Subsec. (a)(13). Pub. L. 100-630, § 102(c)(8), substituted "local agencies to-" for “local agencies to" in introductory provisions, added subpars. (A) and (B), and struck out former cls. (A) and (B) which read as follows: “(A) define the financial responsibility of each agency for providing handicapped children and youth with free appropriate public education, and (B) resolve interagency disputes, including procedures under which local educational agencies may initiate proceedings under the agreement in order to secure reimbursement from other agencies or otherwise implement the provisions of the agreement." Subsec. (a)(14). Pub. L. 100-630, § 102(c)(9), inserted "set forth" after "policies", and in subpar. (A) substituted "such personnel are" for "he or she is". Subsec. (c). Pub. L. 100-630, § 102(c)(10), designated first sentence as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, realigned margins of second sentence and designated it as par. (2), and substituted "paragraph (1)” for "the preceding sentence". Subsec. (d)(3)(A). Pub. L. 100-630, § 102(c)(11), substituted "the Secretary's designee" for "his designee". Subsec. (d)(3)(B). Pub. L. 100-630, § 102(c)(12), substituted "the Secretary based the Secretary's” for “he based his". Subsec. (d)(3)(C). Pub. L. 100-630, § 102(c)(13), substituted "the Secretary's" for "his" before "previous action". Subsec. (e). Pub. L. 100-630, § 102(c)(14), substituted a period for "; and" at end. 1986-Subsec. (a)(9). Pub. L. 99-457, § 203(b)(1), amended par. (9) generally. Prior to amendment, par. (9) read as follows: "provide satisfactory assurance that Federal funds made available under this subchapter (A) will not be commingled with State funds, and (B) will be so used as to supplement and increase the level of State and local funds expended for the education of handicapped children and in no case to supplant such State and local funds, except that, where the State provides clear and convincing evidence that all handicapped children have available to them a free appropriate public education, the Secretary may waive in part the requirement of this clause if he concurs with the evidence provided by the State;". Subsec. (a)(13). Pub. L. 99-457, § 203(b)(2), added par. (13). Subsec. (a)(14). Pub. L. 99-457, § 405, added par. (14). Subsec. (e). Pub. L. 99-457, § 203(b)(3), added subsec. (e). 1983-Subsecs. (a), (c). Pub. L. 98-199, § 3(b), substituted "Secretary" for "Commissioner" wherever appearing. Subsec. (d). Pub. L. 98-199, § 7, added subsec. (d). 1975-Pub. L. 94-142, § 5(a), effective Oct. 1, 1977, amended section generally, incorporating within its provisions updated features which any State plan must have when submitted to the Commissioner through its State educational agency and so as to strike out provisions covering the administrative proceedings and judicial review attendant upon the submission of a State plan. See sections 1414 et seq. of this title. 1974-Subsec. (a). Pub. L. 93-380, § 614(c), substituted in first sentence "is entitled to receive payments" for "desires to receive grants", effective for fiscal years ending June 30, 1975, and 1976, for the period beginning July 1, 1976, and ending Sept. 30, 1976, and for the fiscal year ending Sept. 30, 1977. Subsec. (a)(1). Pub. L. 93-380, §§ 615(b), 843(b)(2), substituted $200,000 for $100,000 and struck out "the Commonwealth of Puerto Rico," before "Guam". Subsec. (a)(12), (13). Pub. L. 93-380, § 614(d), added pars. (12) and (13). Subsecs. (b) to (e). Pub. L. 93-380, § 615(c)(1), (2), added subsec. (b), redesignated former subsecs. (b) to (d) as (c) to (e), respectively, and in subsec. (e)(1), as redesignated, substituted reference to subsection "(d)” for "(c)" of this section. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98-199 effective Dec. 2, 1983, see section 18 of Pub. L. 98-199, set out as a note under section 1401 of this title. EFFECTIVE DATE OF 1975 AMENDMENT Complete revision of this section by section 5(a) of Pub. L. 94-142 effective Oct. 1, 1977, see section 8(c) of Pub. L. 94-142, set out as a note under section 1411 of this title. EFFECTIVE DATE OF 1974 AMENDMENT Section 614(c) of Pub. L. 93-380 which, as originally enacted, provided that the amendment of subsec. (a) by section 614(c) of Pub. L. 93-380 was effective for fiscal year 1975 only, was amended by section 2(b)(3) of Pub. L. 94-142 to extend the life of the amendment by section 614(c) of Pub. L. 93-380 by making it effective for the fiscal years ending June 30, 1975, and 1976, the period beginning July 1, 1976, and ending Sept. 30, 1976, and the fiscal year ending Sept. 30, 1977. Amendment of subsec. (a)(1) by Pub. L. 93-380 effective after June 30, 1975, see section 843(b) of Pub. L. 93-380, set out as a note under section 1412 of this title. Enactment of subsec. (a)(12), (13) by section 614(d) of Pub. L. 93-380 effective on and after sixtieth day after Aug. 21, 1974, see section 2(c) of Pub. L. 93-380, set out as a note under section 244 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1411, 1412, 1414 to 1416, 1419, 1432 of this title. § 1414. Application (a) Requisite features A local educational agency or an intermediate educational unit which desires to receive payments under section 1411(d) of this title for any fiscal year shall submit an application to the appropriate State educational agency. Such application shall (1) provide satisfactory assurance that payments under this subchapter will be used for excess costs directly attributable to programs which (A) provide that all children residing within the jurisdiction of the local educational agency or the intermediate educational unit who are handicapped, regardless of the severity of their handicap, and are in need of special education and related services will be identified, located, and evaluated, and provide for the inclusion of a practical method of determining which children are currently receiving needed special education and related services and which children are not currently receiving such education and services; (B) establish policies and procedures in accordance with detailed criteria prescribed under section 1417(c) of this title; (C) establish a goal of providing full educational opportunities to all handicapped children, including (i) procedures for the implementation and use of the comprehensive system of personnel development established by the State educational agency under section 1413(a)(3) of this title; (ii) the provision of, and the establishment of priorities for providing, a free ap propriate public education to all handicapped children, first with respect to handicapped children who are not receiving an education, and second with respect to handicapped children, within each disability, with the most severe handicaps who are receiving an inadequate education; (iii) the participation and consultation of the parents or guardian of such children; and (iv) to the maximum extent practicable and consistent with the provisions of section 1412(5)(B) of this title, the provision of special services to enable such children to participate in regular educational programs; (D) establish a detailed timetable for accomplishing the goal described in subclause (C); and (E) provide a description of the kind and number of facilities, personnel, and services necessary to meet the goal described in subclause (C); (2) provide satisfactory assurance that (A) the control of funds provided under this subchapter, and title to property derived from such funds, shall be in a public agency for the uses and purposes provided in this subchapter, and that a public agency will administer such funds and property; (B) Federal funds expended by local educational agencies and intermediate educational units for programs under this subchapter (i) shall be used to pay only the excess costs directly attributable to the education of handicapped children; and (ii) shall be used to supplement and, to the extent practicable, increase the level of State and local funds expended for the education of handicapped children, and in no case to supplant such State and local funds; and (C) State and local funds will be used in the jurisdiction of the local educational agency or intermediate educational unit to provide services in program areas that, taken as a whole, are at least comparable to services being provided in areas of such jurisdiction that are not receiving funds under this subchapter; (3) provide for (A) furnishing such information (which, in the case of reports relating to performance, is in accordance with specific performance criteria related to program objectives), as may be necessary to enable the State educational agency to perform its duties under this subchapter, including information relating to the educational achievement of handicapped children participating in programs carried out under this subchapter; and (B) keeping such records, and affording such access to such records, as the State educational agency may find necessary to assure the correctness and verification of such information furnished under subparagraph (A); (4) provide for making the application and all pertinent documents related to such application available to parents, guardians, and other members of the general public, and provide that all evaluations and reports required under clause (3) shall be public information; (5) provide assurances that the local educational agency or intermediate educational unit will establish or revise, whichever is appropriate, an individualized education program for each handicapped child at the beginning of each school year and will then review and, if appropriate, revise, its provisions periodically, but not less than annually; (6) provide satisfactory assurance that policies and programs established and administered by the local educational agency or intermediate educational unit shall be consistent with the provisions of paragraph (1) through paragraph (7) of section 1412 and section 1413(a) of this title; and (7) provide satisfactory assurance that the local educational agency or intermediate educational unit will establish and maintain procedural safeguards in accordance with the provisions of sections 1412(5)(B), 1412(5)(C), and 1415 of this title. (b) Approval by State educational agencies of applications submitted by local educational agencies or intermediate educational units; notice and hearing (1) A State educational agency shall approve any application submitted by a local educational agency or an intermediate educational unit under subsection (a) of this section if the State educational agency determines that such application meets the requirements of subsection (a) of this section, except that no such application may be approved until the State plan submitted by such State educational agency under subsection (a) of this section is approved by the Secretary under section 1413(c) of this title. A State educational agency shall disapprove any application submitted by a local educational agency or an intermediate educational unit under subsection (a) of this section if the State educational agency determines that such application does not meet the requirements of subsection (a) of this section. (2)(A) Whenever a State educational agency, after reasonable notice and opportunity for a hearing, finds that a local educational agency or an intermediate educational unit, in the administration of an application approved by the State educational agency under paragraph (1), has failed to comply with any requirement set forth in such application, the State educational agency, after giving appropriate notice to the local educational agency or the intermediate educational unit, shall (i) make no further payments to such local educational agency or such intermediate educational unit under section 1420 of this title until the State educational agency is satisfied that there is no longer any failure to comply with the requirement involved; or (ii) take such finding into account in its review of any application made by such local educational agency or such intermediate edu cational unit under subsection (a) of this section. (B) The provisions of the last sentence of section 1416(a) of this title shall apply to any local educational agency or any intermediate educational unit receiving any notification from a State educational agency under this paragraph. (3) In carrying out its functions under paragraph (1), each State educational agency shall consider any decision made pursuant to a hearing held under section 1415 of this title which is adverse to the local educational agency or intermediate educational unit involved in such decision. (c) Consolidated applications (1) A State educational agency may, for purposes of the consideration and approval of applications under this section, require local educational agencies to submit a consolidated application for payments if such State educational agency determines that any individual application submitted by any such local educational agency will be disapproved because such local educational agency is ineligible to receive payments because of the application of section 1411(c)(4)(A)(i) of this title or such local educational agency would be unable to establish and maintain programs of sufficient size and scope to effectively meet the educational needs of handicapped children. (2)(A) In any case in which a consolidated application of local educational agencies is approved by a State educational agency under paragraph (1), the payments which such local educational agencies may receive shall be equal to the sum of payments to which each such local educational agency would be entitled under section 1411(d) of this title if an individual application of any such local educational agency had been approved. (B) The State educational agency shall prescribe rules and regulations with respect to consolidated applications submitted under this subsection which are consistent with the provisions of paragraph (1) through paragraph (7) of section 1412 and section 1413(a) of this title and which provide participating local educational agencies with joint responsibilities for implementing programs receiving payments under this subchapter. (C) In any case in which an intermediate educational unit is required pursuant to State law to carry out the provisions of this subchapter, the joint responsibilities given to local educational agencies under subparagraph (B) shall not apply to the administration and disbursement of any payments received by such intermediate educational unit. Such responsibilities shall be carried out exclusively by such intermediate educational unit. (d) Special education and related services provided directly by State educational agencies; regional or State centers Whenever a State educational agency determines that a local educational agency (1) is unable or unwilling to establish and maintain programs of free appropriate public education which meet the requirements established in subsection (a) of this section; (2) is unable or unwilling to be consolidated with other local educational agencies in order to establish and maintain such programs; or (3) has one or more handicapped children who can best be served by a regional or State center designed to meet the needs of such children; the State educational agency shall use the payments which would have been available to such local educational agency to provide special education and related services directly to handicapped children residing in the area served by such local educational agency. The State educational agency may provide such education and services in such manner, and at such locations (including regional or State centers), as it considers appropriate, except that the manner in which such education and services are provided shall be consistent with the requirements of this subchapter. (e) Reallocation of funds Whenever a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all handicapped children residing in the area served by such agency with State and local funds otherwise available to such agency, the State educational agency may reallocate funds (or such portion of those funds as may not be required to provide such education and services) made available to such agency, pursuant to section 1411(d) of this title, to such other local educational agencies within the State as are not adequately providing special education and related services to all handicapped children residing in the areas served by such other local educational agencies. (f) Programs using State or local funds Notwithstanding the provisions of subsection (a)(2)(B)(ii) of this section, any local educational agency which is required to carry out any program for the education of handicapped children pursuant to a State law shall be entitled to receive payments under section 1411(d) of this title for use in carrying out such program, except that such payments may not be used to reduce the level of expenditures for such program made by such local educational agency from State or local funds below the level of such expenditures for the fiscal year prior to the fiscal year for which such local educational agency seeks such payments. (Pub. L. 91-230, title VI, § 614, Apr. 13, 1970, 84 Stat. 181; Pub. L. 94-142, § 5(a), Nov. 29, 1975, 89 Stat. 784; Pub. L. 98-199, § 3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 100-630, title I, § 102(d), Nov. 7, 1988, 102 Stat. 3293.) AMENDMENTS 1988-Subsec. (a)(2). Pub. L. 100-630, § 102(d)(1), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "provide satisfactory assurance that (A) the control of funds provided under this subchapter, and title to property derived from such funds, shall be in a public agency for the uses and purposes provided in this subchapter, and that a public agency will administer such funds and property, (B) Federal funds expended by local educational agencies and intermediate educational units for programs under this subchapter (i) shall be used to pay only the excess costs directly attributable to the education of handicapped children, and (ii) shall be used to supplement and, to the extent practicable, increase the level of State and local funds expended for the education of handicapped children, and in no case to supplant such State and local funds, and (C) State and local funds will be used in the jurisdiction of the local educational agency or intermediate educational unit to provide services in program areas which, taken as a whole, are at least comparable to services being provided in areas of such jurisdiction which are not receiving funds under this subchapter;". Subsec. (a)(3). Pub. L. 100-630, § 102(d)(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows: "(A) provide for furnishing such information (which, in the case of reports relating to performance, is in accordance with specific performance criteria related to program objectives), as may be necessary to enable the State educational agency to perform its duties under this subchapter, including information relating to the educational achievement of handicapped children participating in programs carried out under this subchapter; and "(B) provide for keeping such records, and provide for affording such access to such records, as the State educational agency may find necessary to assure the correctness and verification of such information furnished under subclause (A);". Subsec. (a)(5). Pub. L. 100-630, § 102(d)(3), struck out comma after "establish" and inserted a comma after "if appropriate". 1983-Subsec. (b)(1). Pub. L. 98-199 substituted "Secretary" for "Commissioner". 1975-Pub. L. 94-142, effective Oct. 1, 1977, completely revised section so as to incorporate within its provisions the process through which local educational agencies and intermediate educational units desiring to receive payments submit applications to the appropriate State educational agency and so as to strike out former provisions covering State matching funds. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98-199 effective Dec. 2, 1983, see section 18 of Pub. L. 98-199, set out as a note under section 1401 of this title. EFFECTIVE DATE OF 1975 AMENDMENT Complete revision of this section by section 5(a) of Pub. L. 94-142 effective Oct. 1, 1977, see section 8(c) of Pub. L. 94-142, set out as a note under section 1411 of this title. MAINTENANCE OF EFFORT Pub. L. 99-506, title X, § 1005, Oct. 21, 1986, 100 Stat. 1845, provided: any "(a) GENERAL PROVISION.-Notwithstanding other provision of the Education of the Handicapped Act [this chapter], the Secretary and the State educational agency, in the case of section 614(a)(2)(B)(ii) of that Act [20 U.S.C. 1414(a)(2)(B)(ii)], shall not include expenditures made from an accrued fund reserve surplus after July 1, 1983, and prior to October 1, 1985, which are used for services for handicapped children. "(b) EFFECTIVE DATE.-The amendment made by subsection (a) shall take effect with respect to fiscal years beginning after September 30, 1983." SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1401, 1411, 1412, 1413, 1418, 1420, 2334 of this title; title 29 sections 795m, 796d. § 1415. Procedural safeguards (a) Establishment and maintenance Any State educational agency, any local educational agency, and any intermediate educa tional unit which receives assistance under this subchapter shall establish and maintain procedures in accordance with subsection (b) through subsection (e) of this section to assure that handicapped children and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies and units. (b) Required procedures; hearing (1) The procedures required by this section shall include, but shall not be limited to (A) an opportunity for the parents or guardian of a handicapped child to examine all relevant records with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child; (B) procedures to protect the rights of the child whenever the parents or guardian of the child are not known, unavailable, or the child is a ward of the State, including the assignment of an individual (who shall not be an employee of the State educational agency, local educational agency, or intermediate educational unit involved in the education or care of the child) to act as a surrogate for the parents or guardian; (C) written prior notice to the parents or guardian of the child whenever such agency or unit (i) proposes to initiate or change, or the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child; (D) procedures designed to assure that the notice required by clause (C) fully informs the parents or guardian, in the parents' or guardian's native language, unless it clearly is not feasible to do so, of all procedures available pursuant to this section; and (E) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. (2) Whenever a complaint has been received under paragraph (1) of this subsection, the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child. (c) Review of local decision by State educational agency If the hearing required in paragraph (2) of subsection (b) of this section is conducted by a local educational agency or an intermediate educational unit, any party aggrieved by the findings and decision rendered in such a hearing may appeal to the State educational agency which shall conduct an impartial review of such hearing. The officer conducting such review shall make an independent decision upon completion of such review. (d) Enumeration of rights accorded parties to hearings Any party to any hearing conducted pursuant to subsections (b) and (c) of this section shall be accorded (1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of handicapped children, (2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses, (3) the right to a written or electronic verbatim record of such hearing, and (4) the right to written findings of fact and decisions (which findings and decisions shall be made available to the public consistent with the requirements of section 1417(c) of this title and shall also be transmitted to the advisory panel established pursuant to section 1413(a)(12) of this title). (e) Civil action; jurisdiction (1) A decision made in a hearing conducted pursuant to paragraph (2) of subsection (b) of this section shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (c) and paragraph (2) of this subsection. A decision made under subsection (c) of this section shall be final, except that any party may bring an action under paragraph (2) of this subsection. (2) Any party aggrieved by the findings and decision made under subsection (b) of this section who does not have the right to an appeal under subsection (c) of this section, and any party aggrieved by the findings and decision under subsection (c) of this section, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. (3) During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed. (4)(A) The district courts of the United States shall have jurisdiction of actions brought under this subsection without regard to the amount in controversy. (B) In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. (C) For the purpose of this subsection, fees awarded under this subsection shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection. (D) No award of attorneys' fees and related costs may be made in any action or proceeding under this subsection for services performed subsequent to the time of a written offer of settlement to a parent or guardian, if— (i) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than ten days before the proceeding begins; (ii) the offer is not accepted within ten days; and (iii) the court or administrative officer finds that the relief finally obtained by the parents or guardian is not more favorable to the parents or guardian than the offer of settlement. (E) Notwithstanding the provisions of subparagraph (D), an award of attorneys' fees and related costs may be made to a parent or guardian who is the prevailing party and who was substantially justified in rejecting the settlement offer. (F) Whenever the court finds that— (i) the parent or guardian, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy; (ii) the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, experience, and reputation; or (iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding, the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this subsection. (G) The provisions of subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section. (f) Effect on other laws Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.), or other Federal statutes protecting the rights of handicapped children and youth, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (c) of this |