(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) The district courts of the United States shall have jurisdiction of actions brought under this subsection without regard to the amount in controversy. (Pub. L. 91-230, title VI, § 615, as added Pub. L. 94-142, § 5(a), Nov. 29, 1975, 89 Stat. 788.) EFFECTIVE DATE Section effective Oct. 1, 1977, see section 8 of Pub. L. 94-142, set out as an Effective Date of 1975 Amendment note under section 1411 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1412, 1414 of this title. § 1416. Withholding of payments; judicial review (a) Whenever the Commissioner, after reasonable notice and opportunity for hearing to the State educational agency involved (and to any local educational agency or intermediate educational unit affected by any failure described in clause (2)), finds (1) that there has been a failure to comply substantially with any provision of section 1412 or section 1413 of this title, or (2) that in the administration of the State plan there is a failure to comply with any provision of this subchapter or with any requirements set forth in the application of a local educational agency or intermediate educational unit approved by the State educational agency pursuant to the State plan, the Commissioner (A) shall, after notifying the State educational agency, withhold any further payments to the State under this subchapter, and (B) may, after notifying the State educational agency, withhold further payments to the State under the Federal programs specified in section 1413(a)(2) of this title within his jurisdiction, to the extent that funds under such programs are available for the provision of assistance for the education of handicapped children. If the Commissioner withholds further payments under clause (A) or clause (B) he may determine that such withholding will be limited to programs or projects under the State plan, or portions thereof, affected by the failure, or that the State educational agency shall not make further payments under this subchapter to specified local educational agencies or intermediate educational units affected by the failure. Until the Commissioner is satisfied that there is no longer any failure to comply with the provisions of this subchapter, as specified in clause (1) or clause (2), no further payments shall be made to the State under this subchapter or under the Federal programs specified in section 1413(a)(2) of this title within his jurisdiction to the extent that funds under such programs are available for the provision of assistance for the education of handicapped children, or payments by the State educational agency under this subchapter shall be limited to local educational agencies and intermediate educational units whose actions did not cause or were not involved in the failure, as the case may be. Any State educational agency, local educational agency, or intermediate educational unit in receipt of a notice pursuant to the first sentence of this subsection shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of such agency or unit. (b)(1) If any State is dissatisfied with the Commissioner's final action with respect to its State plan submitted under section 1413 of this title, such State may, within sixty days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Commissioner. The Commissioner thereupon shall file in the court the record of the proceedings on which he based his action, as provided in section 2112 of title 28. (2) The findings of fact by the Commissioner, if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to the Commissioner to take further evidence, and the Commissioner may thereupon make new or modified findings of fact and may modify his previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence. (3) Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Commissioner or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28. (Pub. L. 91-230, title VI, § 616, as added Pub. L. 94-142, § 5(a), Nov. 29, 1975, 89 Stat. 789.) EFFECTIVE DATE Section effective Oct. 1, 1977, see section 8 of Pub. L. 94-142, set out as an Effective Date of 1975 Amendment note under section 1411 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1411, 1414 of this title. § 1417. Administration (a) Duties of Commissioner (1) In carrying out his duties under this subchapter, the Commissioner shall (A) cooperate with, and furnish all technical assistance necessary, directly or by grant or contract, to the States in matters relating to the education of handicapped children and the execution of the provisions of this subchapter; (B) provide such short-term training programs and institutes as are necessary; (C) disseminate information, and otherwise promote the education of all handicapped children within the States; and (D) assure that each State shall, within one year after November 29, 1975, provide certification of the actual number of handicapped children receiving special education and related services in such State. (2) As soon as practicable after November 29, 1975, the Commissioner shall, by regulation, prescribe a uniform financial report to be utilized by State educational agencies in submitting State plans under this subchapter in order to assure equity among the States. (b) Rules and regulations In carrying out the provisions of this subchapter, the Commissioner (and the Secretary, in carrying out the provisions of subsection (c) of this section) shall issue, not later than January 1, 1977, amend, and revoke such rules and regulations as may be necessary. No other less formal method of implementing such provisions is authorized. (c) Protection of rights and privacy of parents and students The Secretary shall take appropriate action, in accordance with the provisions of section 1232g of this title, to assure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the Commissioner and by State and local educational agencies pursuant to the provisions of this subchapter. (d) Hiring of qualified personnel The Commissioner is authorized to hire qualified personnel necessary to conduct data collection and evaluation activities required by subsections (b), (c) and (d) of section 1418 of this title and to carry out his duties under subsection (a)(1) of this section without regard to the provisions of title 5 relating to appointments in the competitive service and without regard to chapter 51 and subchapter III of chapter 53 of such title relating to classification and general schedule pay rates except that no more than twenty such personnel shall be employed at any time. (Pub. L. 91-230, title VI, § 617, as added Pub. L. 94-142, § 5(a), Nov. 29, 1975, 89 Stat. 791.) REFERENCES IN TEXT The provisions of title 5 relating to appointments in the competitive service, referred to in subsec. (d), are classified to section 3301 et seq. of Title 5, Government Organization and Employees. EFFECTIVE DATE Section effective Oct. 1, 1977, except for subsecs. (a)(1)(D) and (b), which are effective Nov. 29, 1975, see section 8 of Pub. L. 94-142, set out as an Effective Date of 1975 Amendment note under section 1411 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1412 to 1414 of this title. § 1418. Evaluation (a) Duty of Commissioner The Commissioner shall measure and evaluate the impact of the program authorized under this subchapter and the effectiveness of State efforts to assure the free appropriate public education of all handicapped children. (b) Studies and investigations The Commissioner shall conduct, directly or by grant or contract, such studies, investigations, and evaluations as are necessary to assure effective implementation of this subchapter. In carrying out his responsibilities under this section, the Commissioner shall (1) through the National Center for Education Statistics, provide to the appropriate committees of each House of the Congress and to the general public at least annually, and shall update at least annually, programmatic information concerning programs and projects assisted under this subchapter and other Federal programs supporting the education of handicapped children, and such information from State and local educational agencies and other appropriate sources necessary for the implementation of this subchapter, including— (A) the number of handicapped children in each State, within each disability, who require special education and related services; (B) the number of handicapped children in each State, within each disability, receiving a free appropriate public education and the number of handicapped children who need and are not receiving a free appropriate public education in each such State; (C) the number of handicapped children in each State, within each disability, who are participating in regular educational programs, consistent with the requirements of section 1412(5)(B) and section 1414(a)(1)(C)(iv) of this title, and the number of handicapped children who have been placed in separate classes or separate school facilities, or who have been otherwise removed from the regular education environment; (D) the number of handicapped children who are enrolled in public or private institutions in each State and who are receiving a free appropriate public education, and the number of handicapped children who are in such institutions and who are not receiving a free appropriate public education; (E) the amount of Federal, State, and local expenditures in each State specifically available for special education and related services; and (F) the number of personnel, by disability category, employed in the education of handicapped children, and the estimated number of additional personnel needed to adequately carry out the policy established by this chapter; and (2) provide for the evalution of programs and projects assisted under this subchapter through (A) the development of effective methods and procedures for evaluation; (B) the testing and validation of such evaluation methods and procedures; and (C) conducting actual evaluation studies designed to test the effectiveness of such programs and projects. (c) Data sample In developing and furnishing information under subclause (E) of clause (1) of subsection (b) of this section, the Commissioner may base such information upon a sampling of data available from State agencies, including the State educational agencies, and local educational agencies. (d) Annual reports to Congressional Committees (1) Not later than one hundred twenty days after the close of each fiscal year, the Commissioner shall transmit to the appropriate committees of each House of the Congress a report on the progress being made toward the provision of free appropriate public education to all handicapped children, including a detailed description of all evaluation activities conducted under subsection (b) of this section. (2) The Commissioner shall include in each such report (A) an analysis and evaluation of the effectiveness of procedures undertaken by each State educational agency, local educational agency, and intermediate educational unit to assure that handicapped children receive special education and related services in the least restrictive environment commensurate with their needs and to improve programs of instruction for handicapped children in day or residential facilities; (B) any recommendations for change in the provisions of this subchapter, or any other Federal law providing support for the education of handicapped children; and (C) an evaluation of the effectiveness of the procedures undertaken by each such agency or unit to prevent erroneous classification of children as eligible to be counted under section 1411 of this title, including actions undertaken by the Commissioner to carry out provisions of this chapter relating to such erroneous classification. In order to carry out such analyses and evaluations, the Commissioner shall conduct a statis tically valid survey for assessing the effective- There are authorized to be appropriated for EFFECTIVE DATE Section effective Oct. 1, 1977, except for subsec. (a), which is effective Nov. 29, 1975, see section 8 of Pub. L. 94-142, set out as an Effective Date of 1975 Amendment note under section 1411 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1413, 1417 of this title. § 1419. Incentive grants (a) Authority to make grants The Commissioner shall make a grant to any State which (1) has met the eligibility requirements of section 1412 of this title; (2) has a State plan approved under section 1413 of this title; and (3) provides special education and related services to handicapped children aged three to five, inclusive, who are counted for the purposes of section 1411(a)(1)(A) of this title. The maximum amount of the grant for each fiscal year which a State may receive under this section shall be $300 for each such child in that State. (b) Application Each State which (1) has met the eligibility requirements of section 1412 of this title, (2) has a State plan approved under section 1413 of this title, and (3) desires to receive a grant under this section, shall make an application to the Commissioner The Commissioner shall pay to each State having an application approved under subsection (b) of this section the amount to which the State is entitled under this section, which amount shall be used for the purpose of providing the services specified in clause (3) of subsection (a) of this section. (d) Ratable reduction or increase of payments If the sums appropriated for any fiscal year for making payments to States under this section are not sufficient to pay in full the maximum amounts which all States may receive under this subchapter for such fiscal year, the maximum amounts which all States may receive under this subchapter for such fiscal year shall be ratably reduced. In case additional funds become available for making such payments for any fiscal year during which the preceding sentence is applicable, such reduced amounts shall be increased on the same basis as they were reduced. (e) Authorization of appropriations In addition to the sums necessary to pay the entitlements under section 1411 of this title, there are authorized to be appropriated for each fiscal year such sums as may be necessary to carry out the provisions of this section. (Pub. L. 91-230, title VI, § 619, as added Pub. L. 94-142, § 5(a), Nov. 29, 1975, 89 Stat. 793.) EFFECTIVE DATE Section effective Oct. 1, 1977, see section 8 of Pub. L. 94-142, set out as an Effective Date of 1975 Amendment note under section 1411 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1411 of this title. § 1420. Payments (a) The Commissioner shall make payments to each State in amounts which the State educational agency of such State is eligible to receive under this subchapter. Any State educational agency receiving payments under this subsection shall distribute payments to the local educational agencies and intermediate educational units of such State in amounts which such agencies and units are eligible to receive under this subchapter after the State educational agency has approved applications of such agencies or units for payments in accordance with section 1414(b) of this title. (b) Payments under this subchapter may be made in advance or by way of reimbursement and in such installments as the Commissioner may determine necessary. (Pub. L. 91-230, title VI, § 620, as added Pub. L. 94-142, § 5(a), Nov. 29, 1975, 89 Stat. 793.) § 1421. Regional resource centers (a) Establishment; functions The Commissioner is authorized to make grants to or contracts with institutions of higher education, State educational agencies, or combinations of such agencies or institutions, which combinations may include one or more local educational agencies, within particular regions of the United States, to pay all or part of the cost of the establishment and operation of regional centers which will develop and apply the best methods of appraising the special educational needs of handicapped children referred to them and will provide other services to assist in meeting such needs. Centers established or operated under this section shall (1) provide testing and educational evaluation to determine the special educational needs of handicapped children referred to such centers, (2) develop educational programs to meet those needs, and (3) assist schools and other appropriate agencies, organizations, and institutions in providing such educational programs through services such as consultation (including, in appropriate cases, consultation with parents or teachers of handicapped children at such regional centers), periodic reexamination and reevaluation of special educational programs, and other technical services. (b) Considerations governing approval of application In determining whether to approve an application for a project under this section, the Commissioner shall consider the need for such a center in the region to be served by the applicant and the capability of the applicant to develop and apply, with the assistance of funds under this section, new methods, techniques, devices, or facilities relating to educational evaluation or education of handicapped children. (Pub. L. 91-230, title VI, § 621, Apr. 13, 1970, 84 Stat. 181.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1426 of this title. § 1422. Model centers and services for deaf-blind children (a) Congressional declaration of purpose It is the purpose of this section to provide, through a limited number of model centers for deaf-blind children, a program designed to develop and bring to bear upon such children, beginning as early as feasible in life, those specialized, intensive professional and allied services, methods, and aids that are found to be most effective to enable them to achieve their full potential for communication with, and adjustment to, the world around them, for useful and meaningful participation in society, and for self-fulfillment. (b) Authorization of Commissioner to make grants and contracts The Commissioner is authorized, upon such terms and conditions (subject to the provisions of subsection (b)(1)1 of this section) as he deems appropriate to carry out the purposes of this section, to make grants to or contracts with public or nonprofit private agencies, organizations, or institutions to pay all or part of the cost of establishment, including construction, which for the purposes of this section shall inIclude the construction of residential facilities, and operation of centers for deaf-blind children. (c) Considerations governing making of grants or contracts In determining whether to make a grant or contract under subsection (b) of this section, the Commissioner shall take into consideration the need for a center for deaf-blind children in the light of the general availability and quality of existing services for such children in the part of the country involved. (d) Necessary services to be provided by centers (1) A grant or contract pursuant to subsection (b) of this section shall be made only if the 'So in original. Probably should read "subsection (d)(1)". 71-999 78 Vol. 5 - 72 Commissioner determines that there is satisfactory assurance that the center will provide such services as he has by regulation prescribed, including at least (A) comprehensive diagnostic and evaluative services for deaf-blind children; (B) a program for the adjustment, orientation, and education of deaf-blind children which integrates all the professional and allied services necessary therefor; and (C) effective consultative services for parents, teachers, and others who play a direct role in the lives of deaf-blind children to enable them to understand the special problems of such children and to assist in the process of their adjustment, orientation, and education. (2) Any such services may be provided to deaf-blind children (and, where applicable, other persons) regardless of whether they reside in the center, may be provided at some place other than the center, and may include the provision of transportation for any such children (including an attendant) and for parents. (Pub. L. 91-230, title VI, § 622, Apr. 13, 1970, 84 Stat. 182.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1426 of this title. § 1423. Experimental preschool and early education programs for handicapped children (a) Authorization; special problems of the handicapped; National distribution; urban and rural areas; scope of activities The Commissioner is authorized to arrange by contract, grant, or otherwise with appropriate public agencies and private nonprofit organizations, for the development and carrying out by such agencies and organizations of experimental preschool and early education programs for handicapped children which the Commissioner determines show promise of promoting a comprehensive and strengthened approach to the special problems of such children. Such programs shall be distributed to the greatest extent possible throughout the Nation, and shall be carried out both in urban and in rural areas. Such programs shall include activities and services designed to (1) facilitate the intellectual, emotional, physical, mental, social, and language development of such children; (2) encourage the participation of the parents of such children in the development and operation of any such program; and (3) acquaint the community to be served by any such program with the problems and potentialities of such children. (b) Community coordination of programs Each arrangement for developing or carrying out a program authorized by this section shall provide for the effective coordination of each such program with similar programs in the schools of the community to be served by such a program. (c) Federal share; non-Federal contributions No arrangement pursuant to this section shall provide for the payment of more than 90 per centum of the cost of developing, carrying out, or evaluating such a program. Non-Federal contributions may be in cash or in kind, fairly evaluated, including, but not limited to, plant, equipment, and services. (Pub. L. 91-230, title VI, § 623, Apr. 13, 1970, 84 Stat. 183.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1426 of this title. § 1424. Research, innovation, training, and dissemination activities in connection with model centers and services for the handicapped (a) Cost payments The Commissioner is authorized, either as part of any grant or contract under this subchapter, or by separate grant to, or contract with, an agency, organization, or institution operating a center or providing a service which meets such requirements as the Commissioner determines to be appropriate, consistent with the purposes of this subchapter, to pay all or part of the cost of such activities as (1) research to identify and meet the full range of special needs of handicapped children; (2) development or demonstration of new, or improvements in existing, methods, approaches, or techniques, which would contribute to the adjustment and education of such children; (3) training (either directly or otherwise) of professional and allied personnel engaged or preparing to engage in programs specifically designed for such children, including pay. ment of stipends for trainees and allowances for travel and other expenses for them and their dependents; and (4) dissemination of materials and informa tion about practices found effective in work. ing with such children. (b) Coordination of activities with similar activities under other parts of this chapter In making grants and contracts under this section, the Commissioner shall insure that the activities funded under such grants and contracts will be coordinated with similar activities funded from grants and contracts under other subchapters of this chapter. (Pub. L. 91-230, title VI, § 624, Apr. 13, 1970, 84 Stat. 183.) § 1424a. Regional education programs (a) Grant and contract authority; development and operation of vocational, technical, postsecondary, or adult education programs The Commissioner is authorized to make grants to or contracts with institutions of higher education, including junior and community colleges, vocational and technical institutions, and other appropriate nonprofit educational agencies for the development and oper ation of specially designed or modified programs of vocational, technical, postsecondary, or adult education for deaf or other handicapped persons. |