DINF Web Posted on December 15, 1997
THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1995
TITLE II--AMENDMENTS TO PART B OF THE IDEA
Section 201, allocations. Section 201 of the bill would substantially revise section 611 of the IDEA, which governs the distribution of most Part B funds among and within the States.
Section 201(a) would amend subsections (a) through (e) of section 611, as follows:
Section 611(a)(1) would direct the Secretary to make grants to States and the outlying areas, and provide funds to the Secretary of the Interior, to assist them to provide special education and related services to children with disabilities in accordance with Part B.
Section 611(a)(2)(A), like current section 611(e)(2), would provide for a one-percent reservation, from the amount appropriated for any fiscal year to carry out section 611, to provide assistance to the outlying areas. As with allocations to States, the allocations to the individual areas would be based on their respective populations of individuals aged three through 21. Because the education of children with disabilities in the outlying areas continues to be plagued by inadequate services and numerous other problems, subparagraph (B) would prohibit those areas from using Part B funds for other purposes, as they are otherwise permitted to do by Public Law 95-134. (The bill includes similar provisions applicable to pre-school funds under section 619, funds for State Improvement under revised Part C, and funds for infants and toddlers under Part H.) As a result, the outlying areas will be subject to the same requirements in using Part B funds as are the States that receive those funds.
Section 611(a)(3) would continue the current set-aside of 1.25 percent for the Secretary of the Interior. Section 611(f), as revised by section 201(b) of the bill, would continue to govern the use of that set-aside.
Section 611(a)(4) would guarantee each State an amount equal to what it received under section 611 for fiscal year 1995, in order to minimize any disruption that might otherwise result from revising the formula for the national distribution of section 611 funds, described below. However, if a State received any funds under section 611 for fiscal year 1995 on the basis of children aged three through five, but does not make a free appropriate public education available to all children with disabilities in that age range in the State, the Secretary would reduce the amount guaranteed the State by the amount that it received on the basis of those children. In addition, the amounts guaranteed to the States under this paragraph would be reduced if insufficient funds were appropriated.
Section 611(a)(5) would direct the Secretary to allocate any additional funds (i.e., funds in excess of the FY 1995 appropriation) to States on the basis of their relative population of children aged 3 through 21 who are of the same age as children with disabilities for whom the State ensures the availability of a free appropriate public education under Part B. By replacing the current formula, which bases a State's grant on the number of children with specified disabilities to whom the State provides services, this approach would remove financial barriers that may deter States from undertaking needed improvements, such as the increased provision of early intervention services, and would remove incentives for States to over-identify students as disabled.
Section 611(a)(6) would limit the total allocation to the Commonwealth of Puerto Rico under section 611 for any fiscal year to the same percentage of the total allocation to States, the outlying areas, and the Secretary of the Interior that Puerto Rico received for fiscal year 1995. Without this limitation, Puerto Rico would receive an unwarranted windfall at the expense of the remaining jurisdictions.
Section 611(a)(7) would authorize the Secretary to use the most recent population data that are available and satisfactory to the Secretary in making grants under section 611.
Section 611(b)(1) would allow each State to retain up to 25 percent of the grant it receives under section 611 for administration and other State-level activities, as under current law. A State could use those funds without regard to the prohibition on commingling of funds in section 612(a)(18)(B) and the prohibition on supplanting other funds in section 612(a)(18)(C)(i).
Section 611(b)(2)(A) would permit each State to use up to five percent of the amount it receives under section 611 for any fiscal year or $450,000 ($35,000 for the outlying areas) whichever is greater, for the costs of administering Part B, including section 619. In order to facilitate a "seamless" system of services, subparagraph (B) would also allow a State to use these funds to administer the Part H program for infants and toddlers with disabilities, if the SEA is the lead State agency under that program.
Section 611(b)(3), which is similar to current section 611(c)(2)(A)(ii), would permit each State to use section 611 funds retained at the State level for support and direct services; for administrative costs of monitoring and complaint investigation, but only to the extent that those costs exceed the costs incurred for those activities during fiscal year 1985; to establish and implement the mediation process required by new section 615(d); to develop a State Improvement Plan under Part C; for activities at the State and local levels to meet the performance goals established by the State under section 612(a)(16) and to support implementation of the State Improvement Plan under Part C if the State receives funds under that part; or to supplement other funds used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under section 611. Such a system would have to be coordinated with and, to the extent appropriate, build on the system of coordinated services developed by the State under Part H of the Act.
Section 611(c)(1), which is similar to current section 611(c)(1)(B), would require each State that receives a grant under section 611 for any fiscal year to distribute at least 75 percent of the grant funds to LEAs in the State that have established their eligibility under section 613 and to State agencies that received funds under current section 614A(a) for fiscal year 1995 (and that have similarly established their eligibility), for them to use in accordance with Part B. (Section 614A(a) authorizes Part B payments to State agencies that previously received funds under the program for State agencies that served children with disabilities under Chapter 1 of Title I of the Elementary and Secondary Education Act of 1965. That program was ended by P.L. 103-382.)
Section 611(c)(2) would allow a State to distribute funds to LEAs and eligible State agencies on the basis of population; school enrollment; numbers of children with disabilities receiving a free appropriate public education; allocations for previous fiscal years; any combination of those factors; or poverty, in combination with one or more of those factors. This flexible approach replaces the rigid formula in current section 611(d) that requires States to distribute funds solely on the basis of counts of children with disabilities, and gives States the latitude they need to use Federal funds as a supplement to State and local funds to ensure that all children with disabilities in the State receive a free appropriate public education.
Section 611(c)(3) would retain current section 611(d)(2), as added by P.L. 103-382, which provides for continued funding for State agencies that received fiscal year 1994 funds under the former Chapter 1 program for children with disabilities and for LEAs that received funds under that program for children who transferred to their schools from State-operated or State-supported schools or programs.
Section 611(c)(4) would permit an SEA to reallocate some or all of an LEA's subgrant to other LEAs that have a greater need for funds under certain circumstances. This provision, currently set out at section 614(e), is more appropriately placed in the section of the Act dealing with the distribution of Part B funds.
Section 611(d) would revise the provisions of current section 611(c)(4)(A)(i), which prohibit subgrants to LEAs that would receive less than $7,500. In order to promote the direct involvement of LEAs in serving children in their communities, and to increase State flexibility in administering Part B, States could decide whether to make subgrants of less than that amount. As under current law, if the State did not make those subgrants, it would use those funds to ensure the provision of a free appropriate public education to children residing in the LEA's district. Finally, unlike current law, any funds the LEA would receive for pre-school children under section 619 would be added to the amount it would receive under section 611 to determine if it meets the $7,500 figure.
Section 611(e) would define the term "State", for the purpose of carrying out section 611, as each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. The outlying areas are separately provided for by section 611(a)(2), discussed above. This approach is the same as in section 611(a)(2) of the current Act.
Section 201(b) of the bill would amend section 611(f) of the IDEA, which governs the use of Part B funds by the Secretary of the Interior, to reflect other amendments to the Act (such as the move from State plans and LEA applications to less burdensome methods by which States and LEAs can demonstrate that they meet statutory eligibility conditions) and to delete section 611(f)(4)(B)(i), which, by its terms, governed the distribution of funds to Indian tribes and tribal organizations for only one year.
Section 201(c)(1) of the bill would repeal section 611(g) of the Act, which provides for proportionate reductions in State grants if available funds are not sufficient to pay the maximum amounts under the current formula. Because maximum grants would no longer be computed under the revised Act, these provisions are not needed. (An analogous provision, section 611(a)(4)(C), would provide for proportionate reductions if available funds are insufficient to provide each State the amount that it received for fiscal year 1995.) Section 611(g) also provides for SEA reallocation of funds that are not needed by LEAs. This provision effectively duplicates current section 614(e), which would be moved to section 611(c)(4). In addition, the substantial latitude that would be afforded States in distributing funds to LEAs under new section 611(c)(2) should greatly reduce the need to reallocate funds after they have been distributed.
Section 201(c)(2) and (3) of the bill would redesignate section 611(h), which authorizes appropriations for section 611, as section 611(g), and slightly revise its wording.
Section 202, State eligibility. Section 202(a) of the bill would combine, into section 612 of the IDEA, most of the elements of current sections 612 (State eligibility) and 613 (State plans), so that all the conditions of a State's eligibility would appear in one comprehensive section. In addition, a State would no longer have to submit a voluminous State plan every three years. Rather, it would have to demonstrate once to the Secretary's satisfaction that it meets each of the conditions of eligibility, as described below.
Section 612(a) would provide that a State is eligible for assistance under Part B for any fiscal year if it demonstrates to the satisfaction of the Secretary that it has in effect policies and procedures to ensure that it meets each of the following conditions:
(1) FREE APPROPRIATE PUBLIC EDUCATION. A free appropriate public education (FAPE) is available to all children with disabilities residing in the State between the ages of 3 and 21. This requirement would not apply with respect to children aged 3 through 5 and 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges. Paragraph (1) restates the fundamental obligation to provide FAPE that is in current section 612(2)(B), but drops the obsolete language that phased in that obligation between 1978 and 1980.
(2) FULL EDUCATIONAL OPPORTUNITY GOAL. The State has established a goal of providing full educational opportunity to all children with disabilities, and a detailed timetable for accomplishing that goal. Paragraph (2) is taken from current section 612(2)(A), but would not retain the burdensome and unhelpful requirement that the State describe the kind and number of facilities, personnel, and services necessary to meet that goal.
(3) CHILD FIND. All children with disabilities residing in the State are identified, located, and evaluated, regardless of the severity of their disability. Paragraph (3) would retain the "child-find" requirement of current section 612(2)(C), but would not retain the requirement that the State develop and implement a practical method for determining which children are receiving needed services and which ones are not. Other provisions of the Act are more effective in ensuring that every child with a disability is evaluated and served in accordance with his or her unique needs.
(4) INDIVIDUALIZED EDUCATION PROGRAM. An individualized education program (IEP), or an individualized family service plan (IFSP) that contains the material described in section 676(d) of Part H (current section 677(d)), is developed, reviewed, and revised for each child with a disability in accordance with section 614(d). Paragraph (4) is substantively the same as current section 612(4).
(5) LEAST RESTRICTIVE ENVIRONMENT. To the maximum extent appropriate: (1) children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled; and (2) special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of a child's disability means that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
The requirement to serve children with disabilities in the least restrictive environment (LRE) preserves the requirements of current law under section 612(5)(B). In addition, paragraph (5)(B) would make explicit that, as a condition of eligibility for Part B funds, a State funding mechanism that provides funding based on the type of setting in which a child is served may not result in placements that violate the LRE requirement. State funding mechanisms that base the amount of State funds on the type of setting in which a child is placed often work against the LRE principle, particularly when they relieve a local school district of the cost of serving a child in a State facility or other restrictive environment. A State that has such a funding mechanism would either have to demonstrate to the Secretary that that mechanism does not result in placements that violate the LRE requirement or give the Secretary an assurance that it will revise its funding mechanism as soon as feasible to ensure that it does not result in those placements.
(6) PROCEDURAL SAFEGUARDS. Children with disabilities and their parents are afforded the procedural safeguards required by section 615. Paragraph (6) is taken from current section 612(5)(A).
(7) EVALUATION. Children with disabilities are evaluated in accordance with section 614(a) through (c). Paragraph (7) replaces the requirement to evaluate children in current section 612(5)(C). The requirements of that section relating to how those evaluations are performed would be moved to a new section 614.
(8) CONFIDENTIALITY. Agencies in the State comply with section 617(c), relating to the confidentiality of records and information. Paragraph (8) replaces current section 612(2)(D).
(9) TRANSITION FROM PART H TO PRESCHOOL PROGRAMS. Children participating in early intervention programs assisted under Part H of the Act, and who will participate in preschool programs assisted under Part B, experience a smooth transition to those preschool programs. In addition, by the child's third birthday, an IEP (or, if consistent with sections 614(d)(1)(B) and redesignated 676(d) of Part H, an IFSP) has been developed and is being implemented. Paragraph (9) replaces current section 613(a)(15). As under current law, a State's child-find activities should ensure that those children who leave early intervention programs under Part H, but who are not eligible at age three for preschool programs under Part B, are identified and evaluated if their need for Part B services arises later.
(10) CHILDREN IN PRIVATE SCHOOLS. To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, those children participate in the program assisted under Part B by providing them special education and related services, except when the Secretary has arranged for services to those children under the "by-pass" authority in section 612(f) (current section 613(d)).
In addition, children with disabilities in private schools and facilities are provided special education and related services, in accordance with an IEP, at no cost to their parents, if they are placed in, or referred to, those schools or facilities by the State or by an LEA in order to comply with Part B or with any other law requiring the provision of special education and related services to all children with disabilities in the State. In those situations, children are placed in, or referred to, only those private schools and facilities that the SEA determines meet standards that apply to State and local educational agencies, and children served in private schools or facilities have all the rights they would have if served by those agencies.
Paragraph (10) is taken from current section 613(a)(4).
(11) SEA RESPONSIBLE FOR GENERAL SUPERVISION. The SEA is responsible for ensuring that: (1) the requirements of Part B are carried out and that all educational programs for children with disabilities in the State, including all programs administered by any other State or local agency, are under the general supervision of the persons in the SEA who are responsible for educational programs for children with disabilities and meet educational standards of the SEA. Placing the responsibility for general supervision on the SEA does not limit the responsibility of agencies other than educational agencies to provide, or pay for some or all of the costs of, a free appropriate public education for any child with a disability in the State. Paragraph (11) replaces current section 612(6) with minor wording amendments.
(12) METHODS OF ENSURING SERVICES. If any public agency, other than an educational agency, is responsible for providing, or paying for, any of the services that are necessary for the provision of a free appropriate public education to children with disabilities within the State (such as mental health services, transition services, and health services for children with special needs), there is an effective mechanism for interagency coordination, in order to ensure that all required services are provided. This mechanism must include a method for defining the financial responsibility of each agency for providing FAPE to children with disabilities and procedures for resolving interagency disputes, including procedures under which LEAs may obtain reimbursement from other agencies. Among other appropriate methods, the requirement of paragraph (12) could be met through State statute or regulation or signed agreements between respective agency officials. This requirement, which is similar to current section 613(a)(13), applies to the State and, as a matter of compliance with Part B, need not be met by the SEA alone.
(13) LOCAL EDUCATIONAL AGENCY ELIGIBILITY. The SEA will not finally determine that an LEA is not eligible under Part B without first affording the LEA reasonable notice and an opportunity for a hearing. Paragraph (13) replaces current section 613(a)(8).
(14) COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT. The State has in effect, consistent with the purposes of the IDEA and with section 676(b)(8) (current section 677(b)(8)) of Part H, a comprehensive system of personnel development that is designed to ensure an adequate supply of qualified special education and related services personnel necessary to carry out Part B, including: (1) a statewide, coordinated personnel-development plan that meets the personnel-development requirements for a State Improvement Plan under the new section 624 of Part C; or (2) a personnel-development plan developed in consultation with parents of children with disabilities, SEAs and LEAs, institutions of higher education, and professional associations that includes certain specified elements. Paragraph (14) replaces current section 613(a)(3).
(15) PERSONNEL STANDARDS. The SEA has established and maintains standards to ensure that personnel necessary to carry out Part B, including paraprofessional personnel, are appropriately and adequately prepared and trained, including: (1) standards that are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the area in which those personnel are providing special education or related services; and (2) to the extent those standards are not based on the highest requirements in the State applicable to a specific profession or discipline, the State is taking steps to require the retraining or hiring of personnel that meet appropriate professional requirements in the State. This requirement replaces current section 613(a)(14).
Paragraph (15)(B) would add language to the Act providing that nothing in the IDEA, including the requirements of paragraph (15) relating to personnel standards, prohibits the use of paraprofessionals who are appropriately trained and supervised, in meeting the requirements of Part B.
(16) PERFORMANCE GOALS AND INDICATORS. The State: (1) has established goals for the performance of children with disabilities that will promote the national policy stated in section 601(b) and the purposes of this Act stated in section 601(d)(1) and that are consistent, to the maximum extent appropriate, with other goals and standards established by the State; (2) has established performance indicators the State will use to assess progress toward achieving those goals that, at a minimum, address the performance of children with disabilities on assessments; drop-out rates; and graduation rates; (3) will report to the Secretary and the public on the progress of the State, and of children with disabilities in the State, toward meeting its goals every two years; and (4) based on its assessment of that progress, will revise its State Improvement Plan under Part C as may be needed to improve its performance, if it receives funds under that part. Section 3(a)(2)(A)(ii) of the bill would give States until July 1, 1997 to comply with this new provision, but would require them to comply sooner if possible.
(17) PARTICIPATION IN ASSESSMENTS. Children with disabilities are included in general State and district-wide assessment programs, with appropriate accommodations, where necessary. As appropriate, the SEA or LEA develops guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in State and district-wide assessment programs, and develops and (beginning no later than July 1, 1999) conducts those alternate assessments. As appropriate, the Department would provide guidance that excluding more than one to two percent of all students from general assessments may indicate a potential problem.
In addition, the SEA makes available to the public, and reports to the public with the same frequency and in the same detail as it reports on the assessment of non-disabled children: (1) the number of children with disabilities participating in regular assessments; (2) the number of those children participating in alternate assessments; and (3) the performance of those children on regular assessments (beginning no later than July 1, 1997) and on alternate assessments (beginning no later than July 1, 1999), when doing so would be statistically sound and would not result in the disclosure of performance results identifiable to individual children.
Paragraph (17) establishes new requirements designed to ensure that children with disabilities are included in State and district-wide assessments and that the results are publicly reported. Although Federal civil rights laws prohibit the discriminatory exclusion of students with disabilities from participation in assessments, the fact is that some States exclude over 90 percent of students with disabilities from their assessments, and few States report publicly on how students with disabilities are achieving. When schools assess students with disabilities and report on the results, they will focus more on improving results for those students and on increasing their access to the general curriculum. The requirements of paragraph (17) are similar to the requirement to include children with disabilities in assessments under Title I of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by P.L. 103-382. See, in particular, section 1111(b)(3) of the ESEA.
(18) USE OF FUNDS. Funds paid to the State under Part B will be expended in accordance with all Part B requirements; will not be commingled with State funds; and will be used to supplement State, local, and other Federal funds (including funds not under the direct control of State or local educational agencies) expended for special education and related services, and not to supplant those funds. The Secretary may waive the prohibition on supplanting other funds if the Secretary determines that the State has provided clear and convincing evidence that all children with disabilities in the State have available a free appropriate public education. Paragraph (18) replaces current sections 613(a)(1), 613(a)(9)(A), and 613(a)(9)(B).
(19) PUBLIC PARTICIPATION. Before the adoption of any policies and procedures needed to comply with the revised section 612 (including any amendments to those policies and procedures), there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities. Paragraph (19) replaces current section 612(7)(B).
(20) STATE ADVISORY PANEL. The State has an advisory panel, appointed by the Governor or any other official authorized under State law to make such appointments, that is representative of the State's population and that is composed of individuals involved in, or concerned with, the education of children with disabilities, including parents of children with disabilities; individuals with disabilities; teachers; representatives of institutions of higher education that prepare special education and related services personnel; State and local education officials; administrators of programs for children with disabilities; representatives of other State agencies involved in the financing or delivery of related services to children with disabilities; and at least one representative of a vocational, community, or business organization concerned with the provision of transition services to children with disabilities.
A majority of the members of the panel are individuals with disabilities or parents of children with disabilities. This requirement is not in the current statute.
The advisory panel advises the SEA of unmet needs within the State in the education of children with disabilities; comments publicly on any rules or regulations proposed by the State regarding the education of children with disabilities and the procedures for distribution of funds received by the State under Part B; advises the SEA in developing evaluations and reporting on data to the Secretary under section 618; advises the SEA in developing corrective action plans to address findings identified in Federal monitoring reports under Part B; and advises the SEA in developing and implementing policies relating to the coordination of services for children with disabilities.
Paragraph (20) replaces current section 613(a)(12).
Section 612(b), which is similar to current section 613(b), would provide that if the SEA provides free appropriate public education to children with disabilities, or provides them direct services, it must comply with any additional requirements of section 613(a), relating to LEA eligibility, as if it were an LEA, and may use funds that are otherwise available to it under Part B to serve those children without regard to section 613(a)(3)(B), relating to excess costs.
Section 612(c) would replace the current requirement to submit a State plan with a requirement that a State that wishes to establish its eligibility under section 612 submit to the Secretary such information as the Secretary may reasonably require. In addition, if a State already has on file with the Secretary policies and procedures that demonstrate that it meets any requirement of section 612, including any policies and procedures filed under the current Part B, the Secretary would treat the State as meeting that requirement. This revised approach to State eligibility will substantially reduce the paperwork burden on SEAs without reducing the substantive requirements and protections of the Act, and allow both State and Federal officials to devote more of their resources to effective implementation of the Act and improved results for children with disabilities.
Section 612(d), which replaces current section 613(c), would direct the Secretary to notify the State if the Secretary determines that it is eligible under section 612. The Secretary could not finally determine that a State is not eligible until after providing the State reasonable notice and an opportunity for a hearing.
Section 612(e) would continue to provide that nothing in the IDEA permits a State to reduce medical and other assistance available, or to alter eligibility, under Titles V and XIX of the Social Security Act (Maternal and Child Health Services and Medicaid) with respect to the provision of a free appropriate public education for children with disabilities within the State.
Section 202(b) of the bill would redesignate current section 613(d) of the Act, which governs the implementation of a Secretarial by-pass for children in private schools, as section 612(f), and would make minor technical and conforming amendments to that subsection, including a revised statement of how the Secretary would compute the amount of a by-pass, to reflect the fact that Part B funds would no longer be allocated to States on the basis of the number of children with disabilities they serve.
Section 203, local educational agency eligibility. Section 203(a) of the bill would replace section 614 of the IDEA, which requires an LEA to submit an application to the State in order to receive Part B funds, with a new section 613, under which it would have to demonstrate once to the SEA's satisfaction that it meets each of the conditions of eligibility, as described below. As with State eligibility under section 612, this approach to LEA eligibility will reduce paperwork while preserving the rights and protections of current law.
Section 613(a) would provide that an LEA is eligible for assistance under Part B for any fiscal year if it demonstrates to the satisfaction of the SEA that it meets each of the following conditions:
(1) CONSISTENCY WITH STATE POLICIES. The LEA, in providing for the education of children with disabilities within its jurisdiction, has in effect policies, procedures, and programs that are consistent with the State policies and procedures established under section 612 relating to the availability of a free appropriate public education; the goal of providing full educational opportunity to all children with disabilities; child find; IEPs; education of children in the least restrictive environment; procedural safeguards; evaluation; confidentiality; transition from Part H to preschool programs; and children in private schools. Paragraph (1) replaces most of current section 614(a).
(2) COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT. The LEA has in effect procedures for the implementation and use of the State's comprehensive system of personnel development established under section 612(a)(14) or under the State Improvement Plan developed under Part C of the Act, as it will take effect beginning with fiscal year 1997. Paragraph (2) replaces current sections 614(a)(1)(C) and (E).
(3) USE OF FUNDS. Funds paid to the LEA under Part B will be expended in accordance with all applicable provisions of that part; will be used only to pay the excess costs of providing special education and related services to children with disabilities; will be used to supplement State, local, and other Federal funds and not to supplant those funds; and will not be used to reduce the level of expenditures for the education of children with disabilities made by the LEA from State or local funds below the level of those expenditures for the preceding fiscal year. These provisions are taken from current sections 614(a)(1), 614(a)(2)(B)(i), and 614(f).
Paragraph (3)(E) would allow an LEA to use Part B funds for the costs of special education and related services provided in a regular class to a child with a disability in accordance with the child's IEP, even if one or more nondisabled children benefit from those services. This will promote the inclusion of children with disabilities in the general curriculum by permitting LEAs to use those funds to pay for special education services in the regular classroom without having to track the costs of any incidental benefits to nondisabled students. This will make it easier for schools to have classrooms in which the regular teachers are assisted by aides and special education teachers who can focus on helping the disabled children, but who can also work with nondisabled children and recognize learning or behavioral problems at an earlier stage.
Finally, paragraph (3)(F) would allow an LEA to use Part B funds to develop and implement a coordinated services system, in accordance with subsection (f), described below.
(4) INFORMATION FOR STATE EDUCATIONAL AGENCY. The LEA provides the SEA information necessary to enable the SEA to perform its duties under Part B, including information relating to the performance of children with disabilities participating in programs carried out under that part. Paragraph (4) replaces current section 614(a)(3)(A).
(5) PUBLIC INFORMATION. The LEA makes available to parents of children with disabilities and to the general public all documents relating to its eligibility under Part B. Paragraph (5) replaces a similar requirement in current section 614(a)(4).
(6) SUPPORTS FOR THE TEACHER. At the start of each school year, and as often as appropriate, the LEA considers what supports are needed for each teacher of children with disabilities in order to help them implement those children's IEPs. Paragraph (6) is a new provision, and is designed to ensure that, as more and more children with disabilities are educated in the regular classroom, the classroom teachers are appropriately prepared and supported, so that all children in the class, including both disabled and non-disabled children, can learn.
Section 613(b) would require an LEA that wishes to establish its eligibility under section 613 to submit to the SEA information demonstrating that it meets the requirements of subsection (a). If the LEA (or a State agency) already has on file with the SEA policies and procedures that meet any requirement of section 613, including any policies, procedures, or applications filed under Part B as currently in effect, the SEA could treat the LEA or State agency as meeting that requirement. As with State eligibility under section 612, this revised approach to LEA eligibility will substantially reduce the paperwork burden on LEAs and State agencies without reducing the substantive requirements and protections of the Act, and allow both local and State officials to devote more of their resources to effective implementation of the Act and improved results for children with disabilities.
Section 613(c), which is similar to current section 614(b)(1), would direct the SEA to notify the LEA or State agency if it determines that the LEA is eligible under section 613, but it could not do so until the Secretary has notified the SEA that the State is eligible under section 612. The SEA could not finally determine that an LEA or State agency is not eligible until after providing it reasonable notice and an opportunity for a hearing.
Section 613(d), which replaces current section 614(b)(2), would provide that if an SEA, after reasonable notice and an opportunity for a hearing, finds that an LEA or State agency is failing to comply with any requirement described in subsection (a), it shall make no further payments to the LEA or State agency under Part B until the SEA is satisfied that the LEA or State agency is complying with that requirement.
Section 613(e), which replaces current section 614(c), would permit an SEA to require an LEA to establish its eligibility jointly with another LEA if the SEA determines that the LEA would be ineligible under this section because it would not be able to establish and maintain programs of sufficient size and scope to effectively meet the needs of children with disabilities, or because it does not qualify for the minimum grant under section 611(d)(1), if the State exercises its authority under that section not to make small subgrants.
Section 613(e)(2) would provide that if an SEA requires the joint establishment of eligibility by LEAs, the total amount of funds made available to the affected LEAs shall equal the sum of the payments that each affected LEA would have received under section 611(c). LEAs that establish joint eligibility would have to adopt policies and procedures that are consistent with the State's policies and procedures under section 612(a), and would be jointly responsible for implementing programs receiving assistance under Part B.
If an intermediate educational unit (IEU) is required by State law to carry out Part B, the joint responsibilities given to LEAs would not apply to the administration and disbursement of any payments received by that unit, and they would be carried out only by that unit. However, nothing in section 613(e) would relieve an IEU of its responsibility to provide for the education of children with disabilities in the least restrictive environment, as required by other provisions of the Act.
Most of paragraph (2) replaces current section 614(c).
Section 613(f)(1) would permit an LEA to use up to five percent of the amount it receives under Part B for any fiscal year, in combination with other funds (which must include funds other than education funds), to develop and implement a coordinated services system designed to improve results for children and families, including children with disabilities and their families. Many children need multiple services that cannot be provided by a single agency. This provision would make it easier for LEAs to develop and implement a system of services in which multiple agencies are brought together to coordinate, and pay for, the provision of education, health, and social services that children need.
Under section 613(f)(2), activities that an LEA could carry out include improving the effectiveness and efficiency of service delivery, including developing strategies that promote accountability for results; service coordination and case management that facilitates the linkage of IEPs under Part B and IFSPs under Part H with individualized service plans under multiplhtml
THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1995
developing and implementing interagency financing strategies for the provision of education, health, mental health, and social services, including transition services and related services under the IDEA; and interagency personnel development for those working on coordinated services.
If an LEA is carrying out a coordinated services project under Title XI of the Elementary and Secondary Education Act of 1965 and a coordinated services project under Part B in the same schools, paragraph (3) would require it to use funds that it uses under section 613(f) in accordance with that title.
Section 613(g) would direct an SEA to use the payments that would otherwise have been available to an LEA or State agency to provide special education and related services directly to children with disabilities residing in the area served by the LEA (or for whom the State agency is responsible) if the SEA determines that the LEA or State agency has not provided the information needed to establish its eligibility under section 613; is unable to establish and maintain programs of free appropriate public education that meet the requirements of section 613(a); is unable or unwilling to be consolidated with other LEAs in order to establish and maintain those programs; or has one or more children with disabilities who can best be served by a regional or State program or service delivery system designed to meet the needs of those children. Subsection (g) replaces current sections 611(c)(4)(A)(ii) and 614(d).
Section 613(h), which replaces current section 614A(b), would require any State agency that desires to receive a subgrant for any fiscal year under Part B (i.e., agencies that received funds under the former ESEA, Chapter 1 program for children with disabilities) to demonstrate to the satisfaction of the SEA that all children with disabilities who are participating in programs and projects funded under Part B receive a free appropriate public education, that those children and their parents are provided all the rights and procedural safeguards described in that part, and that the agency meets such other conditions of section 613 as the Secretary finds appropriate.
Section 203(b) of the bill would repeal section 614A of the IDEA, which was added to the Act by P.L. 103-382. The provisions of that section, which effectively folded the former ESEA, Chapter 1 program for children with disabilities into Part B of the IDEA, are retained in other provisions of the bill.
Section 204, evaluations, individualized education programs, and educational placements. Section 204 of the bill would create a new section 614 of the IDEA, in order to provide a coherent statement of the procedural requirements governing the interrelated matters of evaluating and re-evaluating children with disabilities; developing, reviewing, and revising their IEPs; and making placement decisions that affect them. Much of this material is scattered throughout the current statute or is inappropriately placed in definitions.
Section 614(a)(1) would require an SEA, LEA, or State agency to conduct an initial evaluation before the initial provision of special education and related services to a child with a disability. An initial evaluation would have to consist of procedures to determine whether a child is a child with a disability, as defined in section 602(3), and to determine the child's educational needs.
Section 614(a)(2) would require an SEA, LEA, or State agency to ensure that a re-evaluation of each child with a disability is conducted whenever conditions warrant a re-evaluation or whenever the child's parent or teacher requests one. At a minimum, a re-evaluation would have to occur once every three years.
Subsection (b) would require an LEA to provide notice to the parents of a child with a disability, in accordance with section 615, that describes any evaluation procedures it proposes to conduct. In conducting the evaluation, the LEA would have to use a variety of assessment tools and strategies to gather relevant functional and developmental information that may assist in determining whether the child is a child with a disability and the content of the child's IEP. The LEA could not use any single procedure as the sole criterion for determining whether a child is a child with a disability or to determine an appropriate educational program for the child.
Under subsection (b)(3), each LEA would have to ensure that tests and other evaluation materials used to assess a child under section 614 are selected and administered so as not to be racially or culturally discriminatory, and that they are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so. In addition, the LEA would have to ensure that any standardized tests that are given to the child have been validated for the specific purpose for which they are used; are administered by trained personnel; and are administered in accordance with any instructions provided by their producer.
Section 614(c) would establish additional requirements for re-evaluating children with disabilities. Paragraph (1) would require that, as part of any re-evaluation under this section, the evaluation team review existing evaluation data on the child, including current classroom-based assessments and teacher observation. On the basis of that review, the evaluation team's professional judgment, and input from the child's parents, the team would identify what additional data, if any, are needed to determine: (1) whether the child continues to have an impairment; (2) the child's present levels of performance and educational needs; and (3) whether the child continues to need special education and related services and, if so, any additions or modifications to the special education and related services to enable the child to meet the objectives set out in the child's IEP and to participate, as appropriate, in the general curriculum.
Section 614(c)(2) would direct the LEA to administer such tests and other evaluation materials as may be needed to produce the data identified by the evaluation team.
If the evaluation team determines that no additional data are needed to determine whether the child continues to be a child with a disability, section 614(c)(3) would require the LEA to notify the child's parents of that determination and the reasons for it, and of their right to request an assessment to determine whether the child continues to be a child with a disability. The LEA would not have to conduct such an assessment unless requested to by the parents.
Section 614(d) would consolidate the requirements for developing, reviewing, and revising IEPs, while the requirements relating to the content of an IEP would remain in the definition of an IEP in section 602.
Section 614(d)(1) would require that, at the beginning of each school year, each public agency have in effect, for each child with a disability in its jurisdiction, an IEP, as defined in redesignated section 602(11). In the case of a child with a disability aged three, four, or five, an individualized family service plan (IFSP) that contains the material described in section 676(d) (current section 677(d)) of Part H, and that is developed in accordance with section 614, could serve as the child's IEP if using that plan as the IEP is consistent with State policy and is agreed to by the agency and the child's parents.
Section 614(d)(2) would require that each IEP be developed in a meeting by an IEP team composed of a representative of the LEA who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities, and who is also knowledgeable about the general curriculum; at least one special education provider; at least one regular education teacher, if the student is, or may be, participating in the regular education environment; the child's parents; whenever appropriate, the child; and other individuals, at the discretion of the parent or the agency. Under section 3(a)(2)(B) of the bill, States would have until July 1, 1997, to comply with the requirement relating to the involvement of the regular education teacher, but would have to comply sooner, if possible.
Section 614(d)(3) would require the IEP team, in developing the IEP, to consider the child's strengths and the parents' concerns for enhancing their child's education; consider the results of the initial evaluation or most recent re-evaluation; in the case of a child whose behavior impedes his or her learning or that of others, consider strategies, including behavioral management plans, to address that behavior; in the case of a child with limited English proficiency, consider the language needs of the child as they relate to the child's IEP; in the case of a child who is blind or visually impaired, consider whether the child needs instruction in braille or in the use of braille; and, in the case of a child who is deaf or hard of hearing, consider the communication needs of the child.
Section 614(d)(4) would direct the LEA to ensure that the IEP team reviews each IEP at least once a year to determine whether the annual objectives for the child are being achieved and that the IEP team revises the IEP to address any lack of expected progress towards the annual objectives and in the general curriculum, where appropriate; the results of any re-evaluation conducted under section 614; information about the child provided to the parents by the LEA in accordance with the IEP; the child's anticipated needs; or as otherwise appropriate.
Section 614(d)(5) would provide that if a participating agency, other than the LEA, fails to provide the transition services described in the IEP in accordance with section 602(11)(F)(ii), the LEA must reconvene the IEP team to identify alternative strategies to meet the transition objectives for the student set out in that program.
Section 614(e) would establish a new requirement that each public agency ensure that the parents of each child with a disability are members of any groups that make decisions on the educational placement of their child. Involvement of families in decisions about their children's education is at the heart of the IDEA framework for family-school collaboration. This provision would enable parents to participate in important decisions about the extent to which their children can be appropriately educated with children who do not have disabilities, and should help reduce the need for due-process hearings to resolve disputes about placement decisions.
Section 205, procedural safeguards. Section 205 of the bill would make several amendments to section 615 of the IDEA, which affords certain procedural rights and protections to children with disabilities and their parents under Part B of the IDEA.
Subsection (a)(1) would redesignate subsections (c) through (f) of section 615 as subsections (f) through (i), respectively.
Subsection (a)(2) would redesignate subsection (b)(2), relating to impartial due-process hearings, as subsection (e).
Subsection (b) would amend subsection (a) of section 615 to conform to other amendments the bill would make to the Act, including amendments to the definitions in section 602 that treat intermediate educational units as LEAs and guardians as parents.
Subsection (c) would make miscellaneous technical and conforming amendments to subsection (b) of section 615. In addition, paragraph (4)(B) would amend current section 615(b)(1)(B) so that appointment of a surrogate parent would be called for when, among other times, the public agency cannot, after reasonable efforts, locate the parents. This would be a more workable and understandable standard than the one it would replace, which requires that the parents be "unavailable".
Subsection (c)(5)(C) would insert, in current section 615(b)(1)(C), a requirement that the notice required to be given by that section conform to the requirements of new subsection (c), to be added by section 205(d) of the bill, discussed below.
Subsection (c)(7) would insert, as new section 615(b)(5), a requirement that the procedural safeguards afforded by section 615 include an opportunity for mediation in accordance with new subsection (d), to be added by section 205(d) of the bill, discussed below.
Subsection (d) would insert new subsections (c) and (d) into section 615 to address the content of notices and the opportunity for mediation, as follows:
New subsection (c)(1) would describe the contents of the notice that would have to be given whenever notice is required by current section 615(b)(1)(C). This basic notice would have to: (1) include a description of the action proposed or refused by the agency; an explanation of why the agency proposes or refuses to take the action; and a description of any other options that the agency considered and the reasons why those options were rejected; (2) describe each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action; (3) describe any other factors that are relevant to the agency's proposal or refusal; (4) include a full explanation of the procedural safeguards available under section 615, and under the Secretary's regulations, relating to independent educational evaluations, notice, parental consent, mediation, and the child's placement during the pendency of due-process proceedings; and (5) include at least a brief summary of the procedural safeguards under section 615 relating to due-process hearings, State-level appeals (if applicable in that State), civil actions, and attorney fees.
The basic notice would also have to include a statement that the agency will provide a full explanation of the procedural safeguards available to parents under section 615, and under the Secretary's regulations, relating to access to educational records, whenever requested by the parents, and concerning due-process hearings and related matters whenever the parents request that notice or present a complaint under section 615. Each SEA and LEA would be required to provide the full explanations described in the previous sentence through a supplemental notice in those situations. This approach of basic and supplemental notices will allow the notices that are now provided in all situations to be significantly shortened, while still ensuring that parents are informed of all their rights in a timely manner. Much of the material in the current notice is not useful to the great majority of parents at the time it is provided.
New subsection (d)(1) would provide that whenever a hearing has been requested on any matter in dispute under section 615 and the dispute has not been finally resolved, the parents shall be offered an opportunity for mediation to resolve the dispute. Theuse of mediation can resolve disputes quickly and effectively, at less cost to all parties, and can help parents and schools work together better and avoid future conflicts. States would remain free to permit or require mediation before a due-process hearing is requested, but the new requirement in the Act to make mediation available would apply only after a due-process hearing has been requested.
Section 615(d)(2) would require each SEA to ensure that impartial mediation is provided at no cost to parents when they request it; compile and maintain a list of individuals who are trained in mediation and who are knowledgeable about the educational needs of children with disabilities and about applicable statutes and regulations relating to the educational rights of those children, including the requirements of Part B and the Secretary's implementing regulations; and ensure that mediators are appointed from that list.
Section 615(d)(3) would prohibit statements made by either party during mediation from being offered or used as evidence in any hearing, review of a hearing decision, or civil action under section 615.
Section 615(d)(4) would bar a public agency from using mediation to deny or delay the parents' right to a due-process hearing under section 615, or to deny the parents any other rights afforded under Part B.
Section 615(d)(5) would provide that mediation could be ended by the parents at any time and by the participating agency at any time after the first mediation session.
Section 615(d)(6) would require the mediator to ensure that any agreement that is reached as a result of mediation is put in writing.
The new subsection on mediation would not require a change in practice by any State that prohibits attorneys from attending mediation sessions.
Section 205(e) of the bill would make conforming and technical amendments to current section 615(b)(2) of the Act (to be redesignated as section 615(e)), relating to due-process hearings.
Subsection (f) would make conforming and technical amendments to current section 615(c) of the Act (to be redesignated as section 615(f)), relating to State-level appeals of the decisions of hearing officers.
Subsection (g) would make conforming and technical amendments to current section 615(d) of the Act (to be redesignated as section 615(g)), relating to the rights of parties during hearings and appeals.
Subsection (h) would make conforming and technical amendments to current section 615(e) of the Act (to be redesignated as section 615(h)), relating to the finality of decisions and to court proceedings.
Subsection (h)(3)(B) would amend current section 615(e)(3)(B) (to be redesignated as section 615(h)(3)(B)), added by P.L. 103-382, which permits the removal of a child with a disability to an interim alternative educational setting, for up to 45 days, if the child brings a gun to school. The amendment would expand the scope of this provision to reach other types of dangerous weapons, such as knives, and would rely on the definition of "dangerous weapon" in section 930 of Title 18 of the U.S. Code. That section makes it an offense to bring a dangerous weapon into a Federal facility. While expansion of this provision to other types of weapons provides an additional mechanism for addressing dangerous behavior by children with disabilities, school districts must still comply with the nondiscrimination requirement of section 504 of the Rehabilitation Act of 1973, which prohibits the removal of a child with a disability from a classroom if a nondisabled child would not be removed for the same behavior.
In addition, subsection (h)(3)(C) would add a new subparagraph (C) to paragraph (3) to give hearing officers the same authority as courts have to order a change in the placement of a child with a disability to an interim alternative educational setting, if the public agency demonstrates, by substantial evidence, that maintaining the child in his or her current placement is substantially likely to result in injury to himself or herself, or to others. (This standard of "dangerousness" is taken from the Supreme Court's 1988 decision in Honig v. Doe, 108 S.Ct. 592, and has been applied by the lower courts.) The State or LEA would be responsible for arranging for an expedited hearing in such a situation. While an LEA could still request a court to intervene in these situations, it would be advantageous for schools to have the additional option of going to a hearing officer to obtain a quick decision about whether a child is dangerous and should be removed from the classroom.
Finally, subparagraph (C)(iii) would provide that if the hearing officer orders placement in an alternative educational setting and the parent requests a due-process hearing, the child is to remain in the alternative setting while the dispute is being resolved, unless the parents and the State or local educational agency agree otherwise. This is the same rule that currently applies to a child with a disability who brings a gun to school.
Subsection (i) would make a conforming amendment to current section 615(f) of the Act (to be redesignated as section 615(i)), relating to the effect of section 615 of the IDEA on other laws.
Subsection (j) would add a new subsection (j) to section 615 to permit States to provide for the transfer of parental rights under Part B to an individual with a disability who has reached the age of majority. This new subsection would provide that a State may provide that, when an individual with a disability reaches the age of majority under State law, the public agency must provide any notice required by section 615 to both the individual and the parents; all other rights accorded to parents under Part B transfer to the child; and the agency must notify the individual and the parents of the transfer of rights. This provision would accommodate those several States that now provide for a transfer of those rights when students with disabilities reach the age of majority, while deferring to State law on the competency of students to make educational decisions for themselves.
Subsection (k) would repeal section 314(a)(2) of the Improving America's Schools Act of 1994, which would otherwise nullify that Act's amendments to section 615 relating to children with disabilities who bring firearms to school. Section 314(a)(2) of the IASA made those amendments temporary until the IDEA is reauthorized. Because the bill would retain those amendments, the IASA's time limit on their applicability needs to be repealed.
Section 206, withholding and judicial review. Section 206 of the bill would make technical and conforming changes to section 616 of the IDEA, relating to withholding of funds and judicial review of certain actions of the Secretary.
Section 207, administration. Section 207 of the bill would amend section 617 of the IDEA, which governs the Secretary's administration of the Act. Subsection (a) would rewrite section 617(a) to update the language and to delete two provisions that are no longer needed. First, paragraph (1)(D), which requires each State to certify the number of children with disabilities receiving special education and related services in the State, would be deleted; the Secretary would gather needed data under section 618 and Part E, both as revised by the bill. Second, paragraph (2), which required the Secretary to develop a uniform financial report for the States as soon as practicable after the 1975 enactment of P.L. 94-142, is unnecessary. The Secretary relies on more general authority to obtain financial information. See 34 CFR 300.3(a) and (d), 34 CFR 76.720, and 34 CFR 80.41.
Subsection (b) would update a cross-reference to a section of the General Education Provisions Act in section 617(c), to reflect the renumbering of that section by P.L. 103-382.
Subsection (c) would amend internal cross-references in section 617(d) to conform to other provisions of the bill.
Section 208, evaluation and program information. Section 208(a) of the bill would provide for a one-year extension of current section 618 of the IDEA, which authorizes the collection of data and the conduct of various evaluations and studies. This one-year extension, which the b for section 610 and Parts C through G of the Act, will allow for an orderly transition to the complete revision of those provisions to be made by the bill.
Section 208(b) would rewrite section 618 of the Act in its entirety, effective beginning with fiscal year 1997, to require each State that receives Part B funds, and the Secretary of the Interior, to provide the following information to the Secretary each year:
(1) The number of children who are receiving: (A) a free appropriate public education; (B) early intervention services because they have developmental delays or because they have a diagnosed physical or mental condition that has a high probability of resulting in developmental delay; or (C) early intervention services because they are at risk of having substantial developmental delays if those services are not provided and they are being served either as infants and toddlers with disabilities under Part H or as at-risk infants and toddlers under section 677.
(2) The types of early intervention services provided, which may be based on a sampling of data.
(3) The number of children with disabilities: (A) who are participating in regular education programs; (B) who are in separate classes, separate schools or facilities, or public or private residential facilities; (C) who have been otherwise removed from the regular education environment; and (D) who are in various early intervention settings.
(4) For each year of age from 14 through 21, the number of children with disabilities who, because of program completion or for other reasons, stopped receiving special education.
(5) The number of children with disabilities, from birth through two, who, because of program completion or for other reasons, stopped receiving early intervention services.
(6) Other information required by the Secretary.
Section 209, preschool grants. Section 209 of the bill would revise, in its entirety, section 619 of the IDEA, which authorizes additional grants to States to assist them in providing services to preschool children with disabilities.
Section 619(a) would direct the Secretary to make grants to assist States and the outlying areas to provide special education and related services, in accordance with Part B, to children with disabilities aged three, four, and five and, at the State's discretion, to 2-year-old children with disabilities who will turn three during the school year.
Subsection (b) would provide that a State or outlying area is eligible for a grant under section 619 if it has established its eligibility under section 612 and it makes a free appropriate public education available to all children with disabilities, aged three through five, residing in its jurisdiction.
In order to minimize any disruption that might otherwise result from revising the formula for the national distribution of section 619 funds, described below, section 619(c) would guarantee each State and outlying area an amount equal to what it received under section 619 for fiscal year 1995. The amounts guaranteed to the States under this paragraph would be reduced if insufficient funds were appropriated.
Section 619(d)(1) would direct the Secretary to allocate any additional funds to States and outlying areas on the basis of their relative population of children aged 3 through 5. Section 619(d)(2) would limit the total allocation to the Commonwealth of Puerto Rico to the same percentage of the total allocation to States, the outlying areas, and the Secretary of the Interior that Puerto Rico received for fiscal year 1995. Without this limitation, Puerto Rico would receive an unwarranted windfall at the expense of the remaining jurisdictions.
Section 619(e) would authorize the Secretary to use the most recent population data that are available and satisfactory to the Secretary in making grants under section 619.
Section 619(f) would allow each State and outlying area to retain up to 25 percent of the grant it receives under section 619 for administration and other State-level activities. A State could use those funds without regard to the prohibition on commingling of funds in section 612(a)(18)(B) and the prohibition on supplanting other funds in section 612(a)(18)(C)(i).
Section 619(g)(1) would permit each State and outlying area to use up to five percent of the amount it receives under section 619 for any fiscal year for the costs of administering Part B, not just section 619. Paragraph (2) would also allow a State to use these funds to administer the Part H program for infants and toddlers with disabilities, if the SEA is the lead State agency under that program.
Section 619(h), which is similar to current section 619(c)(2)(B), would permit each State to use section 619 funds retained at the State level: (1) for support services (including establishing and implementing the mediation process required by section 615(d)), which may benefit children with disabilities younger than three and older than five as long as those services also benefit children with disabilities aged three through five; (2) for direct services for children eligible for services under section 619; (3) to develop a State Improvement Plan under Part C; (4) for activities at the State and local levels to meet the performance goals established by the State under section 612(a)(16) and to support implementation of the State Improvement Plan under Part C if the State receives funds under that part; or (5) to supplement other funds used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under section 619.
Section 619(i)(1), which replaces current section 619(c)(2)(A), would require each State that receives a grant under section 619 for any fiscal year to distribute at least 75 percent of the grant funds to LEAs, and to State agencies that received funds under current section 614A(a) for fiscal year 1995, that have established their eligibility under section 613. (Section 614A(a) authorizes Part B payments to State agencies that previously received funds under the program for State agencies that serve children with disabilities under Chapter 1 of Title I of the Elementary and Secondary Education Act of 1965. That program was ended by P.L. 103-382.)
Section 619(i)(2) would allow a State to distribute funds to LEAs and eligible State agencies on the basis of population; school enrollment; numbers of children with disabilities aged three through five receiving a free appropriate public education; allocations for previous fiscal years; any combination of those factors; or poverty, in combination with one or more of those factors. This flexible approach replaces the rigid formula in current section 619(c)(3) that requires States to distribute funds solely on the basis of counts of preschool-aged children with disabilities who received services, and gives States the latitude they need to use Federal funds as a supplement to State and local funds to ensure that all children with disabilities aged three through five in the State receive a free appropriate public education.
Subsection (j), which replaces current section 619(g), would provide that Part H of the IDEA does not apply to any child with a disability receiving a free appropriate public education, in accordance with Part B, with funds received under section 619.
Because the education of children with disabilities in the outlying areas continues to be plagued by inadequate services and numerous other problems, section 619(k) would prohibit those areas from using section 619 funds for other purposes, as they are otherwise permitted to do by Public Law 95-134. (The bill includes similar provisions applicable to section 611 funds, funds for State Improvement Plans under the revised Part C, and funds for infants and toddlers under Part H.) As a result, the outlying areas will be subject to the same requirements in using section 619 funds as are the States that receive those funds.
Subsection (l) would define the term "State", for the purpose of section 619, to mean each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. The outlying areas are explicitly referred to in those provisions of the section that also apply to them.
Subsection (m), which replaces current section 619(e), authorizes the appropriation of such sums as may be necessary to carry out section 619.
Section 210, payments. Section 210 of the bill would amend section 620 of the IDEA, which directs the Secretary and SEAs to make Part B payments to SEAs and LEAs, respectively, to conform to other provisions of the bill. Current section 620(b), which authorizes payments in advance, by reimbursement, and in installments, would be deleted because it duplicates section 423 (formerly section 415) of the General Education Provisions Act.