---
kind: "section"
citation: "20 U.S.C. § 1412"
title: "20"
title_heading: "Education"
number: "1412"
heading: "State eligibility"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/20/1412"
units:
  - "Chapter 33 — Education of Individuals with Disabilities"
  - "Subchapter II — Assistance for Education of All Children with Disabilities"
---

# §1412. State eligibility

- (a) **In general—** A [State](/usc/20/1401.md?p=31) is eligible for assistance under this subchapter for a fiscal year if the [State](/usc/20/1401.md?p=31) submits a plan that provides assurances to the [Secretary](/usc/20/1401.md?p=28) that the [State](/usc/20/1401.md?p=31) has in effect policies and procedures to ensure that the [State](/usc/20/1401.md?p=31) meets each of the following conditions:
  - (1) **Free appropriate public education—**
    - (A) **In general—** A [free appropriate public education](/usc/20/1401.md?p=9) is available to all children with disabilities residing in the [State](/usc/20/1401.md?p=31) between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.
    - (B) **Limitation—** The obligation to make a [free appropriate public education](/usc/20/1401.md?p=9) available to all children with disabilities does not apply with respect to children—
      - (i) aged 3 through 5 and 18 through 21 in a [State](/usc/20/1401.md?p=31) to the extent that its application to those children would be inconsistent with [State](/usc/20/1401.md?p=31) law or practice, or the order of any court, respecting the provision of public education to children in those age ranges; and
      - (ii) aged 18 through 21 to the extent that [State](/usc/20/1401.md?p=31) law does not require that [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) under this subchapter be provided to children with disabilities who, in the educational placement prior to their incarceration in an adult correctional facility—
        - (I) were not actually identified as being a [child with a disability](/usc/20/1401.md?p=3-A) under [section 1401 of this title](/usc/20/1401.md); or
        - (II) did not have an [individualized education program](/usc/20/1401.md?p=14) under this subchapter.
    - (C) **State flexibility—** A [State](/usc/20/1401.md?p=31) that provides early intervention services in accordance with subchapter III to a child who is eligible for services under [section 1419 of this title](/usc/20/1419.md), is not required to provide such child with a [free appropriate public education](/usc/20/1401.md?p=9).
  - (2) **Full educational opportunity goal—** The [State](/usc/20/1401.md?p=31) has established a goal of providing full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal.
  - (3) **Child find—**
    - (A) **In general—** All children with disabilities residing in the [State](/usc/20/1401.md?p=31), including children with disabilities who are [homeless children](/usc/20/1401.md?p=11) or are wards of the [State](/usc/20/1401.md?p=31) and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A), are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A).
    - (B) **Construction—** Nothing in this chapter requires that children be classified by their disability so long as each child who has a disability listed in [section 1401 of this title](/usc/20/1401.md) and who, by reason of that disability, needs [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) is regarded as a [child with a disability](/usc/20/1401.md?p=3-A) under this subchapter.
  - (4) **Individualized education program—** An [individualized education program](/usc/20/1401.md?p=14), or an [individualized family service plan](/usc/20/1401.md?p=15) that meets the requirements of [section 1436(d) of this title](/usc/20/1436.md?p=d), is developed, reviewed, and revised for each [child with a disability](/usc/20/1401.md?p=3-A) in accordance with [section 1414(d) of this title](/usc/20/1414.md?p=d).
  - (5) **Least restrictive environment—**
    - (A) **In general—** To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of [supplementary aids and services](/usc/20/1401.md?p=33) cannot be achieved satisfactorily.
    - (B) **Additional requirement—**
      - (i) **In general—** A [State](/usc/20/1401.md?p=31) funding mechanism shall not result in placements that violate the requirements of [subparagraph (A)](#a-5-A), and a [State](/usc/20/1401.md?p=31) shall not use a funding mechanism by which the [State](/usc/20/1401.md?p=31) distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a [child with a disability](/usc/20/1401.md?p=3-A) a [free appropriate public education](/usc/20/1401.md?p=9) according to the unique needs of the child as described in the child’s [IEP](/usc/20/1401.md?p=14).
      - (ii) **Assurance—** If the [State](/usc/20/1401.md?p=31) does not have policies and procedures to ensure compliance with [clause (i)](#a-5-B-i), the [State](/usc/20/1401.md?p=31) shall provide the [Secretary](/usc/20/1401.md?p=28) an assurance that the [State](/usc/20/1401.md?p=31) will revise the funding mechanism as soon as feasible to ensure that such mechanism does not result in such placements.
  - (6) **Procedural safeguards—**
    - (A) **In general—** Children with disabilities and their [parents](/usc/20/1401.md?p=23) are afforded the procedural safeguards required by [section 1415 of this title](/usc/20/1415.md).
    - (B) **Additional procedural safeguards—** Procedures to ensure that testing and evaluation materials and procedures utilized for the purposes of evaluation and placement of children with disabilities for services under this chapter 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](/usc/20/1401.md?p=20) or mode of communication, unless it clearly is not feasible to do so, and no single procedure shall be the sole criterion for determining an appropriate educational program for a child.
  - (7) **Evaluation—** Children with disabilities are evaluated in accordance with subsections (a) through (c) of [section 1414 of this title](/usc/20/1414.md).
  - (8) **Confidentiality—** Agencies in the [State](/usc/20/1401.md?p=31) comply with [section 1417(c) of this title](/usc/20/1417.md?p=c) (relating to the confidentiality of records and information).
  - (9) **Transition from subchapter III to preschool programs—** Children participating in early intervention programs assisted under subchapter III, and who will participate in preschool programs assisted under this subchapter, experience a smooth and effective transition to those preschool programs in a manner consistent with [section 1437(a)(9) of this title](/usc/20/1437.md?p=a-9). By the third birthday of such a child, an [individualized education program](/usc/20/1401.md?p=14) or, if consistent with sections [1414(d)(2)(B)](/usc/20/1414.md?p=d-2-B) and [1436(d)](/usc/20/1436.md?p=d) of this title, an [individualized family service plan](/usc/20/1401.md?p=15), has been developed and is being implemented for the child. The [local educational agency](/usc/20/1401.md?p=19-A) will participate in transition planning conferences arranged by the designated lead agency under [section 1435(a)(10) of this title](/usc/20/1435.md?p=a-10).
  - (10) **Children in private schools—**
    - (A) **Children enrolled in private schools by their parents—**
      - (i) **In general—** To the extent consistent with the number and location of children with disabilities in the [State](/usc/20/1401.md?p=31) who are enrolled by their [parents](/usc/20/1401.md?p=23) in private [elementary schools](/usc/20/1401.md?p=6) and [secondary schools](/usc/20/1401.md?p=27) in the school district served by a [local educational agency](/usc/20/1401.md?p=19-A), provision is made for the participation of those children in the program assisted or carried out under this subchapter by providing for such children [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) in accordance with the following requirements, unless the [Secretary](/usc/20/1401.md?p=28) has arranged for services to those children under [subsection (f)](#f):
        - (I) Amounts to be expended for the provision of those services (including direct services to parentally placed private school children) by the [local educational agency](/usc/20/1401.md?p=19-A) shall be equal to a proportionate amount of Federal funds made available under this subchapter.
        - (II) In calculating the proportionate amount of Federal funds, the [local educational agency](/usc/20/1401.md?p=19-A), after timely and meaningful consultation with representatives of private schools as described in [clause (iii)](#a-10-A-iii), shall conduct a thorough and complete child find process to determine the number of parentally placed children with disabilities attending private schools located in the [local educational agency](/usc/20/1401.md?p=19-A).
        - (III) Such services to parentally placed private school children with disabilities may be provided to the children on the premises of private, including religious, schools, to the extent consistent with law.
        - (IV) [State](/usc/20/1401.md?p=31) and local funds may supplement and in no case shall supplant the proportionate amount of Federal funds required to be expended under this subparagraph.
        - (V) Each [local educational agency](/usc/20/1401.md?p=19-A) shall maintain in its records and provide to the [State educational agency](/usc/20/1401.md?p=32) the number of children evaluated under this subparagraph, the number of children determined to be children with disabilities under this paragraph, and the number of children served under this paragraph.
      - (ii) **Child find requirement—**
        - (I) **In general—** The requirements of [paragraph (3)](#a-3) (relating to child find) shall apply with respect to children with disabilities in the [State](/usc/20/1401.md?p=31) who are enrolled in private, including religious, [elementary schools](/usc/20/1401.md?p=6) and [secondary schools](/usc/20/1401.md?p=27).
        - (II) **Equitable participation—** The child find process shall be designed to ensure the equitable participation of parentally placed private school children with disabilities and an accurate count of such children.
        - (III) **Activities—** In carrying out this clause, the [local educational agency](/usc/20/1401.md?p=19-A), or where applicable, the [State educational agency](/usc/20/1401.md?p=32), shall undertake activities similar to those activities undertaken for the agency’s public school children.
        - (IV) **Cost—** The cost of carrying out this clause, including individual evaluations, may not be considered in determining whether a [local educational agency](/usc/20/1401.md?p=19-A) has met its obligations under [clause (i)](#a-10-A-i).
        - (V) **Completion period—** Such child find process shall be completed in a time period comparable to that for other students attending public schools in the [local educational agency](/usc/20/1401.md?p=19-A).
      - (iii) **Consultation—** To ensure timely and meaningful consultation, a [local educational agency](/usc/20/1401.md?p=19-A), or where appropriate, a [State educational agency](/usc/20/1401.md?p=32), shall consult with private school representatives and representatives of [parents](/usc/20/1401.md?p=23) of parentally placed private school children with disabilities during the design and development of [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) for the children, including regarding—
        - (I) the child find process and how parentally placed private school children suspected of having a disability can participate equitably, including how [parents](/usc/20/1401.md?p=23), teachers, and private school officials will be informed of the process;
        - (II) the determination of the proportionate amount of Federal funds available to serve parentally placed private school children with disabilities under this subparagraph, including the determination of how the amount was calculated;
        - (III) the consultation process among the [local educational agency](/usc/20/1401.md?p=19-A), private school officials, and representatives of [parents](/usc/20/1401.md?p=23) of parentally placed private school children with disabilities, including how such process will operate throughout the school year to ensure that parentally placed private school children with disabilities identified through the child find process can meaningfully participate in [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A);
        - (IV) how, where, and by whom [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) will be provided for parentally placed private school children with disabilities, including a discussion of types of services, including direct services and alternate service delivery mechanisms, how such services will be apportioned if funds are insufficient to serve all children, and how and when these decisions will be made; and
        - (V) how, if the [local educational agency](/usc/20/1401.md?p=19-A) disagrees with the views of the private school officials on the provision of services or the types of services, whether provided directly or through a contract, the [local educational agency](/usc/20/1401.md?p=19-A) shall provide to the private school officials a written explanation of the reasons why the [local educational agency](/usc/20/1401.md?p=19-A) chose not to provide services directly or through a contract.
      - (iv) **Written affirmation—** When timely and meaningful consultation as required by [clause (iii)](#a-10-A-iii) has occurred, the [local educational agency](/usc/20/1401.md?p=19-A) shall obtain a written affirmation signed by the representatives of participating private schools, and if such representatives do not provide such affirmation within a reasonable period of time, the [local educational agency](/usc/20/1401.md?p=19-A) shall forward the documentation of the consultation process to the [State educational agency](/usc/20/1401.md?p=32).
      - (v) **Compliance—**
        - (I) **In general—** A private school official shall have the right to submit a complaint to the [State educational agency](/usc/20/1401.md?p=32) that the [local educational agency](/usc/20/1401.md?p=19-A) did not engage in consultation that was meaningful and timely, or did not give due consideration to the views of the private school official.
        - (II) **Procedure—** If the private school official wishes to submit a complaint, the official shall provide the basis of the noncompliance with this subparagraph by the [local educational agency](/usc/20/1401.md?p=19-A) to the [State educational agency](/usc/20/1401.md?p=32), and the [local educational agency](/usc/20/1401.md?p=19-A) shall forward the appropriate documentation to the [State educational agency](/usc/20/1401.md?p=32). If the private school official is dissatisfied with the decision of the [State educational agency](/usc/20/1401.md?p=32), such official may submit a complaint to the [Secretary](/usc/20/1401.md?p=28) by providing the basis of the noncompliance with this subparagraph by the [local educational agency](/usc/20/1401.md?p=19-A) to the [Secretary](/usc/20/1401.md?p=28), and the [State educational agency](/usc/20/1401.md?p=32) shall forward the appropriate documentation to the [Secretary](/usc/20/1401.md?p=28).
      - (vi) **Provision of equitable services—**
        - (I) **Directly or through contracts—** The provision of services pursuant to this subparagraph shall be provided—
          - (aa) by employees of a public agency; or
          - (bb) through contract by the public agency with an individual, association, agency, organization, or other entity.
        - (II) **Secular, neutral, nonideological—** [Special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) provided to parentally placed private school children with disabilities, including materials and [equipment](/usc/20/1401.md?p=7), shall be secular, neutral, and nonideological.
      - (vii) **Public control of funds—** The control of funds used to provide [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) under this subparagraph, and title to materials, [equipment](/usc/20/1401.md?p=7), and property purchased with those funds, shall be in a public agency for the uses and purposes provided in this chapter, and a public agency shall administer the funds and property.
    - (B) **Children placed in, or referred to, private schools by public agencies—**
      - (i) **In general—** Children with disabilities in private schools and facilities are provided [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A), in accordance with an [individualized education program](/usc/20/1401.md?p=14), at no cost to their [parents](/usc/20/1401.md?p=23), if such children are placed in, or referred to, such schools or facilities by the [State](/usc/20/1401.md?p=31) or appropriate [local educational agency](/usc/20/1401.md?p=19-A) as the means of carrying out the requirements of this subchapter or any other applicable law requiring the provision of [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) to all children with disabilities within such [State](/usc/20/1401.md?p=31).
      - (ii) **Standards—** In all cases described in [clause (i)](#a-10-B-i), the [State educational agency](/usc/20/1401.md?p=32) shall determine whether such schools and facilities meet standards that apply to [State educational agencies](/usc/20/1401.md?p=32) and [local educational agencies](/usc/20/1401.md?p=19-A) and that children so served have all the rights the children would have if served by such agencies.
    - (C) **Payment for education of children enrolled in private schools without consent of or referral by the public agency—**
      - (i) **In general—** Subject to [subparagraph (A)](#a-10-A), this subchapter does not require a [local educational agency](/usc/20/1401.md?p=19-A) to pay for the cost of education, including [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A), of a [child with a disability](/usc/20/1401.md?p=3-A) at a private school or facility if that agency made a [free appropriate public education](/usc/20/1401.md?p=9) available to the child and the [parents](/usc/20/1401.md?p=23) elected to place the child in such private school or facility.
      - (ii) **Reimbursement for private school placement—** If the [parents](/usc/20/1401.md?p=23) of a [child with a disability](/usc/20/1401.md?p=3-A), who previously received [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) under the authority of a public agency, enroll the child in a private [elementary school](/usc/20/1401.md?p=6) or [secondary school](/usc/20/1401.md?p=27) without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the [parents](/usc/20/1401.md?p=23) for the cost of that enrollment if the court or hearing officer finds that the agency had not made a [free appropriate public education](/usc/20/1401.md?p=9) available to the child in a timely manner prior to that enrollment.
      - (iii) **Limitation on reimbursement—** The cost of reimbursement described in [clause (ii)](#a-10-C-ii) may be reduced or denied—
        - (I) if—
          - (aa) at the most recent [IEP](/usc/20/1401.md?p=14) meeting that the [parents](/usc/20/1401.md?p=23) attended prior to removal of the child from the public school, the [parents](/usc/20/1401.md?p=23) did not inform the [IEP](/usc/20/1401.md?p=14) Team that they were rejecting the placement proposed by the public agency to provide a [free appropriate public education](/usc/20/1401.md?p=9) to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
          - (bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the [parents](/usc/20/1401.md?p=23) did not give written notice to the public agency of the information described in [item (aa)](#a-10-C-iii-I-aa);
        - (II) if, prior to the [parents](/usc/20/1401.md?p=23)’ removal of the child from the public school, the public agency informed the [parents](/usc/20/1401.md?p=23), through the notice requirements described in [section 1415(b)(3) of this title](/usc/20/1415.md?p=b-3), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the [parents](/usc/20/1401.md?p=23) did not make the child available for such evaluation; or
        - (III) upon a judicial finding of unreasonableness with respect to actions taken by the [parents](/usc/20/1401.md?p=23).
      - (iv) **Exception—** Notwithstanding the notice requirement in [clause (iii)(I)](#a-10-C-iii-I), the cost of reimbursement—
        - (I) shall not be reduced or denied for failure to provide such notice if—
          - (aa) the school prevented the [parent](/usc/20/1401.md?p=23) from providing such notice;
          - (bb) the [parents](/usc/20/1401.md?p=23) had not received notice, pursuant to [section 1415 of this title](/usc/20/1415.md), of the notice requirement in [clause (iii)(I)](#a-10-C-iii-I); or
          - (cc) compliance with [clause (iii)(I)](#a-10-C-iii-I) would likely result in physical harm to the child; and
        - (II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if—
          - (aa) the [parent](/usc/20/1401.md?p=23) is illiterate or cannot write in English; or
          - (bb) compliance with [clause (iii)(I)](#a-10-C-iii-I) would likely result in serious emotional harm to the child.
  - (11) **State educational agency responsible for general supervision—**
    - (A) **In general—** The [State educational agency](/usc/20/1401.md?p=32) is responsible for ensuring that—
      - (i) the requirements of this subchapter are met;
      - (ii) all educational programs for children with disabilities in the [State](/usc/20/1401.md?p=31), including all such programs administered by any other [State](/usc/20/1401.md?p=31) agency or local agency—
        - (I) are under the general supervision of individuals in the [State](/usc/20/1401.md?p=31) who are responsible for educational programs for children with disabilities; and
        - (II) meet the educational standards of the [State educational agency](/usc/20/1401.md?p=32); and
      - (iii) in carrying out this subchapter with respect to [homeless children](/usc/20/1401.md?p=11), the requirements of subtitle B of title VII of the McKinney-Vento Homeless Assistance Act ([42 U.S.C. 11431](/usc/42/11431.md) et seq.) are met.
    - (B) **Limitation—** [Subparagraph (A)](#a-11-A) shall not limit the responsibility of agencies in the [State](/usc/20/1401.md?p=31) other than the [State educational agency](/usc/20/1401.md?p=32) to provide, or pay for some or all of the costs of, a [free appropriate public education](/usc/20/1401.md?p=9) for any [child with a disability](/usc/20/1401.md?p=3-A) in the [State](/usc/20/1401.md?p=31).
    - (C) **Exception—** Notwithstanding subparagraphs [(A)](#a-11-A) and [(B)](#a-11-B), the Governor (or another individual pursuant to [State](/usc/20/1401.md?p=31) law), consistent with [State](/usc/20/1401.md?p=31) law, may assign to any public agency in the [State](/usc/20/1401.md?p=31) the responsibility of ensuring that the requirements of this subchapter are met with respect to children with disabilities who are convicted as adults under [State](/usc/20/1401.md?p=31) law and incarcerated in adult prisons.
  - (12) **Obligations related to and methods of ensuring services—**
    - (A) **Establishing responsibility for services—** The Chief Executive Officer of a [State](/usc/20/1401.md?p=31) or designee of the officer shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each public agency described in [subparagraph (B)](#a-12-B) and the [State educational agency](/usc/20/1401.md?p=32), in order to ensure that all services described in [subparagraph (B)(i)](#a-12-B-i) that are needed to ensure a [free appropriate public education](/usc/20/1401.md?p=9) are provided, including the provision of such services during the pendency of any dispute under [clause (iii)](#a-12-A-iii). Such agreement or mechanism shall include the following:
      - (i) **Agency financial responsibility—** An identification of, or a method for defining, the financial responsibility of each agency for providing services described in [subparagraph (B)(i)](#a-12-B-i) to ensure a [free appropriate public education](/usc/20/1401.md?p=9) to children with disabilities, provided that the financial responsibility of each public agency described in [subparagraph (B)](#a-12-B), including the [State](/usc/20/1401.md?p=31) medicaid agency and other public insurers of children with disabilities, shall precede the financial responsibility of the [local educational agency](/usc/20/1401.md?p=19-A) (or the [State](/usc/20/1401.md?p=31) agency responsible for developing the child’s [IEP](/usc/20/1401.md?p=14)).
      - (ii) **Conditions and terms of reimbursement—** The conditions, terms, and procedures under which a [local educational agency](/usc/20/1401.md?p=19-A) shall be reimbursed by other agencies.
      - (iii) **Interagency disputes—** Procedures for resolving interagency disputes (including procedures under which [local educational agencies](/usc/20/1401.md?p=19-A) may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism.
      - (iv) **Coordination of services procedures—** Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in [subparagraph (B)(i)](#a-12-B-i).
    - (B) **Obligation of public agency—**
      - (i) **In general—** If any public agency other than an educational agency is otherwise obligated under Federal or [State](/usc/20/1401.md?p=31) law, or assigned responsibility under [State](/usc/20/1401.md?p=31) policy pursuant to [subparagraph (A)](#a-12-A), to provide or pay for any services that are also considered [special education](/usc/20/1401.md?p=29) or [related services](/usc/20/1401.md?p=26-A) (such as, but not limited to, services described in [section 1401(1)](/usc/20/1401.md?p=1) relating to [assistive technology devices](/usc/20/1401.md?p=1-A), 1401(2) relating to [assistive technology services](/usc/20/1401.md?p=2), 1401(26) relating to [related services](/usc/20/1401.md?p=26-A), 1401(33) relating to [supplementary aids and services](/usc/20/1401.md?p=33), and [1401(34)](/usc/20/1401.md?p=34) of this title relating to [transition services](/usc/20/1401.md?p=34)) that are necessary for ensuring a [free appropriate public education](/usc/20/1401.md?p=9) to children with disabilities within the [State](/usc/20/1401.md?p=31), such public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to [subparagraph (A)](#a-12-A) or an agreement pursuant to [subparagraph (C)](#a-12-C).
      - (ii) **Reimbursement for services by public agency—** If a public agency other than an educational agency fails to provide or pay for the [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) described in [clause (i)](#a-12-B-i), the [local educational agency](/usc/20/1401.md?p=19-A) (or [State](/usc/20/1401.md?p=31) agency responsible for developing the child’s [IEP](/usc/20/1401.md?p=14)) shall provide or pay for such services to the child. Such [local educational agency](/usc/20/1401.md?p=19-A) or [State](/usc/20/1401.md?p=31) agency is authorized to claim reimbursement for the services from the public agency that failed to provide or pay for such services and such public agency shall reimburse the [local educational agency](/usc/20/1401.md?p=19-A) or [State](/usc/20/1401.md?p=31) agency pursuant to the terms of the interagency agreement or other mechanism described in [subparagraph (A)(i)](#a-12-A-i) according to the procedures established in such agreement pursuant to [subparagraph (A)(ii)](#a-12-A-ii).
    - (C) **Special rule—** The requirements of [subparagraph (A)](#a-12-A) may be met through—
      - (i) [State](/usc/20/1401.md?p=31) statute or regulation;
      - (ii) signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or
      - (iii) other appropriate written methods as determined by the Chief Executive Officer of the [State](/usc/20/1401.md?p=31) or designee of the officer and approved by the [Secretary](/usc/20/1401.md?p=28).
  - (13) **Procedural requirements relating to local educational agency eligibility—** The [State educational agency](/usc/20/1401.md?p=32) will not make a final determination that a [local educational agency](/usc/20/1401.md?p=19-A) is not eligible for assistance under this subchapter without first affording that agency reasonable notice and an opportunity for a hearing.
  - (14) **Personnel qualifications—**
    - (A) **In general—** The [State educational agency](/usc/20/1401.md?p=32) has established and maintains qualifications to ensure that [personnel](/usc/20/1451.md?p=b) necessary to carry out this subchapter are appropriately and adequately prepared and trained, including that those [personnel](/usc/20/1451.md?p=b) have the content knowledge and skills to serve children with disabilities.
    - (B) **Related services personnel and paraprofessionals—** The qualifications under [subparagraph (A)](#a-14-A) include qualifications for [related services](/usc/20/1401.md?p=26-A) [personnel](/usc/20/1451.md?p=b) and paraprofessionals that—
      - (i) are consistent with any [State](/usc/20/1401.md?p=31)-approved or [State](/usc/20/1401.md?p=31)-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those [personnel](/usc/20/1451.md?p=b) are providing [special education](/usc/20/1401.md?p=29) or [related services](/usc/20/1401.md?p=26-A);
      - (ii) ensure that [related services](/usc/20/1401.md?p=26-A) [personnel](/usc/20/1451.md?p=b) who deliver services in their discipline or profession meet the requirements of [clause (i)](#a-14-B-i) and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and
      - (iii) allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with [State](/usc/20/1401.md?p=31) law, regulation, or written policy, in meeting the requirements of this subchapter to be used to assist in the provision of [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) under this subchapter to children with disabilities.
    - (C) **Qualifications for special education teachers—** The qualifications described in [subparagraph (A)](#a-14-A) shall ensure that each person employed as a [special education](/usc/20/1401.md?p=29) teacher in the [State](/usc/20/1401.md?p=31) who teaches [elementary school](/usc/20/1401.md?p=6), middle school, or [secondary school](/usc/20/1401.md?p=27)—
      - (i) has obtained full [State](/usc/20/1401.md?p=31) certification as a [special education](/usc/20/1401.md?p=29) teacher (including participating in an alternate route to certification as a special educator, if such alternate route meets minimum requirements described in section 2005.56(a)(2)(ii)[^1] of title 34, Code of Federal Regulations, as such section was in effect on November 28, 2008), or passed the [State](/usc/20/1401.md?p=31) [special education](/usc/20/1401.md?p=29) teacher licensing examination, and holds a license to teach in the [State](/usc/20/1401.md?p=31) as a [special education](/usc/20/1401.md?p=29) teacher, except with respect to any teacher teaching in a public charter school who shall meet the requirements set forth in the [State](/usc/20/1401.md?p=31)’s public charter school law;
      - (ii) has not had [special education](/usc/20/1401.md?p=29) certification or licensure requirements waived on an emergency, temporary, or provisional basis; and
      - (iii) holds at least a bachelor’s degree..[^2]
    - (D) **Policy—** In implementing this section, a [State](/usc/20/1401.md?p=31) shall adopt a policy that includes a requirement that [local educational agencies](/usc/20/1401.md?p=19-A) in the [State](/usc/20/1401.md?p=31) take measurable steps to recruit, hire, train, and retain [personnel](/usc/20/1451.md?p=b) who meet the applicable requirements described in this paragraph to provide [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) under this subchapter to children with disabilities.
    - (E) **Rule of construction—** Notwithstanding any other individual right of action that a [parent](/usc/20/1401.md?p=23) or student may maintain under this subchapter, nothing in this paragraph shall be construed to create a right of action on behalf of an individual student for the failure of a particular [State educational agency](/usc/20/1401.md?p=32) or [local educational agency](/usc/20/1401.md?p=19-A) staff person to meet the applicable requirements described in this paragraph, or to prevent a [parent](/usc/20/1401.md?p=23) from filing a complaint about staff qualifications with the [State educational agency](/usc/20/1401.md?p=32) as provided for under this subchapter.
  - (15) **Performance goals and indicators—** The [State](/usc/20/1401.md?p=31)—
    - (A) has established goals for the performance of children with disabilities in the [State](/usc/20/1401.md?p=31) that—
      - (i) promote the purposes of this chapter, as stated in [section 1400(d) of this title](/usc/20/1400.md?p=d);
      - (ii) are the same as the [State](/usc/20/1401.md?p=31)’s long-term goals and measurements of interim progress for children with disabilities under [section 6311(c)(4)(A)(i) of this title](/usc/20/6311.md?p=c-4-A-i);
      - (iii) address graduation rates and dropout rates, as well as such other factors as the [State](/usc/20/1401.md?p=31) may determine; and
      - (iv) are consistent, to the extent appropriate, with any other goals and standards for children established by the [State](/usc/20/1401.md?p=31);
    - (B) has established performance indicators the [State](/usc/20/1401.md?p=31) will use to assess progress toward achieving the goals described in [subparagraph (A)](#a-15-A), including measurements of interim progress for children with disabilities under [section 6311(c)(4)(A)(i) of this title](/usc/20/6311.md?p=c-4-A-i); and
    - (C) will annually report to the [Secretary](/usc/20/1401.md?p=28) and the public on the progress of the [State](/usc/20/1401.md?p=31), and of children with disabilities in the [State](/usc/20/1401.md?p=31), toward meeting the goals established under [subparagraph (A)](#a-15-A), which may include elements of the reports required under [section 6311(h) of this title](/usc/20/6311.md?p=h).
  - (16) **Participation in assessments—**
    - (A) **In general—** All children with disabilities are included in all general [State](/usc/20/1401.md?p=31) and districtwide assessment programs, including assessments described under [section 6311 of this title](/usc/20/6311.md), with appropriate accommodations and alternate assessments where necessary and as indicated in their respective [individualized education programs](/usc/20/1401.md?p=14).
    - (B) **Accommodation guidelines—** The [State](/usc/20/1401.md?p=31) (or, in the case of a districtwide assessment, the [local educational agency](/usc/20/1401.md?p=19-A)) has developed guidelines for the provision of appropriate accommodations.
    - (C) **Alternate assessments—**
      - (i) **In general—** The [State](/usc/20/1401.md?p=31) (or, in the case of a districtwide assessment, the [local educational agency](/usc/20/1401.md?p=19-A)) has developed and implemented guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in regular assessments under [subparagraph (A)](#a-16-A) with accommodations as indicated in their respective [individualized education programs](/usc/20/1401.md?p=14).
      - (ii) **Requirements for alternate assessments—** The guidelines under [clause (i)](#a-16-C-i) shall provide for alternate assessments that—
        - (I) are aligned with the challenging [State](/usc/20/1401.md?p=31) academic content standards under [section 6311(b)(1) of this title](/usc/20/6311.md?p=b-1) and alternate academic achievement standards under [section 6311(b)(1)(E) of this title](/usc/20/6311.md?p=b-1-E); and
        - (II) if the [State](/usc/20/1401.md?p=31) has adopted alternate academic achievement standards permitted under [section 6311(b)(1)(E) of this title](/usc/20/6311.md?p=b-1-E), measure the achievement of children with disabilities against those standards.
      - (iii) **Conduct of alternate assessments—** The [State](/usc/20/1401.md?p=31) conducts the alternate assessments described in this subparagraph.
    - (D) **Reports—** The [State educational agency](/usc/20/1401.md?p=32) (or, in the case of a districtwide assessment, the [local educational agency](/usc/20/1401.md?p=19-A)) makes available to the public, and reports to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:
      - (i) The number of children with disabilities participating in regular assessments, and the number of those children who were provided accommodations in order to participate in those assessments.
      - (ii) The number of children with disabilities participating in alternate assessments described in [subparagraph (C)(ii)(I)](#a-16-C-ii-I).
      - (iii) The number of children with disabilities participating in alternate assessments described in [subparagraph (C)(ii)(II)](#a-16-C-ii-II).
      - (iv) The performance of children with disabilities on regular assessments and on alternate assessments (if the number of children with disabilities participating in those assessments is sufficient to yield statistically reliable information and reporting that information will not reveal personally identifiable information about an individual student), compared with the achievement of all children, including children with disabilities, on those assessments.
    - (E) **Universal design—** The [State educational agency](/usc/20/1401.md?p=32) (or, in the case of a districtwide assessment, the [local educational agency](/usc/20/1401.md?p=19-A)) shall, to the extent feasible, use [universal design](/usc/20/1401.md?p=35) principles in developing and administering any assessments under this paragraph.
  - (17) **Supplementation of State, local, and other Federal funds—**
    - (A) **Expenditures—** Funds paid to a [State](/usc/20/1401.md?p=31) under this subchapter will be expended in accordance with all the provisions of this subchapter.
    - (B) **Prohibition against commingling—** Funds paid to a [State](/usc/20/1401.md?p=31) under this subchapter will not be commingled with [State](/usc/20/1401.md?p=31) funds.
    - (C) **Prohibition against supplantation and conditions for waiver by Secretary—** Except as provided in [section 1413 of this title](/usc/20/1413.md), funds paid to a [State](/usc/20/1401.md?p=31) under this subchapter will be used to supplement the level of Federal, [State](/usc/20/1401.md?p=31), and local funds (including funds that are not under the direct control of [State](/usc/20/1401.md?p=31) or [local educational agencies](/usc/20/1401.md?p=19-A)) expended for [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) provided to children with disabilities under this subchapter and in no case to supplant such Federal, [State](/usc/20/1401.md?p=31), and local funds, except that, where the [State](/usc/20/1401.md?p=31) provides clear and convincing evidence that all children with disabilities have available to them a [free appropriate public education](/usc/20/1401.md?p=9), the [Secretary](/usc/20/1401.md?p=28) may waive, in whole or in part, the requirements of this subparagraph if the [Secretary](/usc/20/1401.md?p=28) concurs with the evidence provided by the [State](/usc/20/1401.md?p=31).
  - (18) **Maintenance of State financial support—**
    - (A) **In general—** The [State](/usc/20/1401.md?p=31) does not reduce the amount of [State](/usc/20/1401.md?p=31) financial support for [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) for children with disabilities, or otherwise made available because of the [excess costs](/usc/20/1401.md?p=8) of educating those children, below the amount of that support for the preceding fiscal year.
    - (B) **Reduction of funds for failure to maintain support—** The [Secretary](/usc/20/1401.md?p=28) shall reduce the allocation of funds under [section 1411 of this title](/usc/20/1411.md) for any fiscal year following the fiscal year in which the [State](/usc/20/1401.md?p=31) fails to comply with the requirement of [subparagraph (A)](#a-18-A) by the same amount by which the [State](/usc/20/1401.md?p=31) fails to meet the requirement.
    - (C) **Waivers for exceptional or uncontrollable circumstances—** The [Secretary](/usc/20/1401.md?p=28) may waive the requirement of [subparagraph (A)](#a-18-A) for a [State](/usc/20/1401.md?p=31), for 1 fiscal year at a time, if the [Secretary](/usc/20/1401.md?p=28) determines that—
      - (i) granting a waiver would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the [State](/usc/20/1401.md?p=31); or
      - (ii) the [State](/usc/20/1401.md?p=31) meets the standard in [paragraph (17)(C)](#a-17-C) for a waiver of the requirement to supplement, and not to supplant, funds received under this subchapter.
    - (D) **Subsequent years—** If, for any year, a [State](/usc/20/1401.md?p=31) fails to meet the requirement of [subparagraph (A)](#a-18-A), including any year for which the [State](/usc/20/1401.md?p=31) is granted a waiver under [subparagraph (C)](#a-18-C), the financial support required of the [State](/usc/20/1401.md?p=31) in future years under [subparagraph (A)](#a-18-A) shall be the amount that would have been required in the absence of that failure and not the reduced level of the [State](/usc/20/1401.md?p=31)’s support.
  - (19) **Public participation—** Prior to the adoption of any policies and procedures needed to comply with this section (including any amendments to such policies and procedures), the [State](/usc/20/1401.md?p=31) ensures that there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and [parents](/usc/20/1401.md?p=23) of children with disabilities.
  - (20) **Rule of construction—** In complying with paragraphs [(17)](#a-17) and [(18)](#a-18), a [State](/usc/20/1401.md?p=31) may not use funds paid to it under this subchapter to satisfy [State](/usc/20/1401.md?p=31)-law mandated funding obligations to [local educational agencies](/usc/20/1401.md?p=19-A), including funding based on student attendance or enrollment, or inflation.
  - (21) **State advisory panel—**
    - (A) **In general—** The [State](/usc/20/1401.md?p=31) has established and maintains an advisory panel for the purpose of providing policy guidance with respect to [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) for children with disabilities in the [State](/usc/20/1401.md?p=31).
    - (B) **Membership—** Such advisory panel shall consist of members appointed by the Governor, or any other official authorized under [State](/usc/20/1401.md?p=31) law to make such appointments, be representative of the [State](/usc/20/1401.md?p=31) population, and be composed of individuals involved in, or concerned with, the education of children with disabilities, including—
      - (i) [parents](/usc/20/1401.md?p=23) of children with disabilities (ages birth through 26);
      - (ii) individuals with disabilities;
      - (iii) teachers;
      - (iv) representatives of institutions of higher education that prepare [special education](/usc/20/1401.md?p=29) and [related services](/usc/20/1401.md?p=26-A) [personnel](/usc/20/1451.md?p=b);
      - (v) [State](/usc/20/1401.md?p=31) and local education officials, including officials who carry out activities under subtitle B of title VII of the McKinney-Vento Homeless Assistance Act ([42 U.S.C. 11431](/usc/42/11431.md) et seq.);
      - (vi) administrators of programs for children with disabilities;
      - (vii) representatives of other [State](/usc/20/1401.md?p=31) agencies involved in the financing or delivery of [related services](/usc/20/1401.md?p=26-A) to children with disabilities;
      - (viii) representatives of private schools and public charter schools;
      - (ix) not less than 1 representative of a vocational, community, or business organization concerned with the provision of [transition services](/usc/20/1401.md?p=34) to children with disabilities;
      - (x) a representative from the [State](/usc/20/1401.md?p=31) child welfare agency responsible for foster care; and
      - (xi) representatives from the [State](/usc/20/1401.md?p=31) juvenile and adult corrections agencies.
    - (C) **Special rule—** A majority of the members of the panel shall be individuals with disabilities or [parents](/usc/20/1401.md?p=23) of children with disabilities (ages birth through 26).
    - (D) **Duties—** The advisory panel shall—
      - (i) advise the [State educational agency](/usc/20/1401.md?p=32) of unmet needs within the [State](/usc/20/1401.md?p=31) in the education of children with disabilities;
      - (ii) comment publicly on any rules or regulations proposed by the [State](/usc/20/1401.md?p=31) regarding the education of children with disabilities;
      - (iii) advise the [State educational agency](/usc/20/1401.md?p=32) in developing evaluations and reporting on data to the [Secretary](/usc/20/1401.md?p=28) under [section 1418 of this title](/usc/20/1418.md);
      - (iv) advise the [State educational agency](/usc/20/1401.md?p=32) in developing corrective action plans to address findings identified in Federal monitoring reports under this subchapter; and
      - (v) advise the [State educational agency](/usc/20/1401.md?p=32) in developing and implementing policies relating to the coordination of services for children with disabilities.
  - (22) **Suspension and expulsion rates—**
    - (A) **In general—** The [State educational agency](/usc/20/1401.md?p=32) examines data, including data disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities—
      - (i) among [local educational agencies](/usc/20/1401.md?p=19-A) in the [State](/usc/20/1401.md?p=31); or
      - (ii) compared to such rates for nondisabled children within such agencies.
    - (B) **Review and revision of policies—** If such discrepancies are occurring, the [State educational agency](/usc/20/1401.md?p=32) reviews and, if appropriate, revises (or requires the affected [State](/usc/20/1401.md?p=31) or [local educational agency](/usc/20/1401.md?p=19-A) to revise) its policies, procedures, and practices relating to the development and implementation of [IEPs](/usc/20/1401.md?p=14), the use of positive behavioral interventions and supports, and procedural safeguards, to ensure that such policies, procedures, and practices comply with this chapter.
  - (23) **Access to instructional materials—**
    - (A) **In general—** The [State](/usc/20/1401.md?p=31) adopts the National Instructional Materials Accessibility Standard for the purposes of providing instructional materials to blind persons or other persons with print disabilities, in a timely manner after the publication of the National Instructional Materials Accessibility Standard in the Federal Register.
    - (B) **Rights of State educational agency—** Nothing in this paragraph shall be construed to require any [State educational agency](/usc/20/1401.md?p=32) to coordinate with the National Instructional Materials Access Center. If a [State educational agency](/usc/20/1401.md?p=32) chooses not to coordinate with the National Instructional Materials Access Center, such agency shall provide an assurance to the [Secretary](/usc/20/1401.md?p=28) that the agency will provide instructional materials to blind persons or other persons with print disabilities in a timely manner.
    - (C) **Preparation and delivery of files—** If a [State educational agency](/usc/20/1401.md?p=32) chooses to coordinate with the National Instructional Materials Access Center, not later than 2 years after December 3, 2004, the agency, as part of any print instructional materials adoption process, procurement contract, or other practice or instrument used for purchase of print instructional materials, shall enter into a written contract with the publisher of the print instructional materials to—
      - (i) require the publisher to prepare and, on or before delivery of the print instructional materials, provide to the National Instructional Materials Access Center electronic files containing the contents of the print instructional materials using the National Instructional Materials Accessibility Standard; or
      - (ii) purchase instructional materials from the publisher that are produced in, or may be rendered in, specialized formats.
    - (D) **Assistive technology—** In carrying out this paragraph, the [State educational agency](/usc/20/1401.md?p=32), to the maximum extent possible, shall work collaboratively with the [State](/usc/20/1401.md?p=31) agency responsible for assistive technology programs.
    - (E) **Definitions—** In this paragraph:
      - (i) **National Instructional Materials Access Center—** The term “National Instructional Materials Access Center” means the center established pursuant to [section 1474(e) of this title](/usc/20/1474.md?p=e).
      - (ii) **National Instructional Materials Accessibility Standard—** The term “National Instructional Materials Accessibility Standard” has the meaning given the term in [section 1474(e)(3)(A) of this title](/usc/20/1474.md?p=e-3-A).
      - (iii) **Specialized formats—** The term “specialized formats” has the meaning given the term in [section 1474(e)(3)(D) of this title](/usc/20/1474.md?p=e-3-D).
  - (24) **Overidentification and disproportionality—** The [State](/usc/20/1401.md?p=31) has in effect, consistent with the purposes of this chapter and with [section 1418(d) of this title](/usc/20/1418.md?p=d), policies and procedures designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity of children as children with disabilities, including children with disabilities with a particular impairment described in [section 1401 of this title](/usc/20/1401.md).
  - (25) **Prohibition on mandatory medication—**
    - (A) **In general—** The [State educational agency](/usc/20/1401.md?p=32) shall prohibit [State](/usc/20/1401.md?p=31) and [local educational agency](/usc/20/1401.md?p=19-A) [personnel](/usc/20/1451.md?p=b) from requiring a child to obtain a prescription for a substance covered by the Controlled Substances Act ([21 U.S.C. 801](/usc/21/801.md) et seq.) as a condition of attending school, receiving an evaluation under subsection (a) or (c) of [section 1414 of this title](/usc/20/1414.md), or receiving services under this chapter.
    - (B) **Rule of construction—** Nothing in [subparagraph (A)](#a-25-A) shall be construed to create a Federal prohibition against teachers and other school [personnel](/usc/20/1451.md?p=b) consulting or sharing classroom-based observations with [parents](/usc/20/1401.md?p=23) or guardians regarding a student’s academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for [special education](/usc/20/1401.md?p=29) or [related services](/usc/20/1401.md?p=26-A) under [paragraph (3)](#a-3).
- (b) **State educational agency as provider of free appropriate public education or direct services—** If the [State educational agency](/usc/20/1401.md?p=32) provides [free appropriate public education](/usc/20/1401.md?p=9) to children with disabilities, or provides direct services to such children, such agency—
  - (1) shall comply with any additional requirements of [section 1413(a) of this title](/usc/20/1413.md?p=a), as if such agency were a [local educational agency](/usc/20/1401.md?p=19-A); and
  - (2) may use amounts that are otherwise available to such agency under this subchapter to serve those children without regard to [section 1413(a)(2)(A)(i) of this title](/usc/20/1413.md?p=a-2-A-i) (relating to [excess costs](/usc/20/1401.md?p=8)).
- (c) **Exception for prior State plans—**
  - (1) **In general—** If a [State](/usc/20/1401.md?p=31) has on file with the [Secretary](/usc/20/1401.md?p=28) policies and procedures that demonstrate that such [State](/usc/20/1401.md?p=31) meets any requirement of [subsection (a)](#a), including any policies and procedures filed under this subchapter as in effect before the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the [Secretary](/usc/20/1401.md?p=28) shall consider such [State](/usc/20/1401.md?p=31) to have met such requirement for purposes of receiving a grant under this subchapter.
  - (2) **Modifications made by State—** Subject to [paragraph (3)](#c-3), an application submitted by a [State](/usc/20/1401.md?p=31) in accordance with this section shall remain in effect until the [State](/usc/20/1401.md?p=31) submits to the [Secretary](/usc/20/1401.md?p=28) such modifications as the [State](/usc/20/1401.md?p=31) determines necessary. This section shall apply to a modification to an application to the same extent and in the same manner as this section applies to the original plan.
  - (3) **Modifications required by the Secretary—** If, after the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the provisions of this chapter are amended (or the regulations developed to carry out this chapter are amended), there is a new interpretation of this chapter by a Federal court or a [State](/usc/20/1401.md?p=31)’s highest court, or there is an official finding of noncompliance with Federal law or regulations, then the [Secretary](/usc/20/1401.md?p=28) may require a [State](/usc/20/1401.md?p=31) to modify its application only to the extent necessary to ensure the [State](/usc/20/1401.md?p=31)’s compliance with this subchapter.
- (d) **Approval by the Secretary—**
  - (1) **In general—** If the [Secretary](/usc/20/1401.md?p=28) determines that a [State](/usc/20/1401.md?p=31) is eligible to receive a grant under this subchapter, the [Secretary](/usc/20/1401.md?p=28) shall notify the [State](/usc/20/1401.md?p=31) of that determination.
  - (2) **Notice and hearing—** The [Secretary](/usc/20/1401.md?p=28) shall not make a final determination that a [State](/usc/20/1401.md?p=31) is not eligible to receive a grant under this subchapter until after providing the [State](/usc/20/1401.md?p=31)—
    - (A) with reasonable notice; and
    - (B) with an opportunity for a hearing.
- (e) **Assistance under other Federal programs—** Nothing in this chapter permits a [State](/usc/20/1401.md?p=31) to reduce medical and other assistance available, or to alter eligibility, under titles V and XIX of the Social Security Act [[42 U.S.C. 701](/usc/42/701.md) et seq., 1396 et seq.] with respect to the provision of a [free appropriate public education](/usc/20/1401.md?p=9) for children with disabilities in the [State](/usc/20/1401.md?p=31).
- (f) **By-pass for children in private schools—**
  - (1) **In general—** If, on December 2, 1983, a [State educational agency](/usc/20/1401.md?p=32) was prohibited by law from providing for the equitable participation in special programs of children with disabilities enrolled in private [elementary schools](/usc/20/1401.md?p=6) and [secondary schools](/usc/20/1401.md?p=27) as required by [subsection (a)(10)(A)](#a-10-A), or if the [Secretary](/usc/20/1401.md?p=28) determines that a [State educational agency](/usc/20/1401.md?p=32), [local educational agency](/usc/20/1401.md?p=19-A), or other entity has substantially failed or is unwilling to provide for such equitable participation, then the [Secretary](/usc/20/1401.md?p=28) shall, notwithstanding such provision of law, arrange for the provision of services to such children through arrangements that shall be subject to the requirements of such subsection.
  - (2) **Payments—**
    - (A) **Determination of amounts—** If the [Secretary](/usc/20/1401.md?p=28) arranges for services pursuant to this subsection, the [Secretary](/usc/20/1401.md?p=28), after consultation with the appropriate public and private school officials, shall pay to the provider of such services for a fiscal year an amount per child that does not exceed the amount determined by dividing—
      - (i) the total amount received by the [State](/usc/20/1401.md?p=31) under this subchapter for such fiscal year; by
      - (ii) the number of children with disabilities served in the prior year, as reported to the [Secretary](/usc/20/1401.md?p=28) by the [State](/usc/20/1401.md?p=31) under [section 1418 of this title](/usc/20/1418.md).
    - (B) **Withholding of certain amounts—** Pending final resolution of any investigation or complaint that may result in a determination under this subsection, the [Secretary](/usc/20/1401.md?p=28) may withhold from the allocation of the affected [State educational agency](/usc/20/1401.md?p=32) the amount the [Secretary](/usc/20/1401.md?p=28) estimates will be necessary to pay the cost of services described in [subparagraph (A)](#f-2-A).
    - (C) **Period of payments—** The period under which payments are made under [subparagraph (A)](#f-2-A) shall continue until the [Secretary](/usc/20/1401.md?p=28) determines that there will no longer be any failure or inability on the part of the [State educational agency](/usc/20/1401.md?p=32) to meet the requirements of [subsection (a)(10)(A)](#a-10-A).
  - (3) **Notice and hearing—**
    - (A) **In general—** The [Secretary](/usc/20/1401.md?p=28) shall not take any final action under this subsection until the [State educational agency](/usc/20/1401.md?p=32) affected by such action has had an opportunity, for not less than 45 days after receiving written notice thereof, to submit written objections and to appear before the [Secretary](/usc/20/1401.md?p=28) or the [Secretary](/usc/20/1401.md?p=28)’s designee to show cause why such action should not be taken.
    - (B) **Review of action—** If a [State educational agency](/usc/20/1401.md?p=32) is dissatisfied with the [Secretary](/usc/20/1401.md?p=28)’s final action after a proceeding under [subparagraph (A)](#f-3-A), such agency may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such [State](/usc/20/1401.md?p=31) 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](/usc/20/1401.md?p=28). The [Secretary](/usc/20/1401.md?p=28) thereupon shall file in the court the record of the proceedings on which the [Secretary](/usc/20/1401.md?p=28) based the [Secretary](/usc/20/1401.md?p=28)’s action, as provided in [section 2112 of title 28](/usc/28/2112.md).
    - (C) **Review of findings of fact—** The findings of fact by the [Secretary](/usc/20/1401.md?p=28), if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the [Secretary](/usc/20/1401.md?p=28) to take further evidence, and the [Secretary](/usc/20/1401.md?p=28) may thereupon make new or modified findings of fact and may modify the [Secretary](/usc/20/1401.md?p=28)’s previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence.
    - (D) **Jurisdiction of court of appeals; review by United States Supreme Court—** Upon the filing of a petition under [subparagraph (B)](#f-3-B), the United States court of appeals shall have jurisdiction to affirm the action of the [Secretary](/usc/20/1401.md?p=28) 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](/usc/28/1254.md).

## Footnotes

[^1]: So in original. Probably should be “200.56(a)(2)(ii)”.
[^2]: So in original.

## Source credit

(Pub. L. 91–230, title VI, § 612, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2676; amended Pub. L. 114–95, title IX, §§ 9214(d)(2), 9215(ss)(3), Dec. 10, 2015, 129 Stat. 2164, 2182.)

## Notes

### Editorial Notes

### References in Text

The McKinney-Vento Homeless Assistance Act, referred to in subsec. (a)(11)(A)(iii), (21)(B)(v), is Pub. L. 100–77, July 22, 1987, 101 Stat. 482. Subtitle B of title VII of the Act is classified generally to part B (§ 11431 et seq.) of subchapter VI of chapter 119 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 11301 of Title 42 and Tables.

The Controlled Substances Act, referred to in subsec. (a)(25)(A), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242, which is classified principally to subchapter I (§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 801 of Title 21 and Tables.

For the effective date of the Individuals with Disabilities Education Improvement Act of 2004, referred to in subsec. (c)(1), (3), see section 302(a), (b) of Pub. L. 108–446, set out as an Effective Date note under section 1400 of this title.

The Social Security Act, referred to in subsec. (e), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles V and XIX of the Act are classified generally to subchapters V (§ 701 et seq.) and XIX (§ 1396 et seq.), respectively, of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

### Prior Provisions

A prior section 1412, Pub. L. 91–230, title VI, § 612, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 60, related to State eligibility for assistance, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446.

Another prior section 1412, Pub. L. 91–230, title VI, § 612, Apr. 13, 1970, 84 Stat. 178; Pub. L. 92–318, title IV, § 421(b)(1)(C), June 23, 1972, 86 Stat. 341; Pub. L. 93–380, title VI, §§ 614(b), (f)(1), 615(a), title VIII, § 843(b), Aug. 21, 1974, 88 Stat. 581, 582, 611; Pub. L. 94–142, §§ 2(a)(4), (c), (d), 5(a), Nov. 29, 1975, 89 Stat. 773, 774, 780; Pub. L. 98–199, § 3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 99–457, title II, § 203(a), Oct. 8, 1986, 100 Stat. 1158; Pub. L. 100–630, title I, § 102(b), Nov. 7, 1988, 102 Stat. 3291; Pub. L. 101–476, title IX, § 901(b)(33)–(46), (c), Oct. 30, 1990, 104 Stat. 1143, 1144, 1151; Pub. L. 102–119, § 25(a)(5), (b), Oct. 7, 1991, 105 Stat. 606, 607, related to eligibility requirements, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.

### Amendments

2015—Subsec. (a)(14)(C). Pub. L. 114–95, § 9214(d)(2)(A), substituted “secondary school—” for “secondary school is highly qualified by the deadline established in section 6319(a)(2) of this title” and added cls. (i) to (iii).

Subsec. (a)(14)(D). Pub. L. 114–95, § 9214(d)(2)(B), substituted “personnel who meet the applicable requirements described in this paragraph” for “highly qualified personnel”.

Subsec. (a)(14)(E). Pub. L. 114–95, § 9214(d)(2)(C), substituted “staff person to meet the applicable requirements described in this paragraph” for “staff person to be highly qualified”.

Subsec. (a)(15)(A)(ii). Pub. L. 114–95, § 9215(ss)(3)(A)(i), added cl. (ii) and struck out former cl. (ii) which read as follows: “are the same as the State’s definition of adequate yearly progress, including the State’s objectives for progress by children with disabilities, under section 6311(b)(2)(C) of this title;”.

Subsec. (a)(15)(B). Pub. L. 114–95, § 9215(ss)(3)(A)(ii), which directed substitution of “including measurements of interim progress for children with disabilities under section 6311(c)(4)(A)(i)” for “including measurable annual objectives for progress by children with disabilities under section 6311(b)(2)(C)(v)(II)”, was executed by making the substitution for “including measurable annual objectives for progress by children with disabilities under section 6311(b)(2)(C)(v)(II)(cc)”, to reflect the probable intent of Congress.

Subsec. (a)(16)(C)(ii)(I). Pub. L. 114–95, § 9215(ss)(3)(B)(i), substituted “challenging State academic content standards under section 6311(b)(1) of this title and alternate academic achievement standards under section 6311(b)(1)(E) of this title” for “State’s challenging academic content standards and challenging student academic achievement standards”.

Subsec. (a)(16)(C)(ii)(II). Pub. L. 114–95, § 9215(ss)(3)(B)(ii), substituted “section 6311(b)(1)(E) of this title,” for “the regulations promulgated to carry out section 6311(b)(1) of this title,”.

### Statutory Notes and Related Subsidiaries

### Effective Date of 2015 Amendment

Amendment by Pub. L. 114–95 effective Dec. 10, 2015, except with respect to certain noncompetitive programs and competitive programs, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of this title.