20 U.s.c. 1411

§ 1409

TITLE 20—EDUCATION

waivers of statutory requirements of, or regulatory requirements relating to, subchapter
II for a period of time not to exceed 4 years
with respect to not more than 15 States
based on proposals submitted by States to
reduce excessive paperwork and noninstructional time burdens that do not assist in improving educational and functional results
for children with disabilities.
(B) Exception
The Secretary shall not waive under this
section any statutory requirements of, or
regulatory requirements relating to, applicable civil rights requirements.
(C) Rule of construction
Nothing in this section shall be construed
to—
(i) affect the right of a child with a disability to receive a free appropriate public
education under subchapter II; and
(ii) permit a State or local educational
agency to waive procedural safeguards
under section 1415 of this title.
(3) Proposal
(A) In general
A State desiring to participate in the program under this section shall submit a proposal to the Secretary at such time and in
such manner as the Secretary may reasonably require.
(B) Content
The proposal shall include—
(i) a list of any statutory requirements
of, or regulatory requirements relating to,
subchapter II that the State desires the
Secretary to waive, in whole or in part;
and
(ii) a list of any State requirements that
the State proposes to waive or change, in
whole or in part, to carry out a waiver
granted to the State by the Secretary.
(4) Termination of waiver
The Secretary shall terminate a State’s
waiver under this section if the Secretary determines that the State—
(A)
needs
assistance
under
section
1416(d)(2)(A)(ii) of this title and that the
waiver has contributed to or caused such
need for assistance;
(B) needs intervention under section
1416(d)(2)(A)(iii) of this title or needs substantial
intervention
under
section
1416(d)(2)(A)(iv) of this title; or
(C) failed to appropriately implement its
waiver.
(b) Report
Beginning 2 years after December 3, 2004, the
Secretary shall include in the annual report to
Congress submitted pursuant to section 3486 of
this title information related to the effectiveness of waivers granted under subsection (a), including any specific recommendations for broader implementation of such waivers, in—
(1) reducing—
(A) the paperwork burden on teachers,
principals, administrators, and related service providers; and

Page 854

(B) noninstructional time spent by teachers in complying with subchapter II;
(2) enhancing longer-term educational planning;
(3) improving positive outcomes for children
with disabilities;
(4) promoting collaboration between IEP
Team members; and
(5) ensuring satisfaction of family members.
(Pub. L. 91–230, title VI, § 609, as added Pub. L.
108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2661.)
PRIOR PROVISIONS
A prior section 1408, Pub. L. 91–230, title VI, § 609, as
added Pub. L. 99–457, title II, § 202, Oct. 8, 1986, 100 Stat.
1158, related to eligibility for financial assistance, prior
to the general amendment of subchapters I to IV of this
chapter by Pub. L. 105–17.

§ 1409. Freely associated States
The Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of
Palau shall continue to be eligible for competitive grants administered by the Secretary under
this chapter to the extent that such grants continue to be available to States and local educational agencies under this chapter.
(Pub. L. 91–230, title VI, § 610, as added Pub. L.
108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2662.)
PRIOR PROVISIONS
A prior section 1409, Pub. L. 91–230, title VI, § 610, as
added Pub. L. 101–476, title I, § 104, Oct. 30, 1990, 104 Stat.
1106, provided administrative provisions applicable to
former subchapters III to VII of this chapter and
former section 1418 of this title, prior to the general
amendment of subchapters I to IV of this chapter by
Pub. L. 105–17.

SUBCHAPTER II—ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES
§ 1411. Authorization; allotment; use of funds; authorization of appropriations
(a) Grants to States
(1) Purpose of grants
The Secretary shall make grants to States,
outlying areas, and freely associated States,
and provide funds to the Secretary of the Interior, to assist them to provide special education and related services to children with
disabilities in accordance with this subchapter.
(2) Maximum amount
The maximum amount of the grant a State
may receive under this section—
(A) for fiscal years 2005 and 2006 is—
(i) the number of children with disabilities in the State who are receiving special
education and related services—
(I) aged 3 through 5 if the State is eligible for a grant under section 1419 of
this title; and
(II) aged 6 through 21; multiplied by
(ii) 40 percent of the average per-pupil
expenditure in public elementary schools
and secondary schools in the United
States; and

Page 855

TITLE 20—EDUCATION

(B) for fiscal year 2007 and subsequent fiscal years is—
(i) the number of children with disabilities in the 2004–2005 school year in the
State who received special education and
related services—
(I) aged 3 through 5 if the State is eligible for a grant under section 1419 of
this title; and
(II) aged 6 through 21; multiplied by
(ii) 40 percent of the average per-pupil
expenditure in public elementary schools
and secondary schools in the United
States; adjusted by
(iii) the rate of annual change in the sum
of—
(I) 85 percent of such State’s population
described
in
subsection
(d)(3)(A)(i)(II); and
(II) 15 percent of such State’s population
described
in
subsection
(d)(3)(A)(i)(III).
(b) Outlying areas and freely associated States;
Secretary of the Interior
(1) Outlying areas and freely associated States
(A) Funds reserved
From the amount appropriated for any fiscal year under subsection (i), the Secretary
shall reserve not more than 1 percent, which
shall be used—
(i) to provide assistance to the outlying
areas in accordance with their respective
populations of individuals aged 3 through
21; and
(ii) to provide each freely associated
State a grant in the amount that such
freely associated State received for fiscal
year 2003 under this subchapter, but only if
the freely associated State meets the applicable requirements of this subchapter,
as well as the requirements of section
1411(b)(2)(C) of this title as such section
was in effect on the day before December 3,
2004.
(B) Special rule
The provisions of Public Law 95–134, permitting the consolidation of grants by the
outlying areas, shall not apply to funds provided to the outlying areas or the freely associated States under this section.
(C) Definition
In this paragraph, the term ‘‘freely associated States’’ means the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau.
(2) Secretary of the Interior
From the amount appropriated for any fiscal
year under subsection (i), the Secretary shall
reserve 1.226 percent to provide assistance to
the Secretary of the Interior in accordance
with subsection (h).
(c) Technical assistance
(1) In general
The Secretary may reserve not more than 1⁄2
of 1 percent of the amounts appropriated under
this subchapter for each fiscal year to provide

§ 1411

technical assistance activities authorized
under section 1416(i) of this title.
(2) Maximum amount
The maximum amount the Secretary may
reserve under paragraph (1) for any fiscal year
is $25,000,000, cumulatively adjusted by the
rate of inflation as measured by the percentage increase, if any, from the preceding fiscal
year in the Consumer Price Index For All
Urban Consumers, published by the Bureau of
Labor Statistics of the Department of Labor.
(d) Allocations to States
(1) In general
After reserving funds for technical assistance, and for payments to the outlying areas,
the freely associated States, and the Secretary
of the Interior under subsections (b) and (c) for
a fiscal year, the Secretary shall allocate the
remaining amount among the States in accordance with this subsection.
(2) Special rule for use of fiscal year 1999
amount
If a State received any funds under this section for fiscal year 1999 on the basis of children aged 3 through 5, but does not make a
free appropriate public education available to
all children with disabilities aged 3 through 5
in the State in any subsequent fiscal year, the
Secretary shall compute the State’s amount
for fiscal year 1999, solely for the purpose of
calculating the State’s allocation in that subsequent year under paragraph (3) or (4), by
subtracting the amount allocated to the State
for fiscal year 1999 on the basis of those children.
(3) Increase in funds
If the amount available for allocations to
States under paragraph (1) for a fiscal year is
equal to or greater than the amount allocated
to the States under this paragraph for the preceding fiscal year, those allocations shall be
calculated as follows:
(A) Allocation of increase
(i) In general
Except as provided in subparagraph (B),
the Secretary shall allocate for the fiscal
year—
(I) to each State the amount the State
received under this section for fiscal
year 1999;
(II) 85 percent of any remaining funds
to States on the basis of the States’ relative populations of children aged 3
through 21 who are of the same age as
children with disabilities for whom the
State ensures the availability of a free
appropriate public education under this
subchapter; and
(III) 15 percent of those remaining
funds to States on the basis of the
States’ relative populations of children
described in subclause (II) who are living
in poverty.
(ii) Data
For the purpose of making grants under
this paragraph, the Secretary shall use the

§ 1411

TITLE 20—EDUCATION

most recent population data, including
data on children living in poverty, that are
available and satisfactory to the Secretary.
(B) Limitations
Notwithstanding subparagraph (A), allocations under this paragraph shall be subject
to the following:
(i) Preceding year allocation
No State’s allocation shall be less than
its allocation under this section for the
preceding fiscal year.
(ii) Minimum
No State’s allocation shall be less than
the greatest of—
(I) the sum of—
(aa) the amount the State received
under this section for fiscal year 1999;
and
(bb) 1⁄3 of 1 percent of the amount by
which the amount appropriated under
subsection (i) for the fiscal year exceeds the amount appropriated for this
section for fiscal year 1999;
(II) the sum of—
(aa) the amount the State received
under this section for the preceding
fiscal year; and
(bb) that amount multiplied by the
percentage by which the increase in
the funds appropriated for this section
from the preceding fiscal year exceeds
1.5 percent; or
(III) the sum of—
(aa) the amount the State received
under this section for the preceding
fiscal year; and
(bb) that amount multiplied by 90
percent of the percentage increase in
the amount appropriated for this section from the preceding fiscal year.
(iii) Maximum
Notwithstanding clause (ii), no State’s
allocation under this paragraph shall exceed the sum of—
(I) the amount the State received
under this section for the preceding fiscal year; and
(II) that amount multiplied by the sum
of 1.5 percent and the percentage increase in the amount appropriated under
this section from the preceding fiscal
year.
(C) Ratable reduction
If the amount available for allocations
under this paragraph is insufficient to pay
those allocations in full, those allocations
shall be ratably reduced, subject to subparagraph (B)(i).
(4) Decrease in funds
If the amount available for allocations to
States under paragraph (1) for a fiscal year is
less than the amount allocated to the States
under this section for the preceding fiscal
year, those allocations shall be calculated as
follows:

Page 856

(A) Amounts greater than fiscal year 1999 allocations
If the amount available for allocations is
greater than the amount allocated to the
States for fiscal year 1999, each State shall
be allocated the sum of—
(i) the amount the State received under
this section for fiscal year 1999; and
(ii) an amount that bears the same relation to any remaining funds as the increase the State received under this section for the preceding fiscal year over fiscal year 1999 bears to the total of all such
increases for all States.
(B) Amounts equal to or less than fiscal year
1999 allocations
(i) In general
If the amount available for allocations
under this paragraph is equal to or less
than the amount allocated to the States
for fiscal year 1999, each State shall be allocated the amount the State received for
fiscal year 1999.
(ii) Ratable reduction
If the amount available for allocations
under this paragraph is insufficient to
make the allocations described in clause
(i), those allocations shall be ratably reduced.
(e) State-level activities
(1) State administration
(A) In general
For the purpose of administering this subchapter, including paragraph (3), section 1419
of this title, and the coordination of activities under this subchapter with, and providing technical assistance to, other programs
that provide services to children with disabilities—
(i) each State may reserve for each fiscal
year not more than the maximum amount
the State was eligible to reserve for State
administration under this section for fiscal year 2004 or $800,000 (adjusted in accordance with subparagraph (B)), whichever is greater; and
(ii) each outlying area may reserve for
each fiscal year not more than 5 percent of
the amount the outlying area receives
under subsection (b)(1) for the fiscal year
or $35,000, whichever is greater.
(B) Cumulative annual adjustments
For each fiscal year beginning with fiscal
year 2005, the Secretary shall cumulatively
adjust—
(i) the maximum amount the State was
eligible to reserve for State administration under this subchapter for fiscal year
2004; and
(ii) $800,000,
by the rate of inflation as measured by the
percentage increase, if any, from the preceding fiscal year in the Consumer Price Index
For All Urban Consumers, published by the
Bureau of Labor Statistics of the Department of Labor.
(C) Certification
Prior to expenditure of funds under this
paragraph, the State shall certify to the

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TITLE 20—EDUCATION

Secretary that the arrangements to establish responsibility for services pursuant to
section 1412(a)(12)(A) of this title are current.
(D) Subchapter III
Funds reserved under subparagraph (A)
may be used for the administration of subchapter III, if the State educational agency
is the lead agency for the State under such
subchapter.
(2) Other State-level activities
(A) State-level activities
(i) In general
Except as provided in clause (iii), for the
purpose of carrying out State-level activities, each State may reserve for each of
the fiscal years 2005 and 2006 not more
than 10 percent from the amount of the
State’s allocation under subsection (d) for
each of the fiscal years 2005 and 2006, respectively. For fiscal year 2007 and each
subsequent fiscal year, the State may reserve the maximum amount the State was
eligible to reserve under the preceding sentence for fiscal year 2006 (cumulatively adjusted by the rate of inflation as measured
by the percentage increase, if any, from
the preceding fiscal year in the Consumer
Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of
the Department of Labor).
(ii) Small State adjustment
Notwithstanding clause (i) and except as
provided in clause (iii), in the case of a
State for which the maximum amount reserved for State administration is not
greater than $850,000, the State may reserve for the purpose of carrying out
State-level activities for each of the fiscal
years 2005 and 2006, not more than 10.5 percent from the amount of the State’s allocation under subsection (d) for each of the
fiscal years 2005 and 2006, respectively. For
fiscal year 2007 and each subsequent fiscal
year, such State may reserve the maximum amount the State was eligible to reserve under the preceding sentence for fiscal year 2006 (cumulatively adjusted by the
rate of inflation as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price
Index For All Urban Consumers, published
by the Bureau of Labor Statistics of the
Department of Labor).
(iii) Exception
If a State does not reserve funds under
paragraph (3) for a fiscal year, then—
(I) in the case of a State that is not described in clause (ii), for fiscal year 2005
or 2006, clause (i) shall be applied by substituting ‘‘9.0 percent’’ for ‘‘10 percent’’;
and
(II) in the case of a State that is described in clause (ii), for fiscal year 2005
or 2006, clause (ii) shall be applied by
substituting ‘‘9.5 percent’’ for ‘‘10.5 percent’’.

§ 1411

(B) Required activities
Funds reserved under subparagraph (A)
shall be used to carry out the following activities:
(i) For monitoring, enforcement, and
complaint investigation.
(ii) To establish and implement the mediation process required by section 1415(e)
of this title, including providing for the
cost of mediators and support personnel.
(C) Authorized activities
Funds reserved under subparagraph (A)
may be used to carry out the following activities:
(i) For support and direct services, including technical assistance, personnel
preparation, and professional development
and training.
(ii) To support paperwork reduction activities, including expanding the use of
technology in the IEP process.
(iii) To assist local educational agencies
in providing positive behavioral interventions and supports and appropriate mental
health services for children with disabilities.
(iv) To improve the use of technology in
the classroom by children with disabilities
to enhance learning.
(v) To support the use of technology, including technology with universal design
principles and assistive technology devices, to maximize accessibility to the
general education curriculum for children
with disabilities.
(vi) Development and implementation of
transition programs, including coordination of services with agencies involved in
supporting the transition of children with
disabilities to postsecondary activities.
(vii) To assist local educational agencies
in meeting personnel shortages.
(viii) To support capacity building activities and improve the delivery of services by local educational agencies to improve results for children with disabilities.
(ix) Alternative programming for children with disabilities who have been expelled from school, and services for children with disabilities in correctional facilities, children enrolled in State-operated or State-supported schools, and children with disabilities in charter schools.
(x) To support the development and provision of appropriate accommodations for
children with disabilities, or the development and provision of alternate assessments that are valid and reliable for assessing the performance of children with
disabilities, in accordance with sections
6311(b) and 7301 of this title.
(xi) To provide technical assistance to
schools and local educational agencies,
and direct services, including supplemental educational services as defined in
6316(e) of this title to children with disabilities, in schools or local educational
agencies identified for improvement under
section 6316 of this title on the sole basis
of the assessment results of the dis-

§ 1411

TITLE 20—EDUCATION

aggregated subgroup of children with disabilities, including providing professional
development to special and regular education teachers, who teach children with
disabilities, based on scientifically based
research to improve educational instruction, in order to improve academic
achievement to meet or exceed the objectives established by the State under section 6311(b)(2)(G) of this title.
(3) Local educational agency risk pool
(A) In general
(i) Reservation of funds
For the purpose of assisting local educational agencies (including a charter
school that is a local educational agency
or a consortium of local educational agencies) in addressing the needs of high need
children with disabilities, each State shall
have the option to reserve for each fiscal
year 10 percent of the amount of funds the
State reserves for State-level activities
under paragraph (2)(A)—
(I) to establish and make disbursements from the high cost fund to local
educational agencies in accordance with
this paragraph during the first and succeeding fiscal years of the high cost
fund; and
(II) to support innovative and effective
ways of cost sharing by the State, by a
local educational agency, or among a
consortium of local educational agencies, as determined by the State in coordination with representatives from
local educational agencies, subject to
subparagraph (B)(ii).
(ii) Definition of local educational agency
In this paragraph the term ‘‘local educational agency’’ includes a charter school
that is a local educational agency, or a
consortium of local educational agencies.
(B) Limitation on uses of funds
(i) Establishment of high cost fund
A State shall not use any of the funds
the State reserves pursuant to subparagraph (A)(i), but may use the funds the
State reserves under paragraph (1), to establish and support the high cost fund.
(ii) Innovative and effective cost sharing
A State shall not use more than 5 percent of the funds the State reserves pursuant to subparagraph (A)(i) for each fiscal
year to support innovative and effective
ways of cost sharing among consortia of
local educational agencies.
(C) State plan for high cost fund
(i) Definition
The State educational agency shall establish the State’s definition of a high
need child with a disability, which definition shall be developed in consultation
with local educational agencies.
(ii) State plan
The State educational agency shall develop, not later than 90 days after the

Page 858

State reserves funds under this paragraph,
annually review, and amend as necessary,
a State plan for the high cost fund. Such
State plan shall—
(I) establish, in coordination with representatives from local educational
agencies, a definition of a high need
child with a disability that, at a minimum—
(aa) addresses the financial impact a
high need child with a disability has on
the budget of the child’s local educational agency; and
(bb) ensures that the cost of the high
need child with a disability is greater
than 3 times the average per pupil expenditure (as defined in section 7801 of
this title) in that State;
(II) establish eligibility criteria for the
participation of a local educational
agency that, at a minimum, takes into
account the number and percentage of
high need children with disabilities
served by a local educational agency;
(III) develop a funding mechanism that
provides distributions each fiscal year to
local educational agencies that meet the
criteria developed by the State under
subclause (II); and
(IV) establish an annual schedule by
which the State educational agency
shall make its distributions from the
high cost fund each fiscal year.
(iii) Public availability
The State shall make its final State plan
publicly available not less than 30 days before the beginning of the school year, including dissemination of such information
on the State website.
(D) Disbursements from the high cost fund
(i) In general
Each State educational agency shall
make all annual disbursements from the
high cost fund established under subparagraph (A)(i) in accordance with the State
plan published pursuant to subparagraph
(C).
(ii) Use of disbursements
Each State educational agency shall
make annual disbursements to eligible
local educational agencies in accordance
with its State plan under subparagraph
(C)(ii).
(iii) Appropriate costs
The costs associated with educating a
high need child with a disability under
subparagraph (C)(i) are only those costs
associated with providing direct special
education and related services to such
child that are identified in such child’s
IEP.
(E) Legal fees
The disbursements under subparagraph (D)
shall not support legal fees, court costs, or
other costs associated with a cause of action
brought on behalf of a child with a disability
to ensure a free appropriate public education
for such child.

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TITLE 20—EDUCATION

(F) Assurance of a free appropriate public
education
Nothing in this paragraph shall be construed—
(i) to limit or condition the right of a
child with a disability who is assisted
under this subchapter to receive a free appropriate public education pursuant to
section 1412(a)(1) of this title in the least
restrictive environment pursuant to section 1412(a)(5) of this title; or
(ii) to authorize a State educational
agency or local educational agency to establish a limit on what may be spent on
the education of a child with a disability.
(G) Special rule for risk pool and high need
assistance programs in effect as of January 1, 2004
Notwithstanding the provisions of subparagraphs (A) through (F), a State may use
funds reserved pursuant to this paragraph
for implementing a placement neutral cost
sharing and reimbursement program of high
need, low incidence, catastrophic, or extraordinary aid to local educational agencies
that provides services to high need students
based on eligibility criteria for such programs that were created not later than January 1, 2004, and are currently in operation,
if such program serves children that meet
the requirement of the definition of a high
need child with a disability as described in
subparagraph (C)(ii)(I).
(H) Medicaid services not affected
Disbursements provided under this paragraph shall not be used to pay costs that
otherwise would be reimbursed as medical
assistance for a child with a disability under
the State medicaid program under title XIX
of the Social Security Act [42 U.S.C. 1396 et
seq.].
(I) Remaining funds
Funds reserved under subparagraph (A) in
any fiscal year but not expended in that fiscal year pursuant to subparagraph (D) shall
be allocated to local educational agencies
for the succeeding fiscal year in the same
manner as funds are allocated to local educational agencies under subsection (f) for the
succeeding fiscal year.
(4) Inapplicability of certain prohibitions
A State may use funds the State reserves
under paragraphs (1) and (2) without regard
to—
(A) the prohibition on commingling of
funds in section 1412(a)(17)(B) of this title;
and
(B) the prohibition on supplanting other
funds in section 1412(a)(17)(C) of this title.
(5) Report on use of funds
As part of the information required to be
submitted to the Secretary under section 1412
of this title, each State shall annually describe how amounts under this section—
(A) will be used to meet the requirements
of this chapter; and
(B) will be allocated among the activities
described in this section to meet State prior-

§ 1411

ities based on input from local educational
agencies.
(6) Special rule for increased funds
A State may use funds the State reserves
under paragraph (1)(A) as a result of inflationary increases under paragraph (1)(B) to carry
out activities authorized under clause (i), (iii),
(vii), or (viii) of paragraph (2)(C).
(7) Flexibility in using funds for subchapter III
Any State eligible to receive a grant under
section 1419 of this title may use funds made
available under paragraph (1)(A), subsection
(f)(3), or section 1419(f)(5) of this title to develop and implement a State policy jointly
with the lead agency under subchapter III and
the State educational agency to provide early
intervention services (which shall include an
educational component that promotes school
readiness and incorporates preliteracy, language, and numeracy skills) in accordance
with subchapter III to children with disabilities who are eligible for services under section 1419 of this title and who previously received services under subchapter III until such
children enter, or are eligible under State law
to enter, kindergarten, or elementary school
as appropriate.
(f) Subgrants to local educational agencies
(1) Subgrants required
Each State that receives a grant under this
section for any fiscal year shall distribute any
funds the State does not reserve under subsection (e) to local educational agencies (including public charter schools that operate as
local educational agencies) in the State that
have established their eligibility under section
1413 of this title for use in accordance with
this subchapter.
(2) Procedure for allocations to local educational agencies
For each fiscal year for which funds are allocated to States under subsection (d), each
State shall allocate funds under paragraph (1)
as follows:
(A) Base payments
The State shall first award each local educational agency described in paragraph (1)
the amount the local educational agency
would have received under this section for
fiscal year 1999, if the State had distributed
75 percent of its grant for that year under
section 1411(d) of this title as section 1411(d)
was then in effect.
(B) Allocation of remaining funds
After making allocations under subparagraph (A), the State shall—
(i) allocate 85 percent of any remaining
funds to those local educational agencies
on the basis of the relative numbers of
children enrolled in public and private elementary schools and secondary schools
within the local educational agency’s jurisdiction; and
(ii) allocate 15 percent of those remaining funds to those local educational agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency.

§ 1411

TITLE 20—EDUCATION

(3) Reallocation of funds
If a State educational agency determines
that a local educational agency is adequately
providing a free appropriate public education
to all children with disabilities residing in the
area served by that local educational agency
with State and local funds, the State educational agency may reallocate any portion of
the funds under this subchapter that are not
needed by that local educational agency to
provide a free appropriate public education to
other local educational agencies in the State
that are not adequately providing special education and related services to all children with
disabilities residing in the areas served by
those other local educational agencies.
(g) Definitions
In this section:
(1) Average per-pupil expenditure in public
elementary schools and secondary schools
in the United States
The term ‘‘average per-pupil expenditure in
public elementary schools and secondary
schools in the United States’’ means—
(A) without regard to the source of funds—
(i) the aggregate current expenditures,
during the second fiscal year preceding the
fiscal year for which the determination is
made (or, if satisfactory data for that year
are not available, during the most recent
preceding fiscal year for which satisfactory data are available) of all local educational agencies in the 50 States and the
District of Columbia; plus
(ii) any direct expenditures by the State
for the operation of those agencies; divided
by
(B) the aggregate number of children in
average daily attendance to whom those
agencies provided free public education during that preceding year.
(2) State
The term ‘‘State’’ means each of the 50
States, the District of Columbia, and the Commonwealth of Puerto Rico.
(h) Use of amounts by Secretary of the Interior
(1) Provision of amounts for assistance
(A) In general
The Secretary of Education shall provide
amounts to the Secretary of the Interior to
meet the need for assistance for the education of children with disabilities on reservations aged 5 to 21, inclusive, enrolled in
elementary schools and secondary schools
for Indian children operated or funded by the
Secretary of the Interior. The amount of
such payment for any fiscal year shall be
equal to 80 percent of the amount allotted
under subsection (b)(2) for that fiscal year.
Of the amount described in the preceding
sentence—
(i) 80 percent shall be allocated to such
schools by July 1 of that fiscal year; and
(ii) 20 percent shall be allocated to such
schools by September 30 of that fiscal
year.
(B) Calculation of number of children
In the case of Indian students aged 3 to 5,
inclusive, who are enrolled in programs af-

Page 860

filiated with the Bureau of Indian Affairs
(referred to in this subsection as the ‘‘BIA’’)
schools and that are required by the States
in which such schools are located to attain
or maintain State accreditation, and which
schools have such accreditation prior to October 7, 1991, the school shall be allowed to
count those children for the purpose of distribution of the funds provided under this
paragraph to the Secretary of the Interior.
The Secretary of the Interior shall be responsible for meeting all of the requirements
of this subchapter for those children, in accordance with paragraph (2).
(C) Additional requirement
With respect to all other children aged 3 to
21, inclusive, on reservations, the State educational agency shall be responsible for ensuring that all of the requirements of this
subchapter are implemented.
(2) Submission of information
The Secretary of Education may provide the
Secretary of the Interior amounts under paragraph (1) for a fiscal year only if the Secretary
of the Interior submits to the Secretary of
Education information that—
(A) demonstrates that the Department of
the Interior meets the appropriate requirements, as determined by the Secretary of
Education, of sections 1412 of this title (including monitoring and evaluation activities) and 1413 of this title;
(B) includes a description of how the Secretary of the Interior will coordinate the
provision of services under this subchapter
with local educational agencies, tribes and
tribal organizations, and other private and
Federal service providers;
(C) includes an assurance that there are
public hearings, adequate notice of such
hearings, and an opportunity for comment
afforded to members of tribes, tribal governing bodies, and affected local school boards
before the adoption of the policies, programs, and procedures related to the requirements described in subparagraph (A);
(D) includes an assurance that the Secretary of the Interior will provide such information as the Secretary of Education
may require to comply with section 1418 of
this title;
(E) includes an assurance that the Secretary of the Interior and the Secretary of
Health and Human Services have entered
into a memorandum of agreement, to be provided to the Secretary of Education, for the
coordination of services, resources, and personnel between their respective Federal,
State, and local offices and with State and
local educational agencies and other entities
to facilitate the provision of services to Indian children with disabilities residing on or
near reservations (such agreement shall provide for the apportionment of responsibilities and costs, including child find, evaluation, diagnosis, remediation or therapeutic
measures, and (where appropriate) equipment and medical or personal supplies as
needed for a child to remain in school or a
program); and

Page 861

TITLE 20—EDUCATION

(F) includes an assurance that the Department of the Interior will cooperate with the
Department of Education in its exercise of
monitoring and oversight of this application, and any agreements entered into between the Secretary of the Interior and
other entities under this subchapter, and
will fulfill its duties under this subchapter.
(3) Applicability
The Secretary shall withhold payments
under this subsection with respect to the information described in paragraph (2) in the
same manner as the Secretary withholds payments under section 1416(e)(6) of this title.
(4) Payments for education and services for Indian children with disabilities aged 3
through 5
(A) In general
With funds appropriated under subsection
(i), the Secretary of Education shall make
payments to the Secretary of the Interior to
be distributed to tribes or tribal organizations (as defined under section 450b of title
25) or consortia of tribes or tribal organizations to provide for the coordination of assistance for special education and related
services for children with disabilities aged 3
through 5 on reservations served by elementary schools and secondary schools for Indian children operated or funded by the Department of the Interior. The amount of
such payments under subparagraph (B) for
any fiscal year shall be equal to 20 percent of
the amount allotted under subsection (b)(2).
(B) Distribution of funds
The Secretary of the Interior shall distribute the total amount of the payment under
subparagraph (A) by allocating to each tribe,
tribal organization, or consortium an
amount based on the number of children
with disabilities aged 3 through 5 residing on
reservations as reported annually, divided
by the total of those children served by all
tribes or tribal organizations.
(C) Submission of information
To receive a payment under this paragraph, the tribe or tribal organization shall
submit such figures to the Secretary of the
Interior as required to determine the
amounts to be allocated under subparagraph
(B). This information shall be compiled and
submitted to the Secretary of Education.
(D) Use of funds
The funds received by a tribe or tribal organization shall be used to assist in child
find, screening, and other procedures for the
early identification of children aged 3
through 5, parent training, and the provision
of direct services. These activities may be
carried out directly or through contracts or
cooperative agreements with the BIA, local
educational agencies, and other public or
private nonprofit organizations. The tribe or
tribal organization is encouraged to involve
Indian parents in the development and implementation of these activities. The tribe
or tribal organization shall, as appropriate,

§ 1411

make referrals to local, State, or Federal entities for the provision of services or further
diagnosis.
(E) Biennial report
To be eligible to receive a grant pursuant
to subparagraph (A), the tribe or tribal organization shall provide to the Secretary of
the Interior a biennial report of activities
undertaken under this paragraph, including
the number of contracts and cooperative
agreements entered into, the number of children contacted and receiving services for
each year, and the estimated number of children needing services during the 2 years following the year in which the report is made.
The Secretary of the Interior shall include a
summary of this information on a biennial
basis in the report to the Secretary of Education required under this subsection. The
Secretary of Education may require any additional information from the Secretary of
the Interior.
(F) Prohibitions
None of the funds allocated under this
paragraph may be used by the Secretary of
the Interior for administrative purposes, including child count and the provision of
technical assistance.
(5) Plan for coordination of services
The Secretary of the Interior shall develop
and implement a plan for the coordination of
services for all Indian children with disabilities residing on reservations covered under
this chapter. Such plan shall provide for the
coordination of services benefiting those children from whatever source, including tribes,
the Indian Health Service, other BIA divisions, and other Federal agencies. In developing the plan, the Secretary of the Interior
shall consult with all interested and involved
parties. The plan shall be based on the needs
of the children and the system best suited for
meeting those needs, and may involve the establishment of cooperative agreements between the BIA, other Federal agencies, and
other entities. The plan shall also be distributed upon request to States, State educational
agencies and local educational agencies, and
other agencies providing services to infants,
toddlers, and children with disabilities, to
tribes, and to other interested parties.
(6) Establishment of advisory board
To meet the requirements of section
1412(a)(21) of this title, the Secretary of the Interior shall establish, under the BIA, an advisory board composed of individuals involved in
or concerned with the education and provision
of services to Indian infants, toddlers, children, and youth with disabilities, including Indians with disabilities, Indian parents or
guardians of such children, teachers, service
providers, State and local educational officials, representatives of tribes or tribal organizations, representatives from State Interagency Coordinating Councils under section
1441 of this title in States having reservations,
and other members representing the various
divisions and entities of the BIA. The chair-

§ 1412

TITLE 20—EDUCATION

person shall be selected by the Secretary of
the Interior. The advisory board shall—
(A) assist in the coordination of services
within the BIA and with other local, State,
and Federal agencies in the provision of education for infants, toddlers, and children
with disabilities;
(B) advise and assist the Secretary of the
Interior in the performance of the Secretary
of the Interior’s responsibilities described in
this subsection;
(C) develop and recommend policies concerning effective inter- and intra-agency collaboration, including modifications to regulations, and the elimination of barriers to
inter- and intra-agency programs and activities;
(D) provide assistance and disseminate information on best practices, effective program coordination strategies, and recommendations for improved early intervention
services or educational programming for Indian infants, toddlers, and children with disabilities; and
(E) provide assistance in the preparation
of information required under paragraph
(2)(D).
(7) Annual reports
(A) In general
The advisory board established under paragraph (6) shall prepare and submit to the
Secretary of the Interior and to Congress an
annual report containing a description of
the activities of the advisory board for the
preceding year.
(B) Availability
The Secretary of the Interior shall make
available to the Secretary of Education the
report described in subparagraph (A).
(i) Authorization of appropriations
For the purpose of carrying out this subchapter, other than section 1419 of this title,
there are authorized to be appropriated—
(1) $12,358,376,571 for fiscal year 2005;
(2) $14,648,647,143 for fiscal year 2006;
(3) $16,938,917,714 for fiscal year 2007;
(4) $19,229,188,286 for fiscal year 2008;
(5) $21,519,458,857 for fiscal year 2009;
(6) $23,809,729,429 for fiscal year 2010;
(7) $26,100,000,000 for fiscal year 2011; and
(8) such sums as may be necessary for fiscal
year 2012 and each succeeding fiscal year.
(Pub. L. 91–230, title VI, § 611, as added Pub. L.
108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2662.)
REFERENCES IN TEXT
Public Law 95–134, referred to in subsec. (b)(1)(B), is
Pub. L. 95–134, Oct. 15, 1977, 91 Stat. 1159, as amended.
Provisions relating to consolidation of grants are contained in section 501 of Pub. L. 95–134 which is classified
to section 1469a of Title 48, Territories and Insular Possessions.
The Social Security Act, referred to in subsec.
(e)(3)(H), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as
amended. Title XIX of the Act is classified generally to
subchapter XIX (§ 1396 et seq.) 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 1411, Pub. L. 91–230, title VI, § 611, as
added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat.

Page 862

49, related to authorization, allotment, use of funds,
and authorization of appropriations, prior to the general amendment of subchapters I to IV of this chapter
by Pub. L. 108–446.
Another prior section 1411, Pub. L. 91–230, title VI,
§ 611, Apr. 13, 1970, 84 Stat. 178; Pub. L. 93–380, title VI,
§ 614(a), (e)(1), (2), Aug. 21, 1974, 88 Stat. 580, 582; Pub. L.
94–142, §§ 2(a)(1)–(3), 5(a), (c), Nov. 29, 1975, 89 Stat. 773,
776, 794; Pub. L. 95–561, title XIII, § 1341(a), Nov. 1, 1978,
92 Stat. 2364; Pub. L. 96–270, § 13, June 14, 1980, 94 Stat.
498; Pub. L. 98–199, §§ 3(b), 15, Dec. 2, 1983, 97 Stat. 1358,
1374; Pub. L. 99–159, title VI, § 601, Nov. 22, 1985, 99 Stat.
904; Pub. L. 99–362, § 2, July 9, 1986, 100 Stat. 769; Pub. L.
99–457, title II, § 201(b), title IV, §§ 403, 404, Oct. 8, 1986,
100 Stat. 1158, 1173; Pub. L. 100–630, title I, § 102(a), Nov.
7, 1988, 102 Stat. 3290; Pub. L. 101–476, title II, § 201, title
IX, § 901(b)(25)–(32), Oct. 30, 1990, 104 Stat. 1111, 1143;
Pub. L. 102–73, title VIII, § 802(d)(2), (3), July 25, 1991, 105
Stat. 361; Pub. L. 102–119, §§ 4, 25(a)(4), (19), (b), Oct. 7,
1991, 105 Stat. 587, 606, 607; Pub. L. 103–382, title III, § 311,
Oct. 20, 1994, 108 Stat. 3931, related to entitlements and
allocations, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.
EFFECTIVE DATE
Subchapter effective July 1, 2005, see section 302(a) of
Pub. L. 108–446, set out as a note under section 1400 of
this title.

§ 1412. State eligibility
(a) In general
A State is eligible for assistance under this
subchapter for a fiscal year if the State submits
a plan that provides assurances to the Secretary
that the State has in effect policies and procedures to ensure that the State meets each of the
following conditions:
(1) Free appropriate public education
(A) In general
A free appropriate public education is
available to all children with disabilities residing in the State 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 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 to the extent that its application
to those children would be inconsistent
with State law or practice, or the order of
any court, respecting the provision of public education to children in those age
ranges; and
(ii) aged 18 through 21 to the extent that
State law does not require that special
education and related services 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 under section 1401 of this title; or
(II) did not have an individualized education program under this subchapter.
(C) State flexibility
A State that provides early intervention
services in accordance with subchapter III to