20 U.S.C. § 1413 — Local educational agency eligibility

(a) In general. A local educational agency may receive assistance for a fiscal year if its plan assures the State educational agency that it meets every condition below. (1) Consistency with State policies. In educating children with disabilities in its jurisdiction, it must have policies, procedures, and programs consistent with the State policies and procedures under section 1412. (2) Use of amounts. (A) Funds must be spent under this subchapter and (i) only for excess costs of special education and related services for children with disabilities; (ii) to supplement, not replace, State, local, or other Federal funds; and (iii) not to reduce local spending for educating children with disabilities below the prior fiscal year's level, except under (B) and (C). (B) Exception. The agency may reduce that spending when the reduction results from (i) special-education personnel leaving voluntarily, by retirement or otherwise, or leaving for just cause; (ii) fewer children with disabilities enrolled; (iii) ending the agency's duty, consistent with this subchapter, to provide an exceptionally costly program for a child because the child (I) left the agency's jurisdiction, (II) reached the age when the duty to provide a free appropriate public education ended, or (III) no longer needs the program; or (iv) ending costly long-term purchases such as equipment or school construction. (C) Adjustment in certain fiscal years. (i) If the section 1411(f) allocation is greater than the prior year's allocation, the agency may reduce the spending otherwise required by (A)(iii) by no more than 50 percent of the increase. (ii) It must use local funds equal to that reduction for activities authorized by the Elementary and Secondary Education Act of 1965. (iii) The State must prohibit the reduction for that year if the agency cannot establish and maintain qualifying free appropriate public education programs, or if the State has acted against it under section 1416. (iv) Funds spent under (f) count toward the maximum reduction. (D) Schoolwide Title I programs. Despite (A) and other parts of this subchapter, the agency may use these funds for a schoolwide program under section 1114 of the 1965 Act. The amount may not exceed the number of participating children with disabilities multiplied by the result of dividing the agency's allocation for the year by the number of children with disabilities in its jurisdiction. (3) Personnel development. The agency must ensure that all needed personnel are properly and adequately prepared, subject to section 1412(a)(14) and section 2102(b) of the 1965 Act. (4) Permissive uses. (A) Despite (2)(A) and the commingled-funds rule in section 1412(a)(17)(B), funds may pay for (i) special education, related, and supplementary services in a regular class or other education setting provided under a child's individualized education program, even if nondisabled children also benefit; (ii) coordinated early intervening services under (f); and (iii) cost- or risk-sharing funds, consortia, or cooperatives to pay high-cost special education and related services. (B) The agency may buy suitable technology for recordkeeping, data collection, and related case management by teachers and service personnel providing services in children's individualized education programs, when needed for those activities. (5) Charter schools and students. For public charter schools that are its schools, the agency (A) must serve children with disabilities as it serves them in its other schools, including providing on-site supplementary and related services to the same extent it provides them on-site elsewhere; and (B) must give the charter schools funds (i) on the same basis as its other public schools, including proportional distribution based on relative enrollment of children with disabilities, and (ii) at the same time it distributes other Federal funds to its other schools, consistent with State charter law. (6) Instructional materials. (A) Within two years after December 3, 2004, an agency choosing to coordinate with the National Instructional Materials Access Center must obtain print instructional materials in the same way and under the same conditions as a State agency under section 1412(a)(23). (B) This paragraph does not require coordination. If the agency does not coordinate, it must assure the State that it will provide materials promptly to blind people and others with print disabilities. (7) Information for State agency. It must provide information needed for the State agency's duties, including information about the performance of children with disabilities in programs under this subchapter relevant to section 1412(a)(15) and (16). (8) Public information. It must make all documents about its eligibility available to parents of children with disabilities and the public. (9) Migratory children. It must cooperate with the Secretary's section 1308 efforts to link records of migratory children with disabilities so States can electronically exchange their health and education information. (b) Exception for prior local plans. (1) If a local educational agency or State agency has policies and procedures on file with the State educational agency showing that the local educational agency or State agency meets a requirement of (a), including policies filed under the earlier version of this subchapter, the State educational agency must treat that requirement as met for funding purposes. (2) Subject to (3), an application remains effective until the local agency submits changes it considers necessary. (3) After the 2004 Act's effective date, if this chapter or its regulations change, a Federal or State court gives a new interpretation, or an official finding says Federal or State law or regulations were not followed, the State may require changes only as needed for compliance with this subchapter or State law. (c) Notice of ineligibility. If the State finds a local or State agency ineligible, it must notify the agency, give reasonable notice, and provide a hearing opportunity. (d) Compliance. (1) After notice and a hearing opportunity, if the State finds an eligible agency failing a requirement in (a), it must reduce or stop further payments until satisfied that the agency complies. (2) The agency receiving that notice must publicly notify people in its jurisdiction about the pending action. (3) The State must consider an adverse decision against the agency in a section 1415 hearing. (e) Joint eligibility. (1)(A) The State may require a local agency to establish eligibility jointly with another local agency if it cannot otherwise create programs large and broad enough to meet children's needs. (B) It may not require a charter school that is a local agency to do this unless State charter law expressly allows it. (2) If joint eligibility is required, the affected agencies together receive the sum each would have received under section 1411(f) if eligible alone. (3) Jointly eligible agencies must (A) adopt policies and procedures consistent with the State's section 1412(a) policies and procedures and (B) share responsibility for implementing funded programs. (4)(A) If State law requires an educational service agency to run the programs, the joint duties do not cover administering or distributing that service agency's payments and are performed only by it. (B) It must nevertheless educate children with disabilities in the least restrictive environment required by section 1412(a)(5). (f) Early intervening services. (1) For a fiscal year, the agency may use no more than 15 percent of its subchapter amount, minus any reduction under (a)(2)(C), together with other amounts that may include non-education funds, for coordinated early intervening services. These may include interagency financing structures and serve kindergarten through grade 12 students, especially grades K–3, not identified as needing special education or related services but needing extra academic or behavior support to succeed in general education. (2) Activities may include (A) professional development, possibly from other entities, so teachers and staff can provide scientifically based academic instruction and behavioral interventions, including literacy instruction and, when suitable, adaptive and instructional software training; and (B) educational and behavioral evaluations, services, and supports, including scientifically based literacy instruction. (3) Nothing here limits or creates a right to a free appropriate public education under this subchapter. (4) Each agency providing these services must annually tell the State the number of students served and the number served who later received special education and related services during the previous two years. (5) These funds may support early services aligned with activities under the 1965 Act only when they supplement, and do not replace, funds available under that Act for the assisted activities and services. (g) Direct State services. (1) The State must use payments that otherwise would have gone to a local or State agency to provide direct special education and related services to children in the local agency's area, or children for whom the State agency is responsible, if the agency (A) did not provide information needed to establish eligibility; (B) cannot establish and maintain qualifying free appropriate public education programs; (C) cannot or will not consolidate with other local agencies to establish them; or (D) has children best served by a regional or State program or delivery system designed for them. (2) The State may provide these services in any suitable way and place, including regional or State centers, and must provide them under this subchapter. (h) State-agency eligibility. A State agency seeking a section 1411(f) subgrant must satisfy the State that (1) every child with a disability in funded programs receives a free appropriate public education and the child and parents receive all rights and safeguards in this subchapter; and (2) it meets other conditions the Secretary finds appropriate. (i) Disciplinary information. The State may require a local agency to put current or past disciplinary action in a child's disability records and transmit it to the same extent such information is included with nondisabled students' records. The statement may describe the conduct requiring discipline, the action taken, and other safety-relevant information. If the State adopts this policy and the child changes schools, the transferred records must include the current individualized education program and the disciplinary statement. (j) State flexibility. (1) If a State's section 1411 allotment exceeds the prior year and, in 2003–2004 or a later school year, the State pays or reimburses every local agency for 100 percent of the non-Federal special-education share, the State may reduce State-source spending for educating children with disabilities by no more than 50 percent of the increase, despite section 1412(a)(17), (18), and 1412(b). (2) The Secretary must prohibit that reduction if the State cannot establish, maintain, or oversee qualifying programs, or needs assistance, intervention, or substantial intervention under section 1416(d)(2)(A). (3) The State must use State funds equal to the reduction for 1965 Act activities or need-based higher-education programs for students or teachers. (4) For each such year, it must report the reduction and funded activities to the Secretary. (5) It may not reduce spending if any local agency would then receive less than the amount needed, from Federal funds under this chapter and State funds, to ensure every served child receives a free appropriate public education.