20 U.S.C.
United States Code, 2011 Edition
Title 20 - EDUCATION
CHAPTER 33 - EDUCATION OF INDIVIDUALS WITH DISABILITIES
SUBCHAPTER I - GENERAL PROVISIONS
From the U.S. Government Printing Office, www.gpo.gov

SUBCHAPTER I—GENERAL PROVISIONS

§1400. Short title; findings; purposes

(a) Short title

This chapter may be cited as the “Individuals with Disabilities Education Act”.

(b) Omitted

(c) Findings

Congress finds the following:

(1) Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.

(2) Before the date of enactment of the Education for All Handicapped Children Act of 1975 (Public Law 94–142), the educational needs of millions of children with disabilities were not being fully met because—

(A) the children did not receive appropriate educational services;

(B) the children were excluded entirely from the public school system and from being educated with their peers;

(C) undiagnosed disabilities prevented the children from having a successful educational experience; or

(D) a lack of adequate resources within the public school system forced families to find services outside the public school system.


(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this chapter has been successful in ensuring children with disabilities and the families of such children access to a free appropriate public education and in improving educational results for children with disabilities.

(4) However, the implementation of this chapter has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.

(5) Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by—

(A) having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible, in order to—

(i) meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children; and

(ii) be prepared to lead productive and independent adult lives, to the maximum extent possible;


(B) strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home;

(C) coordinating this chapter with other local, educational service agency, State, and Federal school improvement efforts, including improvement efforts under the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6301 et seq.], in order to ensure that such children benefit from such efforts and that special education can become a service for such children rather than a place where such children are sent;

(D) providing appropriate special education and related services, and aids and supports in the regular classroom, to such children, whenever appropriate;

(E) supporting high-quality, intensive preservice preparation and professional development for all personnel who work with children with disabilities in order to ensure that such personnel have the skills and knowledge necessary to improve the academic achievement and functional performance of children with disabilities, including the use of scientifically based instructional practices, to the maximum extent possible;

(F) providing incentives for whole-school approaches, scientifically based early reading programs, positive behavioral interventions and supports, and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children;

(G) focusing resources on teaching and learning while reducing paperwork and requirements that do not assist in improving educational results; and

(H) supporting the development and use of technology, including assistive technology devices and assistive technology services, to maximize accessibility for children with disabilities.


(6) While States, local educational agencies, and educational service agencies are primarily responsible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a supporting role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law.

(7) A more equitable allocation of resources is essential for the Federal Government to meet its responsibility to provide an equal educational opportunity for all individuals.

(8) Parents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.

(9) Teachers, schools, local educational agencies, and States should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes.

(10)(A) The Federal Government must be responsive to the growing needs of an increasingly diverse society.

(B) America's ethnic profile is rapidly changing. In 2000, 1 of every 3 persons in the United States was a member of a minority group or was limited English proficient.

(C) Minority children comprise an increasing percentage of public school students.

(D) With such changing demographics, recruitment efforts for special education personnel should focus on increasing the participation of minorities in the teaching profession in order to provide appropriate role models with sufficient knowledge to address the special education needs of these students.

(11)(A) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring in many parts of our Nation.

(B) Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education.

(C) Such discrepancies pose a special challenge for special education in the referral of, assessment of, and provision of services for, our Nation's students from non-English language backgrounds.

(12)(A) Greater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities.

(B) More minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population.

(C) African-American children are identified as having intellectual disabilities and emotional disturbance at rates greater than their White counterparts.

(D) In the 1998–1999 school year, African-American children represented just 14.8 percent of the population aged 6 through 21, but comprised 20.2 percent of all children with disabilities.

(E) Studies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education.

(13)(A) As the number of minority students in special education increases, the number of minority teachers and related services personnel produced in colleges and universities continues to decrease.

(B) The opportunity for full participation by minority individuals, minority organizations, and Historically Black Colleges and Universities in awards for grants and contracts, boards of organizations receiving assistance under this chapter, peer review panels, and training of professionals in the area of special education is essential to obtain greater success in the education of minority children with disabilities.

(14) As the graduation rates for children with disabilities continue to climb, providing effective transition services to promote successful post-school employment or education is an important measure of accountability for children with disabilities.

(d) Purposes

The purposes of this chapter are—

(1)(A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;

(B) to ensure that the rights of children with disabilities and parents of such children are protected; and

(C) to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities;

(2) to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families;

(3) to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting system improvement activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services; and

(4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities.

(Pub. L. 91–230, title VI, §601, as added Pub. L. 108–446, title I, §101, Dec. 3, 2004, 118 Stat. 2647; amended Pub. L. 111–256, §2(b)(1), Oct. 5, 2010, 124 Stat. 2643.)

References in Text

The Education for All Handicapped Children Act of 1975, referred to in subsec. (c)(2), (3), is Pub. L. 94–142, Nov. 29, 1975, 89 Stat. 773. For complete classification of this Act to the Code, see Short Title of 1975 Amendment note set out below and Tables.

The Elementary and Secondary Education Act of 1965, referred to in subsec. (c)(5)(C), is Pub. L. 89–10, Apr. 11, 1965, 79 Stat. 27, which is classified generally to chapter 70 (§6301 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6301 of this title and Tables.

Codification

Section is comprised of section 601 of Pub. L. 91–230. Subsec. (b) of section 601 of Pub. L. 91–230 set out the table of contents for the Individuals with Disabilities Education Act.

Prior Provisions

A prior section 1400, Pub. L. 91–230, title VI, §601, as added Pub. L. 105–17, title I, §101, June 4, 1997, 111 Stat. 37, contained short title for this chapter and related to congressional findings and purposes, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446.

Another prior section 1400, Pub. L. 91–230, title VI, §601, Apr. 13, 1970, 84 Stat. 175; Pub. L. 94–142, §3, Nov. 29, 1975, 89 Stat. 774; Pub. L. 101–476, title IX, §901(a)(1), (b)(1)–(9), Oct. 30, 1990, 104 Stat. 1141, 1142; Pub. L. 102–119, §25(b), Oct. 7, 1991, 105 Stat. 607, contained short title for this chapter and related to congressional statements and declarations, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17. This section had been classified as a note under former section 1401 of this title prior to being amended by Pub. L. 94–142.

Amendments

2010—Subsec. (c)(12)(C). Pub. L. 111–256 substituted “having intellectual disabilities” for “having mental retardation”.

Effective Date

Pub. L. 108–446, title III, §302(a), (b), Dec. 3, 2004, 118 Stat. 2803, provided that:

“(a) Parts A, B, and C, and subpart 1 of part D.—

“(1) In general.—Except as provided in paragraph (2), parts A, B, and C, and subpart 1 of part D, of the Individuals with Disabilities Education Act [subchapters I, II, and III and part A of subchapter IV of this chapter], as amended by title I, shall take effect on July 1, 2005.

“(2) Highly qualified definition.—Subparagraph (A), and subparagraphs (C) through (F), of section 602(10) of the Individuals with Disabilities Education Act [20 U.S.C. 1401(10)], as amended by title I, shall take effect on the date of enactment of this Act [Dec. 3, 2004] for purposes of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6301 et seq.].

“(b) Subparts 2, 3, and 4 of part D.—Subparts 2, 3, and 4 of part D of the Individuals with Disabilities Education Act [parts B, C, and D of subchapter IV of this chapter], as amended by title I, shall take effect on the date of enactment of this Act [Dec. 3, 2004].”

Short Title of 2010 Amendment

Pub. L. 111–256, §1, Oct. 5, 2010, 124 Stat. 2643, provided that: “This Act [amending this section, sections 1140, 1401, and 7512 of this title, sections 705, 764, and 791 of Title 29, Labor, and sections 217a–1, 247b–4, 285g, 285g–2, 291k, 294c, and 300d–52 of Title 42, The Public Health and Welfare, enacting provisions set out as notes under this section, and amending provisions set out as notes under sections 280f, 285g, 300b–1, and 2000ff of Title 42] may be cited as ‘Rosa's Law’.”

Short Title of 2004 Amendment

Pub. L. 108–446, §1, Dec. 3, 2004, 118 Stat. 2647, provided that: “This Act [enacting subchapters I to IV of this chapter, part E of subchapter I of chapter 76 of this title, and sections 9567 to 9567b of this title, amending sections 927, 1087ee, 1087ii, 4304, 5802, 6103, 6311, 6317, 7221g, 7273b, 9511, 9515, 9516, and 9605 of this title, section 2164 of Title 10, Armed Forces, section 121 of Title 17, Copyrights, sections 721, 725, 772, and 773 of Title 29, Labor, and sections 280c–6, 290bb–25, 290ff–1, 290ff–2, 1396b, 1396n, 5011, 9835, 9836, 9837, 12511, 15025, and 15064 of Title 42, The Public Health and Welfare, repealing section 1444 of this title, redesignating former part E of subchapter I of chapter 76 of this title as part F, omitting sections 1445, 1456, and 1483 to 1487 of this title, enacting provisions set out as notes under this section and section 9567b of this title, and amending provisions set out as a note under section 285g of Title 42] may be cited as the ‘Individuals with Disabilities Education Improvement Act of 2004’.”

Short Title of 1997 Amendment

Pub. L. 105–17, §1, June 4, 1997, 111 Stat. 37, provided that: “This Act [enacting subchapters I to IV of this chapter, repealing former subchapters III and V to IX of this chapter, and enacting provisions set out as notes under this section and sections 1431 and 1451 of this title] may be cited as the ‘Individuals with Disabilities Education Act Amendments of 1997’.”

Short Title of 1991 Amendment

Pub. L. 102–119, §1, Oct. 7, 1991, 105 Stat. 587, provided that: “This Act [see Tables for classification] may be cited as the ‘Individuals with Disabilities Education Act Amendments of 1991’.”

Short Title of 1990 Amendment

Pub. L. 101–476, §1(a), Oct. 30, 1990, 104 Stat. 1103, provided that: “This Act [see Tables for classification] may be cited as the ‘Education of the Handicapped Act Amendments of 1990’.”

Short Title of 1988 Amendment

Pub. L. 100–630, §1, Nov. 7, 1988, 102 Stat. 3289, provided that: “This Act [amending sections 101, 1401, 1404, 1406, 1407, 1411 to 1419, 1421 to 1425, 1431 to 1433, 1441, 1443, 1451, 1452, 1461, 1471, 1472, and 1475 to 1482 of this title, sections 702, 705, 706, 709, 711, 713, 717, 720 to 723, 731, 732, 740, 741, 750, 752, 761 to 762, 770, 772, 774 to 776, 777 to 777b, 777d, 777f, 780, 781 to 783, 791 to 794, 794b, 794d, 795a, 795g to 795i, 795l to 795n, 795q, 796a to 796g, 796i, and 1904 of Title 29, Labor, and section 155 of Title 36, Patriotic Societies and Observances, enacting provisions set out as notes under sections 101, 1419, and 1432 of this title and sections 731 and 777c of Title 29, and repealing provisions set out as a note under section 795m of Title 29] may be cited as the ‘Handicapped Programs Technical Amendments Act of 1988’.”

Short Title of 1986 Amendments

Pub. L. 99–457, §1(a), Oct. 8, 1986, 100 Stat. 1145, provided that: “This Act [enacting sections 1408, 1461, 1462, and 1471 to 1485 of this title, amending sections 1401, 1406, 1411 to 1413, 1418, 1419, 1421 to 1424, 1424a, 1425, 1427, 1431 to 1433, 1435, 1441, 1443, 1444, 1452, and 1454 of this title, repealing sections 1403 and 1453 of this title, and enacting provisions set out as notes under sections 1419 and 1485 of this title] may be cited as the ‘Education of the Handicapped Act Amendments of 1986’.”

Pub. L. 99–372, §1, Aug. 5, 1986, 100 Stat. 796, provided that: “This Act [amending section 1415 of this title and enacting provisions set out as notes under section 1415 of this title] may be cited as the ‘Handicapped Children's Protection Act of 1986’.”

Short Title of 1983 Amendment

Pub. L. 98–199, §1, Dec. 2, 1983, 97 Stat. 1357, provided: “That this Act [enacting sections 1407 and 1427 of this title, amending sections 1401 to 1404, 1406, 1411 to 1414, 1416 to 1426, 1431 to 1435, 1441 to 1444, 1452, 1454, and 1461 of this title, repealing section 1461 of this title, omitting section 1436 of this title, enacting a provision set out as a note under section 1401 of this title, and amending provisions set out as notes under sections 101, 681, and 1411 of this title] may be cited as the ‘Education of the Handicapped Act Amendments of 1983’.”

Short Title of 1977 Amendment

Pub. L. 95–49, §1, June 17, 1977, 91 Stat. 230, provided: “That this Act [amending sections 1426, 1436, 1441, 1444, and 1454 of this title, and enacting provisions set out as a note under section 1426 of this title] may be cited as the ‘Education of the Handicapped Amendments of 1977’.”

Short Title of 1975 Amendment

Pub. L. 94–142, §1, Nov. 29, 1975, 89 Stat. 773, provided: “That this Act [enacting sections 1405, 1406, 1415, 1416, 1417, 1418, 1419, and 1420 of this title, amending this section and sections 1232, 1401, 1411, 1411 notes, 1412, 1412 note, 1413, 1413 note, 1414, and 1453 of this title, and enacting provisions set out as a note under section 1411 of this title] may be cited as the ‘Education for All Handicapped Children Act of 1975’.”

Short Title of 1974 Amendment

Pub. L. 93–380, title VI, §611, Aug. 21, 1974, 88 Stat. 579, provided that: “This title [enacting section 1424a of this title, amending sections 1402, 1403, 1411 to 1413, 1426, 1436, 1444, 1452, 1454, and 1461 of this title, and enacting provisions set out as notes under sections 1402 and 1411 to 1413 of this title] may be cited as the ‘Education of the Handicapped Amendments of 1974’.”

Regulations

Pub. L. 111–256, §3, Oct. 5, 2010, 124 Stat. 2645, provided that: “For purposes of regulations issued to carry out a provision amended by this Act [see Short Title of 2010 Amendment note above]—

“(1) before the regulations are amended to carry out this Act—

“(A) a reference in the regulations to mental retardation shall be considered to be a reference to an intellectual disability; and

“(B) a reference in the regulations to the mentally retarded, or individuals who are mentally retarded, shall be considered to be a reference to individuals with intellectual disabilities; and

“(2) in amending the regulations to carry out this Act, a Federal agency shall ensure that the regulations clearly state—

“(A) that an intellectual disability was formerly termed mental retardation; and

“(B) that individuals with intellectual disabilities were formerly termed individuals who are mentally retarded.”

Construction of 2010 Amendment

Pub. L. 111–256, §4, Oct. 5, 2010, 124 Stat. 2645, provided that: “This Act [see Short Title of 2010 Amendment note above] shall be construed to make amendments to provisions of Federal law to substitute the term ‘an intellectual disability’ for ‘mental retardation’, and ‘individuals with intellectual disabilities’ for ‘the mentally retarded’ or ‘individuals who are mentally retarded’, without any intent to—

“(1) change the coverage, eligibility, rights, responsibilities, or definitions referred to in the amended provisions; or

“(2) compel States to change terminology in State laws for individuals covered by a provision amended by this Act.”

Transition

Pub. L. 108–446, title III, §303, Dec. 3, 2004, 118 Stat. 2803, provided that:

“(a) Orderly Transition.—

“(1) In general.—The Secretary of Education (in this section referred to as ‘the Secretary’) shall take such steps as are necessary to provide for the orderly transition from the Individuals with Disabilities Education Act [this chapter], as such Act was in effect on the day preceding the date of enactment of this Act [Dec. 3, 2004], to the Individuals with Disabilities Education Act [this chapter] and part E of the Education Sciences Reform Act of 2002 [20 U.S.C. 9567 et seq.], as amended by this Act.

“(2) Limitation.—The Secretary's authority in paragraph (1) shall terminate 1 year after the date of enactment of this Act.

“(b) Multi-year Awards.—Notwithstanding any other provision of law, the Secretary may use funds appropriated under part D of the Individuals with Disabilities Education Act [subchapter IV of this chapter] to make continuation awards for projects that were funded under section 618 [20 U.S.C. 1418], and part D, of the Individuals with Disabilities Education Act (as such section and part were in effect on September 30, 2004), in accordance with the terms of the original awards.

“(c) Research.—Notwithstanding section 302(b) [set out as a note above] or any other provision of law, the Secretary may award funds that are appropriated under the Department of Education Appropriations Act, 2005 [Pub. L. 108–447, div. F, title III, 118 Stat. 3142, see Tables for classification] for special education research under either of the headings ‘Special Education’ or ‘Institute of Education Sciences’ in accordance with sections 672 and 674 of the Individuals with Disabilities Education Act [20 U.S.C. 1472, 1474], as such sections were in effect on October 1, 2004.”

References to Education of the Handicapped Act

Pub. L. 101–476, title IX, §901(a)(3), Oct. 30, 1990, 104 Stat. 1142, provided that: “Any other Act and any regulation which refers to the Education of the Handicapped Act shall be considered to refer to the Individuals with Disabilities Education Act.”

Definitions

Pub. L. 111–256, §2(k), Oct. 5, 2010, 124 Stat. 2644, provided that: “For purposes of each provision amended by this section [amending this section, sections 1140, 1401, and 7512 of this title, sections 705, 764, and 791 of Title 29, Labor, and sections 217a–1, 247b–4, 285g, 285g–2, 291k, 294c, and 300d–52 of Title 42, The Public Health and Welfare, and amending provisions set out as notes under sections 280f, 285g, 300b–1, and 2000ff of Title 42]—

“(1) a reference to ‘an intellectual disability’ shall mean a condition previously referred to as ‘mental retardation’, or a variation of this term, and shall have the same meaning with respect to programs, or qualifications for programs, for individuals with such a condition; and

“(2) a reference to individuals with intellectual disabilities shall mean individuals who were previously referred to as individuals who are ‘individuals with mental retardation’ or ‘the mentally retarded’, or variations of those terms.”

§1401. Definitions

Except as otherwise provided, in this chapter:

(1) Assistive technology device

(A) In general

The term “assistive technology device” means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability.

(B) Exception

The term does not include a medical device that is surgically implanted, or the replacement of such device.

(2) Assistive technology service

The term “assistive technology service” means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Such term includes—

(A) the evaluation of the needs of such child, including a functional evaluation of the child in the child's customary environment;

(B) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by such child;

(C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

(D) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(E) training or technical assistance for such child, or, where appropriate, the family of such child; and

(F) training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of such child.

(3) Child with a disability

(A) In general

The term “child with a disability” means a child—

(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and related services.

(B) Child aged 3 through 9

The term “child with a disability” for a child aged 3 through 9 (or any subset of that age range, including ages 3 through 5), may, at the discretion of the State and the local educational agency, include a child—

(i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in 1 or more of the following areas: physical development; cognitive development; communication development; social or emotional development; or adaptive development; and

(ii) who, by reason thereof, needs special education and related services.

(4) Core academic subjects

The term “core academic subjects” has the meaning given the term in section 9101 of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 7801].

(5) Educational service agency

The term “educational service agency”—

(A) means a regional public multiservice agency—

(i) authorized by State law to develop, manage, and provide services or programs to local educational agencies; and

(ii) recognized as an administrative agency for purposes of the provision of special education and related services provided within public elementary schools and secondary schools of the State; and


(B) includes any other public institution or agency having administrative control and direction over a public elementary school or secondary school.

(6) Elementary school

The term “elementary school” means a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law.

(7) Equipment

The term “equipment” includes—

(A) machinery, utilities, and built-in equipment, and any necessary enclosures or structures to house such machinery, utilities, or equipment; and

(B) all other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published, and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials.

(8) Excess costs

The term “excess costs” means those costs that are in excess of the average annual per-student expenditure in a local educational agency during the preceding school year for an elementary school or secondary school student, as may be appropriate, and which shall be computed after deducting—

(A) amounts received—

(i) under subchapter II;

(ii) under part A of title I of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6311 et seq.]; and

(iii) under parts A and B of title III of that Act [20 U.S.C. 6811 et seq., 6891 et seq.]; and


(B) any State or local funds expended for programs that would qualify for assistance under any of those parts.

(9) Free appropriate public education

The term “free appropriate public education” means special education and related services that—

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

(10) Highly qualified

(A) In general

For any special education teacher, the term “highly qualified” has the meaning given the term in section 9101 of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 7801], except that such term also—

(i) includes the requirements described in subparagraph (B); and

(ii) includes the option for teachers to meet the requirements of section 9101 of such Act by meeting the requirements of subparagraph (C) or (D).

(B) Requirements for special education teachers

When used with respect to any public elementary school or secondary school special education teacher teaching in a State, such term means that—

(i) the teacher has obtained full State certification as a special education teacher (including certification obtained through alternative routes to certification), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except that when used with respect to any teacher teaching in a public charter school, the term means that the teacher meets the requirements set forth in the State's public charter school law;

(ii) the teacher has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(iii) the teacher holds at least a bachelor's degree.

(C) Special education teachers teaching to alternate achievement standards

When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against alternate achievement standards established under the regulations promulgated under section 1111(b)(1) of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6311(b)(1)], such term means the teacher, whether new or not new to the profession, may either—

(i) meet the applicable requirements of section 9101 of such Act [20 U.S.C. 7801] for any elementary, middle, or secondary school teacher who is new or not new to the profession; or

(ii) meet the requirements of subparagraph (B) or (C) of section 9101(23) of such Act as applied to an elementary school teacher, or, in the case of instruction above the elementary level, has subject matter knowledge appropriate to the level of instruction being provided, as determined by the State, needed to effectively teach to those standards.

(D) Special education teachers teaching multiple subjects

When used with respect to a special education teacher who teaches 2 or more core academic subjects exclusively to children with disabilities, such term means that the teacher may either—

(i) meet the applicable requirements of section 9101 of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 7801] for any elementary, middle, or secondary school teacher who is new or not new to the profession;

(ii) in the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher who is not new to the profession under section 9101(23)(C)(ii) of such Act, which may include a single, high objective uniform State standard of evaluation covering multiple subjects; or

(iii) in the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate competence in the other core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher under section 9101(23)(C)(ii) of such Act, which may include a single, high objective uniform State standard of evaluation covering multiple subjects, not later than 2 years after the date of employment.

(E) Rule of construction

Notwithstanding any other individual right of action that a parent or student may maintain under this subchapter, nothing in this section or subchapter shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular State educational agency or local educational agency employee to be highly qualified.

(F) Definition for purposes of the ESEA

A teacher who is highly qualified under this paragraph shall be considered highly qualified for purposes of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6301 et seq.].

(11) Homeless children

The term “homeless children” has the meaning given the term “homeless children and youths” in section 11434a of title 42.

(12) Indian

The term “Indian” means an individual who is a member of an Indian tribe.

(13) Indian tribe

The term “Indian tribe” means any Federal or State Indian tribe, band, rancheria, pueblo, colony, or community, including any Alaska Native village or regional village corporation (as defined in or established under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)).

(14) Individualized education program; IEP

The term “individualized education program” or “IEP” means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 1414(d) of this title.

(15) Individualized family service plan

The term “individualized family service plan” has the meaning given the term in section 1436 of this title.

(16) Infant or toddler with a disability

The term “infant or toddler with a disability” has the meaning given the term in section 1432 of this title.

(17) Institution of higher education

The term “institution of higher education”—

(A) has the meaning given the term in section 1001 of this title; and

(B) also includes any college or university receiving funding from the Secretary of the Interior under the Tribally Controlled Colleges and Universities Assistance Act of 1978 [25 U.S.C. 1801 et seq.].

(18) Limited English proficient

The term “limited English proficient” has the meaning given the term in section 9101 of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 7801].

(19) Local educational agency

(A) In general

The term “local educational agency” means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary schools or secondary schools.

(B) Educational service agencies and other public institutions or agencies

The term includes—

(i) an educational service agency; and

(ii) any other public institution or agency having administrative control and direction of a public elementary school or secondary school.

(C) BIA funded schools

The term includes an elementary school or secondary school funded by the Bureau of Indian Affairs, but only to the extent that such inclusion makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this chapter with the smallest student population, except that the school shall not be subject to the jurisdiction of any State educational agency other than the Bureau of Indian Affairs.

(20) Native language

The term “native language”, when used with respect to an individual who is limited English proficient, means the language normally used by the individual or, in the case of a child, the language normally used by the parents of the child.

(21) Nonprofit

The term “nonprofit”, as applied to a school, agency, organization, or institution, means a school, agency, organization, or institution owned and operated by 1 or more nonprofit corporations or associations no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual.

(22) Outlying area

The term “outlying area” means the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

(23) Parent

The term “parent” means—

(A) a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law from serving as a parent);

(B) a guardian (but not the State if the child is a ward of the State);

(C) an individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or

(D) except as used in sections 1415(b)(2) and 1439(a)(5) of this title, an individual assigned under either of those sections to be a surrogate parent.

(24) Parent organization

The term “parent organization” has the meaning given the term in section 1471(g) of this title.

(25) Parent training and information center

The term “parent training and information center” means a center assisted under section 1471 or 1472 of this title.

(26) Related services

(A) In general

The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

(B) Exception

The term does not include a medical device that is surgically implanted, or the replacement of such device.

(27) Secondary school

The term “secondary school” means a nonprofit institutional day or residential school, including a public secondary charter school, that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12.

(28) Secretary

The term “Secretary” means the Secretary of Education.

(29) Special education

The term “special education” means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including—

(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and

(B) instruction in physical education.

(30) Specific learning disability

(A) In general

The term “specific learning disability” means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.

(B) Disorders included

Such term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

(C) Disorders not included

Such term does not include a learning problem that is primarily the result of visual, hearing, or motor disabilities, of intellectual disabilities, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

(31) State

The term “State” means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and each of the outlying areas.

(32) State educational agency

The term “State educational agency” means the State board of education or other agency or officer primarily responsible for the State supervision of public elementary schools and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law.

(33) Supplementary aids and services

The term “supplementary aids and services” means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with section 1412(a)(5) of this title.

(34) Transition services

The term “transition services” means a coordinated set of activities for a child with a disability that—

(A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(B) is based on the individual child's needs, taking into account the child's strengths, preferences, and interests; and

(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

(35) Universal design

The term “universal design” has the meaning given the term in section 3002 of title 29.

(36) Ward of the State

(A) In general

The term “ward of the State” means a child who, as determined by the State where the child resides, is a foster child, is a ward of the State, or is in the custody of a public child welfare agency.

(B) Exception

The term does not include a foster child who has a foster parent who meets the definition of a parent in paragraph (23).

(Pub. L. 91–230, title VI, §602, as added Pub. L. 108–446, title I, §101, Dec. 3, 2004, 118 Stat. 2652; amended Pub. L. 110–315, title IX, §941(k)(2)(C), Aug. 14, 2008, 122 Stat. 3466; Pub. L. 111–256, §2(b)(2), Oct. 5, 2010, 124 Stat. 2643.)

References in Text

The Elementary and Secondary Education Act of 1965, referred to in pars. (8)(A)(ii), (iii) and (10)(F), is Pub. L. 89–10, Apr. 11, 1965, 79 Stat. 27, which is classified generally to chapter 70 (§6301 et seq.) of this title. Part A of title I of the Act is classified generally to part A (§6311 et seq.) of subchapter I of chapter 70 of this title. Parts A and B of title III of the Act are classified generally to parts A (§6811 et seq.) and B (§6891 et seq.), respectively, of subchapter III of chapter 70 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6301 of this title and Tables.

The Alaska Native Claims Settlement Act, referred to in par. (13), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat. 688, which is classified generally to chapter 33 (§1601 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 43 and Tables.

The Tribally Controlled Colleges and Universities Assistance Act of 1978, referred to in par. (17)(B), is Pub. L. 95–471, Oct. 17, 1978, 92 Stat. 1325, which is classified principally to chapter 20 (§1801 et seq.) of Title 25, Indians. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of Title 25 and Tables.

Prior Provisions

A prior section 1401, Pub. L. 91–230, title VI, §602, as added Pub. L. 105–17, title I, §101, June 4, 1997, 111 Stat. 42; amended Pub. L. 105–244, title IX, §901(d), Oct. 7, 1998, 112 Stat. 1828, related to definitions of terms used in this chapter, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446.

Another prior section 1401, Pub. L. 91–230, title VI, §602, Apr. 13, 1970, 84 Stat. 175; Pub. L. 94–142, §4(a), Nov. 29, 1975, 89 Stat. 775; Pub. L. 98–199, §§2, 3(b), Dec. 2, 1983, 97 Stat. 1357, 1358; Pub. L. 99–457, title IV, §402, Oct. 8, 1986, 100 Stat. 1172; Pub. L. 100–630, title I, §101(a), Nov. 7, 1988, 102 Stat. 3289; Pub. L. 101–476, title I, §101, title IX, §901(b)(10)–(20), Oct. 30, 1990, 104 Stat. 1103, 1142, 1143; Pub. L. 102–73, title VIII, §802(d)(1), July 25, 1991, 105 Stat. 361; Pub. L. 102–119, §§3, 25(a)(1), (b), Oct. 7, 1991, 105 Stat. 587, 605, 607; Pub. L. 103–382, title III, §391(f)(1), Oct. 20, 1994, 108 Stat. 4023, related to definitions of terms used in this chapter, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.

Amendments

2010—Par. (3)(A)(i). Pub. L. 111–256, §2(b)(2)(A), substituted “with intellectual disabilities” for “with mental retardation”.

Par. (30)(C). Pub. L. 111–256, §2(b)(2)(B), substituted “of intellectual disabilities” for “of mental retardation”.

2008—Par. (17)(B). Pub. L. 110–315 substituted “college or university” for “community college” and “the Tribally Controlled Colleges and Universities Assistance Act of 1978” for “the Tribally Controlled College or University Assistance Act of 1978”.

Effective Date

Section effective July 1, 2005, except that subparagraphs (C) through (F) of par. (10) of this section are effective Dec. 3, 2004, for purposes of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.), see section 302(a) of Pub. L. 108–446, set out as a note under section 1400 of this title.

Definitions

For meaning of references to an intellectual disability and to individuals with intellectual disabilities in provisions amended by section 2 of Pub. L. 111–256, see section 2(k) of Pub. L. 111–256, set out as a note under section 1400 of this title.

§1402. Office of Special Education Programs

(a) Establishment

There shall be, within the Office of Special Education and Rehabilitative Services in the Department of Education, an Office of Special Education Programs, which shall be the principal agency in the Department for administering and carrying out this chapter and other programs and activities concerning the education of children with disabilities.

(b) Director

The Office established under subsection (a) shall be headed by a Director who shall be selected by the Secretary and shall report directly to the Assistant Secretary for Special Education and Rehabilitative Services.

(c) Voluntary and uncompensated services

Notwithstanding section 1342 of title 31, the Secretary is authorized to accept voluntary and uncompensated services in furtherance of the purposes of this chapter.

(Pub. L. 91–230, title VI, §603, as added Pub. L. 108–446, title I, §101, Dec. 3, 2004, 118 Stat. 2659.)

Prior Provisions

A prior section 1402, Pub. L. 91–230, title VI, §603, as added Pub. L. 105–17, title I, §101, June 4, 1997, 111 Stat. 46, related to the Office of Special Education Programs, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446.

Another prior section 1402, Pub. L. 91–230, title VI, §603, Apr. 13, 1970, 84 Stat. 177; Pub. L. 93–380, title VI, §612(a), Aug. 21, 1974, 88 Stat. 579; Pub. L. 98–199, §3(a), Dec. 2, 1983, 97 Stat. 1357; Pub. L. 101–476, title IX, §901(b)(21), Oct. 30, 1990, 104 Stat. 1143; Pub. L. 102–119, §25(b), Oct. 7, 1991, 105 Stat. 607, related to the Office of Special Education Programs, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.

§1403. Abrogation of State sovereign immunity

(a) In general

A State shall not be immune under the 11th amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter.

(b) Remedies

In a suit against a State for a violation of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as those remedies are available for such a violation in the suit against any public entity other than a State.

(c) Effective date

Subsections (a) and (b) apply with respect to violations that occur in whole or part after October 30, 1990.

(Pub. L. 91–230, title VI, §604, as added Pub. L. 108–446, title I, §101, Dec. 3, 2004, 118 Stat. 2659.)

Prior Provisions

A prior section 1403, Pub. L. 91–230, title VI, §604, as added Pub. L. 105–17, title I, §101, June 4, 1997, 111 Stat. 47, related to abrogation of State sovereign immunity, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446.

Another prior section 1403, Pub. L. 91–230, title VI, §604, as added Pub. L. 101–476, title I, §103, Oct. 30, 1990, 104 Stat. 1106, related to abrogation of State sovereign immunity, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.

Another prior section 1403, Pub. L. 91–230, title VI, §604, Apr. 13, 1970, 84 Stat. 177; Pub. L. 93–380, title VI, §613, Aug. 21, 1974, 88 Stat. 580; Pub. L. 94–273, §§3(14), 13(2), Apr. 21, 1976, 90 Stat. 376, 378; Pub. L. 98–199, §4, Dec. 2, 1983, 97 Stat. 1358, established the National Advisory Committee on the Education of Handicapped Children and Youth, prior to repeal by Pub. L. 99–457, title IV, §407, Oct. 8, 1986, 100 Stat. 1177.

§1404. Acquisition of equipment; construction or alteration of facilities

(a) In general

If the Secretary determines that a program authorized under this chapter will be improved by permitting program funds to be used to acquire appropriate equipment, or to construct new facilities or alter existing facilities, the Secretary is authorized to allow the use of those funds for those purposes.

(b) Compliance with certain regulations

Any construction of new facilities or alteration of existing facilities under subsection (a) shall comply with the requirements of—

(1) appendix A of part 36 of title 28, Code of Federal Regulations (commonly known as the “Americans with Disabilities Accessibility Guidelines for Buildings and Facilities”); or

(2) appendix A of subpart 101–19.6 of title 41, Code of Federal Regulations (commonly known as the “Uniform Federal Accessibility Standards”).

(Pub. L. 91–230, title VI, §605, as added Pub. L. 108–446, title I, §101, Dec. 3, 2004, 118 Stat. 2659.)

Prior Provisions

A prior section 1404, Pub. L. 91–230, title VI, §605, as added Pub. L. 105–17, title I, §101, June 4, 1997, 111 Stat. 47, related to the acquisition of equipment and construction or alteration of facilities, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446.

Another prior section 1404, Pub. L. 91–230, title VI, §605, Apr. 13, 1970, 84 Stat. 177; Pub. L. 98–199, §3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 100–630, title I, §101(b), Nov. 7, 1988, 102 Stat. 3290; Pub. L. 102–119, §25(a)(2), Oct. 7, 1991, 105 Stat. 605, related to acquisition of equipment and construction of necessary facilities, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.

§1405. Employment of individuals with disabilities

The Secretary shall ensure that each recipient of assistance under this chapter makes positive efforts to employ and advance in employment qualified individuals with disabilities in programs assisted under this chapter.

(Pub. L. 91–230, title VI, §606, as added Pub. L. 108–446, title I, §101, Dec. 3, 2004, 118 Stat. 2659.)

Prior Provisions

A prior section 1405, Pub. L. 91–230, title VI, §606, as added Pub. L. 105–17, title I, §101, June 4, 1997, 111 Stat. 47, related to employment of individuals with disabilities by recipients of assistance under this chapter, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446.

Another prior section 1405, Pub. L. 91–230, title VI, §606, as added Pub. L. 94–142, §6(a), Nov. 29, 1975, 89 Stat. 795; amended Pub. L. 101–476, title IX, §901(b)(22), (23), Oct. 30, 1990, 104 Stat. 1143; Pub. L. 102–119, §25(b), Oct. 7, 1991, 105 Stat. 607, related to employment of individuals with disabilities by recipients of assistance under this chapter, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.

§1406. Requirements for prescribing regulations

(a) In general

In carrying out the provisions of this chapter, the Secretary shall issue regulations under this chapter only to the extent that such regulations are necessary to ensure that there is compliance with the specific requirements of this chapter.

(b) Protections provided to children

The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that—

(1) violates or contradicts any provision of this chapter; or

(2) procedurally or substantively lessens the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20, 1983 (particularly as such protections related to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines, attendance of evaluation personnel at individualized education program meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation.

(c) Public comment period

The Secretary shall provide a public comment period of not less than 75 days on any regulation proposed under subchapter II or subchapter III on which an opportunity for public comment is otherwise required by law.

(d) Policy letters and statements

The Secretary may not issue policy letters or other statements (including letters or statements regarding issues of national significance) that—

(1) violate or contradict any provision of this chapter; or

(2) establish a rule that is required for compliance with, and eligibility under, this chapter without following the requirements of section 553 of title 5.

(e) Explanation and assurances

Any written response by the Secretary under subsection (d) regarding a policy, question, or interpretation under subchapter II shall include an explanation in the written response that—

(1) such response is provided as informal guidance and is not legally binding;

(2) when required, such response is issued in compliance with the requirements of section 553 of title 5; and

(3) such response represents the interpretation by the Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented.

(f) Correspondence from Department of Education describing interpretations of this chapter

(1) In general

The Secretary shall, on a quarterly basis, publish in the Federal Register, and widely disseminate to interested entities through various additional forms of communication, a list of correspondence from the Department of Education received by individuals during the previous quarter that describes the interpretations of the Department of Education of this chapter or the regulations implemented pursuant to this chapter.

(2) Additional information

For each item of correspondence published in a list under paragraph (1), the Secretary shall—

(A) identify the topic addressed by the correspondence and shall include such other summary information as the Secretary determines to be appropriate; and

(B) ensure that all such correspondence is issued, where applicable, in compliance with the requirements of section 553 of title 5.

(Pub. L. 91–230, title VI, §607, as added Pub. L. 108–446, title I, §101, Dec. 3, 2004, 118 Stat. 2659.)

Prior Provisions

A prior section 1406, Pub. L. 91–230, title VI, §607, as added Pub. L. 105–17, title I, §101, June 4, 1997, 111 Stat. 47, related to requirements for prescribing regulations, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446.

Another section 1406, Pub. L. 91–230, title VI, §607, as added Pub. L. 94–142, §6(a), Nov. 29, 1975, 89 Stat. 795; amended Pub. L. 98–199, §§3(b), 5, Dec. 2, 1983, 97 Stat. 1358; Pub. L. 99–457, title IV, §401, Oct. 8, 1986, 100 Stat. 1172; Pub. L. 100–630, title I, §101(c), Nov. 7, 1988, 102 Stat. 3290, related to grants for removal of architectural barriers, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.

§1407. State administration

(a) Rulemaking

Each State that receives funds under this chapter shall—

(1) ensure that any State rules, regulations, and policies relating to this chapter conform to the purposes of this chapter;

(2) identify in writing to local educational agencies located in the State and the Secretary any such rule, regulation, or policy as a State-imposed requirement that is not required by this chapter and Federal regulations; and

(3) minimize the number of rules, regulations, and policies to which the local educational agencies and schools located in the State are subject under this chapter.

(b) Support and facilitation

State rules, regulations, and policies under this chapter shall support and facilitate local educational agency and school-level system improvement designed to enable children with disabilities to meet the challenging State student academic achievement standards.

(Pub. L. 91–230, title VI, §608, as added Pub. L. 108–446, title I, §101, Dec. 3, 2004, 118 Stat. 2661.)

Prior Provisions

A prior section 1407, Pub. L. 91–230, title VI, §608, as added Pub. L. 98–199, §6, Dec. 2, 1983, 97 Stat. 1359; amended Pub. L. 100–630, title I, §101(d), Nov. 7, 1988, 102 Stat. 3290; Pub. L. 101–476, title IX, §901(b)(24), Oct. 30, 1990, 104 Stat. 1143; Pub. L. 102–119, §25(b), Oct. 7, 1991, 105 Stat. 607, related to regulation requirements, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.

§1408. Paperwork reduction

(a) Pilot program

(1) Purpose

The purpose of this section is to provide an opportunity for States to identify ways to reduce paperwork burdens and other administrative duties that are directly associated with the requirements of this chapter, in order to increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities.

(2) Authorization

(A) In general

In order to carry out the purpose of this section, the Secretary is authorized to grant 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

(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.