coordinated with the comprehensive plan developed
under section 681 of the Individuals with Disabilities Education
Act.
‘‘(d) GRANTS, CONTRACTS, AND COOPERATIVE AGREEMENTS.—
‘‘(1) IN GENERAL.—In carrying out the duties under this
section, the Director may award grants to, or enter into contracts
or cooperative agreements with, eligible applicants.
‘‘(2) ELIGIBLE APPLICANTS.—Activities carried out under
this subsection through contracts, grants, or cooperative agreements
shall be carried out only by recipients with the ability
and capacity to conduct scientifically valid research.
‘‘(3) APPLICATIONS.—An eligible applicant that wishes to
receive a grant, or enter into a contract or cooperative agreement,
under this section shall submit an application to the
Director at such time, in such manner, and containing such
information as the Director may require.
‘‘(e) DISSEMINATION.—The Special Education Research Center
shall—
‘‘(1) synthesize and disseminate, through the National
Center for Education Evaluation and Regional Assistance, the
findings and results of special education research conducted
or supported by the Special Education Research Center; and
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118 STAT. 2802 PUBLIC LAW 108–446—DEC. 3, 2004
‘‘(2) assist the Director in the preparation of a biennial
report, as described in section 119.
‘‘(f) AUTHORIZATION OF APPROPRIATIONS.—There are authorized
to be appropriated to carry out this part such sums as may be
necessary for each of fiscal years 2005 through 2010.’’.
(b) CONFORMING AMENDMENTS.—
(1) AMENDMENTS TO THE TABLE OF CONTENTS.—The table
of contents in section 1 of the Act entitled ‘‘An Act to provide
for improvement of Federal education research, statistics,
evaluation, information, and dissemination, and for other purposes’’,
approved November 5, 2002 (116 Stat. 1940; Public
Law 107–279), is amended—
(A) by redesignating the item relating to part E as
the item relating to part F; and
(B) by inserting after the item relating to section 174
the following:
‘‘PART E—NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH
‘‘Sec. 175. Establishment.
‘‘Sec. 176. Commissioner for Special Education Research.
‘‘Sec. 177. Duties.’’.
(2) EDUCATION SCIENCES REFORM ACT OF 2002.—The Education
Sciences Reform Act of 2002 (20 U.S.C. 9501 et seq.)
is amended—
(A) in section 111(b)(1)(A) (20 U.S.C. 9511(b)(1)(A)),
by inserting ‘‘and special education’’ after ‘‘early childhood
education’’;
(B) in section 111(c)(3) (20 U.S.C. 9511(c)(3))—
(i) in subparagraph (B), by striking ‘‘and’’ after
the semicolon;
(ii) in subparagraph (C), by striking the period
and inserting ‘‘; and’’; and
(iii) by adding at the end the following:
‘‘(D) the National Center for Special Education
Research (as described in part E).’’;
(C) in section 115(a) (20 U.S.C. 9515(a)), by striking
‘‘including those’’ and all that follows through ‘‘such as’’
and inserting ‘‘including those associated with the goals
and requirements of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 6301 et seq.), the Individuals
with Disabilities Education Act (20 U.S.C. 1400 et seq.),
and the Higher Education Act of 1965 (20 U.S.C. 1001
et seq.), such as’’; and
(D) in section 116(c)(4)(A)(ii) (20 U.S.C.
9516(c)(4)(A)(ii), by inserting ‘‘special education experts,’’
after ‘‘early childhood experts,’’.
(3) ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965.—
Section 1117(a)(3) of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 6317(a)(3)) is amended by striking ‘‘part
E’’ and inserting ‘‘part D’’.
SEC. 202. NATIONAL BOARD FOR EDUCATION SCIENCES.
Section 116(c)(9) of the Education Sciences Reform Act of 2002
(20 U.S.C. 9516(c)(9)) is amended by striking the third sentence
and inserting the following: ‘‘Meetings of the Board are subject
to section 552b of title 5, United States Code (commonly referred
to as the Government in the Sunshine Act).’’.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2803
SEC. 203. REGIONAL ADVISORY COMMITTEES.
Section 206(d)(3) of the Educational Technical Assistance Act
of 2002 (20 U.S.C. 9605(d)(3)) is amended by striking ‘‘Academy’’
and inserting ‘‘Institute’’.
TITLE III—MISCELLANEOUS
PROVISIONS
SEC. 301. AMENDMENT TO CHILDREN’S HEALTH ACT OF 2000.
Section 1004 of the Children’s Health Act of 2000 (42 U.S.C.
285g note) is amended—
(1) in subsection (b), by striking ‘‘Agency’’ and inserting
‘‘Agency, and the Department of Education’’; and
(2) in subsection (c)—
(A) in paragraph (2), by striking ‘‘and’’ after the semicolon;
(B) in paragraph (3), by striking the period at the
end and inserting ‘‘; and’’; and
(C) by adding at the end the following:
‘‘(4) be conducted in compliance with section 444 of the
General Education Provisions Act (20 U.S.C. 1232g), including
the requirement of prior parental consent for the disclosure
of any education records, except without the use of authority
or exceptions granted to authorized representatives of the Secretary
of Education for the evaluation of Federally-supported
education programs or in connection with the enforcement of
the Federal legal requirements that relate to such programs.’’.
SEC. 302. EFFECTIVE DATES.
(a) PARTS A, B, AND C, AND SUBPART 1 OF PART D.—
(1) IN GENERAL.—Except as provided in paragraph (2), parts
A, B, and C, and subpart 1 of part D, of the Individuals
with Disabilities Education Act, as amended by title I, shall
take effect on July 1, 2005.
(2) HIGHLY QUALIFIED DEFINITION.—Subparagraph (A), and
subparagraphs (C) through (F), of section 602(10) of the Individuals
with Disabilities Education Act, as amended by title I,
shall take effect on the date of enactment of this Act for
purposes of the Elementary and Secondary Education Act of
1965.
(b) SUBPARTS 2, 3, AND 4 OF PART D.—Subparts 2, 3, and
4 of part D of the Individuals with Disabilities Education Act,
as amended by title I, shall take effect on the date of enactment
of this Act.
(c) EDUCATION SCIENCES REFORM ACT OF 2002.—
(1) NATIONAL CENTER FOR SPECIAL EDUCATION RESEARCH.—
Sections 175, 176, and 177 (other than section 177(c)) of the
Education Sciences Reform Act of 2002, as enacted by section
201(a)(2) of this Act, shall take effect on the date of enactment
of this Act.
(2) PLAN.—Section 177(c) of the Education Sciences Reform
Act of 2002, as enacted by section 201(a)(2) of this Act, shall
take effect on October 1, 2005.
SEC. 303. TRANSITION.
(a) ORDERLY TRANSITION.—
20 USC 1400
note.
20 USC 9567b
note.
20 USC 1400
note.
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118 STAT. 2804 PUBLIC LAW 108–446—DEC. 3, 2004
(1) IN GENERAL.—The Secretary of Education (in this section
referred to as ‘‘the Secretary’’) shall take such steps as
are necessary to provide for the orderly transition from the
Individuals with Disabilities Education Act, as such Act was
in effect on the day preceding the date of enactment of this
Act, to the Individuals with Disabilities Education Act and
part E of the Education Sciences Reform Act of 2002, as
amended by this Act.
(2) LIMITATION.—The Secretary’s authority in paragraph
(1) shall terminate 1 year after the date of enactment of this
Act.
(b) MULTI-YEAR AWARDS.—Notwithstanding any other provision
of law, the Secretary may use funds appropriated under part D
of the Individuals with Disabilities Education Act to make continuation
awards for projects that were funded under section 618,
and part D, of the Individuals with Disabilities Education Act
(as such section and part were in effect on September 30, 2004),
in accordance with the terms of the original awards.
(c) RESEARCH.—Notwithstanding section 302(b) or any other
provision of law, the Secretary may award funds that are appropriated
under the Department of Education Appropriations Act,
2005 for special education research under either of the headings
‘‘SPECIAL EDUCATION’’ or ‘‘INSTITUTE OF EDUCATION SCIENCES’’ in
accordance with sections 672 and 674 of the Individuals with
Disabilities Education Act, as such sections were in effect on October
1, 2004.
SEC. 304. REPEALER.
Section 644 of the Individuals with Disabilities Education Act,
as such section was in effect on the day before the enactment
of this Act, is repealed.
SEC. 305. IDEA TECHNICAL AMENDMENTS TO OTHER LAWS.
(a) TITLE 10.—Section 2164(f) of title 10, United States Code
is amended—
(1) in paragraph (1)(B)—
(A) by striking ‘‘infants and toddlers’’ each place the
term appears and inserting ‘‘infants or toddlers’’;
(B) by striking ‘‘part H’’ and inserting ‘‘part C’’; and
(C) by striking ‘‘1471’’ and inserting ‘‘1431’’; and
(2) in paragraph (3)—
(A) in subparagraph (A)—
(i) by striking ‘‘602(a)(1)’’ and inserting ‘‘602’’; and
(ii) by striking ‘‘1401(a)(1)’’ and inserting ‘‘1401’’;
(B) by striking subparagraph (B);
(C) by redesignating subparagraph (C) as subparagraph
(B); and
(D) in subparagraph (B) (as so redesignated)—
(i) by striking ‘‘and toddlers’’ and inserting ‘‘or
toddlers’’;
(ii) by striking ‘‘672(1)’’ and inserting ‘‘632’’; and
(iii) by striking ‘‘1472(1)’’ and inserting ‘‘1432’’.
(b) DEFENSE DEPENDENTS EDUCATION ACT OF 1978.—Section
1409(c)(2) of the Defense Dependents Education Act of 1978 (20
U.S.C. 927(c)(2)) is amended—
(1) by striking ‘‘677’’ and inserting ‘‘636’’; and
(2) by striking ‘‘part H’’ and inserting ‘‘part C’’.
20 USC 1444.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2805
(c) HIGHER EDUCATION ACT OF 1965.—The Higher Education
Act of 1965 (20 U.S.C. 1001 et seq.) is amended—
(1) in section 465(a)(2)(C) (20 U.S.C. 1087ee(a)(2)(C), by
striking ‘‘Individuals With’’ and inserting ‘‘Individuals with’’
and;
(2) in section 469(c) (20 U.S.C. 1087ii(c)), by striking
‘‘602(a)(1) and 672(1)’’ and inserting ‘‘602 and 632’’.
(d) EDUCATION OF THE DEAF ACT.—The matter preceding
subparagraph (A) of section 104(b)(2) of the Education of the Deaf
Act (20 U.S.C. 4304(b)(2)) is amended by striking ‘‘618(a)(1)(A)’’
and inserting ‘‘618(a)(1)’’.
(e) GOALS 2000: EDUCATE AMERICA ACT.—Section 3(a)(9) of
the Goals 2000: Educate America Act (20 U.S.C. 5802(a)(9)) is
amended by striking ‘‘602(a)(17)’’ and inserting ‘‘602’’.
(f) SCHOOL-TO-WORK OPPORTUNITIES ACT OF 1994.—Section
4(15) of the School-to-Work Opportunities Act of 1994 (20 U.S.C.
6103(15)) is amended—
(1) by striking ‘‘602(a)(17)’’ and inserting ‘‘602’’; and
(2) by striking ‘‘1401(17)’’ and inserting ‘‘1401’’.
(g) ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965.—
The Elementary and Secondary Education Act of 1965 (20 U.S.C.
6301 et seq.) is amended—
(1) in section 1111(b)(2)(I)(ii) (20 U.S.C. 6311(b)(2)(I)(ii)),
by striking ‘‘612(a)(17)(A)’’ and inserting ‘‘612(a)(16)(A)’’;
(2) in section 5208 (20 U.S.C. 7221g), by striking ‘‘602(11)’’
and inserting ‘‘602’’; and
(3) in section 5563(b)(8)(C) (20 U.S.C. 7273b(b)(8)(C)), by
striking ‘‘682’’ and inserting ‘‘671’’.
(h) REHABILITATION ACT OF 1973.—The Rehabilitation Act of
1973 (29 U.S.C. 701 et seq.) is amended—
(1) in section 101(a)(11)(D)(ii) (29 U.S.C. 721(a)(11)(D)(ii)),
by striking ‘‘(as added by section 101 of Public Law 105–
17)’’;
(2) in section 105(b)(1)(A)(ii) (29 U.S.C. 725(b)(1)(A)(ii)),
by striking ‘‘682(a) of the Individuals with Disabilities Education
Act (as added by section 101 of the Individuals with
Disabilities Education Act Amendments of 1997; Public Law
105–17)’’ and inserting ‘‘671 of the Individuals with Disabilities
Education Act’’;
(3) in section 105(c)(6) (29 U.S.C. 725(c)(6))—
(A) by striking ‘‘612(a)(21)’’ and inserting ‘‘612(a)(20)’’;
(B) by striking ‘‘Individual with’’ and inserting ‘‘Individuals
with’’; and
(C) by striking ‘‘(as amended by section 101 of the
Individuals with Disabilities Education Act Amendments
of 1997; Public Law 105–17)’’;
(4) in section 302(f)(1)(D)(ii) (29 U.S.C. 772 (f)(1)(D)(ii)),
by striking ‘‘(as amended by section 101 of the Individuals
with Disabilities Education Act Amendments of 1997 (Public
Law 105–17))’’;
(5) in section 303(c)(6) (29 U.S.C. 773(c)(6))—
(A) by striking ‘‘682(a)’’ and inserting ‘‘671’’; and
(B) by striking ‘‘(as added by section 101 of the Individuals
with Disabilities Education Act Amendments of 1997;
Public Law 105–17)’’; and
(6) in section 303(c)(4)(A)(ii) (29 U.S.C. 773(c)(4)(A)(ii)), by
striking ‘‘682(a) of the Individuals with Disabilities Education
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118 STAT. 2806 PUBLIC LAW 108–446—DEC. 3, 2004
Act (as added by section 101 of the Individuals with Disabilities
Education Act Amendments of 1997; Public Law 105–17)’’ and
inserting ‘‘671 of the Individuals with Disabilities Education
Act’’.
(i) PUBLIC HEALTH SERVICE ACT.—The Public Health Service
Act (42 U.S.C. 201 et seq.) is amended—
(1) in section 399A(f) (42 U.S.C. 280d(f), by striking ‘‘part
H’’ and inserting ‘‘part C’’;
(2) in section 399(n)(3) (42 U.S.C. 280c–6(n)(3)), by striking
‘‘part H’’ and inserting ‘‘part C’’;
(3) in section 399A(b)(8) (42 U.S.C. 280d(b)(8)), by striking
‘‘part H’’ and inserting ‘‘part C’’;
(4) in section 562(d)(3)(B) (42 U.S.C. 290ff–1(d)(3)(B)), by
striking ‘‘and H’’ and inserting ‘‘and C’’; and
(5) in section 563(d)(2) (42 U.S.C. 290ff–2(d)(2)), by striking
‘‘602(a)(19)’’ and inserting ‘‘602’’.
(j) SOCIAL SECURITY ACT.—The Social Security Act (42 U.S.C.
301 et seq.) is amended—
(1) in section 1903(c) (42 U.S.C. 1396b(c)), by striking ‘‘part
H’’ and inserting ‘‘part C’’; and
(2) in section 1915(c)(5)(C)(i) (42 U.S.C. 1396n(c)(5)(C)(i)),
by striking ‘‘(as defined in section 602(16) and (17) of the
Education of the Handicapped Act (20 U.S.C. 1401(16), (17))’’
and inserting ‘‘(as such terms are defined in section 602 of
the Individuals with Disabilities Education Act (20 U.S.C.
1401))’’.
(k) DOMESTIC VOLUNTEER SERVICE ACT OF 1973.—Section
211(a) of the Domestic Volunteer Service Act of 1973 (42 U.S.C.
5011(a)) is amended—
(1) by striking ‘‘part H’’ and inserting ‘‘part C’’; and
(2) by striking ‘‘1471’’ and inserting ‘‘1431’’.
(l) HEAD START ACT.—The Head Start Act (42 U.S.C. 9831
et seq.) is amended—
(1) in section 640(a)(5)(C)(iv) (42 U.S.C. 9835(a)(5)(C)(iv)),
by striking ‘‘1445’’ and inserting ‘‘1444’’;
(2) in section 640(d) (42 U.S.C. 9835(d))—
(A) by striking ‘‘U.S.C’’ and inserting ‘‘U.S.C.’’; and
(B) by striking ‘‘1445’’ and inserting ‘‘1444’’;
(3) in section 641(d)(3) (42 U.S.C. 9836(d)(3)), by striking
‘‘U.S.C 1431–1445’’ and inserting ‘‘U.S.C. 1431–1444’’; and
(4) in section 642(c) (42 U.S.C. 9837(c)), by striking ‘‘1445’’
and inserting ‘‘1444’’.
(m) NATIONAL AND COMMUNITY SERVICE ACT OF 1990.—Section
101(21)(B) of the National and Community Service Act of 1990
(42 U.S.C. 12511(21)(B)) is amended—
(1) by striking ‘‘602(a)(1)’’ and inserting ‘‘602’’; and
(2) by striking ‘‘1401(a)(1)’’ and inserting ‘‘1401’’.
(n) DEVELOPMENTAL DISABILITIES ASSISTANCE AND BILL OF
RIGHTS ACT OF 2000.—The Developmental Disabilities Assistance
and Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.) is amended—
(1) in section 125(c)(5)(G)(i) (42 U.S.C. 15025(c)(5)(G)(i)),
by striking ‘‘subtitle C’’ and inserting ‘‘part C’’; and
(2) in section 154(a)(3)(E)(ii)(VI) (42 U.S.C.
15064(a)(3)(E)(ii)(VI))—
(A) by striking ‘‘682 or 683’’ and inserting ‘‘671 or
672’’; and
(B) by striking ‘‘(20 U.S.C. 1482, 1483)’’.
42 USC
290bb–25.
42 USC
290bb–25.
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PUBLIC LAW 108–446—DEC. 3, 2004 118 STAT. 2807
(o) DISTRICT OF COLUMBIA SCHOOL REFORM ACT OF 1995.—
The District of Columbia School Reform Act of 1995 (Public Law
104–134) is amended—
(1) in section 2002(32)—
(A) by striking ‘‘602(a)(1)’’ and inserting ‘‘602’’; and
(B) by striking ‘‘1401(a)(1)’’ and inserting ‘‘1401’’;
(2) in section 2202(19), by striking ‘‘Individuals With’’ and
inserting ‘‘Individuals with’’; and
(3) in section 2210—
(A) in the heading for subsection (c), by striking ‘‘WITH
DISABILITIES’’ and inserting ‘‘WITH DISABILITIES’’; and
(B) in subsection (c), by striking ‘‘Individuals With’’
and inserting ‘‘Individuals with’’.
SEC. 306. COPYRIGHT.
Section 121 of title 17, United States Code, is amended—
(1) by redesignating subsection (c) as subsection (d);
(2) by inserting after subsection (b) the following:
‘‘(c) Notwithstanding the provisions of section 106, it is not
an infringement of copyright for a publisher of print instructional
materials for use in elementary or secondary schools to create
and distribute to the National Instructional Materials Access Center
copies of the electronic files described in sections 612(a)(23)(C),
613(a)(6), and section 674(e) of the Individuals with Disabilities
Education Act that contain the contents of print instructional materials
using the National Instructional Material Accessibility
Standard (as defined in section 674(e)(3) of that Act), if—
‘‘(1) the inclusion of the contents of such print instructional
materials is required by any State educational agency or local
educational agency;
‘‘(2) the publisher had the right to publish such print
instructional materials in print formats; and
‘‘(3) such copies are used solely for reproduction or distribution
of the contents of such print instructional materials in
specialized formats.’’; and
(3) in subsection (d), as redesignated by this section—
(A) in paragraph (2), by striking ‘‘and’’ after the semicolon;
and
(B) by striking paragraph (3) and inserting the following:
‘‘(3) ‘print instructional materials’ has the meaning given
under section 674(e)(3)(C) of the Individuals with Disabilities
Education Act; and
‘‘(4) ‘specialized formats’ means—
‘‘(A) braille, audio, or digital text which is exclusively
for use by blind or other persons with disabilities; and
‘‘(B) with respect to print instructional materials,
includes large print formats when such materials are
110 Stat.
1321–125.
110 Stat.
1321–116.
110 Stat.
1321–107.
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118 STAT. 2808 PUBLIC LAW 108–446—DEC. 3, 2004
LEGISLATIVE HISTORY—H.R. 1350 (S. 1248):
HOUSE REPORTS: Nos. 108–77 (Comm. on Education and the Workforce) and
108–779 (Comm. of Conference).
SENATE REPORTS: No. 108–185 accompanying S. 1248 (Comm. on Health,
Education, Labor, and Pensions).
CONGRESSIONAL RECORD:
Vol. 149 (2003): Apr. 30, considered and passed House.
Vol. 150 (2004): May 13, considered and passed Senate, amended, in lieu of
S. 1248.
Nov. 19, House and Senate agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 40 (2004):
Dec. 3, Presidential statement and remarks.

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