1997 Re-Authorized Individuals With Disabilities in Education Act (IDEA), Part B Continued (2)

Home · Contact Us · About CADRE · Privacy

Topical Search: Text Search:

Skip Navigation

CADRE Continuum

`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 free appropriate public education by such agencies.

`(b) TYPES OF PROCEDURES- The procedures required by this section shall include--

`(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) 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 (who 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) to act as a surrogate for the parents;

`(3) written prior notice to the parents of the child whenever such agency--

`(A) proposes to initiate or change; or

`(B) refuses to initiate or change;

the identification, evaluation, or educational placement of the child, in accordance with subsection (c), 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 to present complaints 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;

`(7) procedures that require the parent of a child with a disability, or the attorney representing the child, to provide notice (which shall remain confidential)--

`(A) to the State educational agency or local educational agency, as the case may be, in the complaint filed under paragraph (6); and

`(B) that shall include--

`(i) the name of the child, the address of the residence of the child, and the name of the school the child is attending;

`(ii) 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

`(iii) a proposed resolution of the problem to the extent known and available to the parents at the time; and

`(8) procedures that require the State educational agency to develop a model form to assist parents in filing a complaint in accordance with paragraph (7).

`(c) CONTENT OF PRIOR WRITTEN NOTICE- The notice required by subsection (b)(3) shall include--

`(1) a description of the action proposed or refused by the agency;

`(2) an explanation of why the agency proposes or refuses to take the action;

`(3) a description of any other options that the agency considered and the reasons why those options were rejected;

`(4) a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;

`(5) a description of any other factors that are relevant to the agency's proposal or refusal;

`(6) 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; and

`(7) sources for parents to contact to obtain assistance in understanding the provisions of this part.

`(d) PROCEDURAL SAFEGUARDS NOTICE-

`(1) IN GENERAL- A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents, at a minimum--

`(A) upon initial referral for evaluation;

`(B) upon each notification of an individualized education program meeting and upon reevaluation of the child; and

`(C) upon registration of a complaint under subsection (b)(6).

`(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) opportunity to present complaints;

`(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) mediation;

`(J) due process hearings, including requirements for disclosure of evaluation results and recommendations;

`(K) State-level appeals (if applicable in that State);

`(L) civil actions; and

`(M) 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 described in subsection (b)(6) to resolve such disputes through a mediation process which, at a minimum, shall be available whenever a hearing is requested under subsection (f) or (k).

`(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

`(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

`(B) A local educational agency or a State agency may establish procedures to require parents who choose not to use the mediation process 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 682 or 683; or

`(ii) an appropriate alternative dispute resolution entity;

to encourage the use, and explain the benefits, of the mediation process to the parents.

`(C) 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) The State shall bear the cost of the mediation process, including the costs of meetings described in subparagraph (B).

`(E) 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) An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.

`(G) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process.

`(f) IMPARTIAL DUE PROCESS HEARING-

`(1) IN GENERAL- Whenever a complaint has been received under subsection (b)(6) or (k) of this section, the parents 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.

`(2) DISCLOSURE OF EVALUATIONS AND RECOMMENDATIONS-

`(A) IN GENERAL- At least 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) LIMITATION ON CONDUCT OF HEARING- A hearing conducted pursuant to paragraph (1) may not be conducted by an employee of the State educational agency or the local educational agency involved in the education or care of the child.

`(g) APPEAL- 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. Such agency shall conduct an impartial review of such decision. The officer conducting such review shall make an independent decision upon completion of such review.

`(h) SAFEGUARDS- Any party to a hearing conducted pursuant to subsection (f) or (k), or an appeal conducted pursuant to subsection (g), shall be accorded--

`(1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;

`(2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses;

`(3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and

`(4) the right to written, or, at the option of the parents, electronic findings of fact and decisions (which findings and decisions shall be made available to the public consistent with the requirements of section 617(c) (relating to the confidentiality of data, information, and records) and shall also 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) of this subsection.

`(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) of this subsection.

`(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 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.

`(B) 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- In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party.

`(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) 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--

`(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) 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) that is conducted prior to the filing of a complaint under subsection (b)(6) or (k) of this section.

`(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, 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 school district the appropriate information in the due process complaint in accordance with subsection (b)(7);

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)(7), during the pendency of 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 such 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) School personnel under this section may order a change in the placement of a child with a disability--

`(i) to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives would be applied to children without disabilities); and

`(ii) to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days if--

`(I) the child carries a weapon to school or to a school function under the jurisdiction of a State or a local educational agency; or

`(II) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency.

`(B) Either before or not later than 10 days after taking a disciplinary action described in subparagraph (A)--

`(i) if the local educational agency did not conduct a functional behavioral assessment and implement a behavioral intervention plan for such child before the behavior that resulted in the suspension described in subparagraph (A), the agency shall convene an IEP meeting to develop an assessment plan to address that behavior; or

`(ii) if the child already has a behavioral intervention plan, the IEP Team shall review the plan and modify it, as necessary, to address the behavior.

`(2) AUTHORITY OF HEARING OFFICER- A hearing officer under this section may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer--

`(A) determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of such child is substantially likely to result in injury to the child or to others;

`(B) considers the appropriateness of the child's current placement;

`(C) considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and

`(D) determines that the interim alternative educational setting meets the requirements of paragraph (3)(B).

`(3) DETERMINATION OF SETTING-

`(A) IN GENERAL- The alternative educational setting described in paragraph (1)(A)(ii) shall be determined by the IEP Team.

`(B) ADDITIONAL REQUIREMENTS- Any interim alternative educational setting in which a child is placed under paragraph (1) or (2) shall--

`(i) be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP; and

`(ii) include services and modifications designed to address the behavior described in paragraph (1) or paragraph (2) so that it does not recur.

`(4) MANIFESTATION DETERMINATION REVIEW-

`(A) IN GENERAL- If a disciplinary action is contemplated as described in paragraph (1) or paragraph (2) for a behavior of a child with a disability described in either of those paragraphs, or if a disciplinary action involving a change of placement for more than 10 days is contemplated for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the local educational agency that applies to all children--

`(i) not later than the date on which the decision to take that action is made, the parents shall be notified of that decision and of all procedural safeguards accorded under this section; and

`(ii) immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action.

`(B) INDIVIDUALS TO CARRY OUT REVIEW- A review described in subparagraph (A) shall be conducted by the IEP Team and other qualified personnel.

`(C) CONDUCT OF REVIEW- In carrying out a review described in subparagraph (A), the IEP Team may determine that the behavior of the child was not a manifestation of such child's disability only if the IEP Team--

`(i) first considers, in terms of the behavior subject to disciplinary action, all relevant information, including--

`(I) evaluation and diagnostic results, including such results or other relevant information supplied by the parents of the child;

`(II) observations of the child; and

`(III) the child's IEP and placement; and

`(ii) then determines that--

`(I) in relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement;

`(II) the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and

`(III) the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.

`(5) DETERMINATION THAT BEHAVIOR WAS NOT MANIFESTATION OF DISABILITY-

`(A) IN GENERAL- If the result of the review described in paragraph (4) is a determination, consistent with paragraph (4)(C), that the behavior of the child with a disability was not a manifestation of the child's disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except as provided in section 612(a)(1).

`(B) ADDITIONAL REQUIREMENT- If the public agency initiates disciplinary procedures applicable to all children, the agency shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.

`(6) PARENT APPEAL-

`(A) IN GENERAL-

`(i) If the child's parent disagrees with a determination that the child's behavior was not a manifestation of the child's disability or with any decision regarding placement, the parent may request a hearing.

`(ii) The State or local educational agency shall arrange for an expedited hearing in any case described in this subsection when requested by a parent.

`(B) REVIEW OF DECISION-

`(i) In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the public agency has demonstrated that the child's behavior was not a manifestation of such child's disability consistent with the requirements of paragraph (4)(C).

`(ii) In reviewing a decision under paragraph (1)(A)(ii) to place the child in an interim alternative educational setting, the hearing officer shall apply the standards set out in paragraph (2).

`(7) PLACEMENT DURING APPEALS-

`(A) IN GENERAL- When a parent requests a hearing regarding a disciplinary action described in paragraph (1)(A)(ii) or paragraph (2) to challenge the interim alternative educational setting or the manifestation determination, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(A)(ii) or paragraph (2), whichever occurs first, unless the parent and the State or local educational agency agree otherwise.

`(B) CURRENT PLACEMENT- If a child is placed in an interim alternative educational setting pursuant to paragraph (1)(A)(ii) or paragraph (2) and school personnel propose to change the child's placement after expiration of the interim alternative placement, during the pendency of any proceeding to challenge the proposed change in placement, the child shall remain in the current placement (the child's placement prior to the interim alternative educational setting), except as provided in subparagraph (C).

`(C) EXPEDITED HEARING-

`(i) If school personnel maintain that it is dangerous for the child to be in the current placement (placement prior to removal to the interim alternative education setting) during the pendency of the due process proceedings, the local educational agency may request an expedited hearing.

`(ii) In determining whether the child may be placed in the alternative educational setting or in another appropriate placement ordered by the hearing officer, the hearing officer shall apply the standards set out in paragraph (2).

`(8) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES-

`(A) IN GENERAL- A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in paragraph (1), may assert any of the protections provided for in this part if the local educational agency had 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 with a disability if--

`(i) the parent of the child has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to personnel of the appropriate educational agency that the child is in need of special education and related services;

`(ii) the behavior or performance of the child demonstrates the need for such services;

`(iii) the parent of the child has requested an evaluation of the child pursuant to section 614; or

`(iv) the teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of such agency or to other personnel of the agency.

`(C) CONDITIONS THAT APPLY IF NO BASIS OF 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)) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii).

`(ii) LIMITATIONS- If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under paragraph (1) or (2), the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this part, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities.

`(9) REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND JUDICIAL AUTHORITIES-

`(A) Nothing in this part shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

`(B) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.

`(10) DEFINITIONS- For purposes of this subsection, the following definitions apply:

`(A) CONTROLLED SUBSTANCE- The term `controlled substance' means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).

`(B) ILLEGAL DRUG- The term `illegal drug'--

`(i) means a controlled substance; but

`(ii) does not include such a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.

`(C) SUBSTANTIAL EVIDENCE- The term `substantial evidence' means beyond a preponderance of the evidence.

`(D) WEAPON- The term `weapon' has the meaning given the term `dangerous weapon' under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code.

`(l) RULE OF CONSTRUCTION- Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part.

`(m) TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY-

`(1) IN GENERAL- A State that receives amounts from a grant under this part may provide that, when a child with a disability reaches the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law)--

`(A) the public agency shall provide any notice required by this section to both the individual and the parents;

`(B) all other rights accorded to parents under this part transfer to the child;

`(C) the agency shall notify the individual and the parents of the transfer of rights; and

`(D) all rights accorded to parents under this part transfer to children who are incarcerated in an adult or juvenile Federal, State, or local correctional institution.

`(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.

`SEC. 616. WITHHOLDING AND JUDICIAL REVIEW.

`(a) WITHHOLDING OF PAYMENTS-

`(1) IN GENERAL- Whenever the Secretary, after reasonable notice and opportunity for hearing to the State educational agency involved (and to any local educational agency or State agency affected by any failure described in subparagraph (B)), finds--

`(A) that there has been a failure by the State to comply substantially with any provision of this part; or

`(B) that there is a failure to comply with any condition of a local educational agency's or State agency's eligibility under this part, including the terms of any agreement to achieve compliance with this part within the timelines specified in the agreement;

the Secretary shall, after notifying the State educational agency, withhold, in whole or in part, any further payments to the State under this part, or refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.

`(2) NATURE OF WITHHOLDING- If the Secretary withholds further payments under paragraph (1), the Secretary may determine that such withholding will be limited to programs or projects, or portions thereof, affected by the failure, or that the State educational agency shall not make further payments under this part to specified local educational agencies or State agencies affected by the failure. Until the Secretary is satisfied that there is no longer any failure to comply with the provisions of this part, as specified in subparagraph (A) or (B) of paragraph (1), payments to the State under this part shall be withheld in whole or in part, or payments by the State educational agency under this part shall be limited to local educational agencies and State agencies whose actions did not cause or were not involved in the failure, as the case may be. Any State educational agency, State agency, or local educational agency that has received notice under paragraph (1) shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of such agency.

`(b) JUDICIAL REVIEW-

`(1) IN GENERAL- If any State is dissatisfied with the Secretary's final action with respect to the eligibility of the State under section 612, such State may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings upon which the Secretary's action was based, as provided in section 2112 of title 28, United States Code.

`(2) JURISDICTION; REVIEW BY UNITED STATES SUPREME COURT- Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28, United States Code.

`(3) STANDARD OF REVIEW- The findings of fact by the Secretary, if supported by substantial evidence, shall be 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 likewise be conclusive if supported by substantial evidence.

`(c) DIVIDED STATE AGENCY RESPONSIBILITY- For purposes of this section, where responsibility for ensuring that the requirements of this part are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons is assigned to a public agency other than the State 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--

`(1) any reduction or withholding of payments to the State is proportionate to the total funds allotted under section 611 to the State as the number of eligible children with disabilities in adult prisons under the supervision of the other public agency is proportionate to the number of eligible individuals with disabilities in the State under the supervision of the State educational agency; and

`(2) any withholding of funds under paragraph (1) shall be limited to the specific agency responsible for the failure to comply with this part.

`SEC. 617. ADMINISTRATION.

`(a) RESPONSIBILITIES OF SECRETARY- In carrying out this part, the Secretary shall--

`(1) cooperate with, and (directly or by grant or contract) furnish technical assistance necessary to, the State in matters relating to--

`(A) the education of children with disabilities; and

`(B) carrying out this part; and

`(2) provide short-term training programs and institutes.

`(b) RULES AND REGULATIONS- In carrying out the provisions of this part, the Secretary shall issue regulations under this Act only to the extent that such regulations are necessary to ensure that there is compliance with the specific requirements of this Act.

`(c) CONFIDENTIALITY- The Secretary shall take appropriate action, in accordance with the provisions of section 444 of the General Education Provisions Act (20 U.S.C. 1232g), to assure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the Secretary and by State and local educational agencies pursuant to the provisions of this part.

`(d) PERSONNEL- The Secretary is authorized to hire qualified personnel necessary to carry out the Secretary's duties under subsection (a) and under sections 618, 661, and 673 (or their predecessor authorities through October 1, 1997) without regard to the provisions of title 5, United States Code, relating to appointments in the competitive service and without regard to chapter 51 and subchapter III of chapter 53 of such title relating to classification and general schedule pay rates, except that no more than twenty such personnel shall be employed at any time.

`SEC. 618. PROGRAM INFORMATION.

`(a) IN GENERAL- Each State that receives assistance under this part, and the Secretary of the Interior, shall provide data each year to the Secretary--

`(1)(A) on--

`(i) the number of children with disabilities, by race, ethnicity, and disability category, who are receiving a free appropriate public education;

`(ii) the number of children with disabilities, by race and ethnicity, who are receiving early intervention services;

`(iii) the number of children with disabilities, by race, ethnicity, and disability category, who are participating in regular education;

`(iv) the number of children with disabilities, by race, ethnicity, and disability category, who are in separate classes, separate schools or facilities, or public or private residential facilities;

`(v) the number of children with disabilities, by race, ethnicity, and disability category, who, for each year of age from age 14 to 21, stopped receiving special education and related services because of program completion or other reasons and the reasons why those children stopped receiving special education and related services;

`(vi) the number of children with disabilities, by race and ethnicity, who, from birth through age 2, stopped receiving early intervention services because of program completion or for other reasons; and

`(vii)(I) the number of children with disabilities, by race, ethnicity, and disability category, who under subparagraphs (A)(ii) and (B) of section 615(k)(1), are removed to an interim alternative educational setting;

`(II) the acts or items precipitating those removals; and

`(III) the number of children with disabilities who are subject to long-term suspensions or expulsions; and

`(B) on the number of infants and toddlers, by race and ethnicity, who are at risk of having substantial developmental delays (as described in section 632), and who are receiving early intervention services under part C; and

`(2) on any other information that may be required by the Secretary.

`(b) SAMPLING- The Secretary may permit States and the Secretary of the Interior to obtain the data described in subsection (a) through sampling.

`(c) DISPROPORTIONALITY-

`(1) IN GENERAL- Each State that receives assistance under this part, and the Secretary of the Interior, shall provide for the collection and examination of data to determine if significant disproportionality based on race is occurring in the State with respect to--

`(A) the identification of children as children with disabilities, including the identification of children as children with disabilities in accordance with a particular impairment described in section 602(3); and

`(B) the placement in particular educational settings of such children.

`(2) REVIEW AND REVISION OF POLICIES, PRACTICES, AND PROCEDURES- In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of such children, in accordance with paragraph (1), the State or the Secretary of the Interior, as the case may be, shall provide for the review and, if appropriate, revision of the policies, procedures, and practices used in such identification or placement to ensure that such policies, procedures, and practices comply with the requirements of this Act.

`SEC. 619. PRESCHOOL GRANTS.

`(a) IN GENERAL- The Secretary shall provide grants under this section to assist States to provide special education and related services, in accordance with this part--

`(1) to children with disabilities aged 3 through 5, inclusive; and

`(2) at the State's discretion, to 2-year-old children with disabilities who will turn 3 during the school year.

`(b) ELIGIBILITY- A State shall be eligible for a grant under this section if such State--

`(1) is eligible under section 612 to receive a grant under this part; and

`(2) makes a free appropriate public education available to all children with disabilities, aged 3 through 5, residing in the State.

`(c) ALLOCATIONS TO STATES-

`(1) IN GENERAL- After reserving funds for studies and evaluations under section 674(e), the Secretary shall allocate the remaining amount among the States in accordance with paragraph (2) or (3), as the case may be.

`(2) INCREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) is equal to or greater than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows:

`(A)(i) Except as provided in subparagraph (B), the Secretary shall--

`(I) allocate to each State the amount it received for fiscal year 1997;

`(II) allocate 85 percent of any remaining funds to States on the basis of their relative populations of children aged 3 through 5; and

`(III) allocate 15 percent of those remaining funds to States on the basis of their relative populations of all children aged 3 through 5 who are living in poverty.

`(ii) For the purpose of making grants under this 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) Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following:

`(i) No State's allocation shall be less than its allocation for the preceding fiscal year.

`(ii) No State's allocation shall be less than the greatest of--

`(I) the sum of--

`(aa) the amount it received for fiscal year 1997; and

`(bb) one third of one percent of the amount by which the amount appropriated under subsection (j) exceeds the amount appropriated under this section for fiscal year 1997;

`(II) the sum of--

`(aa) the amount it received for the preceding fiscal year; and

`(bb) that amount multiplied by the percentage by which the increase in the funds appropriated from the preceding fiscal year exceeds 1.5 percent; or

`(III) the sum of--

`(aa) the amount it received for the preceding fiscal year; and

`(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated from the preceding fiscal year.

`(iii) Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of--

`(I) the amount it received for the preceding fiscal year; and

`(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated.

`(C) If the amount available for allocations under this paragraph is insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to subparagraph (B)(i).

`(3) DECREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) is less than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows:

`(A) If the amount available for allocations is greater than the amount allocated to the States for fiscal year 1997, each State shall be allocated the sum of--

`(i) the amount it received for fiscal year 1997; and

`(ii) an amount that bears the same relation to any remaining funds as the increase the State received for the preceding fiscal year over fiscal year 1997 bears to the total of all such increases for all States.

`(B) If the amount available for allocations is equal to or less than the amount allocated to the States for fiscal year 1997, each State shall be allocated the amount it received for that year, ratably reduced, if necessary.

`(4) OUTLYING AREAS- The Secretary shall increase the fiscal year 1998 allotment of each outlying area under section 611 by at least the amount that that area received under this section for fiscal year 1997.

`(d) RESERVATION FOR STATE ACTIVITIES-

`(1) IN GENERAL- Each State may retain not more than the amount described in paragraph (2) for administration and other State-level activities in accordance with subsections (e) and (f).

`(2) AMOUNT DESCRIBED- For each fiscal year, the 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 it may retain 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 of this Act, if the State educational agency is the lead agency for the State under that part.

`(f) OTHER STATE-LEVEL ACTIVITIES- Each State shall use any funds it retains under subsection (d) and does not use for 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) to develop a State improvement plan under subpart 1 of part D;

`(4) for activities at the State and local levels to meet the performance goals established by the State under section 612(a)(16) and to support implementation of the State improvement plan under subpart 1 of part D if the State receives funds under that subpart; or

`(5) to supplement other funds used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under this section for a fiscal year.

`(g) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES-

`(1) SUBGRANTS REQUIRED- Each State that receives a grant under this section for any fiscal year shall distribute any of the grant funds that it does not reserve under subsection (d) to local educational agencies in the State that have established their eligibility under section 613, as follows:

`(A) BASE PAYMENTS- The State shall first award each agency described in paragraph (1) the amount that agency would have received under this section for fiscal year 1997 if the State had distributed 75 percent of its grant for that year under section 619(c)(3), as then in effect.

`(B) ALLOCATION OF REMAINING FUNDS- After making allocations under subparagraph (A), the State shall--

`(i) allocate 85 percent of any remaining funds to those agencies on the basis of the relative numbers of children enrolled in public and private elementary and secondary schools within the agency's jurisdiction; and

`(ii) allocate 15 percent of those remaining funds to those agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency.

`(2) REALLOCATION OF FUNDS- If a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all children with disabilities aged 3 through 5 residing in the area served by that agency with State and local funds, the State educational agency may reallocate any portion of the funds under this section that are not needed by that local agency to provide a free appropriate public education to other local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities aged 3 through 5 residing in the areas they serve.

`(h) PART C INAPPLICABLE- Part C of this Act does not apply to any child with a disability receiving a free appropriate public education, in accordance with this part, with funds received under this section.

`(i) DEFINITION- For the purpose of this section, the term `State' means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.

`(j) AUTHORIZATION OF APPROPRIATIONS- For the purpose of carrying out this section, there are authorized to be appropriated to the Secretary $500,000,000 for fiscal year 1998 and such sums as may be necessary for each subsequent fiscal year.

ENDORSEMENT: This document was developed by the Consortium for Appropriate Dispute Resolution, a project of Direction Service, Inc., Eugene, Oregon, pursuant to Grant No. H326D980002 with the U.S. Department of Education, Office of Special Education and Rehabilitative Services. The legal positions expressed in this document were reviewed by the Office of Special Education Programs and reflect the policy and position of the U.S. Department of Education with regard to the interpretation of the Individuals with Disabilities Education Act and it's Regulations at 34 CFR 300.

BACK TO TABLE OF CONTENTS