20 U.S.C. § 1412 — State eligibility

(a) In general. A State is eligible for assistance for a fiscal year if it submits a plan assuring the Secretary that it has policies and procedures ensuring all of the following. (1) Free appropriate public education. (A) Every child with a disability residing in the State, ages 3 through 21 inclusive, must have a free appropriate public education, including a child suspended or expelled. (B) This duty does not apply to ages 3–5 or 18–21 when applying it would conflict with State law or practice, or a court order, about public education for those ages. For ages 18–21, it also does not apply when State law does not require these services for a person who, before incarceration in an adult correctional facility, was not identified as a child with a disability under section 1401 or did not have an individualized education program. (C) A State providing qualifying early-intervention services under subchapter III to a child eligible under section 1419 need not provide that child a free appropriate public education. (2) Full opportunity. The State must set a goal of full educational opportunity for all children with disabilities and a detailed timetable. (3) Child find. (A) The State must identify, locate, and evaluate every child with a disability who lives there, including homeless children, wards of the State, and private-school children, regardless of disability severity, if the child needs special education and related services. It must also use a practical method to find which children are already receiving needed services. (B) Children need not be classified by disability if every child with a section 1401 disability who needs services because of it is treated as a child with a disability under this subchapter. (4) IEPs. An individualized education program, or a qualifying individualized family service plan under section 1436(d), must be developed, reviewed, and revised for each child under section 1414(d). (5) Least restrictive environment. (A) To the maximum appropriate extent, children with disabilities, including those in public or private institutions or care facilities, must learn with nondisabled children. Separate classes, separate schooling, or removal from regular classes is allowed only when the disability’s nature or severity makes satisfactory education in regular classes, even with supplementary aids and services, impossible. (B)(i) State funding may not cause placements violating this rule or distribute money by setting type in a way that prevents a child from receiving a free appropriate education suited to the child’s IEP. (ii) If the State lacks policies ensuring this, it must assure the Secretary that it will revise its funding mechanism as soon as feasible. (6) Safeguards. (A) Children and parents must receive the safeguards required by section 1415. (B) Evaluation and placement tests and procedures must not discriminate by race or culture; they must be given in the child’s native language or communication mode unless clearly infeasible; and no single procedure may be the only basis for deciding the child’s program. (7) Evaluation. Children must be evaluated under section 1414(a)–(c). (8) Confidentiality. State agencies must comply with section 1417(c)’s record and information confidentiality rule. (9) Transition. Children moving from subchapter III early intervention to this subchapter’s preschool programs must have a smooth, effective transition consistent with section 1437(a)(9). By age three, an IEP, or when allowed an individualized family service plan under sections 1414(d)(2)(B) and 1436(d), must be developed and implemented. The local educational agency must join the transition conference arranged by the lead agency under section 1435(a)(10). (10) Private schools. (A) Parentally placed children. To the extent consistent with the number and location of children enrolled by parents in private elementary and secondary schools in an LEA’s district, the children must equitably participate in this subchapter’s program unless the Secretary arranges services under (f). (i) The LEA must spend a proportionate share of Federal funds, based on a complete child find after timely and meaningful consultation, may provide services on private or religious-school premises as law allows, may supplement but not replace the Federal share with State and local funds, and must keep and report numbers evaluated, found eligible, and served. (ii) Child find applies to private-school children; it must ensure equitable participation and an accurate count, use activities similar to public-school child find, not count its cost against the LEA’s service obligation, and finish in a comparable time. (iii) The LEA, or SEA when appropriate, must consult private-school and parent representatives about child find and notice, the proportionate amount and its calculation, how consultation will operate, where and by whom services will be delivered, service types and allocation if funds are insufficient, and a written explanation if the LEA rejects a private-school official’s view. (iv) After consultation, the LEA must obtain signed written affirmation from participating private schools; if it is not provided within a reasonable time, the LEA must send the consultation documentation to the SEA. (v) A private-school official may complain to the SEA about lack of timely, meaningful consultation or due consideration, stating the basis and having the LEA forward documentation; dissatisfaction with the SEA decision permits a complaint to the Secretary, with the SEA forwarding documentation. (vi) Services must be delivered by public-agency employees or under a public-agency contract. They, including materials and equipment, must be secular, neutral, and nonideological. (vii) A public agency must control the funds and title to purchased materials, equipment, and property and administer them for this chapter’s purposes. (B) Public placement. Children placed in or referred to private schools or facilities by the State or proper LEA as the way to meet this subchapter or another applicable law must receive IEP-based services at no cost to parents. The SEA must decide whether the schools meet applicable agency standards and must ensure the children have the rights they would have in public agencies. (C) Parent choice. Subject to (A), an LEA need not pay private-school costs when it made a free appropriate education available and parents chose private placement. A court or hearing officer may order reimbursement when a child who previously received public-agency services was privately enrolled without public consent or referral and the public agency had not timely made the required education available. Reimbursement may be reduced or denied if the parents did not reject the proposed placement and state their concerns and intent at the last IEP meeting, did not give written notice at least 10 business days before removal, failed to make the child available for an evaluation after proper notice, or acted unreasonably. Despite the notice rule, reimbursement may not be reduced or denied when the school prevented notice, the parents did not receive notice of the rule, or notice likely would cause physical harm. A court or hearing officer may also decline to reduce or deny it when a parent is illiterate or cannot write English, or notice likely would cause serious emotional harm. (11) General supervision. (A) The SEA must ensure this subchapter is met; all disability programs, including those run by other State or local agencies, are generally supervised by responsible State officials and meet SEA standards; and homeless children receive the protections of subtitle B of title VII of the McKinney-Vento Act. (B) This does not limit other State agencies’ duties to provide or pay for some or all of a child’s free appropriate education. (C) Consistent with State law, the Governor or another authorized person may assign a public agency responsibility for incarcerated adults convicted as adults under State law. (12) Services and coordination. (A) Establishing responsibility. The State’s chief executive or the chief executive’s designee must ensure that an interagency agreement or another method for coordinating agencies is in effect between each public agency described in subparagraph (B) and the State educational agency. The agreement or method must ensure that all services described in subparagraph (B)(i) that are needed for a free appropriate public education are provided, including services while a dispute under clause (iii) is pending. It must include all of the following: (i) Financial responsibility. It must identify, or provide a way to define, each agency’s financial responsibility for providing the services described in subparagraph (B)(i). This responsibility of each public agency described in subparagraph (B), including the State Medicaid agency and other public insurers of children with disabilities, comes before the responsibility of the local educational agency or the State agency responsible for developing the child’s IEP. (ii) Reimbursement. It must state the conditions, terms, and procedures under which other agencies reimburse a local educational agency. (iii) Interagency disputes. It must provide procedures for resolving disputes between agencies, including procedures that let local educational agencies start proceedings to obtain reimbursement from other agencies or otherwise carry out the agreement or method. (iv) Coordination procedures. It must provide policies and procedures for agencies to determine and identify each agency’s responsibilities for coordinating services and for delivering the services described in subparagraph (B)(i) in a coordinated, timely, and appropriate way. (B) Public-agency obligation. (i) If a public agency other than an educational agency has a duty under Federal or State law, or has been assigned responsibility under State policy under subparagraph (A), to provide or pay for services that are also special education or related services and that are needed for a free appropriate public education, that agency must fulfill the duty or responsibility. It may do so directly, through a contract or other arrangement under subparagraph (A), or under an agreement under subparagraph (C). Examples include, but are not limited to, assistive-technology devices, assistive-technology services, related services, supplementary aids and services, and transition services described in section 1401(1), (2), (26), (33), and (34). (ii) If that public agency does not provide or pay for the services, the local educational agency or the State agency responsible for developing the child’s IEP must provide or pay for them. That local educational agency or State agency may seek reimbursement from the public agency that failed to provide or pay for them. The public agency must reimburse it under the terms of the interagency agreement or other method described in subparagraph (A)(i), following the procedures established under subparagraph (A)(ii). (C) Special rule. The requirements of subparagraph (A) may be met through any of these methods: (i) a State statute or regulation; (ii) signed agreements between the respective agency officials that clearly identify each agency’s responsibilities for providing services; or (iii) another appropriate written method that the State’s chief executive or designee determines and the Secretary approves. (13) Procedural requirements for LEA eligibility. The SEA may not finally decide that an LEA is ineligible for assistance under this subchapter without first giving it reasonable notice and an opportunity for a hearing. (14) Personnel qualifications. (A) General rule. The State educational agency must establish and maintain qualifications to ensure that the personnel needed to carry out this subchapter are appropriately and adequately prepared and trained. The personnel must have the content knowledge and skills to serve children with disabilities. (B) Related-services personnel and paraprofessionals. The qualifications must include qualifications for related-services personnel and paraprofessionals that: (i) are consistent with any State-approved or State-recognized certification, licensing, registration, or comparable requirement that applies to the professional discipline in which the person provides special education or related services; (ii) ensure that related-services personnel who provide services in their discipline or profession meet those requirements and have not had certification or licensing requirements waived on an emergency, temporary, or provisional basis; and (iii) allow appropriately trained and supervised paraprofessionals and assistants to help provide special education and related services under this subchapter to children with disabilities, when they meet this subchapter’s requirements in accordance with State law, regulation, or written policy. (C) Qualifications for special-education teachers. The qualifications must ensure that each person employed as a special-education teacher in the State who teaches elementary, middle, or secondary school: (i) has full State certification as a special-education teacher, including through an alternate route that meets the minimum requirements described in section 2005.56(a)(2)(ii) of title 34, Code of Federal Regulations, as that section was in effect on November 28, 2008, or has passed the State special-education-teacher licensing examination and holds a State license to teach as a special-education teacher. A teacher in a public charter school instead must meet the requirements in the State’s public charter-school law; (ii) has not had special-education certification or licensing requirements waived on an emergency, temporary, or provisional basis; and (iii) holds at least a bachelor’s degree. (D) Policy. In carrying out this section, the State must adopt a policy requiring local educational agencies to take measurable steps to recruit, hire, train, and retain personnel who meet the applicable requirements in this paragraph to provide special education and related services under this subchapter to children with disabilities. (E) Rule of construction. Even if a parent or student has another individual right of action under this subchapter, this paragraph does not create a right of action for an individual student based on a particular State educational agency or local educational agency staff person’s failure to meet these requirements. It also does not prevent a parent from filing a complaint about staff qualifications with the State educational agency as this subchapter allows. (15) Performance. The State must set disability-performance goals that further this chapter, match its long-term goals and interim-progress measures under section 6311(c)(4)(A)(i), address graduation and dropout rates and other State-selected factors, and fit other State goals when appropriate. It must set indicators, including interim measures, and report yearly to the Secretary and public on State and children’s progress. (16) Assessments. (A) All children with disabilities must take general State and districtwide assessments, including section 6311 assessments, with IEP-appropriate accommodations or alternate assessments. (B) The State, or LEA for a district assessment, must create accommodation guidelines. (C) It must create and use alternate-assessment guidelines for children unable to take regular tests even with accommodations. Those tests must align with challenging State academic content standards and, if adopted, alternate academic achievement standards under section 6311(b)(1), and the State must conduct them. (D) The SEA or LEA must publicly report with the same frequency and detail as for nondisabled children: participation and accommodations in regular tests; participation in alternate tests aligned with content standards; participation in alternate tests aligned with alternate achievement standards; and performance on regular and alternate tests when numbers permit reliable reporting without revealing personal information, compared with all children’s performance. (E) Agencies must use universal-design principles when feasible. (17) Funding. (A) State funds under this subchapter must be spent as this subchapter provides. (B) They may not be mixed with State funds. (C) Except as section 1413 provides, they must supplement, not replace, Federal, State, and local funds for these services, including funds not directly controlled by education agencies. If the State gives clear and convincing evidence that all children have a free appropriate education and the Secretary agrees, the Secretary may waive all or part of this rule. (18) State support. (A) The State may not reduce State financial support for special education and related services, or support made available because of their excess costs, below the preceding fiscal year’s amount. (B) After a failure, the Secretary must reduce the next year’s section 1411 allocation by the amount of the failure. (C) The Secretary may waive the rule one year at a time for exceptional or uncontrollable circumstances, such as a natural disaster or sudden unforeseen loss of State resources, or when the State meets the paragraph (17)(C) waiver standard. (D) Future required support is based on what would have been required without the earlier failure or waiver, not the reduced amount. (19) Public participation. Before adopting or amending policies needed for this section, the State must provide public hearings, adequate notice, and public comment, including for people with disabilities and their parents. (20) Construction. For paragraphs (17) and (18), the State may not use these Federal funds to meet State-law-required funding obligations to LEAs, including obligations based on attendance, enrollment, or inflation. (21) Advisory panel. (A) The State must maintain a panel advising on policy for special education and related services. (B) The Governor or another State-law-authorized official appoints a representative panel of the State’s population and of people involved in or concerned with disability education, including parents of children ages birth through 26, people with disabilities, teachers, higher-education representatives, State and local education officials (including McKinney-Vento officials), program administrators, other agencies financing or delivering related services, private-school and charter-school representatives, at least one vocational, community, or business representative concerned with transition services, a foster-care child-welfare representative, and juvenile- and adult-corrections representatives. (C) A majority must be people with disabilities or parents of children ages birth through 26. (D) The panel must advise the SEA about unmet needs; publicly comment on proposed disability-education rules; help develop evaluations and reports under section 1418; help develop corrective plans responding to Federal monitoring; and help develop and implement service-coordination policies. (22) Discipline rates. The SEA must examine data, including race and ethnicity data, for significant differences in long-term suspension and expulsion rates among LEAs or between disabled and nondisabled children in those agencies. If differences exist, it must review and, when appropriate, revise or require revision of policies and practices for IEPs, positive behavioral supports, and safeguards to comply with this chapter. (23) Accessible instructional materials. (A) The State must adopt the National Instructional Materials Accessibility Standard promptly after it is published in the Federal Register, to provide materials timely to blind people and others with print disabilities. (B) It need not coordinate with the National Instructional Materials Access Center; if it does not, it must assure the Secretary that it will provide materials timely. (C) If it coordinates, within 2 years after December 3, 2004, each print-material purchase process or contract must require the publisher, by delivery, to provide the Center electronic files using the Standard, or must buy materials produced in or renderable in specialized formats. (D) The SEA must work as much as possible with the State assistive-technology agency. (E) Here, “National Instructional Materials Access Center,” “National Instructional Materials Accessibility Standard,” and “specialized formats” have the meanings given in section 1474(e). This section does not define those terms. (24) Overidentification. Consistent with this chapter and section 1418(d), the State must have policies preventing inappropriate overidentification or disproportionate racial or ethnic representation of children as disabled, including children with a particular impairment under section 1401. (25) Medication. (A) The SEA must prohibit State and local education personnel from requiring a child to get a prescription for a Controlled Substances Act substance to attend school, receive a section 1414(a) or (c) evaluation, or receive services. (B) This does not create a Federal ban on teachers or other personnel consulting or sharing classroom observations with parents or guardians about academic or functional performance, classroom or school behavior, or the need for an evaluation under paragraph (3). (b) SEA providing education or direct services. If the SEA provides a free appropriate education or direct services, it must meet section 1413(a)’s additional LEA requirements as if it were an LEA. It may use otherwise available subchapter funds without regard to section 1413(a)(2)(A)(i)’s excess-cost rule. (c) Earlier State plans. (1) If the Secretary already has State policies and procedures showing that the State meets a subsection (a) requirement, including policies filed under the earlier version of this subchapter, the Secretary must treat that requirement as met for a grant. (2) Subject to (3), a State application remains effective until the State submits changes it considers necessary. This section applies to a change just as it applies to the original plan. (3) If after the 2004 Act’s effective date this chapter or its regulations change, a Federal or highest State court gives a new interpretation, or an official finding shows noncompliance with Federal law or regulations, the Secretary may require only changes needed to ensure compliance. (d) Approval. (1) If the Secretary finds the State eligible, the Secretary must notify it. (2) Before finally finding it ineligible, the Secretary must give reasonable notice and an opportunity for a hearing. (e) Other Federal programs. This chapter does not allow a State to reduce medical or other assistance, or change eligibility, under titles V or XIX of the Social Security Act for providing a free appropriate education to children with disabilities. (f) Bypass for private-school children. (1) If on December 2, 1983 law barred an SEA from providing equitable participation for children with disabilities in private elementary or secondary schools as subsection (a)(10)(A) requires, or if the Secretary finds an SEA, LEA, or other entity substantially failed or is unwilling to do so, the Secretary must arrange services for those children despite that law, subject to subsection (a)(10)(A). (2)(A) After consulting appropriate public and private officials, the Secretary must pay the service provider for each fiscal year no more per child than the State’s total subchapter allocation divided by the number of children served in the prior year as reported under section 1418. (B) During an investigation or complaint that could lead to this action, the Secretary may withhold the amount estimated to pay for those services from the affected SEA’s allocation. (C) Payments continue until the Secretary finds the SEA will no longer fail or be unable to meet subsection (a)(10)(A). (3)(A) Before final action, the affected SEA must have at least 45 days after written notice to submit written objections and appear before the Secretary or designee to show why action should not occur. (B) After that proceeding, the SEA may seek review in the court of appeals for its circuit within 60 days; the clerk must promptly send the petition to the Secretary, who must file the proceeding record as section 2112 of title 28 provides. (C) Supported-by-substantial-evidence factual findings are conclusive. For good cause, the court may remand for more evidence; the Secretary may make new or changed findings and modify the action and must file the further record. Those findings are likewise conclusive if supported by substantial evidence. (D) Filing the petition gives the court of appeals jurisdiction to affirm or set aside all or part of the action. The Supreme Court may review the judgment by certiorari or certification under section 1254 of title 28.