1995 US Code
Title 20 - EDUCATION
CHAPTER 33 - EDUCATION OF INDIVIDUALS WITH DISABILITIES
SUBCHAPTER II - ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES
Sec. 1413 - State plans

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§1413. State plans (a) Requisite features

Any State meeting the eligibility requirements set forth in section 1412 of this title and desiring to participate in the program under this subchapter shall submit to the Secretary, through its State educational agency, a State plan at such time, in such manner, and containing or accompanied by such information, as the Secretary deems necessary. Each such plan shall—

(1) set forth policies and procedures designed to assure that funds paid to the State under this subchapter will be expended in accordance with the provisions of this subchapter, with particular attention given to the provisions of sections 1411(b), 1411(c), 1411(d), 1412(2), and 1412(3) of this title;

(2) provide that programs and procedures will be established to assure that funds received by the State or any of its political subdivisions under any other Federal program under which there is specific authority for the provision of assistance for the education of children with disabilities, will be utilized by the State, or any of its political subdivisions, only in a manner consistent with the goal of providing a free appropriate public education for all children with disabilities, except that nothing in this clause shall be construed to limit the specific requirements of the laws governing such Federal programs;

(3) describe, consistent with the purposes of this chapter and with the comprehensive system of personnel development described in section 1476(b)(8) of this title, a comprehensive system of personnel development that shall include—

(A) a description of the procedures and activities the State will undertake to ensure an adequate supply of qualified special education and related services personnel, including—

(i) the development and maintenance of a system for determining, on an annual basis—

(I) the number and type of personnel, including leadership personnel, that are employed in the provision of special education and related services, by area of specialization, including the number of such personnel who are employed on an emergency, provisional, or other basis, who do not hold appropriate State certification or licensure; and

(II) the number and type of personnel, including leadership personnel, needed, and a projection of the numbers of such personnel that will be needed in five years, based on projections of individuals to be served, retirement and other leaving of personnel from the field, and other relevant factors;

(ii) the development and maintenance of a system for determining, on an annual basis, the institutions of higher education within the State that are preparing special education and related services personnel, including leadership personnel, by area of specialization, including—

(I) the numbers of students enrolled in such programs, and

(II) the number who graduated with certification or licensure, or with credentials to qualify for certification or licensure, during the past year; and

(iii) the development, updating, and implementation of a plan that—

(I) will address current and projected special education and related services personnel needs, including the need for leadership personnel; and

(II) coordinates and facilitates efforts among State and local educational agencies, institutions of higher education, and professional associations to recruit, prepare, and retain qualified personnel, including personnel from minority backgrounds, and personnel with disabilities; and

(B) a description of the procedures and activities the State will undertake to ensure that all personnel necessary to carry out this subchapter are appropriately and adequately prepared, including—

(i) a system for the continuing education of regular and special education and related services personnel;

(ii) procedures for acquiring and disseminating to teachers, administrators, and related services personnel significant knowledge derived from education research and other sources; and

(iii) procedures for adopting, where appropriate, promising practices, materials, and technology.1

(4) set forth policies and procedures to assure—

(A) that, to the extent consistent with the number and location of children with disabilities in the State who are enrolled in private elementary and secondary schools, provision is made for the participation of such children in the program assisted or carried out under this subchapter by providing for such children special education and related services; and

(B) that—

(i) children with disabilities in private schools and facilities will be provided special education and related services (in conformance with an individualized education program as required by this subchapter) at no cost to their parents or guardian, if such children are placed in or referred to such schools or facilities by the State or appropriate local educational agency as the means of carrying out the requirements of this subchapter or any other applicable law requiring the provision of special education and related services to all children with disabilities within such State; and

(ii) in all such instances, the State educational agency shall determine whether such schools and facilities meet standards that apply to State and local educational agencies and that children so served have all the rights they would have if served by such agencies;

(5) set forth policies and procedures which assure that the State shall seek to recover any funds made available under this subchapter for services to any child who is determined to be erroneously classified as eligible to be counted under section 1411(a) or 1411(d) of this title;

(6) provide satisfactory assurance that the control of funds provided under this subchapter, and title to property derived therefrom, 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;

(7) provide for—

(A) making such reports in such form and containing such information as the Secretary may require to carry out the Secretary's functions under this subchapter, and

(B) keeping such records and affording such access thereto as the Secretary may find necessary to assure the correctness and verification of such reports and proper disbursement of Federal funds under this subchapter;

(8) provide procedures to assure that final action with respect to any application submitted by a local educational agency or an intermediate educational unit shall not be taken without first affording the local educational agency or intermediate educational unit involved reasonable notice and opportunity for a hearing;

(9) provide satisfactory assurance that Federal funds made available under 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 Federal, State, and local funds (including funds that are not under the direct control of State or local educational agencies) expended for special education and related services provided to children with disabilities under this subchapter and in no case to supplant such Federal, State, and local funds, except that, where the State provides clear and convincing evidence that all children with disabilities have available to them a free appropriate public education, the Secretary may waive in part the requirement of this subparagraph if the Secretary concurs with the evidence provided by the State;

(10) provide, consistent with procedures prescribed pursuant to section 1417(a)(2) of this title, satisfactory assurance that such fiscal control and fund accounting procedures will be adopted as may be necessary to assure proper disbursement of, and accounting for, Federal funds paid under this subchapter to the State, including any such funds paid by the State to local educational agencies and intermediate educational units;

(11) provide for procedures for evaluation at least annually of the effectiveness of programs in meeting the educational needs of children with disabilities (including evaluation of individualized education programs), in accordance with such criteria that the Secretary shall prescribe pursuant to section 1417 of this title;

(12) provide that the State has an advisory panel, appointed by the Governor or any other official authorized under State law to make such appointments, composed of individuals involved in or concerned with the education of children with disabilities, including individuals with disabilities, teachers, parents or guardians of children with disabilities, State and local education officials, and administrators of programs for children with disabilities, which—

(A) advises the State educational agency of unmet needs within the State in the education of children with disabilities,

(B) comments publicly on any rules or regulations proposed for issuance by the State regarding the education of children with disabilities and the procedures for distribution of funds under this subchapter, and

(C) assists the State in developing and reporting such data and evaluations as may assist the Secretary in the performance of the responsibilities of the Secretary under section 1418 of this title;

(13) set forth policies and procedures for developing and implementing interagency agreements between the State educational agency and other appropriate State and local agencies to—

(A) define the financial responsibility of each agency for providing children and youth with disabilities 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;

(14) set forth policies and procedures relating to the establishment and maintenance of standards to ensure that personnel necessary to carry out the purposes of this subchapter are appropriately and adequately prepared and trained, including—

(A) the establishment and maintenance of standards which are consistent with any State approved or recognized certification, licensing, registration, or other comparable requirements which apply to the area in which such personnel are providing special education or related services, and

(B) to the extent such standards are not based on the highest requirements in the State applicable to a specific profession or discipline, the steps the State is taking to require the retraining or hiring of personnel that meet appropriate professional requirements in the State; and

(15) set forth policies and procedures relating to the smooth transition for those individuals participating in the early intervention program assisted under subchapter VIII of this chapter who will participate in preschool programs assisted under this subchapter, including a method of ensuring that when a child turns age three an individualized education program, or, if consistent with sections 1414(a)(5) and 1477(d) of this title, an individualized family service plan, has been developed and is being implemented by such child's third birthday.

(b) Additional assurances

Whenever a State educational agency provides free appropriate public education for children with disabilities, or provides direct services to such children, such State educational agency shall include, as part of the State plan required by subsection (a) of this section, such additional assurances not specified in such subsection (a) of this section as are contained in section 1414(a) of this title, except that funds available for the provision of such education or services may be expended without regard to the provisions relating to excess costs in section 1414(a) of this title.

(c) Notice and hearing prior to disapproval of plan

(1) The Secretary shall approve any State plan and any modification thereof which—

(A) is submitted by a State eligible in accordance with section 1412 of this title; and

(B) meets the requirements of subsection (a) and subsection (b) of this section.

(2) The Secretary shall disapprove any State plan which does not meet the requirements of paragraph (1), but shall not finally disapprove a State plan except after reasonable notice and opportunity for a hearing to the State.

(d) Participation of children with disabilities in private schools; payment of Federal amount; determinations of Secretary: notice and hearing; judicial review: jurisdiction of court of appeals, petition, record, conclusiveness of findings, remand, review by Supreme Court

(1) If, on December 2, 1983, a State educational agency is prohibited by law from providing for the participation in special programs of children with disabilities enrolled in private elementary and secondary schools as required by subsection (a)(4) of this section, the Secretary shall waive such requirement, and shall arrange for the provision of services to such children through arrangements which shall be subject to the requirements of subsection (a)(4) of this section.

(2)(A) When the Secretary arranges for services pursuant to this subsection, the Secretary, after consultation with the appropriate public and private school officials, shall pay to the provider of such services an amount per child which may not exceed the Federal amount provided per child under this subchapter to all children with disabilities enrolled in the State for services for the fiscal year preceding the fiscal year for which the determination is made.

(B) Pending final resolution of any investigation or complaint that could result in a determination under this subsection, the Secretary may withhold from the allocation of the affected State educational agency the amount the Secretary estimates would be necessary to pay the cost of such services.

(C) Any determination by the Secretary under this section shall continue in effect until the Secretary determines that there will no longer be any failure or inability on the part of the State educational agency to meet the requirements of subsection (a)(4) of this section.

(3)(A) The Secretary shall not take any final action under this subsection until the State educational agency affected by such action has had an opportunity, for at least 45 days after receiving written notice thereof, to submit written objections and to appear before the Secretary or the Secretary's designee to show cause why such action should not be taken.

(B) If a State educational agency is dissatisfied with the Secretary's final action after a proceeding under subparagraph (A) of this paragraph, it may, within 60 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 Secretary. The Secretary thereupon shall file in the court the record of the proceedings on which the Secretary based the Secretary's action, as provided in section 2112 of title 28.

(C) The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's 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.

(D) Upon the filing of a petition under subparagraph (B), the court shall have jurisdiction to affirm the action of the Secretary 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.

(e) Prohibition on reduction of assistance

This chapter shall not be construed to permit a State to reduce medical and other assistance available or to alter eligibility under titles V and XIX of the Social Security Act [42 U.S.C. 701 et seq., 1396 et seq.] with respect to the provision of a free appropriate public education for children with disabilities within the State.

(Pub. L. 91–230, title VI, §613, Apr. 13, 1970, 84 Stat. 179; Pub. L. 93–380, title VI, §§614(c), (d), 615(b), (c), title VIII, §843(b)(2), Aug. 21, 1974, 88 Stat. 581, 583, 611; Pub. L. 94–142, §5(a), Nov. 29, 1975, 89 Stat. 782; Pub. L. 98–199, §§3(b), 7, Dec. 2, 1983, 97 Stat. 1358, 1359; Pub. L. 99–457, title II, §203(b), title IV, §405, Oct. 8, 1986, 100 Stat. 1159, 1174; Pub. L. 100–630, title I, §102(c), Nov. 7, 1988, 102 Stat. 3291; Pub. L. 101–476, title II, §202, title IX, §901(b)(47)–(58), Oct. 30, 1990, 104 Stat. 1111, 1144; Pub. L. 102–119, §§5, 25(a)(6), (b), Oct. 7, 1991, 105 Stat. 591, 606, 607; Pub. L. 103–382, title III, §391(f)(2), Oct. 20, 1994, 108 Stat. 4023.)

References in Text

The Social Security Act, referred to in subsec. (e), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles V and XIX of the Social Security Act are classified generally to subchapters V (§701 et seq.) and XIX (§1396 et seq.), respectively, of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

Amendments

1994—Subsec. (a)(2). Pub. L. 103–382 struck out “, including subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965,” after “other Federal program”.

1991—Pub. L. 102–119, §25(b), amended directory language of Pub. L. 101–476, §901(b). See 1990 Amendment note below.

Subsec. (a)(2). Pub. L. 102–119, §25(a)(6)(A), struck out “and section 2332(1) of this title” before “, under which”.

Subsec. (a)(3). Pub. L. 102–119, §5(1), substituted “this chapter and with the comprehensive system of personnel development described in section 1476(b)(8) of this title,” for “this chapter,”.

Subsec. (a)(9)(B). Pub. L. 102–119, §25(a)(6)(B), made amendment similar to amendment by Pub. L. 101–476, §901(b)(50), requiring no change in text. See 1990 Amendment note below.

Subsec. (a)(15). Pub. L. 102–119, §5(2), added par. (15).

1990—Pub. L. 101–476, §901(b), was amended in its directory language by Pub. L. 102–119, §25(b), requiring no change in text.

Subsec. (a)(2). Pub. L. 101–476, §901(b)(47), substituted “children with disabilities” for “handicapped children” in two places.

Subsec. (a)(3). Pub. L. 101–476, §202, amended par. (3) generally. Prior to amendment, par. (3) read as follows: “set forth, consistent with the purposes of this chapter, a description of programs and procedures for—

“(A) the development and implementation of a comprehensive system of personnel development, which shall include—

“(i) inservice training of general and special educational instructional and support personnel,

“(ii) detailed procedures to assure that all personnel necessary to carry out the purposes of this chapter are appropriately and adequately prepared and trained, and

“(iii) effective procedures for acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and

“(B) adopting, where appropriate, promising educational practices and materials developed through such projects;”.

Subsec. (a)(4), (9)(B), (11). Pub. L. 101–476, §901(b)(48)–(51), substituted “children with disabilities” for “handicapped children” wherever appearing.

Subsec. (a)(12). Pub. L. 101–476, §901(b)(52), (53), substituted “children with disabilities” for “handicapped children” in five places and “individuals with disabilities” for “handicapped individuals”.

Subsec. (a)(13)(A). Pub. L. 101–476, §901(b)(54), substituted “children and youth with disabilities” for “handicapped children and youth”.

Subsecs. (b), (d)(1), (2)(A), (e). Pub. L. 101–476, §901(b)(55)–(58), substituted “children with disabilities” for “handicapped children” wherever appearing.

1988—Subsec. (a). Pub. L. 100–630, §102(c)(1), substituted “the Secretary deems” for “he deems” in introductory provisions.

Subsec. (a)(2). Pub. L. 100–630, §102(c)(2), substituted “subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 and section 2332(1) of this title,” for “section 241c–1 of this title, section 844a(b)(8) of this title or its successor authority, and section 1262(a)(4)(B) of this title,”.

Subsec. (a)(3). Pub. L. 100–630, §102(c)(3), substituted “procedures for—” for “procedures for” in introductory provisions, added subpars. (A) and (B), and struck out former cls. (A) and (B) which read as follows: “(A) the development and implementation of a comprehensive system of personnel development which shall include the inservice training of general and special educational instructional and support personnel, detailed procedures to assure that all personnel necessary to carry out the purposes of this Act are appropriately and adequately prepared and trained, and effective procedures for acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and (B) adopting, where appropriate, promising educational practices and materials development through such projects;”.

Subsec. (a)(4)(B). Pub. L. 100–630, §102(c)(4), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “that (i) handicapped children in private schools and facilities will be provided special education and related services (in conformance with an individualized educational program as required by this subchapter) at no cost to their parents or guardian, if such children are placed in or referred to such schools or facilities by the State or appropriate local educational agency as the means of carrying out the requirements of this subchapter or any other applicable law requiring the provision of special education and related services to all handicapped children within such State, and (ii) in all such instances the State educational agency shall determine whether such schools and facilities meet standards that apply to State and local educational agencies and that children so served have all the rights they would have if served by such agencies;”.

Subsec. (a)(7). Pub. L. 100–630, §102(c)(5), amended par. (7) generally. Prior to amendment, par. (7) read as follows: “provide for (A) making such reports in such form and containing such information as the Secretary may require to carry out his functions under this subchapter, and (B) keeping such records and affording such access thereto as the Secretary may find necessary to assure the correctness and verification of such reports and proper disbursement of Federal funds under this subchapter;”.

Subsec. (a)(9). Pub. L. 100–630, §102(c)(6), substituted “under this subchapter—” for “under this subchapter” in introductory provisions, added subpars. (A) and (B), and struck out former cls. (A) and (B) which read as follows: “(A) will not be commingled with State funds, and (B) will be so used as to supplement and increase the level of Federal, State, and local funds (including funds that are not under the direct control of State or local educational agencies) expended for special education and related services provided to handicapped children under this subchapter and in no case to supplant such Federal, 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)(12). Pub. L. 100–630, §102(c)(7), substituted “children, which—” for “children, which” in introductory provisions, added subpars. (A) to (C), and struck out former cls. (A) to (C) which read as follows: “(A) advises the State educational agency of unmet needs within the State in the education of handicapped children, (B) comments publicly on any rules or regulations proposed for issuance by the State regarding the education of handicapped children and the procedures for distribution of funds under this subchapter, and (C) assists the State in developing and reporting such data and evaluations as may assist the Secretary in the performance of his responsibilities under section 1418 of this title;”.

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 0,000 for 0,000 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 1991 Amendment

Amendment by section 5 of Pub. L. 102–119 effective July 1, 1992, except that each State has option to have amendment apply earlier than such date, see section 27(b) of Pub. L. 102–119, set out as a note under section 927 of this title.

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–476 effective Oct. 1, 1990, see section 1001 of Pub. L. 101–476, set out as a note under section 1087ee of this title.

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

Amendment by 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.

Enactment 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 an Effective Date note under section 1221–1 of this title.

Section 843(b) of Pub. L. 93–380 provided that the amendment made by that section is effective after June 30, 1975.

Section Referred to in Other Sections

This section is referred to in sections 1411, 1412, 1414, 1415, 1416, 1418, 1419, 1432, 1476 of this title; title 29 sections 725, 2212; title 42 section 5116.

1 So in original. The period probably should be a semicolon.