[[Page 118 STAT. 2647]]
Public Law 108-446
108th Congress
An Act
.
To reauthorize the Individuals with Disabilities Education Act, and for
other purposes. <<NOTE: Dec. 3, 2004 - [H.R. 1350]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Individuals with
Disabilities Education Improvement Act of 2004. 20 USC 1400 note.>>
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. <<NOTE: 20 USC 1400.>> 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.
[[Page 118 STAT. 2648]]
``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
[[Page 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
[[Page 118 STAT. 2650]]
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.
[[Page 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.
[[Page 118 STAT. 2652]]
``SEC. 602. <<NOTE: 20 USC 1401.>> 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
[[Page 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;
[[Page 118 STAT. 2654]]
``(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
[[Page 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.
[[Page 118 STAT. 2656]]
``(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.
[[Page 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
[[Page 118 STAT. 2658]]
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).
[[Page 118 STAT. 2659]]
``SEC. 603. <<NOTE: 20 USC 1402.>> 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. <<NOTE: 20 USC 1403.>> 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. <<NOTE: 20 USC 1404.>> 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. <<NOTE: 20 USC 1405.>> 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. <<NOTE: 20 USC 1406.>> 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.
[[Page 118 STAT. 2660]]
``(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) <<NOTE: Federal Register, publication.>> 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.
[[Page 118 STAT. 2661]]
``SEC. 608. <<NOTE: 20 USC 1407.>> 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. <<NOTE: 20 USC 1408.>> 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
[[Page 118 STAT. 2662]]
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. <<NOTE: 20 USC 1409.>> 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. <<NOTE: 20 USC 1411.>> 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--
[[Page 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.--
[[Page 118 STAT. 2664]]
``(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:
[[Page 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.
[[Page 118 STAT. 2666]]
``(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
[[Page 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.
[[Page 118 STAT. 2668]]
``(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 State-supported
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)--
[[Page 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) <<NOTE: Deadline.>> 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;
[[Page 118 STAT. 2670]]
``(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) <<NOTE: Deadline.>> 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
[[Page 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.
[[Page 118 STAT. 2672]]
``(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.--
[[Page 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;
[[Page 118 STAT. 2674]]
``(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
[[Page 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
[[Page 118 STAT. 2676]]
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. <<NOTE: 20 USC 1412.>> 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--
[[Page 118 STAT. 2677]]
``(i) aged 3 through 5 and 18 through 21 in a
State to the extent that its application to those
children would be inconsistent with State law or
practice, or the order of any court, respecting
the provision of public education to children in
those age ranges; and
``(ii) aged 18 through 21 to the extent that
State law does not require that special education
and related services under this part be provided
to children with disabilities who, in the
educational placement prior to their incarceration
in an adult correctional facility--
``(I) were not actually identified
as being a child with a disability under
section 602; or
``(II) did not have an
individualized education program under
this part.
``(C) State flexibility.--A State that provides
early intervention services in accordance with part C to
a child who is eligible for services under section 619,
is not required to provide such child with a free
appropriate public education.
``(2) Full educational opportunity goal.--The State has
established a goal of providing full educational opportunity to
all children with disabilities and a detailed timetable for
accomplishing that goal.
``(3) Child find.--
``(A) In general.--All children with disabilities
residing in the State, including children with
disabilities who are homeless children or are wards of
the State and children with disabilities attending
private schools, regardless of the severity of their
disabilities, and who are in need of special education
and related services, are identified, located, and
evaluated and a practical method is developed and
implemented to determine which children with
disabilities are currently receiving needed special
education and related services.
``(B) Construction.--Nothing in this title requires
that children be classified by their disability so long
as each child who has a disability listed in section 602
and who, by reason of that disability, needs special
education and related services is regarded as a child
with a disability under this part.
``(4) Individualized education program.--An individualized
education program, or an individualized family service plan that
meets the requirements of section 636(d), is developed,
reviewed, and revised for each child with a disability in
accordance with section 614(d).
``(5) Least restrictive environment.--
``(A) In general.--To the maximum extent
appropriate, children with disabilities, including
children in public or private institutions or other care
facilities, are educated with children who are not
disabled, and special classes, separate schooling, or
other removal of children with disabilities from the
regular educational environment occurs only when the
nature or severity of the disability of a child is such
that education in regular classes with the use of
supplementary aids and services cannot be achieved
satisfactorily.
``(B) Additional requirement.--
[[Page 118 STAT. 2678]]
``(i) In general.--A State funding mechanism
shall not result in placements that violate the
requirements of subparagraph (A), and a State
shall not use a funding mechanism by which the
State distributes funds on the basis of the type
of setting in which a child is served that will
result in the failure to provide a child with a
disability a free appropriate public education
according to the unique needs of the child as
described in the child's IEP.
``(ii) Assurance.--If the State does not have
policies and procedures to ensure compliance with
clause (i), the State shall provide the Secretary
an assurance that the State will revise the
funding mechanism as soon as feasible to ensure
that such mechanism does not result in such
placements.
``(6) Procedural safeguards.--
``(A) In general.--Children with disabilities and
their parents are afforded the procedural safeguards
required by section 615.
``(B) Additional procedural safeguards.--Procedures
to ensure that testing and evaluation materials and
procedures utilized for the purposes of evaluation and
placement of children with disabilities for services
under this title will be selected and administered so as
not to be racially or culturally discriminatory. Such
materials or procedures shall be provided and
administered in the child's native language or mode of
communication, unless it clearly is not feasible to do
so, and no single procedure shall be the sole criterion
for determining an appropriate educational program for a
child.
``(7) Evaluation.--Children with disabilities are evaluated
in accordance with subsections (a) through (c) of section 614.
``(8) Confidentiality.--Agencies in the State comply with
section 617(c) (relating to the confidentiality of records and
information).
``(9) Transition from part c to preschool programs.--
Children participating in early intervention programs assisted
under part C, and who will participate in preschool programs
assisted under this part, experience a smooth and effective
transition to those preschool programs in a manner consistent
with section 637(a)(9). By the third birthday of such a child,
an individualized education program or, if consistent with
sections 614(d)(2)(B) and 636(d), an individualized family
service plan, has been developed and is being implemented for
the child. The local educational agency will participate in
transition planning conferences arranged by the designated lead
agency under section 635(a)(10).
``(10) Children in private schools.--
``(A) Children enrolled in private schools by their
parents.--
``(i) In general.--To the extent consistent
with the number and location of children with
disabilities in the State who are enrolled by
their parents in private elementary schools and
secondary schools in the school district served by
a local educational agency, provision is made for
the participation of those children in the program
assisted or carried out under this part
[[Page 118 STAT. 2679]]
by providing for such children special education
and related services in accordance with the
following requirements, unless the Secretary has
arranged for services to those children under
subsection (f):
``(I) Amounts to be expended for the
provision of those services (including
direct services to parentally placed
private school children) by the local
educational agency shall be equal to a
proportionate amount of Federal funds
made available under this part.
``(II) In calculating the
proportionate amount of Federal funds,
the local educational agency, after
timely and meaningful consultation with
representatives of private schools as
described in clause (iii), shall conduct
a thorough and complete child find
process to determine the number of
parentally placed children with
disabilities attending private schools
located in the local educational agency.
``(III) Such services to parentally
placed private school children with
disabilities may be provided to the
children on the premises of private,
including religious, schools, to the
extent consistent with law.
``(IV) State and local funds may
supplement and in no case shall supplant
the proportionate amount of Federal
funds required to be expended under this
subparagraph.
``(V) Each local educational agency
shall maintain in its records and
provide to the State educational agency
the number of children evaluated under
this subparagraph, the number of
children determined to be children with
disabilities under this paragraph, and
the number of children served under this
paragraph.
``(ii) Child find requirement.--
``(I) In general.--The requirements
of paragraph (3) (relating to child
find) shall apply with respect to
children with disabilities in the State
who are enrolled in private, including
religious, elementary schools and
secondary schools.
``(II) Equitable participation.--The
child find process shall be designed to
ensure the equitable participation of
parentally placed private school
children with disabilities and an
accurate count of such children.
``(III) Activities.--In carrying out
this clause, the local educational
agency, or where applicable, the State
educational agency, shall undertake
activities similar to those activities
undertaken for the agency's public
school children.
``(IV) Cost