HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/FEDERAL/ECHA1.ASC

Text File | 1994-01-14 | 101KB | 2,124 lines

/* The education with individuals with disabilities act follows.
This act is referred to in virtually all cases in which the
schooling of children with HIV is considered and is a signficant
source of rights for children who are HIV positive. Due to its
size, this statute is divided into 3 parts. Many cases on the
"school" menu contain references to parts of this statute. */

Chapter 33:  EDUCATION OF
INDIVIDUALS WITH DISABILITIES


Section

 GENERAL PROVISIONS
1400. Congressional statements and declarations
1401. Definitions
1402. Office of Special Education Programs
1403. Abrogation of State sovereign immunity
1404. Acquisition of equipment and construction of
necessary facilities
1405. Employment of individuals with disabilities
1406. Grants for the removal of architectural
barriers; authorization of appropriations
1407. Requirements for prescribing regulations
1408. Eligibility for financial assistance
1409. Administrative provisions applicable to Parts
C through G and 20 USC 1418

 ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH
DISABILITIES
1411. Entitlements and allocations
1412. Eligibility requirements
1413. State plans
1414. Application
1415. Procedural safeguards
1416. Withholding of payments; judicial review
1417. Administration
1418. Evaluation and program information
1419. Preschool grants
1420. Payments

 CENTERS AND SERVICES TO MEET SPECIAL NEEDS OF INDIVIDUALS
WITH DISABILITIES
1421. Regional resource and federal centers
1422. Services for deaf-blind children and youth
1423. Early education for children with
disabilities
1424. Programs for children with severe
disabilities
1424a. Postsecondary education
1425. Secondary education and transitional services
for youth with disabilities
1426. Programs for children and youth with serious
emotional disturbance
1427. Authorization of appropriations


TRAINING PERSONNEL FOR THE EDUCATION OF INDIVIDUALS

WITH DISABILITIES
1431. Grants for personnel training
1432. Grants to state educational agencies and
institutions for traineeships
1433. Clearinghouses
1434. Reports to the Secretary
1435. Authorization of appropriations
1436. [Omitted]

 RESEARCH IN EDUCATION OF INDIVIDUALS WITH DISABILITIES
1441. Research and related activities
1442. Research and demonstration projects in
physical education and recreation for children with disabilities
1443. [Repealed]
1444. Authorization of appropriations

 INSTRUCTIONAL MEDIA FOR INDIVIDUALS WITH DISABILITIES
1451. Congressional statement of purposes
1452. Captioned films, television, descriptive
video, and educational media for handicapped individuals
[individuals with disabilities]
1453. [Repealed]
1454. Authorization of appropriations

 TECHNOLOGY, EDUCATIONAL MEDIA, AND MATERIALS FOR
INDIVIDUALS WITH DISABILITIES
1461. Financial assistance
1462. Authorization of appropriations

 INFANTS AND TODDLERS WITH DISABILITIES
1471. Findings and policy
1472. Definitions
1473. General authority
1474. General eligibility
1475. Continuing eligibility
1476. Requirements for statewide system
1477. Individualized family service plan
1478. State application and assurances
1479. Uses of funds
1480. Procedural safeguards
1481. Payor of last resort
1482. State interagency coordinating council
1483. Federal administration
1484. Allocation of funds
1484a. Federal Interagency Coordinating Council
1485. Authorization of appropriations
1486 -- 1500.  [Reserved]

20 USC 1400

(a) Short title.This title may be cited as the "Individuals with
Disabilities Education Act".

(b) Findings.The Congress finds that:

 (1) there are more than eight million children with
disabilities in the United States today;

 (2) the special educational needs of such children are
not being fully met;

 (3) more than half of the children with disabilities in
the United States do not receive appropriate educational services
which would enable them to have full equality of opportunity;

 (4) one million of the children with disabilities in the
United States are excluded entirely from the public school system
and will not go through the educational process with their peers;

 (5) there are many children with disabilities throughout
the United States participating in regular school programs whose
disabilities prevent them from having a successful educational
experience because their disabilities are undetected;

 (6) because of the lack of adequate services within the
public school system, families are often forced to find services
outside the public school system, often at great distance from
their residence and at their own expense;

 (7) developments in the training of teachers and in
diagnostic and instructional procedures and methods have advanced
to the point that, given appropriate funding, State and local
educational agencies can and will provide effective special
education and related services to meet the needs of children with
disabilities;

 (8) State and local educational agencies have a
responsibility to provide education for all children with
disabilities, but present financial resources are inadequate to
meet the special educational needs of children with disabilities;
and

 (9) it is in the national interest that the Federal
Government assist State and local efforts to provide programs to
meet the educational needs of children with disabilities in order
to assure equal protection of the law.

(c) Purpose. It is the purpose of this Act to assure that all
children with disabilities have available to them, within the
time periods specified in section 612(2)(B) [20 USC 1412(2)(B)],
a free appropriate public education which emphasizes special
education and related services designed to meet their unique
needs, to assure that the rights of children with disabilities
and their parents or guardians are protected, to assist States
and localities to provide for the education of all children with
disabilities, and to assess and assure the effectiveness of
efforts to educate children with disabilities.

Section 1401.  Definitions

 (a) As used in this title:

 (1) (A) The term "children with disabilities" means
children:

 (i) with mental retardation, hearing
impairments including deafness, speech or language impairments,
visual impairments including blindness, serious emotional
disturbance, orthopedic impairments, autism, traumatic brain
injury, other health impairments, or specific learning
disabilities; and

/* This statute has been construed to apply to HIV infection
given the term "other health impairments". */

 (ii) who, by reason thereof, need special
education and related services.

 (B) The term "children with disabilities" for children
aged 3 to 5, inclusive, may, at the State's discretion, include
children:

 (i) experiencing developmental delays, as
defined by the State and as measured by appropriate diagnostic
instruments and procedures, in one 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, need special
education and related services.

 (2) [Repealed]

 (3) [Deleted]

 (4) The term "construction", except where otherwise
specified, means (A) erection of new or expansion of existing
structures, and the acquisition and installation of equipment
therefor; or (B) acquisition of existing structures not owned by
any agency or institution making application for assistance under
this title; or (C) remodeling or alteration (including the
acquisition, installation, modernization, or replacement of
equipment) of existing structures; or (D) acquisition of land in
connection with the activities in clauses (A), (B), and (C); or
(E) a combination of any two or more of the foregoing.

 (5) The term "equipment" includes machinery, utilities,
and built-in equipment and any necessary enclosures or structures
to house them, and includes 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.

 (6) The term "State" means any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, Amercian Samoa, the Commonwealth of the Northern
Mariana Islands, or Palau (until the Compact of Free Association
with Palau takes effect pursuant to section 101(a) of Public Law
99-658 [48 USC 1681 note.]).

 (7) 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 and
secondary schools, or, if there is no such officer or agency, an
officer or agency designated by the Governor or by State law.

 (8) 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 or
secondary schools in a city, county, township, school district,
or other political subdivision of a State, or such combination of
school districts or counties as are recognized in a State as an
administrative agency for its public elementary or secondary
schools. Such term also includes any other public institution or
agency having administrative control and direction of a public
elementary or secondary school.

 (9) The term "elementary school" means a day or
residential school which provides elementary education, as
determined under State law.

 (10) The term "secondary school" means a day or
residential school which provides secondary education, as
determined under State law, except that it does not include any
education provided beyond grade 12.

 (11) The term "institution of higher education" means an
educational institution in any State which:

 (A) admits as regular students only individuals having a
certificate of graduation from a high school, or the recognized
equivalent of such a certificate;

 (B) is legally authorized within such State to provide a
program of education beyond high school;

 (C) provides an educational program for which it awards a
bachelor's degree, or provides not less than a two- year program
which is acceptable for full credit toward such a degree, or
offers a two-year program in engineering, mathematics, or the
physical or biological sciences which is designed to prepare the
student to work as a technician and at a semiprofessional level
in engineering, scientific, or other technological fields which
require the understanding and application of basic engineering,
scientific, or mathematical principles or knowledge;

 (D) is a public or other nonprofit institution; and

 (E) is accredited by a nationally recognized accrediting
agency or association listed by the Secretary pursuant to this
paragraph or, if not so accredited, is an institution whose
credits are accepted, on transfer, by not less than three
institutions which are so accredited, for credit on the same
basis as if transferred from an institution so accredited:
Provided, however, That in the case of an institution offering a
two-year program in engineering, mathematics, or the physical or
biological sciences which is designed to prepare the student to
work as a technician and at a semiprofessional level in
engineering, scientific, or technological fields which require
the understanding and application of basic engineering,
scientific, or mathematical principles or knowledge, if the
Secretary determines that there is no nationally recognized
accrediting agency or association qualified to accredit such
institutions, the Secretary shall appoint an advisory committee,
composed of persons specially qualified to evaluate training
provided by such institutions, which shall prescribe the
standards of content, scope, and quality which must be met in
order to qualify such institutions to participate under this Act
and shall also determine whether particular institutions meet
such standards. For the purposes of this paragraph the Secretary
shall publish a list of nationally recognized accrediting
agencies or associations which the Secretary determines to be
reliable authority as to the quality of education or training
offered.

 (F) [Deleted]

The term includes community colleges receiving funding from the
Secretary of the Interior under the Tribally Controlled Community
College Assistance Act of 1978.

 (12) The term "nonprofit" as applied to a school, agency,
organization, or institution means a school, agency,
organization, or institution owned and operated by one 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.

 (13) The term "research and related purposes" means
research, research training (including the payment of stipends
and allowances), surveys, or demonstrations in the field of
education of children with disabilities, or the dissemination of
information derived therefrom, including (but without limitation)
experimental schools.

 (14) The term "Secretary" means the Secretary of
Education.

 (15) The term "children with specific learning
disabilities" means those children who have a disorder in one or
more of the basic psychological processes involved in
understanding or in using language, spoken or written, which
disorder may manifest itself in imperfect ability to listen,
think, speak, read, write, spell, or do mathematical
calculations. Such disorders include such conditions as
perceptual disabilities, brain injury, minimal brain dysfunction,
dyslexia, and developmental aphasia. Such term does not include
children who have learning problems which are primarily the
result of visual, hearing, or motor disabilities, of mental
retardation, of emotional disturbance, or of environmental,
cultural, or economic disadvantage.

 (16) The term "special education" means specially
designed instruction, at no cost to parents or guardians, 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.

 (17) The term "related services" means transportation,
and such developmental, corrective, and other supportive services
(including speech pathology and audiology, psychological
services, physical and occupational therapy, recreation,
including therapeutic recreation, social work services,
counseling services, including rehabilitation counseling, 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.

 (18) 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,

 (B) meet the standards of the State educational agency,

 (C) include an appropriate preschool, elementary, or
secondary school education in the State involved, and

 (D) are provided in conformity with the individualized
education program required under section 614(a)(5) [20 USC
1414(a)(5)].

 (19) The term "transition services" means a coordinated
set of activities for a student, designed within an outcome-
oriented process, which promotes movement from school to
post-school activities, including post-secondary education,
vocational training, integrated employment (including supported
employment), continuing and adult education, adult services,
independent living, or community participation.  The coordinated
set of activities shall be based upon the individual student's
needs, taking into account the student's preferences and
interests, and shall include instruction, 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.

 (20) The term "individualized education program" means a
written statement for each child with a disability developed in
any meeting by a representative of the local educational agency
or an intermediate educational unit who shall be qualified to
provide, or supervise the provision of, specially designed
instruction to meet the unique needs of children with
disabilities, the teacher, the parents or guardian of such child,
and, whenever appropriate, such child, which statement shall
include:

 (A) a statement of the present levels of educational
performance of such child,

 (B) a statement of annual goals, including short- term
instructional objectives,

 (C) a statement of the specific educational services to
be provided to such child, and the extent to which such child
will be able to participate in regular educational programs,

 (D) a statement of the needed transition services for
students beginning no later than age 16 and annually thereafter
(and, when determined appropriate for the individual, beginning
at age 14 or younger), including, when appropriate, a statement
of the interagency responsibilities or linkages (or both) before
the student leaves the school setting,

 (E) the projected date for initiation and anticipated
duration of such services, and

 (F) appropriate objective criteria and evaluation
procedures and schedules for determining, on at least an annual
basis, whether instructional objectives are being achieved. In
the case where a participating agency, other than the educational
agency, fails to provide agreed upon services, the educational
agency shall reconvene the IEP team to identify alternative
strategies to meet the transition objectives.

 (21) The term "excess costs" means those costs which are
in excess of the average annual per student expenditure in a
local educational agency during the preceding school year for an
elementary or secondary school student, as may be appropriate,
and which shall be computed after deducting:

 (A) amounts received:

 (i) under this part [20 USC 4000 et seq.],

 (ii) under chapter 1 of title I of the
Elementary and Secondary Education Act of 1965 [20 USC 2701 et
seq.], or

 (iii) under title VII of the Elementary and
Secondary Education Act of 1965 [20 USC 3281 et seq.], and

 (B) any State or local funds expended for programs that
would qualify for assistance under such part, chapter, or title.

 (22) The term "native language" has the meaning given
that term by section 7003(a)(2) of the Bilingual Education Act
[20 USC 3283(a)(2)].

 (23) The term "intermediate educational unit" means any
public authority, other than a local educational agency, which is
under the general supervision of a State educational agency,
which is established by State law for the purpose of providing
free public education on a regional basis, and which provides
special education and related services to children with
disabilities within that State.

 (24) (A) The term "public or private nonprofit agency or
organization" includes an Indian tribe and the Bureau of Indian
Affairs of the Department of the Interior (when acting on behalf
of schools operated by the Bureau for children and students on
Indian reservations) and tribally controlled schools funded by
the Department of the Interior.

 (B) The terms "Indian", "American Indian", and "Indian
American" mean an individual who is a member of an Indian tribe.

 (C) The term "Indian tribe" means any Federal or State
Indian tribe, band, rancheria, pueblo, colony, or community,
including any Alaskan native village or regional village
corporation (as defined in or established under the Alaska Native
Claims Settlement Act [43 USC 1601 et seq.]).

 (25) 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
individuals with disabilities.

 (26) The term "assistive technology service" means any
service that directly assists an individual with a disability in
the selection, acquisition, or use of an assistive technology
device. Such term includes:

 (A) the evaluation of the needs of an individual with a
disability, including a functional evaluation of the individual
in the individual's customary environment;

 (B) purchasing, leasing, or otherwise providing for the
acquisition of assistive technology devices by individuals with
disabilities;

 (C) selecting, designing, fitting, customizing, adapting,
applying, maintaining, repairing, or replacing of 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 an individual
with disabilities, or, where appropriate, the family of an
individual with disabilities; 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 individuals with disabilities.

 (27) The term "underrepresented" means populations such
as minorities, the poor, the limited English proficient, and
individuals with disabilities.

(b) For purposes of part C of this title [20 USC 1421 et seq.],
"youth with a disability" means any child with a disability (as
defined in subsection (a)(1) who:

 (1) is twelve years of age or older; or

 (2) is enrolled in the seventh or higher grade in school.

1402.  Office of Special Education Programs

(a) Administration of programs and activities. 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 Act [20 USC
1400 et seq.] and other programs and activities concerning the
education and training of individuals with disabilities.

(b) Personnel.(1) The office established under subsection
(a) shall be headed by a Deputy Assistant Secretary who shall be
selected by the Secretary and shall report directly to the
Assistant Secretary for Special Education and Rehabilitative
Services. The position of Deputy Assistant Secretary shall be in
grade GS-18 of the General Schedule under section 5104 of title
5, United States Code [5 USC 5104], and shall be a Senior
Executive Service position for the purposes of section 3132(a)(2)
of such title [5 USC 3132(a)(2)].

 (2) In addition to such Deputy Assistant Secretary, there
shall be established in such office not less than six positions
for persons to assist the Deputy Assistant Secretary, including
the position of the Associate Deputy Assistant Secretary. Each
such position shall be in grade GS- 15 of the General Schedule
under section 5104 of title 5, United States Code [5 USC 5104].

Section 1403 Abrogation of State sovereign immunity

(a) A State shall not be immune under the eleventh amendment to
the Constitution of the United States from suit in Federal court
for a violation of this Act.

/* Important since the effect of this is to place the federal
judiciary in the position with the right to hear and adjudicate
these cases without the myriad problems that accompany other
litigation against states in federal court. */

(b) In a suit against a State for a violation of this Act,
remedies (including remedies both at law and in equity) are
available for such a violation to the same extent as such
remedies are available for such a violation in the suit against
any public entity other than a State.

(c) The provisions of subsections (a) and (b) shall take effect
with respect to violations that occur in whole or part after the
date of the enactment of the Education of the Handicapped Act
Amendments of 1990 [enacted Oct. 30, 1990].

1404. Acquisition of equipment and construction of necessary
facilities

(a) Authorization for use of funds. In the case of any program
authorized by this title, if the Secretary determines that such
program will be improved by permitting the funds authorized for
such program to be used for the acquisition of equipment and the
construction of necessary facilities, the Secretary may authorize
the use of such funds for such purposes.

(b) Recovery of payments under certain conditions. If, within
twenty years after the completion of any construction (except
minor remodeling or alteration) for which funds have been paid
pursuant to a grant or contract under this title, the facility
constructed ceases to be used for the purposes for which it was
constructed, the United States, unless the Secretary determines
that there is good cause for releasing the recipient of the funds
from its obligation, shall be entitled to recover from the
applicant or other owner of the facility an amount which bears
the same ratio to the then value of the facility as the amount of
such Federal funds bore to the cost of the portion of the
facility financed with such funds. Such value shall be determined
by agreement of the parties or by action brought in the United
States district court for the district in which the facility is
situated.

Section 1404. Employment of individuals with disabilities

The Secretary shall assure that each recipient of assistance
under this Act shall make positive efforts to employ and advance
in employment qualified individuals with disabilities in programs
assisted under this Act.

Section 1405. Grants for the removal of architectural barriers;
authorization of appropriations

(a) Upon application by any State or local educational agency or
intermediate educational unit the Commissioner is authorized to
make grants to pay part or all of the cost of altering existing
buildings and equipment in the same manner and to the same extent
as authorized by the Act entitled "An Act to insure that certain
buildings financed with Federal funds are so designed and
constructed as to be accessible to the physically handicapped",
approved August 12, 1968 [42 USC 4151 et seq.].

(b) For the purposes of carrying out the provisions of this
section, there are authorized to be appropriated such sums as may
be necessary.

Section 1407. Requirements for prescribing regulations

(a) Minimum period for comment before effective date. For
purposes of complying with section 431(b) of the General
Education Provisions Act [20 USC 1232(b)] with respect to
regulations promulgated under part B of this Act [20 USC 1411 et
seq.], the thirty-day period under such section shall be ninety
days.

(b) Lessening of procedural or substantive protections as in
effect on July 20, 1983, prohibited. The Secretary may not
implement, or publish in final form, any regulation prescribed
pursuant to this Act [20 USC 1400 et seq.] which would
procedurally or substantively lessen the protections provided to
children with disabilities under this Act [20 USC 1400 et seq.],
as embodied in regulations in effect on July 20, 1983
(particularly as such protections relate to parental consent to
initial evaluation or initial placement in special education,
least restrictive environment, related services, timelines,
attendance of evaluation personnel at individual education
program meetings, or qualifications of personnel), except to the
extent that such regulation reflects the clear and unequivocal
intent of the Congress in legislation.

(c) [Deleted]


Section 1408. Eligibility for financial assistance

Effective for fiscal years for which the Secretary may make
grants under section 619(b)(1) [20 USC 1419(b)(1)], no State or
local educational agency or intermediate educational unit or
other public institution or agency may receive a grant under
parts C through G which relate exclusively to programs, projects,
and activities pertaining to children aged three to five,
inclusive, unless the State is eligible to receive a grant under
section 619(b)(1) [20 USC 1419(b)(1)].


Section 1409. Administrative provisions applicable to Parts C
through G and 20 USC 1418

(a) The Secretary shall maintain a process for developing a
program plan for the implementation of each of the programs
authorized under section 618 [20 USC 1418] and parts C through G.
The plan shall include program goals, objectives, strategies, and
priorities. In conducting the process, the Secretary shall
involve individuals with disabilities, parents, professionals,
and representatives of State and local educational agencies,
private schools, institutions of higher education, and national
organizations who have interest and expertise in the program.

(b) In awarding grants, contracts, and cooperative agreements
under parts C through G, the Secretary, where appropriate, shall
require applicants to demonstrate how they will address, in whole
or in part, the needs of infants, toddlers, children, and youth
with disabilities from minority backgrounds.

(c) In awarding grants, contracts, or cooperative agreements
under parts C through G the Secretary, where appropriate, may
require applicants to address the various transitions that a
child with a disability may face throughout such child's years in
school, including:

 (1) the transition from medical care to special education
for those children with disabilities, including chronic health
impairments, who may require individualized health-related
services to enable such children to participate in, or benefit
from, special education;

 (2) the transition between residential placement and
community-based special education services; and

 (3) the transition between a separate educational
placement and the regular classroom setting.

(d) The Secretary shall conduct directly, or by contract or
cooperative agreement with appropriate entities, independent
evaluations of the programs authorized under section 618 [20 USC
1418] and under parts C through G, and may for such purpose use
funds appropriated to carry out such provisions.  The findings of
the evaluators shall be utilized in the planning process under
subsection (a) for the purpose of improving the programs. The
evaluations shall determine the degree to which the program is
being conducted consistent with the program plan and meeting its
goals and objectives.  The Secretary shall submit to the
appropriate committees of the Congress the results of the
evaluations required by this subsection.

(e) The Secretary shall report on the program plans required in
subsection (a) and findings from the evaluations under subsection
(d) in the annual report to the Congress required under section
618 [20 USC 1418].

(f) The Secretary shall develop effective procedures for
acquiring and disseminating information derived from programs and
projects funded under parts C through G, as well as information
generated from studies conducted and data collected under section
618 [20 USC 1418].

(g) The Secretary shall, where appropriate, require recipients of
all grants, contracts, and cooperative agreements under parts C
through G to prepare reports describing their procedures,
findings, and other relevant information in a form that will
maximize the dissemination and use of such procedures, findings,
and information. The Secretary shall require their delivery, as
appropriate, to the Regional and Federal Resource Centers, the
Clearinghouses, and the Technical Assistance to Parents Programs
(TAPP) assisted under parts C and D, as well as the National
Diffusion Network, the ERIC Clearinghouse on the Handicapped and
Gifted, and the Child and Adolescent Service Systems Program
(CASSP) under the National Institute of Mental Health,
appropriate parent and professional organizations, organizations
representing individuals with disabilities, and such other
networks as the Secretary may determine to be appropriate.

(h)

 (1)  The Secretary shall convene, in accordance with
paragraph (2), panels of experts who are competent, by virtue of
their training or experience, to evaluate proposals under section
618 [20 USC 1418] and parts C through G.

 (2) Panels under paragraph (1) shall be composed of
individuals with disabilities, parents of such individuals,
individuals from the fields of special education, related
services, and other relevant disciplines.

 (3) The Secretary shall convene panels under paragraph
(1) for any application that includes a total funding request
exceeding $60,000 and may convene or otherwise appoint panels for
applications that include funding requests that are less than
such amount.

 (4) Panels under paragraph (1) shall include a majority
of non-Federal members. Such non-Federal members shall be
provided travel and per diem not to exceed the rate provided to
other educational consultants used by the Department of Education
and shall be provided consultant fees at such a rate.

 (5) The Secretary may use funds available under section
618 [20 USC 1418] and parts C through G to pay expenses and fees
of non-Federal members of the panels.

(i) The Secretary shall conduct at least 1 site visit for each
grant, contract, and cooperative agreement receiving $300,000 or
more annually under parts C through G.  (j)

 (1) With respect to the discretionary programs authorized
by parts C through G, the Congress finds as follows:

 (A) (i) The Federal Government must be responsive to the
growing needs of an increasingly more diverse society. 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.

 (ii) America's racial profile is rapidly changing. While
the rate of increase for white Americans is 3.2 percent, the rate
of increase for racial and ethnic minorities is much higher: 38.6
percent for Hispanics, 14.6 percent for African-Americans, and
40.1 percent for Asians and other ethnic groups.

 (iii) By the year 2000, this Nation will have
260,000,000 people, one of every three of whom will be either
African-American, Hispanic, or Asian-American.

 (iv) Taken together as a group, it is a more
frequent phenomenon for minorities to comprise the majority of
public school students. Large city school populations are
overwhelmingly minority, e.g., Miami, 71 percent; Philadelphia,
73 percent; Baltimore, 80 percent.

 (v) Recruitment efforts within special education at the
level of preservice, continuing education, and practice must
focus on bringing larger numbers of minorities into the
profession in order to provide appropriate practitioner
knowledge, role models, and sufficient manpower to address the
clearly changing demography of special education.

 (vi) The limited English proficient population is
the fastest growing in our Nation, and the growth is occurring in
many parts of our Nation. In the Nation's 2 largest school
districts, limited-English students make up almost half of all
students initially entering school at the kindergarten level.
Studies have documented apparent discrepancies in the levels of
referral and placement of limited-English proficient children in
special education. The Department of Education has found that
services provided to limited-English proficient students often do
not respond primarily to the pupil's academic needs. These trends
pose special challenges for special education in the referral,
assessment, and services for our Nation's students from
non-English language backgrounds.

 (B) (i) Greater efforts are needed to prevent the
intensification of problems connected with mislabeling and high
dropout rates among minority children with disabilities.

 (ii) 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.

 (iii) Poor African-American children are 3.5
times more likely to be identified by their teacher as mentally
retarded than their white counterpart.

 (iv) Although African-Americans represent 12
percent of elementary and secondary enrollments, they constitute
28 percent of total enrollments in special education.

 (v) The drop out rate is 68 percent higher for minorities
than for whites.

 (vi) More than 50 percent of minority students in large
cities drop out of school.

 (C) (i) The opportunity for full participation in awards
for grants and contracts; boards of organizations receiving funds
under this Act; and peer review panels; and training of
professionals in the area of special education by minority
individuals, organizations, and historically Black colleges and
universities is essential if we are to obtain greater success in
the education of minority children with disabilities.

 (ii) In 1989, of the 661,000 college and university
professors, 4.6 percent were African-American and 3.1 percent
were Hispanic. Of the 3,600,000 teachers, prekindergarten through
high school, 9.4 percent were African-American and 3.9 percent
were Hispanic.

 (iii) Students from minority groups comprise more than 50
percent of K-12 public school enrollment in seven States yet
minority enrollment in teacher training programs is less than 15
percent in all but six States.

 (iv) As the number of African-American and Hispanic
students in special education increases, the number of minority
teachers and related service personnel produced in our colleges
and universities continues to decrease.

 (v) Ten years ago, 12.5 percent of the United States
teaching force in public elementary and secondary schools were
members of a minority group. Minorities comprised 21.3 percent of
the national population at that time and were clearly
underrepresented then among employed teachers. Today, the
elementary and secondary teaching force is 3 to 5 percent
minority, while one-third of the students in public schools are
minority children.

 (vi) As recently as 1984-85, Historically Black Colleges
and Universities (HBCUs) supplied nearly half of the
African-American teachers in the Nation. However, in 1988, HBCUs
received only 2 percent of the discretionary funds for special
education and related services personnel training.

 (vii) While African-American students constitute 28
percent of total enrollment in special education, only 11.2
percent of individuals enrolled in preservice training programs
for special education are African-American.

 (viii) In 1986-87, of the degrees conferred in education
at the B.A., M.A., and Ph.D levels, only 6, 8, and 8 percent,
respectively, were awarded to African- American or Hispanic
students.

 (D) Minorities and underserved persons are socially
disadvantaged because of the lack of opportunities in training
and educational programs, undergirded by the practices in the
private sector that impede their full participation in the
mainstream of society.

 (2) The Congress further finds that these conditions can
be greatly improved by providing opportunities for the full
participation of minorities through the implementation of the
following recommendations:

 (A) Implementation of a policy to mobilize the Nation's
resources to prepare minorities for careers in special education
and related services.

 (B) This policy should focus on:

 (i) the recruitment of minorities into teaching; and

 (ii) financially assisting HBCUs and other
institutions of higher education (whose minority student
enrollment is at least 25 percent) to prepare students for
special education and related service careers.

 (C) (i) The Secretary shall develop a plan for providing
outreach services to the entities described in clause (ii) in
order to increase the participation of such entities in
competitions for grants, contracts, and cooperative agreements
under any of parts C through G.

 (ii) The entities referred to in clause (i)
are:

 (I) Historically Black Colleges and Universities and
other institutions of higher education whose minority student
enrollment is at least 25 percent;

 (II) eligible institutions as defined in section 312 of
the Higher Education Act of 1965 [20 USC 1058];

 (III) nonprofit and for-profit agencies at least 51
percent owned or controlled by one or more minority individuals;
and

 (IV) underrepresented populations.

 (iii) For the purpose of implementing the plan required
in clause (i), the Secretary shall, for each of the fiscal years
1991 through 1994, expend 1 percent of the funds appropriated for
the fiscal year involved for carrying out parts C through G.

 (3) The Secretary shall exercise his/her utmost
authority, resourcefulness, and diligence to meet the
requirements of this subsection.

 (4) Not later than January 31 of each year, starting with
fiscal year 1991, the Secretary shall submit to Congress a final
report on the progress toward meeting the goals of this
subsection during the preceding fiscal year.  The report shall
include:

 (i) a full explanation of any progress toward meeting the
goals of this subsection; and

(ii) a plan to meet the goals, if necessary.

Section 1411. Entitlements and allocations

(a) Formula for determining maximum State entitlement. (1) Except
as provided in paragraph (5) and in section 619 [20 USC 1419],
the maximum amount of the grant to which a State is entitled
under this part for any fiscal year shall be equal to:

 (A) the number of children with disabilities aged 3-5,
inclusive, in a State who are receiving special education and
related services as determined under paragraph

(3) if the State is eligible for a grant under section 619 [20
USC 1419] and the number of children with disabilities aged 6-21,
inclusive, in a State who are receiving special education and
related services as so determined; multiplied by:

 (B) (i) 5 per centum, for the fiscal year ending
September 30, 1978, of the average per pupil expenditure in
public elementary and secondary schools in the United States;

 (ii) 10 per centum, for the fiscal year
ending September 30, 1979, of the average per pupil expenditure
in public elementary and secondary schools in the United States;

 (iii) 20 per centum, for the fiscal year
ending September 30, 1980, of the average per pupil expenditure
in public elementary and secondary schools in the United States;

 (iv) 30 per centum, for the fiscal year
ending September 30, 1981, of the average per pupil expenditure
in public elementary and secondary schools in the United States;
and

 (v) 40 per centum, for the fiscal year ending
September 30, 1982, and for each fiscal year thereafter, of the
average per pupil expenditure in public elementary and secondary
schools in the United States;except that no State shall receive
an amount which is less than the amount which such State received
under this part for the fiscal year ending September 30, 1977.

 (2) For the purpose of this subsection and subsection
(b) through subsection (e), the term "State" does not include
Guam, Amercian Samoa, the Virgin Islands, the Commonwealth of the
Northern Mariana Islands, the Federated States of Micronesia, the
Republic of the Marshall Islands, and Palau.

 (3) The number of children with disabilities receiving
special education and related services in any fiscal year shall
be equal to number of such children receiving special education
and related services on December 1 of the fiscal year preceding
the fiscal year for which the determination is made.

 (4) For purposes of paragraph (1)(B), the term "average
per pupil expenditure", in the United States, means the aggregate
current expenditures, during the second fiscal year preceding the
fiscal year for which the computation is made (or, if
satisfactory data for such year are not available at the time of
computation, then during the most recent preceding fiscal year
for which satisfactory data are available) of all local
educational agencies in the United States (which, for purposes of
this subsection, means the fifty States and the District of
Columbia), as the case may be, plus any direct expenditures by
the State for operation of such agencies (without regard to the
source of funds from which either of such expenditures are made),
divided by the aggregate number of children in average daily
attendance to whom such agencies provided free public education
during such preceding year.

 (5) (A) In determining the allotment of each State under
paragraph (1), the Secretary may not count:

 (i) children with disabilities aged three to seventeen,
inclusive, in such State under paragraph (1)(A) to the extent the
number of such children is greater than 12 percent of the number
of all children aged three to seventeen, inclusive, in such State
and the State serves all children with disabilities aged three to
five, inclusive, in the State pursuant to State law or practice
or the order of any court,

 (ii) children with disabilities aged five to seventeen,
inclusive, in such State under paragraph (1)(A) to the extent the
number of such children is greater than 12 percent of the number
of all children aged five to seventeen, inclusive, in such State
and the State does not serve all children with disabilities aged
three to five, inclusive, in the State pursuant to State law or
practice on the order of any court; and

 (iii) children with disabilities who are counted under
section 121 of the Elementary and Secondary Education Act of
1965.

 (B) For purposes of subparagraph (A), the number of
children aged three to seventeen, inclusive, in any State shall
be determined by the Secretary on the basis of the most recent
satisfactory data available to the Secretary.

(b) Distribution and use of grant funds by States for fiscal year
ending September 30, 1978. (1) Of the funds received under
subsection (a) by any State for the fiscal year ending September
30, 1978:

 (A) 50 per centum of such funds may be used by such State
in accordance with the provisions of paragraph (2); and

 (B) 50 per centum of such funds shall be distributed by
such State pursuant to subsection (d) to local educational
agencies and intermediate educational units in such State, for
use in accordance with the priorities established under section
612(3) [20 USC 1412(3)].

 (2) Of the funds which any State may use under paragraph
(1)(A):

 (A) an amount which is equal to the greater of:

 (i) 5 per centum of the total amount of funds received
under this part by such State; or

 (ii) $200,000;

 may be used by such State for administrative costs
related to carrying out sections 612 and 613 [20 USC 1412, 1413];

 (B) the remainder shall be used by such State to provide
support services and direct services, in accordance with the
priorities established under section 612(3) [20 USC 1412(3)].

(c) Distribution and use of grant funds by States for fiscal
years ending September 30, 1979, and thereafter. (1) Of the funds
received under subsection (a) by any State for the fiscal year
ending September 30, 1979, and for each fiscal year thereafter:

 (A) 25 per centum of such funds may be used by such State
in accordance with the provisions of paragraph (2); and

 (B) except as provided in paragraph (4), 75 per centum of
such funds shall be distributed by such State pursuant to
subsection (d) to local educational agencies and intermediate
educational units in such State, for use in accordance with
priorities established under section 612(3) [20 USC 1412(3)].

 (2) (A) Subject to the provisions of subparagraph (B), of
the funds which any State may use under paragraph (1)(A):

 (i) an amount which is equal to the greater
of:

 (I) 5 per centum of the total amount of funds received
under this part by such State; or

(II) $450,000;

 may be used by such State for administrative costs
related to carrying out the provisions of sections 612 and 613
[20 USC 1412, 1413]; and

 (ii) the part remaining after use in accordance with
clause (i) shall be used by the State (I) to provide support
services and direct services in accordance with the priorities
established under section 612(3) [20 USC 1412(3)], and (II) for
the administrative costs of monitoring and complaint
investigation but only to the extent that such costs exceed the
costs of administration incurred during fiscal year 1985.

 (B) The amount expended by any State from the funds
available to such State under paragraph (1)(A) in any fiscal year
for the provision of support services or for the provision of
direct services shall be matched on a program basis by such
State, from funds other than Federal funds, for the provision of
support services or for the provision of direct services for the
fiscal year involved.

 (3) The provisions of section 613(a)(9) [20 USC
1413(a)(9)] shall not apply with respect to amounts available for
use by any State under paragraph (2).

 (4) (A) No funds shall be distributed by any State under
this subsection in any fiscal year to any local educational
agency or intermediate educational unit in such State if:

 (i) such local educational agency or intermediate
educational unit is entitled, under subsection (d), to less than
$7,500 for such fiscal year; or

 (ii) such local educational agency or intermediate
educational unit has not submitted an application for such funds
which meets the requirements of section 614 [20 USC 1414].

 (B) Whenever the provisions of subparagraph (A) apply,
the State involved shall use such funds to assure the provision
of a free appropriate education to children with disabilities
residing in the area served by such local educational agency or
such intermediate educational unit.  The provisions of paragraph
(2)(B) shall not apply to the use of such funds.

(d) Allocation of funds within States to local educational
agencies and intermediate educational units. From the total
amount of funds available to local educational agencies and
intermediate educational units in any State under subsection
(b)(1)(B) or subsection (c)(1)(B), as the case may be, each local
educational agency or intermediate educational unit shall be
entitled to an amount which bears the same ratio to the total
amount available under subsection (b)(1)(B) or subsection
(c)(1)(B), as the case may be, as the number of children with
disabilities aged three to twenty-one, inclusive, receiving
special education and related services in such local educational
agency or intermediate educational unit bears to the aggregate
number of children with disabilities aged three to twenty-one,
inclusive, receiving special education and related services in
all local educational agencies and intermediate educational units
which apply to the State educational agency involved for funds
under this part.

(e) Territories and possessions. (1) The jurisdictions to which
this subsection applies are Guam, Amercian Samoa, the Virgin
Islands, the Commonwealth of the Northern Mariana Islands, the
Federated States of Micronesia, the Republic of the Marshall
Islands, and Palau.

 (2) Each jurisdiction to which this subsection applies
shall be entitled to a grant for the purposes set forth in
section 601(c) [20 USC 1400 note] in an amount equal to an amount
determined by the Secretary in accordance with criteria based on
respective needs, except that the aggregate of the amount to
which such jurisdictions are so entitled for any fiscal year
shall not exceed an amount equal to 1 per centum of the aggregate
of the amounts available to all States under this part for that
fiscal year. If the aggregate of the amounts, determined by the
Secretary pursuant to the preceding sentence, to be so needed for
any fiscal year exceeds an amount equal to such 1 per centum
limitation, the entitlement of each such jurisdiction shall be
reduced proportionately until such aggregate does not exceed such
1 per centum limitation.

 (3) The amount expended for administration by each
jurisdiction under this subsection shall not exceed 5 per centum
of the amount allotted to such jurisdiction for any fiscal year,
or $35,000, whichever is greater.

(f) Indian reservations. (1) The Secretary shall make payments to
the Secretary of the Interior to meet the need for assistance for
the education of children with disabilities on reservations aged
5-21, inclusive, enrolled in elementary and secondary schools for
Indian children operated or funded by the Secretary of the
Interior.  In the case of Indian students ages 3-5, inclusive,
who are enrolled in programs affiliated with Bureau of Indian
Affairs (hereafter in this subsection referred to as "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 [enacted Oct. 7, 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 these children, in
accordance with paragraph (3).  The amount of such payment for
any fiscal year shall be 1 percent of the aggregate amounts
available for all States under this section for that fiscal year.

 (2) With respect to all other children aged 3-21,
inclusive, on reservations, the State educational agency shall be
responsible for ensuring that all of the requirements of this
part are implemented.

 (3) The Secretary of the Interior may receive an
allotment under paragraph (1) only after submitting to the
Secretary of Education an application that:

 (A) meets the appropriate requirements, as determined by
the Secretary of Education, of sections 612 [20 USC 1412]
(including monitoring and evaluation activities), 613, and 614(a)
[20 USC 1413, 1414(a)];

 (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, ant 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 required under 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(b)(1) [20 USC
1418(b)(1)], including data on the number of children and youth
with disabilities served and the types and amounts of services
provided and needed and this information shall be included in the
annual report of the Secretary of Education to Congress required
in Section 618(g) [20 USC 1418(g)];

 (E) includes an assurance that, by October 1, 1992, the
Secretaries of the Interior and Health and Human Services will
enter 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, but not limited to,
child find, evaluation, diagnosis, remediation or therapeutic
measures, and (where appropriate) equipment and medical/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 Act, and will fulfill its duties under
this Act. Section 616(a) [20 USC 1416(a)] shall apply to any such
application.

 (4) (A) Beginning with funds appropriated under section
611(a) [subsec. (a) of this section] for fiscal year 1992, the
Secretary shall, subject to this paragraph, 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 [25 USC 450b]) or
consortiums of the above to provide for the coordination of
assistance for special education and related services for
children with disabilities aged 3-5, inclusive, on reservations
served by elementary 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 .25 percent of the aggregate amounts available for all States
under this section for that fiscal year.

 (B) The Secretary of the Interior shall distribute the
total amount of the .25 percent under subparagraph (A) in the
following manner:

 (i) For the first fiscal year, each tribe or tribal
organization shall receive an amount proportionate to the amount
of weighted student units for special education programs for BIA
operated or funded schools serving such reservation generated
under the formula established under section 1128 of the Education
Amendments of 1978 [25 USC 2008], divided by the total number of
such students in all BIA operated or funded schools.

 (ii) For each fiscal year thereafter, each tribe or
tribal organization shall receive an amount based on the number
of children with disabilities, ages 3-5, inclusive, residing on
reservations as reported annually divided by the total of such
children served by all tribes or tribal organizations.

 (C) 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) The funds received by a tribe or tribal roganization
shall be used to assist in child find, screening, and other
procedures for the early identification of children aged 3-5,
inclusive, 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 above entities shall, as appropriate, make
referrals to local, State, or Federal entities for the provision
of services or further diagnosis.

 (E) To be eligible to receive a grant pursuant to
subparagraph (A), the tribe or tribal organization shall make a
biennial report to the Secretary of the Interior 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 one 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) The Secretary of the Interior shall offer and, on
request, provide technical assistance (especially in the areas of
child find, diagnosis, and referral) to State and local
educational agencies (where appropriate, intermediate educational
units), and tribes and tribal organizations.  Such assistance may
be provided through its divisions and offices at the national and
local level.

 (G) None of the funds allocated under this paragraph can
be used by the Secretary of the Interior for administrative
purposes, including child count, and the provision of technical
assistance.

 (5) Before January 1, 1992, the Secretary of the Interior
shall submit to the Committee on Education and Labor of the House
of Representatives and the Committee on Labor and Human Resources
of the Senate a plan for the coordination of services for all
Indian children with disabilities residing on reservations
covered under this Act.  Such plan shall provide for the
coordination of services benefiting these children from whatever
source, including tribes, the Indian Health Service, other BIA
divisions, and other Federal agencies.  In developing such a
plan, the Secretary of the Interior shall consult with all
interested and involved parties.  It shall be based upon 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.  Such plan shall also be distributed upon request to
States, State and local educational agencies, and other agencies
providing services to infants, toddlers, children, and youth with
disabilities, to tribes, and to other interested parties.

 (6) To meet the requirements of section 613(a)(12) of
this Act [20 USC 1413(a)(12)], the Secretary of the Interior
shall establish, within 6 months of the date of the enactment of
the Individuals with Disabilities Education Act Amendments of
1991 [enacted Oct. 7, 1991], under the Bureau of Indian Affairs
(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 in States having reservations, and other
members representing the various divisions and entities of the
BIA.  The chairperson shall be selected by the Secretary of the
Interior.  The advisory board shall:

 (A) assist in the coordination of services within BIA and
with other local, State, and Federal agencies in the provision of
education for infants, toddlers, children, and youth with
disabilities;

 (B) advise and assist the Secretary of the Interior in
the performance of the Secretary'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 educational programming for Indian
infants, toddlers, children, and youth with disabilities; and

 (E) provide assistance in the preparation of information
required under paragraph (3)(D).

(g) Reductions or increases. (1) If the sums appropriated under
subsection (h) for any fiscal year for making payments to States
under subsection (a) are not sufficient to pay in full the total
amounts which all States are entitled to receive under subsection
(a) for such fiscal year, the maximum amounts which all States
are entitled to receive under subsection (a) for such fiscal year
shall be ratably reduced. In case additional funds become
available for making such payments for any fiscal year during
which the preceding sentence is applicable, such reduced amounts
shall be increased on the same basis as they were reduced.

 (2) In the case of any fiscal year in which the maximum
amounts for which States are eligible have been reduced under the
first sentence of paragraph (1), and in which additional funds
have not been made available to pay in full the total of such
maximum amounts under the last sentence of such paragraph, the
State educational agency shall fix dates before which each local
educational agency or intermediate educational unit shall report
to the State educational agency on the amount of funds available
to the local educational agency or intermediate educational unit,
under the provisions of subsection (d), which it estimates that
it will expend in accordance with the provisions of this section.
The amounts so available to any local educational agency or
intermediate educational unit, or any amount which would be
available to any other local educational agency or intermediate
educational unit if it were to submit a program meeting the
requirements of this part [20 USC 1411 et seq.], which the State
educational agency determines will not be used for the period of
its availability, shall be available for allocation to those
local educational agencies or intermediate educational units, in
the manner provided by this section, which the State educational
agency determines will need and be able to use additional funds
to carry out approved programs.

(h) Authorization of appropriations.For grants under subsection
(a) there are authorized to be appropriated such sums as may be
necessary.

Section 1412

In order to qualify for assistance under this part in any fiscal
year, a State shall demonstrate to the Secretary that the
following conditions are met:

/* This statute is part of the statutory framework for a Free And
Appropriate Public Education, (FAPE) a term that will be seen
throughout cases involving children who are HIV positive. */

 (1) The State has in effect a policy that assures all
children with disabilities the right to a free appropriate public
education.

 (2) The State has developed a plan pursuant to section
613(b) [20 USC 1413(b)] in effect prior to the date of the
enactment of the Education for All Handicapped Children Act of
1975 [enacted Nov. 29, 1975] and submitted not later than August
21, 1975, which will be amended so as to comply with the
provisions of this paragraph. Each such amended plan shall set
forth in detail the policies and procedures which the State will
undertake or has undertaken in order to assure that:

 (A) there is established (i) a goal of providing full
educational opportunity to all children with disabilities, (ii) a
detailed timetable for accomplishing such a goal, and (iii) a
description of the kind and number of facilities, personnel, and
services necessary throughout the State to meet such a goal;

 (B) a free appropriate public education will be available
for all children with disabilities between the ages of three and
eighteen within the State not later than September 1, 1978, and
for all children with disabilities between the ages of three and
twenty-one within the State not later than September 1, 1980,
except that, with respect to children with disabilities aged
three to five and aged eighteen to twenty-one, inclusive, the
requirements of this clause shall not be applied in any State if
the application of such requirements would be inconsistent with
State law or practice, or the order of any court, respecting
public education within such age groups in the State;

 (C) all children residing in the State who are disabled,
regardless of the severity of their disability, and who are in
need of special education and related services are identified,
located, and evaluated, and that a practical method is developed
and implemented to determine which children are currently
receiving needed special education and related services and which
children are not currently receiving needed special education and
related services;

 (D) policies and procedures are established in accordance
with detailed criteria prescribed under section 617(c) [20 USC
1417(c)]; and

 (E) any amendment to the plan submitted by the State
required by this section shall be available to parents,
guardians, and other members of the general public at least
thirty days prior to the date of submission of the amendment to
the Secretary.

 (3) The State has established priorities for providing a
free appropriate public education to all children with
disabilities, which priorities shall meet the timetables set
forth in clause (B) of paragraph (2) of this section, first with
respect to children with disabilities who are not receiving an
education, and second with respect to children with disabilities,
within each disability category, with the most severe
disabilities who are receiving an inadequate education, and has
made adequate progress in meeting the timetables set forth in
clause (B) of paragraph (2) of this section.

 (4) Each local educational agency in the State will
maintain records of the individualized education program for each
child with a disability, and such program shall be established,
reviewed, and revised as provided in section 614(a)(5) [20 USC
1414(a)(5)].

 (5) The State has established (A) procedural safeguards
as required by section 615 [20 USC 1415], (B) procedures to
assure that, 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 that 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 is such that education in regular
classes with the use of supplementary aids and services cannot be
achieved satisfactorily, and (C) procedures to assure that
testing and evaluation materials and procedures utilized for the
purposes of evaluation and placement of children with
disabilities 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.

 (6) The State educational agency shall be responsible for
assuring that the requirements of this part are carried out and
that all educational programs for children with disabilities
within the State, including all such programs administered by any
other State or local agency, will be under the general
supervision of the persons responsible for educational programs
for children with disabilities in the State educational agency
and shall meet education standards of the State educational
agency. This paragraph shall not be construed to limit the
responsibility of agencies other than educational agencies in a
State from providing or paying for some or all of the costs of a
free appropriate public education to be provided children with
disabilities in the State.

 (7) The State shall assure that (A) in carrying out the
requirements of this section procedures are established for
consultation with individuals involved in or concerned with the
education of children with disabilities, including individuals
with disabilities and parents or guardians of children with
disabilities, and (B) there are public hearings, adequate notice
of such hearings, and an opportunity for comment available to the
general public prior to adoption of the policies, programs, and
procedures required pursuant to the provisions of this section
and section 613 [20 USC 1413].


Section 1413.  State plans

(a) Requisite features. Any State meeting the eligibility
requirements set forth in section 612 [20 USC 1412] and desiring
to participate in the program under this part shall submit to the
Secretary, through its State educational agency, a State plan at
such time, in such manner, and containing or accompanied by such
information, as the Secretary deems necessary. Each such plan
shall:

 (1) set forth policies and procedures designed to assure
that funds paid to the State under this part will be expended in
accordance with the provisions of this part, with particular
attention given to the provisions of sections 611(b), 611(c),
611(d), 612(2), and 612(3) [20 USC 1411(b),(d), 1412(2), (3)];

 (2) provide that programs and procedures will be
established to assure that funds received by the State or any of
its political subdivisions under any other Federal program,
including subpart 2 of part D of chapter 1 of title I of the
Elementary and Secondary Education Act of 1965 [20 USC 2791 et
seq.], under which there is specific authority for the provision
of assistance for the education of children with disabilities,
will be utilized by the State, or any of its political
subdivisions, only in a manner consistent with the goal of
providing a free appropriate public education for all children
with disabilities, except that nothing in this clause shall be
construed to limit the specific requirements of the laws
governing such Federal programs;

 (3) describe, consistent with the purposes of this Act
and with the comprehensive system of personnel development
described in section 676(b)(8) [20 USC 1476(b)(8)] a
comprehensive system of personnel development that shall include:

 (A) a description of the procedures and activities the
State will undertake to ensure an adequate supply of qualified
special education and related services personnel, including:

 (i) the development and maintenance of a system for
determining, on an annual basis:

 (I) the number and type of personnel, including
leadership personnel, that are employed in the provision of
special education and related services, by area of
specialization, including the number of such personnel who are
employed on an emergency, provisional, or other basis, who do not
hold appropriate State certification or licensure; and

 (II) the number and type of personnel, including
leadership personnel, needed, and a projection of the numbers of
such personnel that will be needed in five years, based on
projections of individuals to be served, retirement and other
leaving of personnel from the field, and other relevant factors;

 (ii) the development and maintenance of a system for
determining, on an annual basis, the institutions of higher
education within the State that are preparing special education
and related services personnel, including leadership personnel,
by area of specialization, including:

 (I) the numbers of students enrolled in such programs,
and

 (II) the number who graduated with certification or
licensure, or with credentials to qualify for certification or
licensure, during the past year; and

 (iii) the development, updating, and implementation of a
plan that:

 (I) will address current and projected special education
and related services personnel needs, including the need for
leadership personnel; and

 (II) coordinates and facilitates efforts among State and
local educational agencies, institutions of higher education, and
professional associations to recruit, prepare, and retain
qualified personnel, including personnel from minority
backgrounds, and personnel with disabilities; and

 (B) a description of the procedures and activities the
State will undertake to ensure that all personnel necessary to
carry out this part are appropriately and adequately prepared,
including:

 (i) a system for the continuing education of regular and
special education and related services personnel;

 (ii) procedures for acquiring and disseminating to
teachers, administrators, and related services personnel
significant knowledge derived from education research and other
sources; and

 (iii) procedures for adopting, where appropriate,
promising practices, materials, and technology.

 (4) set forth policies and procedures to assure:

 (A) that, to the extent consistent with the number and
location of children with disabilities in the State who are
enrolled in private elementary and secondary schools, provision
is made for the participation of such children in the program
assisted or carried out under this part by providing for such
children special education and related services; and

 (B) that:

 (i) children with disabilities in private schools and
facilities will be provided special education and related
services (in conformance with an individualized education program
as required by this part) at no cost to their parents or
guardian, if such children are placed in or referred to such
schools or facilities by the State or appropriate local
educational agency as the means of carrying out the requirements
of this part or any other applicable law requiring the provision
of special education and related services to all children with
disabilities within such State; and

 (ii) in all such instances, the State educational agency
shall determine whether such schools and facilities meet
standards that apply to State and local educational agencies and
that children so served have all the rights they would have if
served by such agencies;

 (5) set forth policies and procedures which assure that
the State shall seek to recover any funds made available under
this part for services to any child who is determined to be
erroneously classified as eligible to be counted under section
611(a) or section 611(d) [20 USC 1411(a) or (d)];

 (6) provide satisfactory assurance that the control of
funds provided under this part, and title to property derived
therefrom, shall be in a public agency for the uses and purposes
provided in this part, and that a public agency will administer
such funds and property;

 (7) provide for:

 (A) making such reports in such form and containing such
information as the Secretary may require to carry out the
Secretary's functions under this part [20 USC 1411 et seq.], and

 (B) keeping such records and affording such access
thereto as the Secretary may find necessary to assure the
correctness and verification of such reports and proper
disbursement of Federal funds under this part [20 USC 1411 et
seq.];

 (8) provide procedures to assure that final action with
respect to any application submitted by a local educational
agency or an intermediate educational unit shall not be taken
without first affording the local educational agency or
intermediate educational unit involved reasonable notice and
opportunity for a hearing;

 (9) provide satisfactory assurance that Federal funds
made available under this part [20 USC 1411 et seq.]:

 (A) will not be commingled with State funds, and

 (B) will be so used as to supplement and increase the
level of Federal, State, and local funds (including funds that
are not under the direct control of State or local educational
agencies) expended for special education and related services
provided to children with disabilities under this part and in no
case to supplant such Federal, State, and local funds, except
that, where the State provides clear and convincing evidence that
all children with disabilities have available to them a free
appropriate public education, the Secretary may waive in part the
requirement of this subparagraph if the Secretary concurs with
the evidence provided by the State;

 (10) provide, consistent with procedures prescribed
pursuant to section 617(a)(2) [20 USC 1417(a)(2)], satisfactory
assurance that such fiscal control and fund accounting procedures
will be adopted as may be necessary to assure proper disbursement
of, and accounting for, Federal funds paid under this part to the
State, including any such funds paid by the State to local
educational agencies and intermediate educational units;

 (11) provide for procedures for evaluation at least
annually of the effectiveness of programs in meeting the
educational needs of children with disabilities (including
evaluation of individualized education programs), in accordance
with such criteria that the Secretary shall prescribe pursuant to
section 617 [20 USC 1417];

 (12) provide that the State has an advisory panel,
appointed by the Governor or any other official authorized under
State law to make such appointments, composed of individuals
involved in or concerned with the education of children with
disabilities, including individuals with disabilities, teachers,
parents or guardians of children with disabilities, State and
local education officials, and administrators of programs for
children with disabilities, which--

 (A) advises the State educational agency of unmet needs
within the State in the education of children with disabilities,

 (B) comments publicly on any rules or regulations
proposed for issuance by the State regarding the education of
children with disabilities and the procedures for distribution of
funds under this part [20 USC 1411 et seq.], and

 (C) assists the State in developing and reporting such
data and evaluations as may assist the Secretary in the
performance of the responsibilities of the Secretary under
section 618 [20 USC 1418];

 (13) set forth policies and procedures for developing and
implementing interagency agreements between the State educational
agency and other appropriate State and local agencies to:

 (A) define the financial responsibility of each agency
for providing children and youth with disabilities with free
appropriate public education, and

 (B) resolve interagency disputes, including procedures
under which local educational agencies may initiate proceedings
under the agreement in order to secure reimbursement from other
agencies or otherwise implement the provisions of the agreement;

 (14) set forth policies and procedures relating to the
establishment and maintenance of standards to ensure that
personnel necessary to carry out the purposes of this part are
appropriately and adequately prepared and trained, including:

 (A) the establishment and maintenance of standards which
are consistent with any State approved or recognized
certification, licensing, registration, or other comparable
requirements which apply to the area in which such personnel are
providing special education or related services, and

 (B) to the extent such standards are not based on the
highest requirements in the State applicable to a specific
profession or discipline, the steps the State is taking to
require the retraining or hiring of personnel that meet
appropriate professional requirements in the State; and

 (15) set forth policies and procedures relating to the
smooth transition for those individuals participating in the
early intervention program assisted under part H who will
participate in preschool programs assisted under this part,
including a method of ensuring that when a child turns age three
an individualized education program, or, if consistent with
sections 614(a)(5) and 677(d) [20 USC 1414(a)(5), 1477(d)], an
individualized family service plan, has been developed and is
being implemented by such child's third birthday.

(b) Additional assurances. Whenever a State educational agency
provides free appropriate public education for children with
disabilities, or provides direct services to such children, such
State educational agency shall include, as part of the State plan
required by subsection (a) of this section, such additional
assurances not specified in such subsection (a) as are contained
in section 614(a) [20 USC 1414(a)], except that funds available
for the provision of such education or services may be expended
without regard to the provisions relating to excess costs in
section 614(a) [20 USC 1414(a)].

(c) Notice and hearing prior to disapproval of plan.(1) The
Secretary shall approve any State plan and any modification
thereof which:

 (A)  is submitted by a State eligible in accordance with
section 612 [20 USC 1412]; and

 (B) meets the requirements of subsection (a) and
subsection (b).

 (2) The Secretary shall disapprove any State plan which
does not meet the requirements of paragraph (1), but shall not
finally disapprove a State plan except after reasonable notice
and opportunity for a hearing to the State.

(d) Participation of children with disabilities in private
schools; payment of Federal amount; determinations of Secretary:
notice and hearing; judicial review: jurisdiction of court of
appeals, petition, record, conclusiveness of findings, remand,
review by Supreme Court.(1) If, on the date of enactment of the
Education of the Handicapped Act Amendments of 1983 [enacted Dec.
2, 1983], a State educational agency is prohibited by law from
providing for the participation in special programs of children
with disabilities enrolled in private elementary and secondary
schools as required by subsection (a)(4), the Secretary shall
waive such requirement, and shall arrange for the provision of
services to such children through arrangements which shall be
subject to the requirements of subsection (a)(4).

 (2) (A) When the Secretary arranges for services pursuant
to this subsection, the Secretary, after consultation with the
appropriate public and private school officials, shall pay to the
provider of such services an amount per child which may not
exceed the Federal amount provided per child under this part to
all children with disabilities enrolled in the State for services
for the fiscal year preceding the fiscal year for which the
determination is made.

 (B) Pending final resolution of any investigation or
complaint that could result in a determination under this
subsection, the Secretary may withhold from the allocation of the
affected State educational agency the amount the Secretary
estimates would be necessary to pay the cost of such services.

 (C) Any determination by the Secretary under this section
shall continue in effect until the Secretary determines that
there will no longer be any failure or inability on the part of
the State educational agency to meet the requirements of
subsection (a)(4).

 (3) (A) The Secretary shall not take any final action
under this subsection until the State educational agency affected
by such action has had an opportunity, for at least 45 days after
receiving written notice thereof, to submit written objections
and to appear before the Secretary or the Secretary's designee to
show cause why such action should not be taken.

 (B) If a State educational agency is dissatisfied with
the Secretary's final action after a proceeding under
subparagraph (A) of this paragraph, it may, within 60 days after
notice of such action, file with the United States court of
appeals for the circuit in which such State is located a petition
for review of that action. A copy of the petition shall be
forthwith transmitted by the clerk of the court to the Secretary.
The Secretary thereupon shall file in the court the record of the
proceedings on which the Secretary based the Secretary's action,
as provided in section 2112 of title 28, United States Code [28
USC 2112].

 (C) The findings of fact by the Secretary, if supported
by substantial evidence, shall be conclusive; but the court, for
good cause shown, may remand the case to the Secretary to take
further evidence, and the Secretary may thereupon make new or
modified findings of fact and may modify the Secretary's previous
action, and shall file in the court the record of the further
proceedings. Such new or modified findings of fact shall likewise
be conclusive if supported by substantial evidence.

 (D) Upon the filing of a petition under subparagraph (B),
the court shall have jurisdiction to affirm the action of the
Secretary or to set it aside, in whole or in part. The judgment
of the court shall be subject to review by the Supreme Court of
the United States upon certiorari or certification as provided in
section 1254 of title 28, United States Code [28 USC 1254].

(e) Prohibition on reduction of assistance. This Act shall not be
construed to permit a State to reduce medical and other
assistance available or to alter eligibility under titles V and
XIX of the Social Security Act [42 USC 701 et seq., 1396 et seq.]
with respect to the provision of a free appropriate public
education for children with disabilities within the State[;
and][.]

Section 1414. Application

(a) Requisite features. A local educational agency or an
intermediate educational unit which desires to receive payments
under section 611(d) [20 USC 1411(d)] for any fiscal year shall
submit an application to the appropriate State educational
agency. Such application shall:

 (1) provide satisfactory assurance that payments under
this part will be used for excess costs directly attributable to
programs which:

 (A) provide that all children residing within the
jurisdiction of the local educational agency or the intermediate
educational unit who are disabled, regardless of the severity of
their disability, and are in need of special education and
related services will be identified, located, and evaluated, and
provide for the inclusion of a practical method of determining
which children are currently receiving needed special education
and related services and which children are not currently
receiving such education and services;

 (B) establish policies and procedures in accordance with
detailed criteria prescribed under section 617(c) [20 USC
1417(c)];

 (C) establish a goal of providing full educational
opportunities to all children with disabilities, including--

 (i) procedures for the implementation and use
of the comprehensive system of personnel development established
by the State educational agency under section 613(a)(3) [20 USC
1413(a)(3)];

 (ii) the provision of, and the establishment of
priorities for providing, a free appropriate public education to
all children with disabilities, first with respect to children
with disabilities who are not receiving an education, and second
with respect to children with disabilities, within each
disability, with the most severe disabilities who are receiving
an inadequate education;

 (iii) the participation and consultation of the parents
or guardian of such children; and

 (iv) to the maximum extent practicable and consistent
with the provisions of section 612(5)(B) [20 USC 1412(5)(B)], the
provision of special services to enable such children to
participate in regular educational programs;

/* These sections are implicated and discussed in cases regarding
the admission of children who are HIV positive to school systems.
*/

 (D) establish a detailed timetable for accomplishing the
goal described in subclause (C); and

 (E) provide a description of the kind and number of
facilities, personnel, and services necessary to meet the goal
described in subclause (C);

 (2) provide satisfactory assurance that:

 (A) the control of funds provided under this part, and
title to property derived from such funds, shall be in a public
agency for the uses and purposes provided in this part, and that
a public agency will administer such funds and property;

 (B) Federal funds expended by local educational agencies
and intermediate educational units for programs under this part:

 (i) shall be used to pay only the excess
costs directly attributable to the education of children with
disabilities; and

 (ii) shall be used to supplement and, to the
extent practicable, increase the level of State and local funds
expended for the education of children with disabilities, and in
no case to supplant such State and local funds; and

 (C) State and local funds will be used in the
jurisdiction of the local educational agency or intermediate
educational unit to provide services in program areas that, taken
as a whole, are at least comparable to services being provided in
areas of such jurisdiction that are not receiving funds under
this part;

 (3) provide for--

 (A) furnishing such information (which, in the case of
reports relating to performance, is in accordance with specific
performance criteria related to program objectives), as may be
necessary to enable the State educational agency to perform its
duties under this part, including information relating to the
educational achievement of children with disabilities
participating in programs carried out under this part; and

 (B) keeping such records, and affording such access to
such records, as the State educational agency may find necessary
to assure the correctness and verification of such information
furnished under subparagraph (A);

 (4) provide for making the application and all pertinent
documents related to such application available to parents,
guardians, and other members of the general public, and provide
that all evaluations and reports required under clause (3) shall
be public information;

 (5) provide assurances that the local educational agency
or intermediate educational unit will establish or revise,
whichever is appropriate, an individualized education program for
each child with a disability (or, if consistent with State policy
and at the discretion of the local educational agency or
intermediate educational unit, and with the concurrence of the
parents or guardian, an individualized family service plan
described in section 677(d) [20 USC 1477(d)] for each child with
a disability aged 3 to 5, inclusive) at the beginning of each
school year and will then review and, if appropriate, revise, its
provisions periodically, but not less than annually;

 (6) provide satisfactory assurance that policies and
programs established and administered by the local educational
agency or intermediate educational unit shall be consistent with
the provisions of paragraph (1) through paragraph (7) of section
612 [20 USC 1412(1); (7)] and section 613(a) [20 USC 1413(a)];
and

 (7) provide satisfactory assurance that the local
educational agency or intermediate educational unit will
establish and maintain procedural safeguards in accordance with
the provisions of sections 612(5)(B), 612(5)(C), and 615 [20 USC
1412(5)(B), (C) and 1415].

(b) Approval by State educational agencies of applications
submitted by local agencies or intermediate educational units;
notice and hearing.(1) A State educational agency shall approve
any application submitted by a local educational agency or an
intermediate educational unit under subsection (a) if the State
educational agency determines that such application meets the
requirements of subsection (a), except that no such application
may be approved until the State plan submitted by such State
educational agency under subsection (a) is approved by the
Secretary under section 613(c) [20 USC 1413(c)]. A State
educational agency shall disapprove any application submitted by
a local educational agency or an intermediate educational unit
under subsection (a) if the State educational agency determines
that such application does not meet the requirements of
subsection (a).

 (2) (A) Whenever a State educational agency, after
reasonable notice and opportunity for a hearing, finds that a
local educational agency or an intermediate educational unit, in
the administration of an application approved by the State
educational agency under paragraph (1), has failed to comply with
any requirement set forth in such application, the State
educational agency, after giving appropriate notice to the local
educational agency or the intermediate educational unit, shall:

 (i) make no further payments to such local educational
agency or such intermediate educational unit under section 620
[20 USC 1420] until the State educational agency is satisfied
that there is no longer any failure to comply with the
requirement involved; or

 (ii) take such finding into account in its review of any
application made by such local educational agency or such
intermediate educational unit under subsection (a).

 (B) The provisions of the last sentence of section 616(a)
[20 USC 1416(a)] shall apply to any local educational agency or
any intermediate educational unit receiving any notification from
a State educational agency under this paragraph.

 (3) In carrying out its functions under paragraph (1),
each State educational agency shall consider any decision made
pursuant to a hearing held under section 615 [20 USC 1415] which
is adverse to the local educational agency or intermediate
educational unit involved in such decision.

(c) Consolidated applications.(1) A State educational agency may,
for purposes of the consideration and approval of applications
under this section, require local educational agencies to submit
a consolidated application for payments if such State educational
agency determines that any individual application submitted by
any such local educational agency will be disapproved because
such local educational agency is ineligible to receive payments
because of the application of section 611(c)(4)(A)(i) [20 USC
1411(c)(4)(A)(i)] or such local educational agency would be
unable to establish and maintain programs of sufficient size and
scope to effectively meet the educational needs of children with
disabilities.