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INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997
(House of Representatives - May 13, 1997)

Text of this article available as: TXT PDF [Pages H2498-H2541] INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997 Mr. GOODLING. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 5) to amend the Individuals With Disabilities Education Act, to reauthorize and make improvements to that act, and for other purposes, as amended. The Clerk read as follows: H.R. 5 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Individuals with Disabilities Education Act Amendments of 1997''. TITLE I--AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT SEC. 101. AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT. Parts A through D of the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) are amended to read as follows: ``PART A--GENERAL PROVISIONS ``SEC. 601. SHORT TITLE; TABLE OF CONTENTS; FINDINGS; PURPOSES. ``(a) Short Title.--This Act may be cited as the `Individuals with Disabilities Education Act'. ``(b) Table of Contents.--The table of contents for this Act is as follows: ``Part A--General Provisions ``Sec. 601. Short title; table of contents; findings; purposes. ``Sec. 602. Definitions. ``Sec. 603. Office of Special Education Programs. ``Sec. 604. Abrogation of State sovereign immunity. ``Sec. 605. Acquisition of equipment; construction or alteration of facilities. ``Sec. 606. Employment of individuals with disabilities. ``Sec. 607. Requirements for prescribing regulations. ``Part B--Assistance for Education of All Children with Disabilities ``Sec. 611. Authorization; allotment; use of funds; authorization of appropriations. ``Sec. 612. State eligibility. ``Sec. 613. Local educational agency eligibility. ``Sec. 614. Evaluations, eligibility determinations, individualized education programs, and educational placements. ``Sec. 615. Procedural safeguards. ``Sec. 616. Withholding and judicial review. ``Sec. 617. Administration. ``Sec. 618. Program information. ``Sec. 619. Preschool grants. ``Part C--Infants and Toddlers with Disabilities ``Sec. 631. Findings and policy. ``Sec. 632. Definitions. ``Sec. 633. General authority. ``Sec. 634. Eligibility. ``Sec. 635. Requirements for statewide system. ``Sec. 636. Individualized family service plan. ``Sec. 637. State application and assurances. ``Sec. 638. Uses of funds. ``Sec. 639. Procedural safeguards. ``Sec. 640. Payor of last resort. ``Sec. 641. State Interagency Coordinating Council. ``Sec. 642. Federal administration. ``Sec. 643. Allocation of funds. ``Sec. 644. Federal Interagency Coordinating Council. ``Sec. 645. Authorization of appropriations. ``Part D--National Activities to Improve Education of Children with Disabilities ``subpart 1--state program improvement grants for children with disabilities ``Sec. 651. Findings and purpose. ``Sec. 652. Eligibility and collaborative process. ``Sec. 653. Applications. ``Sec. 654. Use of funds. ``Sec. 655. Minimum State grant amounts. ``Sec. 656. Authorization of appropriations. ``subpart 2--coordinated research, personnel preparation, technical assistance, support, and dissemination of information ``Sec. 661. Administrative provisions. ``chapter 1--improving early intervention, educational, and transitional services and results for children with disabilities through coordinated research and personnel preparation ``Sec. 671. Findings and purpose. ``Sec. 672. Research and innovation to improve services and results for children with disabilities. ``Sec. 673. Personnel preparation to improve services and results for children with disabilities. ``Sec. 674. Studies and evaluations. ``chapter 2--improving early intervention, educational, and transitional services and results for children with disabilities through coordinated technical assistance, support, and dissemination of information ``Sec. 681. Findings and purposes. ``Sec. 682. Parent training and information centers. ``Sec. 683. Community parent resource centers. ``Sec. 684. Technical assistance for parent training and information centers. ``Sec. 685. Coordinated technical assistance and dissemination. ``Sec. 686. Authorization of appropriations. ``Sec. 687. Technology development, demonstration, and utilization, and media services. ``(c) Findings.--The 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 the enactment of the Education for All Handicapped Children Act of 1975 (Public Law 94-142)-- ``(A) the special educational needs of children with disabilities were not being fully met; ``(B) more than one-half of the children with disabilities in the United States did not receive appropriate educational services that would enable such children to have full equality of opportunity; ``(C) 1,000,000 of the children with disabilities in the United States were excluded entirely from the public school system and did not go through the educational process with their peers; ``(D) there were many children with disabilities throughout the United States participating in regular school programs whose disabilities prevented such children from [[Page H2499]] having a successful educational experience because their disabilities were undetected; and ``(E) because of the lack of adequate services within the public school system, families were often forced to find services outside the public school system, often at great distance from their residence and at their own expense. ``(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this Act 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 Act 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) Over 20 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 in the general curriculum to the maximum extent possible; ``(B) strengthening the role 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 Act with other local, educational service agency, State, and Federal school improvement efforts 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 they 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 professional development for all personnel who work with such children in order to ensure that they have the skills and knowledge necessary to enable them-- ``(i) to meet developmental goals and, to the maximum extent possible, those challenging expectations that have been established for all children; and ``(ii) to be prepared to lead productive, independent, adult lives, to the maximum extent possible; ``(F) providing incentives for whole-school approaches and pre-referral intervention to reduce the need to label children as disabled in order to address their learning needs; and ``(G) focusing resources on teaching and learning while reducing paperwork and requirements that do not assist in improving educational results. ``(6) While States, local educational agencies, and educational service agencies are responsible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a 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) The Federal Government must be responsive to the growing needs of an increasingly more diverse society. 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. ``(B) America's racial profile is rapidly changing. Between 1980 and 1990, the rate of increase in the population for white Americans was 6 percent, while the rate of increase for racial and ethnic minorities was much higher: 53 percent for Hispanics, 13.2 percent for African-Americans, and 107.8 percent for Asians. ``(C) By the year 2000, this Nation will have 275,000,000 people, nearly one of every three of whom will be either African-American, Hispanic, Asian-American, or American Indian. ``(D) Taken together as a group, minority children are comprising an ever larger percentage of public school students. Large-city school populations are overwhelmingly minority, for example: for fall 1993, the figure for Miami was 84 percent; Chicago, 89 percent; Philadelphia, 78 percent; Baltimore, 84 percent; Houston, 88 percent; and Los Angeles, 88 percent. ``(E) Recruitment efforts within special education must focus on bringing larger numbers of minorities into the profession in order to provide appropriate practitioner knowledge, role models, and sufficient manpower to address the clearly changing demography of special education. ``(F) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring in many parts of our Nation. In the Nation's 2 largest school districts, limited English students make up almost half of all students initially entering school at the kindergarten level. Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education. The Department of Education has found that services provided to limited English proficient students often do not respond primarily to the pupil's academic needs. These trends pose special challenges for special education in the referral, assessment, and services for our Nation's students from non-English language backgrounds. ``(8)(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) Poor African-American children are 2.3 times more likely to be identified by their teacher as having mental retardation than their white counterpart. ``(D) Although African-Americans represent 16 percent of elementary and secondary enrollments, they constitute 21 percent of total enrollments in special education. ``(E) The drop-out rate is 68 percent higher for minorities than for whites. ``(F) More than 50 percent of minority students in large cities drop out of school. ``(9)(A) The opportunity for full participation in awards for grants and contracts; boards of organizations receiving funds under this Act; and peer review panels; and training of professionals in the area of special education by minority individuals, organizations, and historically black colleges and universities is essential if we are to obtain greater success in the education of minority children with disabilities. ``(B) In 1993, of the 915,000 college and university professors, 4.9 percent were African-American and 2.4 percent were Hispanic. Of the 2,940,000 teachers, prekindergarten through high school, 6.8 percent were African-American and 4.1 percent were Hispanic. ``(C) Students from minority groups comprise more than 50 percent of K-12 public school enrollment in seven States yet minority enrollment in teacher training programs is less than 15 percent in all but six States. ``(D) As the number of African-American and Hispanic students in special education increases, the number of minority teachers and related service personnel produced in our colleges and universities continues to decrease. ``(E) Ten years ago, 12 percent of the United States teaching force in public elementary and secondary schools were members of a minority group. Minorities comprised 21 percent of the national population at that time and were clearly underrepresented then among employed teachers. Today, the elementary and secondary teaching force is 13 percent minority, while one-third of the students in public schools are minority children. ``(F) As recently as 1991, historically black colleges and universities enrolled 44 percent of the African-American teacher trainees in the Nation. However, in 1993, historically black colleges and universities received only 4 percent of the discretionary funds for special education and related services personnel training under this Act. ``(G) While African-American students constitute 28 percent of total enrollment in special education, only 11.2 percent of individuals enrolled in preservice training programs for special education are African-American. ``(H) In 1986-87, of the degrees conferred in education at the B.A., M.A., and Ph.D levels, only 6, 8, and 8 percent, respectively, were awarded to African-American or Hispanic students. ``(10) Minorities and underserved persons are socially disadvantaged because of the lack of opportunities in training and educational programs, undergirded by the practices in the private sector that impede their full participation in the mainstream of society. ``(d) Purposes.--The purposes of this title 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 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 systemic-change 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. ``SEC. 602. DEFINITIONS. ``Except as otherwise provided, as used in this Act: ``(1) Assistive technology device.--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. ``(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 [[Page H2500]] 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 of 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 mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to 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 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 one 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) 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 and secondary schools of the State; and ``(B) includes any other public institution or agency having administrative control and direction over a public elementary or secondary school. ``(5) Elementary school.--The term `elementary school' means a nonprofit institutional day or residential school that provides elementary education, as determined under State law. ``(6) 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. ``(7) 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 or secondary school student, as may be appropriate, and which shall be computed after deducting-- ``(A) amounts received-- ``(i) under part B of this title; ``(ii) under part A of title I of the Elementary and Secondary Education Act of 1965; or ``(iii) under part A of title VII of that Act; and ``(B) any State or local funds expended for programs that would qualify for assistance under any of those parts. ``(8) 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, or secondary school education in the State involved; and ``(D) are provided in conformity with the individualized education program required under section 614(d). ``(9) Indian.--The term `Indian' means an individual who is a member of an Indian tribe. ``(10) 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). ``(11) Individualized education program.--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 614(d). ``(12) Individualized family service plan.--The term `individualized family service plan' has the meaning given such term in section 636. ``(13) Infant or toddler with a disability.--The term `infant or toddler with a disability' has the meaning given such term in section 632. ``(14) Institution of higher education.--The term `institution of higher education'-- ``(A) has the meaning given that term in section 1201(a) of the Higher Education Act of 1965; and ``(B) also includes any community college receiving funding from the Secretary of the Interior under the Tribally Controlled Community College Assistance Act of 1978. ``(15) Local educational agency.-- ``(A) 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 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 or secondary schools. ``(B) The term includes-- ``(i) an educational service agency, as defined in paragraph (4); and ``(ii) any other public institution or agency having administrative control and direction of a public elementary or secondary school. ``(C) The term includes an elementary 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 Act 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. ``(16) Native language.--The term `native language', when used with reference to an individual of limited English proficiency, 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. ``(17) Nonprofit.--The term `nonprofit', as applied to a school, agency, organization, or institution, means a school, agency, organization, or institution owned and operated by one 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. ``(18) Outlying area.--The term `outlying area' means the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. ``(19) Parent.--The term `parent'-- ``(A) includes a legal guardian; and ``(B) except as used in sections 615(b)(2) and 639(a)(5), includes an individual assigned under either of those sections to be a surrogate parent. ``(20) Parent organization.--The term `parent organization' has the meaning given that term in section 682(g). ``(21) Parent training and information center.--The term `parent training and information center' means a center assisted under section 682 or 683. ``(22) Related services.--The term `related services' means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, 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. ``(23) Secondary school.--The term `secondary school' means a nonprofit institutional day or residential school that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12. ``(24) Secretary.--The term `Secretary' means the Secretary of Education. ``(25) 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. ``(26) Specific learning disability.-- ``(A) In general.--The term `specific learning disability' means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. [[Page H2501]] ``(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 mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. ``(27) 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. ``(28) 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 and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law. ``(29) 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 612(a)(5). ``(30) Transition services.--The term `transition services' means a coordinated set of activities for a student with a disability that-- ``(A) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; ``(B) is based upon the individual student's needs, taking into account the student's 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. ``SEC. 603. 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 such Department for administering and carrying out this Act 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, United States Code, the Secretary is authorized to accept voluntary and uncompensated services in furtherance of the purposes of this Act. ``SEC. 604. ABROGATION OF STATE SOVEREIGN IMMUNITY. ``(a) In General.--A State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this Act. ``(b) Remedies.--In a suit against a State for a violation of this Act, 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 the date of the enactment of the Education of the Handicapped Act Amendments of 1990. ``SEC. 605. ACQUISITION OF EQUIPMENT; CONSTRUCTION OR ALTERATION OF FACILITIES. ``(a) In General.--If the Secretary determines that a program authorized under this Act would 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 part 101-19.6 of title 41, Code of Federal Regulations (commonly known as the `Uniform Federal Accessibility Standards'). ``SEC. 606. EMPLOYMENT OF INDIVIDUALS WITH DISABILITIES. ``The Secretary shall ensure that each recipient of assistance under this Act makes positive efforts to employ and advance in employment qualified individuals with disabilities in programs assisted under this Act. ``SEC. 607. REQUIREMENTS FOR PRESCRIBING REGULATIONS. ``(a) Public Comment Period.--The Secretary shall provide a public comment period of at least 90 days on any regulation proposed under part B or part C of this Act on which an opportunity for public comment is otherwise required by law. ``(b) Protections Provided to Children.--The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this Act that would procedurally or substantively lessen the protections provided to children with disabilities under this Act, as embodied in regulations in effect on July 20, 1983 (particularly as such protections relate 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 the Congress in legislation. ``(c) Policy Letters and Statements.--The Secretary may not, through policy letters or other statements, establish a rule that is required for compliance with, and eligibility under, this part without following the requirements of section 553 of title 5, United States Code. ``(d) Correspondence From Department of Education Describing Interpretations of This Part.-- ``(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 Act or the regulations implemented pursuant to this Act. ``(2) Additional information.--For each item of correspondence published in a list under paragraph (1), the Secretary shall identify the topic addressed by the correspondence and shall include such other summary information as the Secretary determines to be appropriate. ``(e) Issues of National Significance.--If the Secretary receives a written request regarding a policy, question, or interpretation under part B of this Act, and determines that it raises an issue of general interest or applicability of national significance to the implementation of part B, the Secretary shall-- ``(1) include a statement to that effect in any written response; ``(2) widely disseminate that response to State educational agencies, local educational agencies, parent and advocacy organizations, and other interested organizations, subject to applicable laws relating to confidentiality of information; and ``(3) not later than one year after the date on which the Secretary responds to the written request, issue written guidance on such policy, question, or interpretation through such means as the Secretary determines to be appropriate and consistent with law, such as a policy memorandum, notice of interpretation, or notice of proposed rulemaking. ``(f) Explanation.--Any written response by the Secretary under subsection (e) regarding a policy, question, or interpretation under part B of this Act shall include an explanation that the written response-- ``(1) is provided as informal guidance and is not legally binding; and ``(2) represents the interpretation by the Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented. ``PART B--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES ``SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION OF APPROPRIATIONS. ``(a) Grants to States.-- ``(1) Purpose of grants.--The Secretary shall make grants to States and the outlying areas, and provide funds to the Secretary of the Interior, to assist them to provide special education and related services to children with disabilities in accordance with this part. ``(2) Maximum amounts.--The maximum amount of the grant a State may receive under this section for any fiscal year is-- ``(A) the number of children with disabilities in the State who are receiving special education and related services-- ``(i) aged three through five if the State is eligible for a grant under section 619; and ``(ii) aged six through 21; multiplied by ``(B) 40 percent of the average per-pupil expenditure in public elementary and secondary schools in the United States. ``(b) Outlying Areas and Freely Associated States.-- ``(1) Funds reserved.--From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve not more than one percent, which shall be used-- ``(A) to provide assistance to the outlying areas in accordance with their respective populations of individuals aged three through 21; and ``(B) for fiscal years 1998 through 2001, to carry out the competition described in paragraph (2), except that the amount reserved to carry out that competition shall not exceed the amount reserved for fiscal year 1996 for the competition under part B of this Act described under the heading ``SPECIAL EDUCATION'' in Public Law 104-134. ``(2) Limitation for freely associated states.-- ``(A) Competitive grants.--The Secretary shall use funds described in paragraph (1)(B) to award grants, on a competitive basis, to Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the freely associated States to carry out the purposes of this part. [[Page H2502]] ``(B) Award basis.--The Secretary shall award grants under subparagraph (A) on a competitive basis, pursuant to the recommendations of the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those recommendations shall be made by experts in the field of special education and related services. ``(C) Assistance requirements.--Any freely associated State that wishes to receive funds under this part shall include, in its application for assistance-- ``(i) information demonstrating that it will meet all conditions that apply to States under this part; ``(ii) an assurance that, notwithstanding any other provision of this part, it will use those funds only for the direct provision of special education and related services to children with disabilities and to enhance its capacity to make a free appropriate public education available to all children with disabilities; ``(iii) the identity of the source and amount of funds, in addition to funds under this part, that it will make available to ensure that a free appropriate public education is available to all children with disabilities within its jurisdiction; and ``(iv) such other information and assurances as the Secretary may require. ``(D) Termination of eligibility.--Notwithstanding any other provision of law, the freely associated States shall not receive any funds under this part for any program year that begins after September 30, 2001. ``(E) Administrative costs.--The Secretary may provide not more than five percent of the amount reserved for grants under this paragraph to pay the administrative costs of the Pacific Region Educational Laboratory under subparagraph (B). ``(3) Limitation.--An outlying area is not eligible for a competitive award under paragraph (2) unless it receives assistance under paragraph (1)(A). ``(4) Special rule.--The provisions of Public Law 95-134, permitting the consolidation of grants by the outlying areas, shall not apply to funds provided to those areas or to the freely associated States under this section. ``(5) Eligibility for discretionary programs.--The freely associated States shall be eligible to receive assistance under subpart 2 of part D of this Act until September 30, 2001. ``(6) Definition.--As used in this subsection, the term `freely associated States' means the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. ``(c) Secretary of the Interior.--From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve 1.226 percent to provide assistance to the Secretary of the Interior in accordance with subsection (i). ``(d) Allocations to States.-- ``(1) In general.--After reserving funds for studies and evaluations under section 674(e), and for payments to the outlying areas and the Secretary of the Interior under subsections (b) and (c), the Secretary shall allocate the remaining amount among the States in accordance with paragraph (2) or subsection (e), as the case may be. ``(2) Interim formula.--Except as provided in subsection (e), the Secretary shall allocate the amount described in paragraph (1) among the States in accordance with section 611(a)(3), (4), and (5) and (b)(1), (2), and (3) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997, except that the determination of the number of children with disabilities receiving special education and related services under such section 611(a)(3) may, at the State's discretion, be calculated as of the last Friday in October or as of December 1 of the fiscal year for which the funds are appropriated. ``(e) Permanent Formula.-- ``(1) Establishment of base year.--The Secretary shall allocate the amount described in subsection (d)(1) among the States in accordance with this subsection for each fiscal year beginning with the first fiscal year for which the amount appropriated under subsection (j) is more than $4,924,672,200. ``(2) Use of base year.-- ``(A) Definition.--As used in this subsection, the term `base year' means the fiscal year preceding the first fiscal year in which this subsection applies. ``(B) Special rule for use of base year amount.--If a State received any funds under this section for the base year on the basis of children aged three through five, but does not make a free appropriate public education available to all children with disabilities aged three through five in the State in any subsequent fiscal year, the Secretary shall compute the State's base year amount, solely for the purpose of calculating the State's allocation in that subsequent year under paragraph (3) or (4), by subtracting the amount allocated to the State for the base year on the basis of those children. ``(3) Increase in funds.--If the amount available for allocations to States under paragraph (1) is equal to or greater than the amount allocated to the States under this paragraph for the preceding fiscal year, those allocations shall be calculated as follows: ``(A)(i) Except as provided in subparagraph (B), the Secretary shall-- ``(I) allocate to each State the amount it received for the base year; ``(II) allocate 85 percent of any remaining funds to States on the basis of their relative populations of children aged 3 through 21 who are of the same age as children with disabilities for whom the State ensures the availability of a free appropriate public education under this part; and ``(III) allocate 15 percent of those remaining funds to States on the basis of their relative populations of children described in subclause (II) who are living in poverty. ``(ii) For the purpose of making grants under this paragraph, the Secretary shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary. ``(B) Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following: ``(i) No State's allocation shall be less than its allocation for the preceding fiscal year. ``(ii) No State's allocation shall be less than the greatest of-- ``(I) the sum of-- ``(aa) the amount it received for the base year; and ``(bb) one third of one percent of the amount by which the amount appropriated under subsection (j) exceeds the amount appropriated under this section for the base year; ``(II) the sum of-- ``(aa) the amount it received for the preceding fiscal year; and ``(bb) that amount multiplied by the percentage by which the increase in the funds appropriated from the preceding fiscal year exceeds 1.5 percent; or ``(III) the sum of-- ``(aa) the amount it received for the preceding fiscal year; and ``(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated from the preceding fiscal year. ``(iii) Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of-- ``(I) the amount it received for the preceding fiscal year; and ``(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated. ``(C) If the amount available for allocations under this paragraph is insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to subparagraph (B)(i). ``(4) Decrease in funds.--If the amount available for allocations to States under paragraph (1) is less than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows: ``(A) If the amount available for allocations is greater than the amount allocated to the States for the base year, each State shall be allocated the sum of-- ``(i) the amount it received for the base year; and ``(ii) an amount that bears the same relation to any remaining funds as the increase the State received for the preceding fiscal year over the base year bears to the total of all such increases for all States. ``(B)(i) If the amount available for allocations is equal to or less than the amount allocated to the States for the base year, each State shall be allocated the amount it received for the base year. ``(ii) If the amount available is insufficient to make the allocations described in clause (i), those allocations shall be ratably reduced. ``(f) State-Level Activities.-- ``(1) General.-- ``(A) Each State may retain not more than the amount described in subparagraph (B) for administration and other State-level activities in accordance with paragraphs (2) and (3). ``(B) For each fiscal year, the Secretary shall determine and report to the State educational agency an amount that is 25 percent of the amount the State received under this section for fiscal year 1997, cumulatively adjusted by the Secretary for each succeeding fiscal year by the lesser of-- ``(i) the percentage increase, if any, from the preceding fiscal year in the State's allocation under this section; or ``(ii) the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. ``(C) A State may use funds it retains under subparagraph (A) without regard to-- ``(i) the prohibition on commingling of funds in section 612(a)(18)(B); and ``(ii) the prohibition on supplanting other funds in section 612(a)(18)(C). ``(2) State administration.-- ``(A) For the purpose of administering this part, including section 619 (including the coordination of activities under this part with, and providing technical assistance to, other programs that provide services to children with disabilities)-- ``(i) each State may use not more than twenty percent of the maximum amount it may retain under paragraph (1)(A) for any fiscal year or $500,000 (adjusted by the cumulative rate of inflation since fiscal year 1998, as measured by the percentage increase, if any, in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), whichever is greater; and ``(ii) each outlying area may use up to five percent of the amount it receives under this [[Page H2503]] section for any fiscal year or $35,000, whichever is greater. ``(B) Funds described in subparagraph (A) may also be used for the administration of part C of this Act, if the State educational agency is the lead agency for the State under that part. ``(3) Other state-level activities.--Each State shall use any funds it retains under paragraph (1) and does not use for administration under paragraph (2) for any of the following: ``(A) Support and direct services, including technical assistance and personnel development and training. ``(B) Administrative costs of monitoring and complaint investigation, but only to the extent that those costs exceed the costs incurred for those activities during fiscal year 1985. ``(C) To establish and implement the mediation process required by section 615(e), including providing for the costs of mediators and support personnel. ``(D) To assist local educational agencies in meeting personnel shortages. ``(E) To develop a State Improvement Plan under subpart 1 of part D. ``(F) Activities at the State and local levels to meet the performance goals established by the State under section 612(a)(16) and to support implementation of the State Improvement Plan under subpart 1 of part D if the State receives funds under that subpart. ``(G) To supplement other amounts used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under this section. This system shall be coordinated with and, to the extent appropriate, build on the system of coordinated services developed by the State under part C of this Act. ``(H) For subgrants to local educational agencies for the purposes described in paragraph (4)(A). ``(4)(A) Subgrants to Local Educational Agencies for Capacity-Building and Improvement.--In any fiscal year in which the percentage increase in the State's allocation under this section exceeds the rate of inflation (as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), each State shall reserve, from its allocation under this section, the amount described in subparagraph (B) to make subgrants to local educational agencies, unless that amount is less than $100,000, to assist them in providing direct services and in making systemic change to improve results for children with disabilities through one or more of the following: ``(i) Direct services, including alternative programming for children who have been expelled from school, and services for children in correctional facilities, children enrolled in State-operated or State-supported schools, and children in charter schools. ``(ii) Addressing needs or carrying out improvement strategies identified in the State's Improvement Plan under subpart 1 of part D. ``(iii) Adopting promising practices, materials, and technology, based on knowledge derived from education research and other sources. ``(iv) Establishing, expanding, or implementing interagency agreements and arrangements between local educational agencies and other agencies or organizations concerning the provision of services to children with disabilities and their families. ``(v) Increasing cooperative problem-solving between parents and school personnel and promoting the use of alternative dispute resolution. ``(B) Maximum subgrant.--For each fiscal year, the amount referred to in subparagraph (A) is-- ``(i) the maximum amount the State was allowed to retain under paragraph (1)(A) for the prior fiscal year, or for fiscal year 1998, 25 percent of the State's allocation for fiscal year 1997 under this section; multiplied by ``(ii) the difference between the percentage increase in the State's allocation under this section and the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. ``(5) Report on Use of Funds.--As part of the information required to be submitted to the Secretary under section 612, each State shall annually describe-- ``(A) how amounts retained under paragraph (1) will be used to meet the requirements of this part; ``(B) how those amounts will be allocated among the activities described in paragraphs (2) and (3) to meet State priorities based on input from local educational agencies; and ``(C) the percentage of those amounts, if any, that will be distributed to local educational agencies by formula. ``(g) Subgrants to Local Educational Agencies.-- ``(1) Subgrants required.--Each State that receives a grant under this section for any fiscal year shall distribute any funds it does not retain under subsection (f) (at least 75 percent of the grant funds) to local educational agencies in the State that have established their eligibility under section 613, and to State agencies that received funds under section 614A(a) of this Act for fiscal year 1997, as then in effect, and have established their eligibility under section 613, for use in accordance with this part. ``(2) Allocations to local educational agencies.-- ``(A) Interim procedure.--For each fiscal year for which funds are allocated to States under subsection (d)(2), each State shall allocate funds under paragraph (1) in accordance with section 611(d) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997. ``(B) Permanent procedure.--For each fiscal year for which funds are allocated to States under subsection (e), each State shall allocate funds under paragraph (1) as follows: ``(i) Base payments.--The State shall first award each agency described in paragraph (1) the amount that agency would have received under this section for the base year, as defined in subsection (e)(2)(A), if the State had distributed 75 percent of its grant for that year under section 611(d), as then in effect. ``(ii) Allocation of remaining funds.--After making allocations under clause (i), the State shall-- ``(I) allocate 85 percent of any remaining funds to those agencies on the basis of the relative numbers of children enrolled in public and private elementary and secondary schools within the agency's jurisdiction; and ``(II) allocate 15 percent of those remaining funds to those agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency. ``(3) Former chapter 1 state agencies.-- ``(A) To the extent necessary, the State-- ``(i) shall use funds that are available under subsection (f)(1)(A) to ensure that each State agency that received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 receives, from the combination of funds under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount equal to-- ``(I) the number of children with disabilities, aged 6 through 21, to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, subject to the limitation in subparagraph (B); multiplied by ``(II) the per-child amount provided under such subpart for fiscal year 1994; and ``(ii) may use those funds to ensure that each local educational agency that received fiscal year 1994 funds under that subpart for children who had transferred from a State- operated or State-supported school or program assisted under that subpart receives, from the combination of funds available under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount for each such child, aged 3 through 21 to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, equal to the per-child amount the agency received under that subpart for fiscal year 1994. ``(B) The number of children counted under subparagraph (A)(i)(I) shall not exceed the number of children aged 3 through 21 for whom the agency received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965. ``(4) Reallocation of funds.--If a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all children with disabilities residing in the area served by that agency with State and local funds, the State educational agency may reallocate any portion of the funds under this part that are not needed by that local agency to provide a free appropriate public education to other local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas they serve. ``(h) Definitions.--For the purpose of this section-- ``(1) the term `average per-pupil expenditure in public elementary and secondary schools in the United States' means-- ``(A) without regard to the source of funds-- ``(i) the aggregate current expenditures, during the second fiscal year preceding the fiscal year for which the determination is made (or, if satisfactory data for that year are not available, during the most recent preceding fiscal year for which satisfactory data are available) of all local educational agencies in the 50 States and the District of Columbia); plus ``(ii) any direct expenditures by the State for the operation of those agencies; divided by ``(B) the aggregate number of children in average daily attendance to whom those agencies provided free public education during that preceding year; and ``(2) the term `State' means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. ``(i) Use of Amounts by Secretary of the Interior.-- ``(1) Provision of amounts for assistance.-- ``(A) In general.--The Secretary of Education shall provide amounts to the Secretary of the Interior to meet the need for assist

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INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997
(House of Representatives - May 13, 1997)

Text of this article available as: TXT PDF [Pages H2498-H2541] INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997 Mr. GOODLING. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 5) to amend the Individuals With Disabilities Education Act, to reauthorize and make improvements to that act, and for other purposes, as amended. The Clerk read as follows: H.R. 5 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Individuals with Disabilities Education Act Amendments of 1997''. TITLE I--AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT SEC. 101. AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT. Parts A through D of the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) are amended to read as follows: ``PART A--GENERAL PROVISIONS ``SEC. 601. SHORT TITLE; TABLE OF CONTENTS; FINDINGS; PURPOSES. ``(a) Short Title.--This Act may be cited as the `Individuals with Disabilities Education Act'. ``(b) Table of Contents.--The table of contents for this Act is as follows: ``Part A--General Provisions ``Sec. 601. Short title; table of contents; findings; purposes. ``Sec. 602. Definitions. ``Sec. 603. Office of Special Education Programs. ``Sec. 604. Abrogation of State sovereign immunity. ``Sec. 605. Acquisition of equipment; construction or alteration of facilities. ``Sec. 606. Employment of individuals with disabilities. ``Sec. 607. Requirements for prescribing regulations. ``Part B--Assistance for Education of All Children with Disabilities ``Sec. 611. Authorization; allotment; use of funds; authorization of appropriations. ``Sec. 612. State eligibility. ``Sec. 613. Local educational agency eligibility. ``Sec. 614. Evaluations, eligibility determinations, individualized education programs, and educational placements. ``Sec. 615. Procedural safeguards. ``Sec. 616. Withholding and judicial review. ``Sec. 617. Administration. ``Sec. 618. Program information. ``Sec. 619. Preschool grants. ``Part C--Infants and Toddlers with Disabilities ``Sec. 631. Findings and policy. ``Sec. 632. Definitions. ``Sec. 633. General authority. ``Sec. 634. Eligibility. ``Sec. 635. Requirements for statewide system. ``Sec. 636. Individualized family service plan. ``Sec. 637. State application and assurances. ``Sec. 638. Uses of funds. ``Sec. 639. Procedural safeguards. ``Sec. 640. Payor of last resort. ``Sec. 641. State Interagency Coordinating Council. ``Sec. 642. Federal administration. ``Sec. 643. Allocation of funds. ``Sec. 644. Federal Interagency Coordinating Council. ``Sec. 645. Authorization of appropriations. ``Part D--National Activities to Improve Education of Children with Disabilities ``subpart 1--state program improvement grants for children with disabilities ``Sec. 651. Findings and purpose. ``Sec. 652. Eligibility and collaborative process. ``Sec. 653. Applications. ``Sec. 654. Use of funds. ``Sec. 655. Minimum State grant amounts. ``Sec. 656. Authorization of appropriations. ``subpart 2--coordinated research, personnel preparation, technical assistance, support, and dissemination of information ``Sec. 661. Administrative provisions. ``chapter 1--improving early intervention, educational, and transitional services and results for children with disabilities through coordinated research and personnel preparation ``Sec. 671. Findings and purpose. ``Sec. 672. Research and innovation to improve services and results for children with disabilities. ``Sec. 673. Personnel preparation to improve services and results for children with disabilities. ``Sec. 674. Studies and evaluations. ``chapter 2--improving early intervention, educational, and transitional services and results for children with disabilities through coordinated technical assistance, support, and dissemination of information ``Sec. 681. Findings and purposes. ``Sec. 682. Parent training and information centers. ``Sec. 683. Community parent resource centers. ``Sec. 684. Technical assistance for parent training and information centers. ``Sec. 685. Coordinated technical assistance and dissemination. ``Sec. 686. Authorization of appropriations. ``Sec. 687. Technology development, demonstration, and utilization, and media services. ``(c) Findings.--The 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 the enactment of the Education for All Handicapped Children Act of 1975 (Public Law 94-142)-- ``(A) the special educational needs of children with disabilities were not being fully met; ``(B) more than one-half of the children with disabilities in the United States did not receive appropriate educational services that would enable such children to have full equality of opportunity; ``(C) 1,000,000 of the children with disabilities in the United States were excluded entirely from the public school system and did not go through the educational process with their peers; ``(D) there were many children with disabilities throughout the United States participating in regular school programs whose disabilities prevented such children from [[Page H2499]] having a successful educational experience because their disabilities were undetected; and ``(E) because of the lack of adequate services within the public school system, families were often forced to find services outside the public school system, often at great distance from their residence and at their own expense. ``(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this Act 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 Act 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) Over 20 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 in the general curriculum to the maximum extent possible; ``(B) strengthening the role 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 Act with other local, educational service agency, State, and Federal school improvement efforts 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 they 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 professional development for all personnel who work with such children in order to ensure that they have the skills and knowledge necessary to enable them-- ``(i) to meet developmental goals and, to the maximum extent possible, those challenging expectations that have been established for all children; and ``(ii) to be prepared to lead productive, independent, adult lives, to the maximum extent possible; ``(F) providing incentives for whole-school approaches and pre-referral intervention to reduce the need to label children as disabled in order to address their learning needs; and ``(G) focusing resources on teaching and learning while reducing paperwork and requirements that do not assist in improving educational results. ``(6) While States, local educational agencies, and educational service agencies are responsible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a 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) The Federal Government must be responsive to the growing needs of an increasingly more diverse society. 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. ``(B) America's racial profile is rapidly changing. Between 1980 and 1990, the rate of increase in the population for white Americans was 6 percent, while the rate of increase for racial and ethnic minorities was much higher: 53 percent for Hispanics, 13.2 percent for African-Americans, and 107.8 percent for Asians. ``(C) By the year 2000, this Nation will have 275,000,000 people, nearly one of every three of whom will be either African-American, Hispanic, Asian-American, or American Indian. ``(D) Taken together as a group, minority children are comprising an ever larger percentage of public school students. Large-city school populations are overwhelmingly minority, for example: for fall 1993, the figure for Miami was 84 percent; Chicago, 89 percent; Philadelphia, 78 percent; Baltimore, 84 percent; Houston, 88 percent; and Los Angeles, 88 percent. ``(E) Recruitment efforts within special education must focus on bringing larger numbers of minorities into the profession in order to provide appropriate practitioner knowledge, role models, and sufficient manpower to address the clearly changing demography of special education. ``(F) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring in many parts of our Nation. In the Nation's 2 largest school districts, limited English students make up almost half of all students initially entering school at the kindergarten level. Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education. The Department of Education has found that services provided to limited English proficient students often do not respond primarily to the pupil's academic needs. These trends pose special challenges for special education in the referral, assessment, and services for our Nation's students from non-English language backgrounds. ``(8)(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) Poor African-American children are 2.3 times more likely to be identified by their teacher as having mental retardation than their white counterpart. ``(D) Although African-Americans represent 16 percent of elementary and secondary enrollments, they constitute 21 percent of total enrollments in special education. ``(E) The drop-out rate is 68 percent higher for minorities than for whites. ``(F) More than 50 percent of minority students in large cities drop out of school. ``(9)(A) The opportunity for full participation in awards for grants and contracts; boards of organizations receiving funds under this Act; and peer review panels; and training of professionals in the area of special education by minority individuals, organizations, and historically black colleges and universities is essential if we are to obtain greater success in the education of minority children with disabilities. ``(B) In 1993, of the 915,000 college and university professors, 4.9 percent were African-American and 2.4 percent were Hispanic. Of the 2,940,000 teachers, prekindergarten through high school, 6.8 percent were African-American and 4.1 percent were Hispanic. ``(C) Students from minority groups comprise more than 50 percent of K-12 public school enrollment in seven States yet minority enrollment in teacher training programs is less than 15 percent in all but six States. ``(D) As the number of African-American and Hispanic students in special education increases, the number of minority teachers and related service personnel produced in our colleges and universities continues to decrease. ``(E) Ten years ago, 12 percent of the United States teaching force in public elementary and secondary schools were members of a minority group. Minorities comprised 21 percent of the national population at that time and were clearly underrepresented then among employed teachers. Today, the elementary and secondary teaching force is 13 percent minority, while one-third of the students in public schools are minority children. ``(F) As recently as 1991, historically black colleges and universities enrolled 44 percent of the African-American teacher trainees in the Nation. However, in 1993, historically black colleges and universities received only 4 percent of the discretionary funds for special education and related services personnel training under this Act. ``(G) While African-American students constitute 28 percent of total enrollment in special education, only 11.2 percent of individuals enrolled in preservice training programs for special education are African-American. ``(H) In 1986-87, of the degrees conferred in education at the B.A., M.A., and Ph.D levels, only 6, 8, and 8 percent, respectively, were awarded to African-American or Hispanic students. ``(10) Minorities and underserved persons are socially disadvantaged because of the lack of opportunities in training and educational programs, undergirded by the practices in the private sector that impede their full participation in the mainstream of society. ``(d) Purposes.--The purposes of this title 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 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 systemic-change 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. ``SEC. 602. DEFINITIONS. ``Except as otherwise provided, as used in this Act: ``(1) Assistive technology device.--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. ``(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 [[Page H2500]] 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 of 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 mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to 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 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 one 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) 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 and secondary schools of the State; and ``(B) includes any other public institution or agency having administrative control and direction over a public elementary or secondary school. ``(5) Elementary school.--The term `elementary school' means a nonprofit institutional day or residential school that provides elementary education, as determined under State law. ``(6) 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. ``(7) 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 or secondary school student, as may be appropriate, and which shall be computed after deducting-- ``(A) amounts received-- ``(i) under part B of this title; ``(ii) under part A of title I of the Elementary and Secondary Education Act of 1965; or ``(iii) under part A of title VII of that Act; and ``(B) any State or local funds expended for programs that would qualify for assistance under any of those parts. ``(8) 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, or secondary school education in the State involved; and ``(D) are provided in conformity with the individualized education program required under section 614(d). ``(9) Indian.--The term `Indian' means an individual who is a member of an Indian tribe. ``(10) 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). ``(11) Individualized education program.--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 614(d). ``(12) Individualized family service plan.--The term `individualized family service plan' has the meaning given such term in section 636. ``(13) Infant or toddler with a disability.--The term `infant or toddler with a disability' has the meaning given such term in section 632. ``(14) Institution of higher education.--The term `institution of higher education'-- ``(A) has the meaning given that term in section 1201(a) of the Higher Education Act of 1965; and ``(B) also includes any community college receiving funding from the Secretary of the Interior under the Tribally Controlled Community College Assistance Act of 1978. ``(15) Local educational agency.-- ``(A) 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 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 or secondary schools. ``(B) The term includes-- ``(i) an educational service agency, as defined in paragraph (4); and ``(ii) any other public institution or agency having administrative control and direction of a public elementary or secondary school. ``(C) The term includes an elementary 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 Act 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. ``(16) Native language.--The term `native language', when used with reference to an individual of limited English proficiency, 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. ``(17) Nonprofit.--The term `nonprofit', as applied to a school, agency, organization, or institution, means a school, agency, organization, or institution owned and operated by one 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. ``(18) Outlying area.--The term `outlying area' means the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. ``(19) Parent.--The term `parent'-- ``(A) includes a legal guardian; and ``(B) except as used in sections 615(b)(2) and 639(a)(5), includes an individual assigned under either of those sections to be a surrogate parent. ``(20) Parent organization.--The term `parent organization' has the meaning given that term in section 682(g). ``(21) Parent training and information center.--The term `parent training and information center' means a center assisted under section 682 or 683. ``(22) Related services.--The term `related services' means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, 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. ``(23) Secondary school.--The term `secondary school' means a nonprofit institutional day or residential school that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12. ``(24) Secretary.--The term `Secretary' means the Secretary of Education. ``(25) 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. ``(26) Specific learning disability.-- ``(A) In general.--The term `specific learning disability' means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. [[Page H2501]] ``(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 mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. ``(27) 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. ``(28) 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 and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law. ``(29) 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 612(a)(5). ``(30) Transition services.--The term `transition services' means a coordinated set of activities for a student with a disability that-- ``(A) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; ``(B) is based upon the individual student's needs, taking into account the student's 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. ``SEC. 603. 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 such Department for administering and carrying out this Act 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, United States Code, the Secretary is authorized to accept voluntary and uncompensated services in furtherance of the purposes of this Act. ``SEC. 604. ABROGATION OF STATE SOVEREIGN IMMUNITY. ``(a) In General.--A State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this Act. ``(b) Remedies.--In a suit against a State for a violation of this Act, 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 the date of the enactment of the Education of the Handicapped Act Amendments of 1990. ``SEC. 605. ACQUISITION OF EQUIPMENT; CONSTRUCTION OR ALTERATION OF FACILITIES. ``(a) In General.--If the Secretary determines that a program authorized under this Act would 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 part 101-19.6 of title 41, Code of Federal Regulations (commonly known as the `Uniform Federal Accessibility Standards'). ``SEC. 606. EMPLOYMENT OF INDIVIDUALS WITH DISABILITIES. ``The Secretary shall ensure that each recipient of assistance under this Act makes positive efforts to employ and advance in employment qualified individuals with disabilities in programs assisted under this Act. ``SEC. 607. REQUIREMENTS FOR PRESCRIBING REGULATIONS. ``(a) Public Comment Period.--The Secretary shall provide a public comment period of at least 90 days on any regulation proposed under part B or part C of this Act on which an opportunity for public comment is otherwise required by law. ``(b) Protections Provided to Children.--The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this Act that would procedurally or substantively lessen the protections provided to children with disabilities under this Act, as embodied in regulations in effect on July 20, 1983 (particularly as such protections relate 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 the Congress in legislation. ``(c) Policy Letters and Statements.--The Secretary may not, through policy letters or other statements, establish a rule that is required for compliance with, and eligibility under, this part without following the requirements of section 553 of title 5, United States Code. ``(d) Correspondence From Department of Education Describing Interpretations of This Part.-- ``(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 Act or the regulations implemented pursuant to this Act. ``(2) Additional information.--For each item of correspondence published in a list under paragraph (1), the Secretary shall identify the topic addressed by the correspondence and shall include such other summary information as the Secretary determines to be appropriate. ``(e) Issues of National Significance.--If the Secretary receives a written request regarding a policy, question, or interpretation under part B of this Act, and determines that it raises an issue of general interest or applicability of national significance to the implementation of part B, the Secretary shall-- ``(1) include a statement to that effect in any written response; ``(2) widely disseminate that response to State educational agencies, local educational agencies, parent and advocacy organizations, and other interested organizations, subject to applicable laws relating to confidentiality of information; and ``(3) not later than one year after the date on which the Secretary responds to the written request, issue written guidance on such policy, question, or interpretation through such means as the Secretary determines to be appropriate and consistent with law, such as a policy memorandum, notice of interpretation, or notice of proposed rulemaking. ``(f) Explanation.--Any written response by the Secretary under subsection (e) regarding a policy, question, or interpretation under part B of this Act shall include an explanation that the written response-- ``(1) is provided as informal guidance and is not legally binding; and ``(2) represents the interpretation by the Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented. ``PART B--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES ``SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION OF APPROPRIATIONS. ``(a) Grants to States.-- ``(1) Purpose of grants.--The Secretary shall make grants to States and the outlying areas, and provide funds to the Secretary of the Interior, to assist them to provide special education and related services to children with disabilities in accordance with this part. ``(2) Maximum amounts.--The maximum amount of the grant a State may receive under this section for any fiscal year is-- ``(A) the number of children with disabilities in the State who are receiving special education and related services-- ``(i) aged three through five if the State is eligible for a grant under section 619; and ``(ii) aged six through 21; multiplied by ``(B) 40 percent of the average per-pupil expenditure in public elementary and secondary schools in the United States. ``(b) Outlying Areas and Freely Associated States.-- ``(1) Funds reserved.--From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve not more than one percent, which shall be used-- ``(A) to provide assistance to the outlying areas in accordance with their respective populations of individuals aged three through 21; and ``(B) for fiscal years 1998 through 2001, to carry out the competition described in paragraph (2), except that the amount reserved to carry out that competition shall not exceed the amount reserved for fiscal year 1996 for the competition under part B of this Act described under the heading ``SPECIAL EDUCATION'' in Public Law 104-134. ``(2) Limitation for freely associated states.-- ``(A) Competitive grants.--The Secretary shall use funds described in paragraph (1)(B) to award grants, on a competitive basis, to Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the freely associated States to carry out the purposes of this part. [[Page H2502]] ``(B) Award basis.--The Secretary shall award grants under subparagraph (A) on a competitive basis, pursuant to the recommendations of the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those recommendations shall be made by experts in the field of special education and related services. ``(C) Assistance requirements.--Any freely associated State that wishes to receive funds under this part shall include, in its application for assistance-- ``(i) information demonstrating that it will meet all conditions that apply to States under this part; ``(ii) an assurance that, notwithstanding any other provision of this part, it will use those funds only for the direct provision of special education and related services to children with disabilities and to enhance its capacity to make a free appropriate public education available to all children with disabilities; ``(iii) the identity of the source and amount of funds, in addition to funds under this part, that it will make available to ensure that a free appropriate public education is available to all children with disabilities within its jurisdiction; and ``(iv) such other information and assurances as the Secretary may require. ``(D) Termination of eligibility.--Notwithstanding any other provision of law, the freely associated States shall not receive any funds under this part for any program year that begins after September 30, 2001. ``(E) Administrative costs.--The Secretary may provide not more than five percent of the amount reserved for grants under this paragraph to pay the administrative costs of the Pacific Region Educational Laboratory under subparagraph (B). ``(3) Limitation.--An outlying area is not eligible for a competitive award under paragraph (2) unless it receives assistance under paragraph (1)(A). ``(4) Special rule.--The provisions of Public Law 95-134, permitting the consolidation of grants by the outlying areas, shall not apply to funds provided to those areas or to the freely associated States under this section. ``(5) Eligibility for discretionary programs.--The freely associated States shall be eligible to receive assistance under subpart 2 of part D of this Act until September 30, 2001. ``(6) Definition.--As used in this subsection, the term `freely associated States' means the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. ``(c) Secretary of the Interior.--From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve 1.226 percent to provide assistance to the Secretary of the Interior in accordance with subsection (i). ``(d) Allocations to States.-- ``(1) In general.--After reserving funds for studies and evaluations under section 674(e), and for payments to the outlying areas and the Secretary of the Interior under subsections (b) and (c), the Secretary shall allocate the remaining amount among the States in accordance with paragraph (2) or subsection (e), as the case may be. ``(2) Interim formula.--Except as provided in subsection (e), the Secretary shall allocate the amount described in paragraph (1) among the States in accordance with section 611(a)(3), (4), and (5) and (b)(1), (2), and (3) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997, except that the determination of the number of children with disabilities receiving special education and related services under such section 611(a)(3) may, at the State's discretion, be calculated as of the last Friday in October or as of December 1 of the fiscal year for which the funds are appropriated. ``(e) Permanent Formula.-- ``(1) Establishment of base year.--The Secretary shall allocate the amount described in subsection (d)(1) among the States in accordance with this subsection for each fiscal year beginning with the first fiscal year for which the amount appropriated under subsection (j) is more than $4,924,672,200. ``(2) Use of base year.-- ``(A) Definition.--As used in this subsection, the term `base year' means the fiscal year preceding the first fiscal year in which this subsection applies. ``(B) Special rule for use of base year amount.--If a State received any funds under this section for the base year on the basis of children aged three through five, but does not make a free appropriate public education available to all children with disabilities aged three through five in the State in any subsequent fiscal year, the Secretary shall compute the State's base year amount, solely for the purpose of calculating the State's allocation in that subsequent year under paragraph (3) or (4), by subtracting the amount allocated to the State for the base year on the basis of those children. ``(3) Increase in funds.--If the amount available for allocations to States under paragraph (1) is equal to or greater than the amount allocated to the States under this paragraph for the preceding fiscal year, those allocations shall be calculated as follows: ``(A)(i) Except as provided in subparagraph (B), the Secretary shall-- ``(I) allocate to each State the amount it received for the base year; ``(II) allocate 85 percent of any remaining funds to States on the basis of their relative populations of children aged 3 through 21 who are of the same age as children with disabilities for whom the State ensures the availability of a free appropriate public education under this part; and ``(III) allocate 15 percent of those remaining funds to States on the basis of their relative populations of children described in subclause (II) who are living in poverty. ``(ii) For the purpose of making grants under this paragraph, the Secretary shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary. ``(B) Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following: ``(i) No State's allocation shall be less than its allocation for the preceding fiscal year. ``(ii) No State's allocation shall be less than the greatest of-- ``(I) the sum of-- ``(aa) the amount it received for the base year; and ``(bb) one third of one percent of the amount by which the amount appropriated under subsection (j) exceeds the amount appropriated under this section for the base year; ``(II) the sum of-- ``(aa) the amount it received for the preceding fiscal year; and ``(bb) that amount multiplied by the percentage by which the increase in the funds appropriated from the preceding fiscal year exceeds 1.5 percent; or ``(III) the sum of-- ``(aa) the amount it received for the preceding fiscal year; and ``(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated from the preceding fiscal year. ``(iii) Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of-- ``(I) the amount it received for the preceding fiscal year; and ``(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated. ``(C) If the amount available for allocations under this paragraph is insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to subparagraph (B)(i). ``(4) Decrease in funds.--If the amount available for allocations to States under paragraph (1) is less than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows: ``(A) If the amount available for allocations is greater than the amount allocated to the States for the base year, each State shall be allocated the sum of-- ``(i) the amount it received for the base year; and ``(ii) an amount that bears the same relation to any remaining funds as the increase the State received for the preceding fiscal year over the base year bears to the total of all such increases for all States. ``(B)(i) If the amount available for allocations is equal to or less than the amount allocated to the States for the base year, each State shall be allocated the amount it received for the base year. ``(ii) If the amount available is insufficient to make the allocations described in clause (i), those allocations shall be ratably reduced. ``(f) State-Level Activities.-- ``(1) General.-- ``(A) Each State may retain not more than the amount described in subparagraph (B) for administration and other State-level activities in accordance with paragraphs (2) and (3). ``(B) For each fiscal year, the Secretary shall determine and report to the State educational agency an amount that is 25 percent of the amount the State received under this section for fiscal year 1997, cumulatively adjusted by the Secretary for each succeeding fiscal year by the lesser of-- ``(i) the percentage increase, if any, from the preceding fiscal year in the State's allocation under this section; or ``(ii) the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. ``(C) A State may use funds it retains under subparagraph (A) without regard to-- ``(i) the prohibition on commingling of funds in section 612(a)(18)(B); and ``(ii) the prohibition on supplanting other funds in section 612(a)(18)(C). ``(2) State administration.-- ``(A) For the purpose of administering this part, including section 619 (including the coordination of activities under this part with, and providing technical assistance to, other programs that provide services to children with disabilities)-- ``(i) each State may use not more than twenty percent of the maximum amount it may retain under paragraph (1)(A) for any fiscal year or $500,000 (adjusted by the cumulative rate of inflation since fiscal year 1998, as measured by the percentage increase, if any, in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), whichever is greater; and ``(ii) each outlying area may use up to five percent of the amount it receives under this [[Page H2503]] section for any fiscal year or $35,000, whichever is greater. ``(B) Funds described in subparagraph (A) may also be used for the administration of part C of this Act, if the State educational agency is the lead agency for the State under that part. ``(3) Other state-level activities.--Each State shall use any funds it retains under paragraph (1) and does not use for administration under paragraph (2) for any of the following: ``(A) Support and direct services, including technical assistance and personnel development and training. ``(B) Administrative costs of monitoring and complaint investigation, but only to the extent that those costs exceed the costs incurred for those activities during fiscal year 1985. ``(C) To establish and implement the mediation process required by section 615(e), including providing for the costs of mediators and support personnel. ``(D) To assist local educational agencies in meeting personnel shortages. ``(E) To develop a State Improvement Plan under subpart 1 of part D. ``(F) Activities at the State and local levels to meet the performance goals established by the State under section 612(a)(16) and to support implementation of the State Improvement Plan under subpart 1 of part D if the State receives funds under that subpart. ``(G) To supplement other amounts used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under this section. This system shall be coordinated with and, to the extent appropriate, build on the system of coordinated services developed by the State under part C of this Act. ``(H) For subgrants to local educational agencies for the purposes described in paragraph (4)(A). ``(4)(A) Subgrants to Local Educational Agencies for Capacity-Building and Improvement.--In any fiscal year in which the percentage increase in the State's allocation under this section exceeds the rate of inflation (as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), each State shall reserve, from its allocation under this section, the amount described in subparagraph (B) to make subgrants to local educational agencies, unless that amount is less than $100,000, to assist them in providing direct services and in making systemic change to improve results for children with disabilities through one or more of the following: ``(i) Direct services, including alternative programming for children who have been expelled from school, and services for children in correctional facilities, children enrolled in State-operated or State-supported schools, and children in charter schools. ``(ii) Addressing needs or carrying out improvement strategies identified in the State's Improvement Plan under subpart 1 of part D. ``(iii) Adopting promising practices, materials, and technology, based on knowledge derived from education research and other sources. ``(iv) Establishing, expanding, or implementing interagency agreements and arrangements between local educational agencies and other agencies or organizations concerning the provision of services to children with disabilities and their families. ``(v) Increasing cooperative problem-solving between parents and school personnel and promoting the use of alternative dispute resolution. ``(B) Maximum subgrant.--For each fiscal year, the amount referred to in subparagraph (A) is-- ``(i) the maximum amount the State was allowed to retain under paragraph (1)(A) for the prior fiscal year, or for fiscal year 1998, 25 percent of the State's allocation for fiscal year 1997 under this section; multiplied by ``(ii) the difference between the percentage increase in the State's allocation under this section and the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. ``(5) Report on Use of Funds.--As part of the information required to be submitted to the Secretary under section 612, each State shall annually describe-- ``(A) how amounts retained under paragraph (1) will be used to meet the requirements of this part; ``(B) how those amounts will be allocated among the activities described in paragraphs (2) and (3) to meet State priorities based on input from local educational agencies; and ``(C) the percentage of those amounts, if any, that will be distributed to local educational agencies by formula. ``(g) Subgrants to Local Educational Agencies.-- ``(1) Subgrants required.--Each State that receives a grant under this section for any fiscal year shall distribute any funds it does not retain under subsection (f) (at least 75 percent of the grant funds) to local educational agencies in the State that have established their eligibility under section 613, and to State agencies that received funds under section 614A(a) of this Act for fiscal year 1997, as then in effect, and have established their eligibility under section 613, for use in accordance with this part. ``(2) Allocations to local educational agencies.-- ``(A) Interim procedure.--For each fiscal year for which funds are allocated to States under subsection (d)(2), each State shall allocate funds under paragraph (1) in accordance with section 611(d) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997. ``(B) Permanent procedure.--For each fiscal year for which funds are allocated to States under subsection (e), each State shall allocate funds under paragraph (1) as follows: ``(i) Base payments.--The State shall first award each agency described in paragraph (1) the amount that agency would have received under this section for the base year, as defined in subsection (e)(2)(A), if the State had distributed 75 percent of its grant for that year under section 611(d), as then in effect. ``(ii) Allocation of remaining funds.--After making allocations under clause (i), the State shall-- ``(I) allocate 85 percent of any remaining funds to those agencies on the basis of the relative numbers of children enrolled in public and private elementary and secondary schools within the agency's jurisdiction; and ``(II) allocate 15 percent of those remaining funds to those agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency. ``(3) Former chapter 1 state agencies.-- ``(A) To the extent necessary, the State-- ``(i) shall use funds that are available under subsection (f)(1)(A) to ensure that each State agency that received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 receives, from the combination of funds under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount equal to-- ``(I) the number of children with disabilities, aged 6 through 21, to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, subject to the limitation in subparagraph (B); multiplied by ``(II) the per-child amount provided under such subpart for fiscal year 1994; and ``(ii) may use those funds to ensure that each local educational agency that received fiscal year 1994 funds under that subpart for children who had transferred from a State- operated or State-supported school or program assisted under that subpart receives, from the combination of funds available under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount for each such child, aged 3 through 21 to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, equal to the per-child amount the agency received under that subpart for fiscal year 1994. ``(B) The number of children counted under subparagraph (A)(i)(I) shall not exceed the number of children aged 3 through 21 for whom the agency received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965. ``(4) Reallocation of funds.--If a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all children with disabilities residing in the area served by that agency with State and local funds, the State educational agency may reallocate any portion of the funds under this part that are not needed by that local agency to provide a free appropriate public education to other local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas they serve. ``(h) Definitions.--For the purpose of this section-- ``(1) the term `average per-pupil expenditure in public elementary and secondary schools in the United States' means-- ``(A) without regard to the source of funds-- ``(i) the aggregate current expenditures, during the second fiscal year preceding the fiscal year for which the determination is made (or, if satisfactory data for that year are not available, during the most recent preceding fiscal year for which satisfactory data are available) of all local educational agencies in the 50 States and the District of Columbia); plus ``(ii) any direct expenditures by the State for the operation of those agencies; divided by ``(B) the aggregate number of children in average daily attendance to whom those agencies provided free public education during that preceding year; and ``(2) the term `State' means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. ``(i) Use of Amounts by Secretary of the Interior.-- ``(1) Provision of amounts for assistance.-- ``(A) In general.--The Secretary of Education shall provide amounts to the Secretary of the Interior to meet the need for

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INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997
(House of Representatives - May 13, 1997)

Text of this article available as: TXT PDF [Pages H2498-H2541] INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997 Mr. GOODLING. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 5) to amend the Individuals With Disabilities Education Act, to reauthorize and make improvements to that act, and for other purposes, as amended. The Clerk read as follows: H.R. 5 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Individuals with Disabilities Education Act Amendments of 1997''. TITLE I--AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT SEC. 101. AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT. Parts A through D of the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) are amended to read as follows: ``PART A--GENERAL PROVISIONS ``SEC. 601. SHORT TITLE; TABLE OF CONTENTS; FINDINGS; PURPOSES. ``(a) Short Title.--This Act may be cited as the `Individuals with Disabilities Education Act'. ``(b) Table of Contents.--The table of contents for this Act is as follows: ``Part A--General Provisions ``Sec. 601. Short title; table of contents; findings; purposes. ``Sec. 602. Definitions. ``Sec. 603. Office of Special Education Programs. ``Sec. 604. Abrogation of State sovereign immunity. ``Sec. 605. Acquisition of equipment; construction or alteration of facilities. ``Sec. 606. Employment of individuals with disabilities. ``Sec. 607. Requirements for prescribing regulations. ``Part B--Assistance for Education of All Children with Disabilities ``Sec. 611. Authorization; allotment; use of funds; authorization of appropriations. ``Sec. 612. State eligibility. ``Sec. 613. Local educational agency eligibility. ``Sec. 614. Evaluations, eligibility determinations, individualized education programs, and educational placements. ``Sec. 615. Procedural safeguards. ``Sec. 616. Withholding and judicial review. ``Sec. 617. Administration. ``Sec. 618. Program information. ``Sec. 619. Preschool grants. ``Part C--Infants and Toddlers with Disabilities ``Sec. 631. Findings and policy. ``Sec. 632. Definitions. ``Sec. 633. General authority. ``Sec. 634. Eligibility. ``Sec. 635. Requirements for statewide system. ``Sec. 636. Individualized family service plan. ``Sec. 637. State application and assurances. ``Sec. 638. Uses of funds. ``Sec. 639. Procedural safeguards. ``Sec. 640. Payor of last resort. ``Sec. 641. State Interagency Coordinating Council. ``Sec. 642. Federal administration. ``Sec. 643. Allocation of funds. ``Sec. 644. Federal Interagency Coordinating Council. ``Sec. 645. Authorization of appropriations. ``Part D--National Activities to Improve Education of Children with Disabilities ``subpart 1--state program improvement grants for children with disabilities ``Sec. 651. Findings and purpose. ``Sec. 652. Eligibility and collaborative process. ``Sec. 653. Applications. ``Sec. 654. Use of funds. ``Sec. 655. Minimum State grant amounts. ``Sec. 656. Authorization of appropriations. ``subpart 2--coordinated research, personnel preparation, technical assistance, support, and dissemination of information ``Sec. 661. Administrative provisions. ``chapter 1--improving early intervention, educational, and transitional services and results for children with disabilities through coordinated research and personnel preparation ``Sec. 671. Findings and purpose. ``Sec. 672. Research and innovation to improve services and results for children with disabilities. ``Sec. 673. Personnel preparation to improve services and results for children with disabilities. ``Sec. 674. Studies and evaluations. ``chapter 2--improving early intervention, educational, and transitional services and results for children with disabilities through coordinated technical assistance, support, and dissemination of information ``Sec. 681. Findings and purposes. ``Sec. 682. Parent training and information centers. ``Sec. 683. Community parent resource centers. ``Sec. 684. Technical assistance for parent training and information centers. ``Sec. 685. Coordinated technical assistance and dissemination. ``Sec. 686. Authorization of appropriations. ``Sec. 687. Technology development, demonstration, and utilization, and media services. ``(c) Findings.--The 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 the enactment of the Education for All Handicapped Children Act of 1975 (Public Law 94-142)-- ``(A) the special educational needs of children with disabilities were not being fully met; ``(B) more than one-half of the children with disabilities in the United States did not receive appropriate educational services that would enable such children to have full equality of opportunity; ``(C) 1,000,000 of the children with disabilities in the United States were excluded entirely from the public school system and did not go through the educational process with their peers; ``(D) there were many children with disabilities throughout the United States participating in regular school programs whose disabilities prevented such children from [[Page H2499]] having a successful educational experience because their disabilities were undetected; and ``(E) because of the lack of adequate services within the public school system, families were often forced to find services outside the public school system, often at great distance from their residence and at their own expense. ``(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this Act 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 Act 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) Over 20 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 in the general curriculum to the maximum extent possible; ``(B) strengthening the role 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 Act with other local, educational service agency, State, and Federal school improvement efforts 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 they 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 professional development for all personnel who work with such children in order to ensure that they have the skills and knowledge necessary to enable them-- ``(i) to meet developmental goals and, to the maximum extent possible, those challenging expectations that have been established for all children; and ``(ii) to be prepared to lead productive, independent, adult lives, to the maximum extent possible; ``(F) providing incentives for whole-school approaches and pre-referral intervention to reduce the need to label children as disabled in order to address their learning needs; and ``(G) focusing resources on teaching and learning while reducing paperwork and requirements that do not assist in improving educational results. ``(6) While States, local educational agencies, and educational service agencies are responsible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a 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) The Federal Government must be responsive to the growing needs of an increasingly more diverse society. 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. ``(B) America's racial profile is rapidly changing. Between 1980 and 1990, the rate of increase in the population for white Americans was 6 percent, while the rate of increase for racial and ethnic minorities was much higher: 53 percent for Hispanics, 13.2 percent for African-Americans, and 107.8 percent for Asians. ``(C) By the year 2000, this Nation will have 275,000,000 people, nearly one of every three of whom will be either African-American, Hispanic, Asian-American, or American Indian. ``(D) Taken together as a group, minority children are comprising an ever larger percentage of public school students. Large-city school populations are overwhelmingly minority, for example: for fall 1993, the figure for Miami was 84 percent; Chicago, 89 percent; Philadelphia, 78 percent; Baltimore, 84 percent; Houston, 88 percent; and Los Angeles, 88 percent. ``(E) Recruitment efforts within special education must focus on bringing larger numbers of minorities into the profession in order to provide appropriate practitioner knowledge, role models, and sufficient manpower to address the clearly changing demography of special education. ``(F) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring in many parts of our Nation. In the Nation's 2 largest school districts, limited English students make up almost half of all students initially entering school at the kindergarten level. Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education. The Department of Education has found that services provided to limited English proficient students often do not respond primarily to the pupil's academic needs. These trends pose special challenges for special education in the referral, assessment, and services for our Nation's students from non-English language backgrounds. ``(8)(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) Poor African-American children are 2.3 times more likely to be identified by their teacher as having mental retardation than their white counterpart. ``(D) Although African-Americans represent 16 percent of elementary and secondary enrollments, they constitute 21 percent of total enrollments in special education. ``(E) The drop-out rate is 68 percent higher for minorities than for whites. ``(F) More than 50 percent of minority students in large cities drop out of school. ``(9)(A) The opportunity for full participation in awards for grants and contracts; boards of organizations receiving funds under this Act; and peer review panels; and training of professionals in the area of special education by minority individuals, organizations, and historically black colleges and universities is essential if we are to obtain greater success in the education of minority children with disabilities. ``(B) In 1993, of the 915,000 college and university professors, 4.9 percent were African-American and 2.4 percent were Hispanic. Of the 2,940,000 teachers, prekindergarten through high school, 6.8 percent were African-American and 4.1 percent were Hispanic. ``(C) Students from minority groups comprise more than 50 percent of K-12 public school enrollment in seven States yet minority enrollment in teacher training programs is less than 15 percent in all but six States. ``(D) As the number of African-American and Hispanic students in special education increases, the number of minority teachers and related service personnel produced in our colleges and universities continues to decrease. ``(E) Ten years ago, 12 percent of the United States teaching force in public elementary and secondary schools were members of a minority group. Minorities comprised 21 percent of the national population at that time and were clearly underrepresented then among employed teachers. Today, the elementary and secondary teaching force is 13 percent minority, while one-third of the students in public schools are minority children. ``(F) As recently as 1991, historically black colleges and universities enrolled 44 percent of the African-American teacher trainees in the Nation. However, in 1993, historically black colleges and universities received only 4 percent of the discretionary funds for special education and related services personnel training under this Act. ``(G) While African-American students constitute 28 percent of total enrollment in special education, only 11.2 percent of individuals enrolled in preservice training programs for special education are African-American. ``(H) In 1986-87, of the degrees conferred in education at the B.A., M.A., and Ph.D levels, only 6, 8, and 8 percent, respectively, were awarded to African-American or Hispanic students. ``(10) Minorities and underserved persons are socially disadvantaged because of the lack of opportunities in training and educational programs, undergirded by the practices in the private sector that impede their full participation in the mainstream of society. ``(d) Purposes.--The purposes of this title 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 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 systemic-change 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. ``SEC. 602. DEFINITIONS. ``Except as otherwise provided, as used in this Act: ``(1) Assistive technology device.--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. ``(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 [[Page H2500]] 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 of 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 mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to 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 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 one 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) 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 and secondary schools of the State; and ``(B) includes any other public institution or agency having administrative control and direction over a public elementary or secondary school. ``(5) Elementary school.--The term `elementary school' means a nonprofit institutional day or residential school that provides elementary education, as determined under State law. ``(6) 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. ``(7) 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 or secondary school student, as may be appropriate, and which shall be computed after deducting-- ``(A) amounts received-- ``(i) under part B of this title; ``(ii) under part A of title I of the Elementary and Secondary Education Act of 1965; or ``(iii) under part A of title VII of that Act; and ``(B) any State or local funds expended for programs that would qualify for assistance under any of those parts. ``(8) 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, or secondary school education in the State involved; and ``(D) are provided in conformity with the individualized education program required under section 614(d). ``(9) Indian.--The term `Indian' means an individual who is a member of an Indian tribe. ``(10) 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). ``(11) Individualized education program.--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 614(d). ``(12) Individualized family service plan.--The term `individualized family service plan' has the meaning given such term in section 636. ``(13) Infant or toddler with a disability.--The term `infant or toddler with a disability' has the meaning given such term in section 632. ``(14) Institution of higher education.--The term `institution of higher education'-- ``(A) has the meaning given that term in section 1201(a) of the Higher Education Act of 1965; and ``(B) also includes any community college receiving funding from the Secretary of the Interior under the Tribally Controlled Community College Assistance Act of 1978. ``(15) Local educational agency.-- ``(A) 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 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 or secondary schools. ``(B) The term includes-- ``(i) an educational service agency, as defined in paragraph (4); and ``(ii) any other public institution or agency having administrative control and direction of a public elementary or secondary school. ``(C) The term includes an elementary 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 Act 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. ``(16) Native language.--The term `native language', when used with reference to an individual of limited English proficiency, 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. ``(17) Nonprofit.--The term `nonprofit', as applied to a school, agency, organization, or institution, means a school, agency, organization, or institution owned and operated by one 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. ``(18) Outlying area.--The term `outlying area' means the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. ``(19) Parent.--The term `parent'-- ``(A) includes a legal guardian; and ``(B) except as used in sections 615(b)(2) and 639(a)(5), includes an individual assigned under either of those sections to be a surrogate parent. ``(20) Parent organization.--The term `parent organization' has the meaning given that term in section 682(g). ``(21) Parent training and information center.--The term `parent training and information center' means a center assisted under section 682 or 683. ``(22) Related services.--The term `related services' means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, 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. ``(23) Secondary school.--The term `secondary school' means a nonprofit institutional day or residential school that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12. ``(24) Secretary.--The term `Secretary' means the Secretary of Education. ``(25) 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. ``(26) Specific learning disability.-- ``(A) In general.--The term `specific learning disability' means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. [[Page H2501]] ``(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 mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. ``(27) 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. ``(28) 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 and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law. ``(29) 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 612(a)(5). ``(30) Transition services.--The term `transition services' means a coordinated set of activities for a student with a disability that-- ``(A) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; ``(B) is based upon the individual student's needs, taking into account the student's 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. ``SEC. 603. 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 such Department for administering and carrying out this Act 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, United States Code, the Secretary is authorized to accept voluntary and uncompensated services in furtherance of the purposes of this Act. ``SEC. 604. ABROGATION OF STATE SOVEREIGN IMMUNITY. ``(a) In General.--A State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this Act. ``(b) Remedies.--In a suit against a State for a violation of this Act, 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 the date of the enactment of the Education of the Handicapped Act Amendments of 1990. ``SEC. 605. ACQUISITION OF EQUIPMENT; CONSTRUCTION OR ALTERATION OF FACILITIES. ``(a) In General.--If the Secretary determines that a program authorized under this Act would 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 part 101-19.6 of title 41, Code of Federal Regulations (commonly known as the `Uniform Federal Accessibility Standards'). ``SEC. 606. EMPLOYMENT OF INDIVIDUALS WITH DISABILITIES. ``The Secretary shall ensure that each recipient of assistance under this Act makes positive efforts to employ and advance in employment qualified individuals with disabilities in programs assisted under this Act. ``SEC. 607. REQUIREMENTS FOR PRESCRIBING REGULATIONS. ``(a) Public Comment Period.--The Secretary shall provide a public comment period of at least 90 days on any regulation proposed under part B or part C of this Act on which an opportunity for public comment is otherwise required by law. ``(b) Protections Provided to Children.--The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this Act that would procedurally or substantively lessen the protections provided to children with disabilities under this Act, as embodied in regulations in effect on July 20, 1983 (particularly as such protections relate 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 the Congress in legislation. ``(c) Policy Letters and Statements.--The Secretary may not, through policy letters or other statements, establish a rule that is required for compliance with, and eligibility under, this part without following the requirements of section 553 of title 5, United States Code. ``(d) Correspondence From Department of Education Describing Interpretations of This Part.-- ``(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 Act or the regulations implemented pursuant to this Act. ``(2) Additional information.--For each item of correspondence published in a list under paragraph (1), the Secretary shall identify the topic addressed by the correspondence and shall include such other summary information as the Secretary determines to be appropriate. ``(e) Issues of National Significance.--If the Secretary receives a written request regarding a policy, question, or interpretation under part B of this Act, and determines that it raises an issue of general interest or applicability of national significance to the implementation of part B, the Secretary shall-- ``(1) include a statement to that effect in any written response; ``(2) widely disseminate that response to State educational agencies, local educational agencies, parent and advocacy organizations, and other interested organizations, subject to applicable laws relating to confidentiality of information; and ``(3) not later than one year after the date on which the Secretary responds to the written request, issue written guidance on such policy, question, or interpretation through such means as the Secretary determines to be appropriate and consistent with law, such as a policy memorandum, notice of interpretation, or notice of proposed rulemaking. ``(f) Explanation.--Any written response by the Secretary under subsection (e) regarding a policy, question, or interpretation under part B of this Act shall include an explanation that the written response-- ``(1) is provided as informal guidance and is not legally binding; and ``(2) represents the interpretation by the Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented. ``PART B--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES ``SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION OF APPROPRIATIONS. ``(a) Grants to States.-- ``(1) Purpose of grants.--The Secretary shall make grants to States and the outlying areas, and provide funds to the Secretary of the Interior, to assist them to provide special education and related services to children with disabilities in accordance with this part. ``(2) Maximum amounts.--The maximum amount of the grant a State may receive under this section for any fiscal year is-- ``(A) the number of children with disabilities in the State who are receiving special education and related services-- ``(i) aged three through five if the State is eligible for a grant under section 619; and ``(ii) aged six through 21; multiplied by ``(B) 40 percent of the average per-pupil expenditure in public elementary and secondary schools in the United States. ``(b) Outlying Areas and Freely Associated States.-- ``(1) Funds reserved.--From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve not more than one percent, which shall be used-- ``(A) to provide assistance to the outlying areas in accordance with their respective populations of individuals aged three through 21; and ``(B) for fiscal years 1998 through 2001, to carry out the competition described in paragraph (2), except that the amount reserved to carry out that competition shall not exceed the amount reserved for fiscal year 1996 for the competition under part B of this Act described under the heading ``SPECIAL EDUCATION'' in Public Law 104-134. ``(2) Limitation for freely associated states.-- ``(A) Competitive grants.--The Secretary shall use funds described in paragraph (1)(B) to award grants, on a competitive basis, to Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the freely associated States to carry out the purposes of this part. [[Page H2502]] ``(B) Award basis.--The Secretary shall award grants under subparagraph (A) on a competitive basis, pursuant to the recommendations of the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those recommendations shall be made by experts in the field of special education and related services. ``(C) Assistance requirements.--Any freely associated State that wishes to receive funds under this part shall include, in its application for assistance-- ``(i) information demonstrating that it will meet all conditions that apply to States under this part; ``(ii) an assurance that, notwithstanding any other provision of this part, it will use those funds only for the direct provision of special education and related services to children with disabilities and to enhance its capacity to make a free appropriate public education available to all children with disabilities; ``(iii) the identity of the source and amount of funds, in addition to funds under this part, that it will make available to ensure that a free appropriate public education is available to all children with disabilities within its jurisdiction; and ``(iv) such other information and assurances as the Secretary may require. ``(D) Termination of eligibility.--Notwithstanding any other provision of law, the freely associated States shall not receive any funds under this part for any program year that begins after September 30, 2001. ``(E) Administrative costs.--The Secretary may provide not more than five percent of the amount reserved for grants under this paragraph to pay the administrative costs of the Pacific Region Educational Laboratory under subparagraph (B). ``(3) Limitation.--An outlying area is not eligible for a competitive award under paragraph (2) unless it receives assistance under paragraph (1)(A). ``(4) Special rule.--The provisions of Public Law 95-134, permitting the consolidation of grants by the outlying areas, shall not apply to funds provided to those areas or to the freely associated States under this section. ``(5) Eligibility for discretionary programs.--The freely associated States shall be eligible to receive assistance under subpart 2 of part D of this Act until September 30, 2001. ``(6) Definition.--As used in this subsection, the term `freely associated States' means the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. ``(c) Secretary of the Interior.--From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve 1.226 percent to provide assistance to the Secretary of the Interior in accordance with subsection (i). ``(d) Allocations to States.-- ``(1) In general.--After reserving funds for studies and evaluations under section 674(e), and for payments to the outlying areas and the Secretary of the Interior under subsections (b) and (c), the Secretary shall allocate the remaining amount among the States in accordance with paragraph (2) or subsection (e), as the case may be. ``(2) Interim formula.--Except as provided in subsection (e), the Secretary shall allocate the amount described in paragraph (1) among the States in accordance with section 611(a)(3), (4), and (5) and (b)(1), (2), and (3) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997, except that the determination of the number of children with disabilities receiving special education and related services under such section 611(a)(3) may, at the State's discretion, be calculated as of the last Friday in October or as of December 1 of the fiscal year for which the funds are appropriated. ``(e) Permanent Formula.-- ``(1) Establishment of base year.--The Secretary shall allocate the amount described in subsection (d)(1) among the States in accordance with this subsection for each fiscal year beginning with the first fiscal year for which the amount appropriated under subsection (j) is more than $4,924,672,200. ``(2) Use of base year.-- ``(A) Definition.--As used in this subsection, the term `base year' means the fiscal year preceding the first fiscal year in which this subsection applies. ``(B) Special rule for use of base year amount.--If a State received any funds under this section for the base year on the basis of children aged three through five, but does not make a free appropriate public education available to all children with disabilities aged three through five in the State in any subsequent fiscal year, the Secretary shall compute the State's base year amount, solely for the purpose of calculating the State's allocation in that subsequent year under paragraph (3) or (4), by subtracting the amount allocated to the State for the base year on the basis of those children. ``(3) Increase in funds.--If the amount available for allocations to States under paragraph (1) is equal to or greater than the amount allocated to the States under this paragraph for the preceding fiscal year, those allocations shall be calculated as follows: ``(A)(i) Except as provided in subparagraph (B), the Secretary shall-- ``(I) allocate to each State the amount it received for the base year; ``(II) allocate 85 percent of any remaining funds to States on the basis of their relative populations of children aged 3 through 21 who are of the same age as children with disabilities for whom the State ensures the availability of a free appropriate public education under this part; and ``(III) allocate 15 percent of those remaining funds to States on the basis of their relative populations of children described in subclause (II) who are living in poverty. ``(ii) For the purpose of making grants under this paragraph, the Secretary shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary. ``(B) Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following: ``(i) No State's allocation shall be less than its allocation for the preceding fiscal year. ``(ii) No State's allocation shall be less than the greatest of-- ``(I) the sum of-- ``(aa) the amount it received for the base year; and ``(bb) one third of one percent of the amount by which the amount appropriated under subsection (j) exceeds the amount appropriated under this section for the base year; ``(II) the sum of-- ``(aa) the amount it received for the preceding fiscal year; and ``(bb) that amount multiplied by the percentage by which the increase in the funds appropriated from the preceding fiscal year exceeds 1.5 percent; or ``(III) the sum of-- ``(aa) the amount it received for the preceding fiscal year; and ``(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated from the preceding fiscal year. ``(iii) Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of-- ``(I) the amount it received for the preceding fiscal year; and ``(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated. ``(C) If the amount available for allocations under this paragraph is insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to subparagraph (B)(i). ``(4) Decrease in funds.--If the amount available for allocations to States under paragraph (1) is less than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows: ``(A) If the amount available for allocations is greater than the amount allocated to the States for the base year, each State shall be allocated the sum of-- ``(i) the amount it received for the base year; and ``(ii) an amount that bears the same relation to any remaining funds as the increase the State received for the preceding fiscal year over the base year bears to the total of all such increases for all States. ``(B)(i) If the amount available for allocations is equal to or less than the amount allocated to the States for the base year, each State shall be allocated the amount it received for the base year. ``(ii) If the amount available is insufficient to make the allocations described in clause (i), those allocations shall be ratably reduced. ``(f) State-Level Activities.-- ``(1) General.-- ``(A) Each State may retain not more than the amount described in subparagraph (B) for administration and other State-level activities in accordance with paragraphs (2) and (3). ``(B) For each fiscal year, the Secretary shall determine and report to the State educational agency an amount that is 25 percent of the amount the State received under this section for fiscal year 1997, cumulatively adjusted by the Secretary for each succeeding fiscal year by the lesser of-- ``(i) the percentage increase, if any, from the preceding fiscal year in the State's allocation under this section; or ``(ii) the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. ``(C) A State may use funds it retains under subparagraph (A) without regard to-- ``(i) the prohibition on commingling of funds in section 612(a)(18)(B); and ``(ii) the prohibition on supplanting other funds in section 612(a)(18)(C). ``(2) State administration.-- ``(A) For the purpose of administering this part, including section 619 (including the coordination of activities under this part with, and providing technical assistance to, other programs that provide services to children with disabilities)-- ``(i) each State may use not more than twenty percent of the maximum amount it may retain under paragraph (1)(A) for any fiscal year or $500,000 (adjusted by the cumulative rate of inflation since fiscal year 1998, as measured by the percentage increase, if any, in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), whichever is greater; and ``(ii) each outlying area may use up to five percent of the amount it receives under this [[Page H2503]] section for any fiscal year or $35,000, whichever is greater. ``(B) Funds described in subparagraph (A) may also be used for the administration of part C of this Act, if the State educational agency is the lead agency for the State under that part. ``(3) Other state-level activities.--Each State shall use any funds it retains under paragraph (1) and does not use for administration under paragraph (2) for any of the following: ``(A) Support and direct services, including technical assistance and personnel development and training. ``(B) Administrative costs of monitoring and complaint investigation, but only to the extent that those costs exceed the costs incurred for those activities during fiscal year 1985. ``(C) To establish and implement the mediation process required by section 615(e), including providing for the costs of mediators and support personnel. ``(D) To assist local educational agencies in meeting personnel shortages. ``(E) To develop a State Improvement Plan under subpart 1 of part D. ``(F) Activities at the State and local levels to meet the performance goals established by the State under section 612(a)(16) and to support implementation of the State Improvement Plan under subpart 1 of part D if the State receives funds under that subpart. ``(G) To supplement other amounts used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under this section. This system shall be coordinated with and, to the extent appropriate, build on the system of coordinated services developed by the State under part C of this Act. ``(H) For subgrants to local educational agencies for the purposes described in paragraph (4)(A). ``(4)(A) Subgrants to Local Educational Agencies for Capacity-Building and Improvement.--In any fiscal year in which the percentage increase in the State's allocation under this section exceeds the rate of inflation (as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), each State shall reserve, from its allocation under this section, the amount described in subparagraph (B) to make subgrants to local educational agencies, unless that amount is less than $100,000, to assist them in providing direct services and in making systemic change to improve results for children with disabilities through one or more of the following: ``(i) Direct services, including alternative programming for children who have been expelled from school, and services for children in correctional facilities, children enrolled in State-operated or State-supported schools, and children in charter schools. ``(ii) Addressing needs or carrying out improvement strategies identified in the State's Improvement Plan under subpart 1 of part D. ``(iii) Adopting promising practices, materials, and technology, based on knowledge derived from education research and other sources. ``(iv) Establishing, expanding, or implementing interagency agreements and arrangements between local educational agencies and other agencies or organizations concerning the provision of services to children with disabilities and their families. ``(v) Increasing cooperative problem-solving between parents and school personnel and promoting the use of alternative dispute resolution. ``(B) Maximum subgrant.--For each fiscal year, the amount referred to in subparagraph (A) is-- ``(i) the maximum amount the State was allowed to retain under paragraph (1)(A) for the prior fiscal year, or for fiscal year 1998, 25 percent of the State's allocation for fiscal year 1997 under this section; multiplied by ``(ii) the difference between the percentage increase in the State's allocation under this section and the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. ``(5) Report on Use of Funds.--As part of the information required to be submitted to the Secretary under section 612, each State shall annually describe-- ``(A) how amounts retained under paragraph (1) will be used to meet the requirements of this part; ``(B) how those amounts will be allocated among the activities described in paragraphs (2) and (3) to meet State priorities based on input from local educational agencies; and ``(C) the percentage of those amounts, if any, that will be distributed to local educational agencies by formula. ``(g) Subgrants to Local Educational Agencies.-- ``(1) Subgrants required.--Each State that receives a grant under this section for any fiscal year shall distribute any funds it does not retain under subsection (f) (at least 75 percent of the grant funds) to local educational agencies in the State that have established their eligibility under section 613, and to State agencies that received funds under section 614A(a) of this Act for fiscal year 1997, as then in effect, and have established their eligibility under section 613, for use in accordance with this part. ``(2) Allocations to local educational agencies.-- ``(A) Interim procedure.--For each fiscal year for which funds are allocated to States under subsection (d)(2), each State shall allocate funds under paragraph (1) in accordance with section 611(d) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997. ``(B) Permanent procedure.--For each fiscal year for which funds are allocated to States under subsection (e), each State shall allocate funds under paragraph (1) as follows: ``(i) Base payments.--The State shall first award each agency described in paragraph (1) the amount that agency would have received under this section for the base year, as defined in subsection (e)(2)(A), if the State had distributed 75 percent of its grant for that year under section 611(d), as then in effect. ``(ii) Allocation of remaining funds.--After making allocations under clause (i), the State shall-- ``(I) allocate 85 percent of any remaining funds to those agencies on the basis of the relative numbers of children enrolled in public and private elementary and secondary schools within the agency's jurisdiction; and ``(II) allocate 15 percent of those remaining funds to those agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency. ``(3) Former chapter 1 state agencies.-- ``(A) To the extent necessary, the State-- ``(i) shall use funds that are available under subsection (f)(1)(A) to ensure that each State agency that received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 receives, from the combination of funds under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount equal to-- ``(I) the number of children with disabilities, aged 6 through 21, to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, subject to the limitation in subparagraph (B); multiplied by ``(II) the per-child amount provided under such subpart for fiscal year 1994; and ``(ii) may use those funds to ensure that each local educational agency that received fiscal year 1994 funds under that subpart for children who had transferred from a State- operated or State-supported school or program assisted under that subpart receives, from the combination of funds available under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount for each such child, aged 3 through 21 to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, equal to the per-child amount the agency received under that subpart for fiscal year 1994. ``(B) The number of children counted under subparagraph (A)(i)(I) shall not exceed the number of children aged 3 through 21 for whom the agency received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965. ``(4) Reallocation of funds.--If a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all children with disabilities residing in the area served by that agency with State and local funds, the State educational agency may reallocate any portion of the funds under this part that are not needed by that local agency to provide a free appropriate public education to other local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas they serve. ``(h) Definitions.--For the purpose of this section-- ``(1) the term `average per-pupil expenditure in public elementary and secondary schools in the United States' means-- ``(A) without regard to the source of funds-- ``(i) the aggregate current expenditures, during the second fiscal year preceding the fiscal year for which the determination is made (or, if satisfactory data for that year are not available, during the most recent preceding fiscal year for which satisfactory data are available) of all local educational agencies in the 50 States and the District of Columbia); plus ``(ii) any direct expenditures by the State for the operation of those agencies; divided by ``(B) the aggregate number of children in average daily attendance to whom those agencies provided free public education during that preceding year; and ``(2) the term `State' means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. ``(i) Use of Amounts by Secretary of the Interior.-- ``(1) Provision of amounts for assistance.-- ``(A) In general.--The Secretary of Education shall provide amounts to the Secretary of the Interior to meet the need for assist

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INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997
(House of Representatives - May 13, 1997)

Text of this article available as: TXT PDF [Pages H2498-H2541] INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997 Mr. GOODLING. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 5) to amend the Individuals With Disabilities Education Act, to reauthorize and make improvements to that act, and for other purposes, as amended. The Clerk read as follows: H.R. 5 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Individuals with Disabilities Education Act Amendments of 1997''. TITLE I--AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT SEC. 101. AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT. Parts A through D of the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) are amended to read as follows: ``PART A--GENERAL PROVISIONS ``SEC. 601. SHORT TITLE; TABLE OF CONTENTS; FINDINGS; PURPOSES. ``(a) Short Title.--This Act may be cited as the `Individuals with Disabilities Education Act'. ``(b) Table of Contents.--The table of contents for this Act is as follows: ``Part A--General Provisions ``Sec. 601. Short title; table of contents; findings; purposes. ``Sec. 602. Definitions. ``Sec. 603. Office of Special Education Programs. ``Sec. 604. Abrogation of State sovereign immunity. ``Sec. 605. Acquisition of equipment; construction or alteration of facilities. ``Sec. 606. Employment of individuals with disabilities. ``Sec. 607. Requirements for prescribing regulations. ``Part B--Assistance for Education of All Children with Disabilities ``Sec. 611. Authorization; allotment; use of funds; authorization of appropriations. ``Sec. 612. State eligibility. ``Sec. 613. Local educational agency eligibility. ``Sec. 614. Evaluations, eligibility determinations, individualized education programs, and educational placements. ``Sec. 615. Procedural safeguards. ``Sec. 616. Withholding and judicial review. ``Sec. 617. Administration. ``Sec. 618. Program information. ``Sec. 619. Preschool grants. ``Part C--Infants and Toddlers with Disabilities ``Sec. 631. Findings and policy. ``Sec. 632. Definitions. ``Sec. 633. General authority. ``Sec. 634. Eligibility. ``Sec. 635. Requirements for statewide system. ``Sec. 636. Individualized family service plan. ``Sec. 637. State application and assurances. ``Sec. 638. Uses of funds. ``Sec. 639. Procedural safeguards. ``Sec. 640. Payor of last resort. ``Sec. 641. State Interagency Coordinating Council. ``Sec. 642. Federal administration. ``Sec. 643. Allocation of funds. ``Sec. 644. Federal Interagency Coordinating Council. ``Sec. 645. Authorization of appropriations. ``Part D--National Activities to Improve Education of Children with Disabilities ``subpart 1--state program improvement grants for children with disabilities ``Sec. 651. Findings and purpose. ``Sec. 652. Eligibility and collaborative process. ``Sec. 653. Applications. ``Sec. 654. Use of funds. ``Sec. 655. Minimum State grant amounts. ``Sec. 656. Authorization of appropriations. ``subpart 2--coordinated research, personnel preparation, technical assistance, support, and dissemination of information ``Sec. 661. Administrative provisions. ``chapter 1--improving early intervention, educational, and transitional services and results for children with disabilities through coordinated research and personnel preparation ``Sec. 671. Findings and purpose. ``Sec. 672. Research and innovation to improve services and results for children with disabilities. ``Sec. 673. Personnel preparation to improve services and results for children with disabilities. ``Sec. 674. Studies and evaluations. ``chapter 2--improving early intervention, educational, and transitional services and results for children with disabilities through coordinated technical assistance, support, and dissemination of information ``Sec. 681. Findings and purposes. ``Sec. 682. Parent training and information centers. ``Sec. 683. Community parent resource centers. ``Sec. 684. Technical assistance for parent training and information centers. ``Sec. 685. Coordinated technical assistance and dissemination. ``Sec. 686. Authorization of appropriations. ``Sec. 687. Technology development, demonstration, and utilization, and media services. ``(c) Findings.--The 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 the enactment of the Education for All Handicapped Children Act of 1975 (Public Law 94-142)-- ``(A) the special educational needs of children with disabilities were not being fully met; ``(B) more than one-half of the children with disabilities in the United States did not receive appropriate educational services that would enable such children to have full equality of opportunity; ``(C) 1,000,000 of the children with disabilities in the United States were excluded entirely from the public school system and did not go through the educational process with their peers; ``(D) there were many children with disabilities throughout the United States participating in regular school programs whose disabilities prevented such children from [[Page H2499]] having a successful educational experience because their disabilities were undetected; and ``(E) because of the lack of adequate services within the public school system, families were often forced to find services outside the public school system, often at great distance from their residence and at their own expense. ``(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this Act 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 Act 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) Over 20 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 in the general curriculum to the maximum extent possible; ``(B) strengthening the role 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 Act with other local, educational service agency, State, and Federal school improvement efforts 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 they 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 professional development for all personnel who work with such children in order to ensure that they have the skills and knowledge necessary to enable them-- ``(i) to meet developmental goals and, to the maximum extent possible, those challenging expectations that have been established for all children; and ``(ii) to be prepared to lead productive, independent, adult lives, to the maximum extent possible; ``(F) providing incentives for whole-school approaches and pre-referral intervention to reduce the need to label children as disabled in order to address their learning needs; and ``(G) focusing resources on teaching and learning while reducing paperwork and requirements that do not assist in improving educational results. ``(6) While States, local educational agencies, and educational service agencies are responsible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a 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) The Federal Government must be responsive to the growing needs of an increasingly more diverse society. 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. ``(B) America's racial profile is rapidly changing. Between 1980 and 1990, the rate of increase in the population for white Americans was 6 percent, while the rate of increase for racial and ethnic minorities was much higher: 53 percent for Hispanics, 13.2 percent for African-Americans, and 107.8 percent for Asians. ``(C) By the year 2000, this Nation will have 275,000,000 people, nearly one of every three of whom will be either African-American, Hispanic, Asian-American, or American Indian. ``(D) Taken together as a group, minority children are comprising an ever larger percentage of public school students. Large-city school populations are overwhelmingly minority, for example: for fall 1993, the figure for Miami was 84 percent; Chicago, 89 percent; Philadelphia, 78 percent; Baltimore, 84 percent; Houston, 88 percent; and Los Angeles, 88 percent. ``(E) Recruitment efforts within special education must focus on bringing larger numbers of minorities into the profession in order to provide appropriate practitioner knowledge, role models, and sufficient manpower to address the clearly changing demography of special education. ``(F) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring in many parts of our Nation. In the Nation's 2 largest school districts, limited English students make up almost half of all students initially entering school at the kindergarten level. Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education. The Department of Education has found that services provided to limited English proficient students often do not respond primarily to the pupil's academic needs. These trends pose special challenges for special education in the referral, assessment, and services for our Nation's students from non-English language backgrounds. ``(8)(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) Poor African-American children are 2.3 times more likely to be identified by their teacher as having mental retardation than their white counterpart. ``(D) Although African-Americans represent 16 percent of elementary and secondary enrollments, they constitute 21 percent of total enrollments in special education. ``(E) The drop-out rate is 68 percent higher for minorities than for whites. ``(F) More than 50 percent of minority students in large cities drop out of school. ``(9)(A) The opportunity for full participation in awards for grants and contracts; boards of organizations receiving funds under this Act; and peer review panels; and training of professionals in the area of special education by minority individuals, organizations, and historically black colleges and universities is essential if we are to obtain greater success in the education of minority children with disabilities. ``(B) In 1993, of the 915,000 college and university professors, 4.9 percent were African-American and 2.4 percent were Hispanic. Of the 2,940,000 teachers, prekindergarten through high school, 6.8 percent were African-American and 4.1 percent were Hispanic. ``(C) Students from minority groups comprise more than 50 percent of K-12 public school enrollment in seven States yet minority enrollment in teacher training programs is less than 15 percent in all but six States. ``(D) As the number of African-American and Hispanic students in special education increases, the number of minority teachers and related service personnel produced in our colleges and universities continues to decrease. ``(E) Ten years ago, 12 percent of the United States teaching force in public elementary and secondary schools were members of a minority group. Minorities comprised 21 percent of the national population at that time and were clearly underrepresented then among employed teachers. Today, the elementary and secondary teaching force is 13 percent minority, while one-third of the students in public schools are minority children. ``(F) As recently as 1991, historically black colleges and universities enrolled 44 percent of the African-American teacher trainees in the Nation. However, in 1993, historically black colleges and universities received only 4 percent of the discretionary funds for special education and related services personnel training under this Act. ``(G) While African-American students constitute 28 percent of total enrollment in special education, only 11.2 percent of individuals enrolled in preservice training programs for special education are African-American. ``(H) In 1986-87, of the degrees conferred in education at the B.A., M.A., and Ph.D levels, only 6, 8, and 8 percent, respectively, were awarded to African-American or Hispanic students. ``(10) Minorities and underserved persons are socially disadvantaged because of the lack of opportunities in training and educational programs, undergirded by the practices in the private sector that impede their full participation in the mainstream of society. ``(d) Purposes.--The purposes of this title 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 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 systemic-change 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. ``SEC. 602. DEFINITIONS. ``Except as otherwise provided, as used in this Act: ``(1) Assistive technology device.--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. ``(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 [[Page H2500]] 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 of 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 mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to 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 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 one 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) 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 and secondary schools of the State; and ``(B) includes any other public institution or agency having administrative control and direction over a public elementary or secondary school. ``(5) Elementary school.--The term `elementary school' means a nonprofit institutional day or residential school that provides elementary education, as determined under State law. ``(6) 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. ``(7) 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 or secondary school student, as may be appropriate, and which shall be computed after deducting-- ``(A) amounts received-- ``(i) under part B of this title; ``(ii) under part A of title I of the Elementary and Secondary Education Act of 1965; or ``(iii) under part A of title VII of that Act; and ``(B) any State or local funds expended for programs that would qualify for assistance under any of those parts. ``(8) 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, or secondary school education in the State involved; and ``(D) are provided in conformity with the individualized education program required under section 614(d). ``(9) Indian.--The term `Indian' means an individual who is a member of an Indian tribe. ``(10) 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). ``(11) Individualized education program.--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 614(d). ``(12) Individualized family service plan.--The term `individualized family service plan' has the meaning given such term in section 636. ``(13) Infant or toddler with a disability.--The term `infant or toddler with a disability' has the meaning given such term in section 632. ``(14) Institution of higher education.--The term `institution of higher education'-- ``(A) has the meaning given that term in section 1201(a) of the Higher Education Act of 1965; and ``(B) also includes any community college receiving funding from the Secretary of the Interior under the Tribally Controlled Community College Assistance Act of 1978. ``(15) Local educational agency.-- ``(A) 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 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 or secondary schools. ``(B) The term includes-- ``(i) an educational service agency, as defined in paragraph (4); and ``(ii) any other public institution or agency having administrative control and direction of a public elementary or secondary school. ``(C) The term includes an elementary 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 Act 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. ``(16) Native language.--The term `native language', when used with reference to an individual of limited English proficiency, 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. ``(17) Nonprofit.--The term `nonprofit', as applied to a school, agency, organization, or institution, means a school, agency, organization, or institution owned and operated by one 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. ``(18) Outlying area.--The term `outlying area' means the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. ``(19) Parent.--The term `parent'-- ``(A) includes a legal guardian; and ``(B) except as used in sections 615(b)(2) and 639(a)(5), includes an individual assigned under either of those sections to be a surrogate parent. ``(20) Parent organization.--The term `parent organization' has the meaning given that term in section 682(g). ``(21) Parent training and information center.--The term `parent training and information center' means a center assisted under section 682 or 683. ``(22) Related services.--The term `related services' means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, 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. ``(23) Secondary school.--The term `secondary school' means a nonprofit institutional day or residential school that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12. ``(24) Secretary.--The term `Secretary' means the Secretary of Education. ``(25) 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. ``(26) Specific learning disability.-- ``(A) In general.--The term `specific learning disability' means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. [[Page H2501]] ``(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 mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. ``(27) 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. ``(28) 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 and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law. ``(29) 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 612(a)(5). ``(30) Transition services.--The term `transition services' means a coordinated set of activities for a student with a disability that-- ``(A) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; ``(B) is based upon the individual student's needs, taking into account the student's 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. ``SEC. 603. 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 such Department for administering and carrying out this Act 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, United States Code, the Secretary is authorized to accept voluntary and uncompensated services in furtherance of the purposes of this Act. ``SEC. 604. ABROGATION OF STATE SOVEREIGN IMMUNITY. ``(a) In General.--A State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this Act. ``(b) Remedies.--In a suit against a State for a violation of this Act, 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 the date of the enactment of the Education of the Handicapped Act Amendments of 1990. ``SEC. 605. ACQUISITION OF EQUIPMENT; CONSTRUCTION OR ALTERATION OF FACILITIES. ``(a) In General.--If the Secretary determines that a program authorized under this Act would 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 part 101-19.6 of title 41, Code of Federal Regulations (commonly known as the `Uniform Federal Accessibility Standards'). ``SEC. 606. EMPLOYMENT OF INDIVIDUALS WITH DISABILITIES. ``The Secretary shall ensure that each recipient of assistance under this Act makes positive efforts to employ and advance in employment qualified individuals with disabilities in programs assisted under this Act. ``SEC. 607. REQUIREMENTS FOR PRESCRIBING REGULATIONS. ``(a) Public Comment Period.--The Secretary shall provide a public comment period of at least 90 days on any regulation proposed under part B or part C of this Act on which an opportunity for public comment is otherwise required by law. ``(b) Protections Provided to Children.--The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this Act that would procedurally or substantively lessen the protections provided to children with disabilities under this Act, as embodied in regulations in effect on July 20, 1983 (particularly as such protections relate 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 the Congress in legislation. ``(c) Policy Letters and Statements.--The Secretary may not, through policy letters or other statements, establish a rule that is required for compliance with, and eligibility under, this part without following the requirements of section 553 of title 5, United States Code. ``(d) Correspondence From Department of Education Describing Interpretations of This Part.-- ``(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 Act or the regulations implemented pursuant to this Act. ``(2) Additional information.--For each item of correspondence published in a list under paragraph (1), the Secretary shall identify the topic addressed by the correspondence and shall include such other summary information as the Secretary determines to be appropriate. ``(e) Issues of National Significance.--If the Secretary receives a written request regarding a policy, question, or interpretation under part B of this Act, and determines that it raises an issue of general interest or applicability of national significance to the implementation of part B, the Secretary shall-- ``(1) include a statement to that effect in any written response; ``(2) widely disseminate that response to State educational agencies, local educational agencies, parent and advocacy organizations, and other interested organizations, subject to applicable laws relating to confidentiality of information; and ``(3) not later than one year after the date on which the Secretary responds to the written request, issue written guidance on such policy, question, or interpretation through such means as the Secretary determines to be appropriate and consistent with law, such as a policy memorandum, notice of interpretation, or notice of proposed rulemaking. ``(f) Explanation.--Any written response by the Secretary under subsection (e) regarding a policy, question, or interpretation under part B of this Act shall include an explanation that the written response-- ``(1) is provided as informal guidance and is not legally binding; and ``(2) represents the interpretation by the Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented. ``PART B--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES ``SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION OF APPROPRIATIONS. ``(a) Grants to States.-- ``(1) Purpose of grants.--The Secretary shall make grants to States and the outlying areas, and provide funds to the Secretary of the Interior, to assist them to provide special education and related services to children with disabilities in accordance with this part. ``(2) Maximum amounts.--The maximum amount of the grant a State may receive under this section for any fiscal year is-- ``(A) the number of children with disabilities in the State who are receiving special education and related services-- ``(i) aged three through five if the State is eligible for a grant under section 619; and ``(ii) aged six through 21; multiplied by ``(B) 40 percent of the average per-pupil expenditure in public elementary and secondary schools in the United States. ``(b) Outlying Areas and Freely Associated States.-- ``(1) Funds reserved.--From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve not more than one percent, which shall be used-- ``(A) to provide assistance to the outlying areas in accordance with their respective populations of individuals aged three through 21; and ``(B) for fiscal years 1998 through 2001, to carry out the competition described in paragraph (2), except that the amount reserved to carry out that competition shall not exceed the amount reserved for fiscal year 1996 for the competition under part B of this Act described under the heading ``SPECIAL EDUCATION'' in Public Law 104-134. ``(2) Limitation for freely associated states.-- ``(A) Competitive grants.--The Secretary shall use funds described in paragraph (1)(B) to award grants, on a competitive basis, to Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the freely associated States to carry out the purposes of this part. [[Page H2502]] ``(B) Award basis.--The Secretary shall award grants under subparagraph (A) on a competitive basis, pursuant to the recommendations of the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those recommendations shall be made by experts in the field of special education and related services. ``(C) Assistance requirements.--Any freely associated State that wishes to receive funds under this part shall include, in its application for assistance-- ``(i) information demonstrating that it will meet all conditions that apply to States under this part; ``(ii) an assurance that, notwithstanding any other provision of this part, it will use those funds only for the direct provision of special education and related services to children with disabilities and to enhance its capacity to make a free appropriate public education available to all children with disabilities; ``(iii) the identity of the source and amount of funds, in addition to funds under this part, that it will make available to ensure that a free appropriate public education is available to all children with disabilities within its jurisdiction; and ``(iv) such other information and assurances as the Secretary may require. ``(D) Termination of eligibility.--Notwithstanding any other provision of law, the freely associated States shall not receive any funds under this part for any program year that begins after September 30, 2001. ``(E) Administrative costs.--The Secretary may provide not more than five percent of the amount reserved for grants under this paragraph to pay the administrative costs of the Pacific Region Educational Laboratory under subparagraph (B). ``(3) Limitation.--An outlying area is not eligible for a competitive award under paragraph (2) unless it receives assistance under paragraph (1)(A). ``(4) Special rule.--The provisions of Public Law 95-134, permitting the consolidation of grants by the outlying areas, shall not apply to funds provided to those areas or to the freely associated States under this section. ``(5) Eligibility for discretionary programs.--The freely associated States shall be eligible to receive assistance under subpart 2 of part D of this Act until September 30, 2001. ``(6) Definition.--As used in this subsection, the term `freely associated States' means the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. ``(c) Secretary of the Interior.--From the amount appropriated for any fiscal year under subsection (j), the Secretary shall reserve 1.226 percent to provide assistance to the Secretary of the Interior in accordance with subsection (i). ``(d) Allocations to States.-- ``(1) In general.--After reserving funds for studies and evaluations under section 674(e), and for payments to the outlying areas and the Secretary of the Interior under subsections (b) and (c), the Secretary shall allocate the remaining amount among the States in accordance with paragraph (2) or subsection (e), as the case may be. ``(2) Interim formula.--Except as provided in subsection (e), the Secretary shall allocate the amount described in paragraph (1) among the States in accordance with section 611(a)(3), (4), and (5) and (b)(1), (2), and (3) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997, except that the determination of the number of children with disabilities receiving special education and related services under such section 611(a)(3) may, at the State's discretion, be calculated as of the last Friday in October or as of December 1 of the fiscal year for which the funds are appropriated. ``(e) Permanent Formula.-- ``(1) Establishment of base year.--The Secretary shall allocate the amount described in subsection (d)(1) among the States in accordance with this subsection for each fiscal year beginning with the first fiscal year for which the amount appropriated under subsection (j) is more than $4,924,672,200. ``(2) Use of base year.-- ``(A) Definition.--As used in this subsection, the term `base year' means the fiscal year preceding the first fiscal year in which this subsection applies. ``(B) Special rule for use of base year amount.--If a State received any funds under this section for the base year on the basis of children aged three through five, but does not make a free appropriate public education available to all children with disabilities aged three through five in the State in any subsequent fiscal year, the Secretary shall compute the State's base year amount, solely for the purpose of calculating the State's allocation in that subsequent year under paragraph (3) or (4), by subtracting the amount allocated to the State for the base year on the basis of those children. ``(3) Increase in funds.--If the amount available for allocations to States under paragraph (1) is equal to or greater than the amount allocated to the States under this paragraph for the preceding fiscal year, those allocations shall be calculated as follows: ``(A)(i) Except as provided in subparagraph (B), the Secretary shall-- ``(I) allocate to each State the amount it received for the base year; ``(II) allocate 85 percent of any remaining funds to States on the basis of their relative populations of children aged 3 through 21 who are of the same age as children with disabilities for whom the State ensures the availability of a free appropriate public education under this part; and ``(III) allocate 15 percent of those remaining funds to States on the basis of their relative populations of children described in subclause (II) who are living in poverty. ``(ii) For the purpose of making grants under this paragraph, the Secretary shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary. ``(B) Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following: ``(i) No State's allocation shall be less than its allocation for the preceding fiscal year. ``(ii) No State's allocation shall be less than the greatest of-- ``(I) the sum of-- ``(aa) the amount it received for the base year; and ``(bb) one third of one percent of the amount by which the amount appropriated under subsection (j) exceeds the amount appropriated under this section for the base year; ``(II) the sum of-- ``(aa) the amount it received for the preceding fiscal year; and ``(bb) that amount multiplied by the percentage by which the increase in the funds appropriated from the preceding fiscal year exceeds 1.5 percent; or ``(III) the sum of-- ``(aa) the amount it received for the preceding fiscal year; and ``(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated from the preceding fiscal year. ``(iii) Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of-- ``(I) the amount it received for the preceding fiscal year; and ``(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated. ``(C) If the amount available for allocations under this paragraph is insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to subparagraph (B)(i). ``(4) Decrease in funds.--If the amount available for allocations to States under paragraph (1) is less than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows: ``(A) If the amount available for allocations is greater than the amount allocated to the States for the base year, each State shall be allocated the sum of-- ``(i) the amount it received for the base year; and ``(ii) an amount that bears the same relation to any remaining funds as the increase the State received for the preceding fiscal year over the base year bears to the total of all such increases for all States. ``(B)(i) If the amount available for allocations is equal to or less than the amount allocated to the States for the base year, each State shall be allocated the amount it received for the base year. ``(ii) If the amount available is insufficient to make the allocations described in clause (i), those allocations shall be ratably reduced. ``(f) State-Level Activities.-- ``(1) General.-- ``(A) Each State may retain not more than the amount described in subparagraph (B) for administration and other State-level activities in accordance with paragraphs (2) and (3). ``(B) For each fiscal year, the Secretary shall determine and report to the State educational agency an amount that is 25 percent of the amount the State received under this section for fiscal year 1997, cumulatively adjusted by the Secretary for each succeeding fiscal year by the lesser of-- ``(i) the percentage increase, if any, from the preceding fiscal year in the State's allocation under this section; or ``(ii) the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. ``(C) A State may use funds it retains under subparagraph (A) without regard to-- ``(i) the prohibition on commingling of funds in section 612(a)(18)(B); and ``(ii) the prohibition on supplanting other funds in section 612(a)(18)(C). ``(2) State administration.-- ``(A) For the purpose of administering this part, including section 619 (including the coordination of activities under this part with, and providing technical assistance to, other programs that provide services to children with disabilities)-- ``(i) each State may use not more than twenty percent of the maximum amount it may retain under paragraph (1)(A) for any fiscal year or $500,000 (adjusted by the cumulative rate of inflation since fiscal year 1998, as measured by the percentage increase, if any, in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), whichever is greater; and ``(ii) each outlying area may use up to five percent of the amount it receives under this [[Page H2503]] section for any fiscal year or $35,000, whichever is greater. ``(B) Funds described in subparagraph (A) may also be used for the administration of part C of this Act, if the State educational agency is the lead agency for the State under that part. ``(3) Other state-level activities.--Each State shall use any funds it retains under paragraph (1) and does not use for administration under paragraph (2) for any of the following: ``(A) Support and direct services, including technical assistance and personnel development and training. ``(B) Administrative costs of monitoring and complaint investigation, but only to the extent that those costs exceed the costs incurred for those activities during fiscal year 1985. ``(C) To establish and implement the mediation process required by section 615(e), including providing for the costs of mediators and support personnel. ``(D) To assist local educational agencies in meeting personnel shortages. ``(E) To develop a State Improvement Plan under subpart 1 of part D. ``(F) Activities at the State and local levels to meet the performance goals established by the State under section 612(a)(16) and to support implementation of the State Improvement Plan under subpart 1 of part D if the State receives funds under that subpart. ``(G) To supplement other amounts used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under this section. This system shall be coordinated with and, to the extent appropriate, build on the system of coordinated services developed by the State under part C of this Act. ``(H) For subgrants to local educational agencies for the purposes described in paragraph (4)(A). ``(4)(A) Subgrants to Local Educational Agencies for Capacity-Building and Improvement.--In any fiscal year in which the percentage increase in the State's allocation under this section exceeds the rate of inflation (as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), each State shall reserve, from its allocation under this section, the amount described in subparagraph (B) to make subgrants to local educational agencies, unless that amount is less than $100,000, to assist them in providing direct services and in making systemic change to improve results for children with disabilities through one or more of the following: ``(i) Direct services, including alternative programming for children who have been expelled from school, and services for children in correctional facilities, children enrolled in State-operated or State-supported schools, and children in charter schools. ``(ii) Addressing needs or carrying out improvement strategies identified in the State's Improvement Plan under subpart 1 of part D. ``(iii) Adopting promising practices, materials, and technology, based on knowledge derived from education research and other sources. ``(iv) Establishing, expanding, or implementing interagency agreements and arrangements between local educational agencies and other agencies or organizations concerning the provision of services to children with disabilities and their families. ``(v) Increasing cooperative problem-solving between parents and school personnel and promoting the use of alternative dispute resolution. ``(B) Maximum subgrant.--For each fiscal year, the amount referred to in subparagraph (A) is-- ``(i) the maximum amount the State was allowed to retain under paragraph (1)(A) for the prior fiscal year, or for fiscal year 1998, 25 percent of the State's allocation for fiscal year 1997 under this section; multiplied by ``(ii) the difference between the percentage increase in the State's allocation under this section and the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. ``(5) Report on Use of Funds.--As part of the information required to be submitted to the Secretary under section 612, each State shall annually describe-- ``(A) how amounts retained under paragraph (1) will be used to meet the requirements of this part; ``(B) how those amounts will be allocated among the activities described in paragraphs (2) and (3) to meet State priorities based on input from local educational agencies; and ``(C) the percentage of those amounts, if any, that will be distributed to local educational agencies by formula. ``(g) Subgrants to Local Educational Agencies.-- ``(1) Subgrants required.--Each State that receives a grant under this section for any fiscal year shall distribute any funds it does not retain under subsection (f) (at least 75 percent of the grant funds) to local educational agencies in the State that have established their eligibility under section 613, and to State agencies that received funds under section 614A(a) of this Act for fiscal year 1997, as then in effect, and have established their eligibility under section 613, for use in accordance with this part. ``(2) Allocations to local educational agencies.-- ``(A) Interim procedure.--For each fiscal year for which funds are allocated to States under subsection (d)(2), each State shall allocate funds under paragraph (1) in accordance with section 611(d) of this Act, as in effect prior to the enactment of the Individuals with Disabilities Education Act Amendments of 1997. ``(B) Permanent procedure.--For each fiscal year for which funds are allocated to States under subsection (e), each State shall allocate funds under paragraph (1) as follows: ``(i) Base payments.--The State shall first award each agency described in paragraph (1) the amount that agency would have received under this section for the base year, as defined in subsection (e)(2)(A), if the State had distributed 75 percent of its grant for that year under section 611(d), as then in effect. ``(ii) Allocation of remaining funds.--After making allocations under clause (i), the State shall-- ``(I) allocate 85 percent of any remaining funds to those agencies on the basis of the relative numbers of children enrolled in public and private elementary and secondary schools within the agency's jurisdiction; and ``(II) allocate 15 percent of those remaining funds to those agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency. ``(3) Former chapter 1 state agencies.-- ``(A) To the extent necessary, the State-- ``(i) shall use funds that are available under subsection (f)(1)(A) to ensure that each State agency that received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 receives, from the combination of funds under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount equal to-- ``(I) the number of children with disabilities, aged 6 through 21, to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, subject to the limitation in subparagraph (B); multiplied by ``(II) the per-child amount provided under such subpart for fiscal year 1994; and ``(ii) may use those funds to ensure that each local educational agency that received fiscal year 1994 funds under that subpart for children who had transferred from a State- operated or State-supported school or program assisted under that subpart receives, from the combination of funds available under subsection (f)(1)(A) and funds provided under paragraph (1) of this subsection, an amount for each such child, aged 3 through 21 to whom the agency was providing special education and related services on December 1 of the fiscal year for which the funds were appropriated, equal to the per-child amount the agency received under that subpart for fiscal year 1994. ``(B) The number of children counted under subparagraph (A)(i)(I) shall not exceed the number of children aged 3 through 21 for whom the agency received fiscal year 1994 funds under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965. ``(4) Reallocation of funds.--If a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all children with disabilities residing in the area served by that agency with State and local funds, the State educational agency may reallocate any portion of the funds under this part that are not needed by that local agency to provide a free appropriate public education to other local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas they serve. ``(h) Definitions.--For the purpose of this section-- ``(1) the term `average per-pupil expenditure in public elementary and secondary schools in the United States' means-- ``(A) without regard to the source of funds-- ``(i) the aggregate current expenditures, during the second fiscal year preceding the fiscal year for which the determination is made (or, if satisfactory data for that year are not available, during the most recent preceding fiscal year for which satisfactory data are available) of all local educational agencies in the 50 States and the District of Columbia); plus ``(ii) any direct expenditures by the State for the operation of those agencies; divided by ``(B) the aggregate number of children in average daily attendance to whom those agencies provided free public education during that preceding year; and ``(2) the term `State' means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. ``(i) Use of Amounts by Secretary of the Interior.-- ``(1) Provision of amounts for assistance.-- ``(A) In general.--The Secretary of Education shall provide amounts to the Secretary of the Interior to meet the need for