``SEC. 614. EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS. ``(a) Evaluations and Reevaluations._ ``(1) Initial evaluations._ ``(A) In general._A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this part. ``(B) Request for initial evaluation._Consistent with subparagraph (D), either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability. ``(C) Procedures._Such initial evaluation shall consist of procedures_ ``(i) to determine whether a child is a child with a disability (as defined in section 602(3)) within 60 days of receiving parental consent for the evaluation, or, if the State has established a timeframe within which the evaluation must be conducted, within such timeframe; and ``(ii) to determine the educational needs of such child. ``(D) Parental consent._ ``(i) In general._The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 602(3) (A) or (B) shall obtain an informed consent from the parent of such child before the evaluation is conducted. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services. ``(ii) Refusal._If the parents of such child refuse consent for the evaluation, the agency may continue to pursue an evaluation by utilizing the mediation and due process procedures under section 615, except to the extent inconsistent with State law relating to parental consent. ``(iii) Refusal or failure to consent._If the parent of a child does not provide informed consent to the receipt of special education and related services, or the parent fails to respond to a request to provide the consent, the local educational agency shall not be considered to be in violation of the requirement to make available a free appropriate public education to the child. ``(2) Reevaluations._ ``(A) In general._A local educational agency shall ensure that a reevaluation of each child with a disability is conducted in accordance with subsections (b) and (c)_ ``(i) if the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or ``(ii) if the child's parents or teacher requests a reevaluation. ``(B) Limitation._A reevaluation conducted under subparagraph (A) shall occur_ ``(i) not more than once a year, unless the parent and the local educational agency agree otherwise; and ``(ii) at least once every 3 years, unless the parent and the local educational agency agree that a reevaluation is unnecessary. ``(b) Evaluation Procedures._ ``(1) Notice._The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b)(3), (b)(4), and (c) of section 615, that describes any evaluation procedures such agency proposes to conduct. ``(2) Conduct of evaluation._In conducting the evaluation, the local educational agency shall_ ``(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining_ ``(i) whether the child is a child with a disability; and ``(ii) the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum, or for preschool children, to participate in appropriate activities; ``(B) not use any single procedure, measure, or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and ``(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. ``(3) Additional requirements._Each local educational agency shall ensure that_ ``(A) tests and other evaluation materials used to assess a child under this section_ ``(i) are selected and administered so as not to be discriminatory on a racial or cultural basis; ``(ii) are provided and administered, to the extent practicable, in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally; ``(iii) are used for purposes for which the assessments or measures are valid and reliable; ``(iv) are administered by trained and knowledgeable personnel; and ``(v) are administered in accordance with any instructions provided by the producer of such tests; ``(B) the child is assessed in all areas of suspected disability; and ``(C) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided. ``(4) Determination of eligibility._Upon completion of administration of tests and other evaluation materials_ ``(A) the determination of whether the child is a child with a disability as defined in section 602(3) shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and ``(B) a copy of the evaluation report and the documentation of determination of eligibility shall be given to the parent. ``(5) Special rule for eligibility determination._In making a determination of eligibility under paragraph (4)(A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is_ ``(A) lack of scientifically based instruction in reading; ``(B) lack of instruction in mathematics; or ``(C) limited English proficiency. ``(6) Specific learning disabilities._ ``(A) In general._Notwithstanding section 607, when determining whether a child has a specific learning disability as defined in section 602, a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning. ``(B) Additional authority._In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention. ``(c) Additional Requirements for Evaluation and Reevaluations._ ``(1) Review of existing evaluation data._As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team described in subsection (d)(1)(B) and other qualified professionals, as appropriate, shall_ ``(A) review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom-based assessments, and observations, and teacher and related services providers observations; and ``(B) on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine_ ``(i) whether the child has a particular category of disability, as described in section 602(3), or, in case of a reevaluation of a child, whether the child continues to have such a disability; ``(ii) the present levels of performance and educational needs of the child; ``(iii) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and ``(iv) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general curriculum. ``(2) Source of data._The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified by the IEP Team under paragraph (1)(B). ``(3) Parental consent._Each local educational agency shall obtain informed parental consent, in accordance with subsection (a)(1)(D), prior to conducting any reevaluation of a child with a disability, except that such informed parental consent need not be obtained if the local educational agency can demonstrate that the local educational agency had taken reasonable measures to obtain such consent and the child's parent has failed to respond. ``(4) Requirements if additional data are not needed._If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child is or continues to be a child with a disability the local educational agency_ ``(A) shall notify the child's parents of_ ``(i) that determination and the reasons for the determination; and ``(ii) the right of such parents to request an assessment to determine whether the child is or continues to be a child with a disability; and ``(B) shall not be required to conduct such an assessment unless requested by the child's parents. ``(5) Evaluations before change in eligibility._ ``(A) In general._Except as provided in subparagraph (B), a local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability. ``(B) Exception._ ``(i) In general._The evaluation described in subparagraph (A) shall not be required before the termination of a child's eligibility under this part due to graduation from secondary school with a regular diploma, or to exceeding the age eligibility for a free appropriate public education under State law. ``(ii) Summary of performance._For a child whose eligibility under this part terminates under circumstances described in clause (i), a local educational agency shall provide the child with a summary of the child's academic achievement and functional performance, which shall include any further recommendations on how to assist the child in meeting the child's postsecondary goals. ``(d) Individualized Education Programs._ ``(1) Definitions._As used in this title: ``(A) Individualized education program._ ``(i) In general._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 this section and that includes_ ``(I) a statement of the child's present levels of academic achievement and functional performance, including_ ``(aa) how the child's disability affects the child's involvement and progress in the general curriculum; or ``(bb) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities; ``(II) a statement of measurable annual goals, including academic and functional goals, designed to_ ``(aa) meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general curriculum; and ``(bb) meet each of the child's other educational needs that result from the child's disability; ``(III) a statement of how the child's progress toward the annual goals described in subclause (II) will be measured, including through the use of quarterly or other periodic reports, concurrent with the issuance of report cards, that delineate the progress the child is making toward meeting the annual goals; ``(IV) a statement of the special education and related services, and supplementary aids and services, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child_ ``(aa) to advance appropriately toward attaining the annual goals; ``(bb) to be involved in and make progress in the general curriculum in accordance with subclause (I) and to participate in extracurricular and other nonacademic activities; and ``(cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this paragraph; ``(V) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in subclause (IV)(cc); ``(VI)(aa) a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments consistent with section 612(a)(16)(A); and ``(bb) if the IEP Team determines that the child shall take an alternate assessment on a particular State or districtwide assessment of student achievement, a statement of why_ ``(AA) the child cannot participate in the regular assessment; and ``(BB) the particular alternate assessment selected is appropriate for the child; ``(VII) the projected date for the beginning of the services and modifications described in subclause (IV), and the anticipated frequency, location, and duration of those services and modifications; and ``(VIII) beginning not later than the first IEP to be in effect when the child is 14, and updated annually thereafter_ ``(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; ``(bb) the transition services (including courses of study) needed by the child to reach those goals, including services to be provided by other agencies when needed; and ``(cc) beginning at least 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights under this title, if any, that will transfer to the child on reaching the age of majority under section 615(m). ``(ii) Rule of construction._Nothing in this section shall be construed to require_ ``(I) that additional information be included in a child's IEP beyond what is explicitly required in this section; and ``(II) the IEP Team to include information under 1 component of a child's IEP that is already contained under another component of such IEP. ``(B) Individualized education program team._The term `individualized education program team' or `IEP Team' means a group of individuals composed of_ ``(i) the parents of a child with a disability; ``(ii) at least 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment); ``(iii) at least 1 special education teacher, or where appropriate, at least 1 special education provider of such child; ``(iv) a representative of the local educational agency who_ ``(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; ``(II) is knowledgeable about the general curriculum; and ``(III) is knowledgeable about the availability of resources of the local educational agency; ``(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi); ``(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and ``(vii) whenever appropriate, the child with a disability. ``(C) IEP team attendance._ ``(i) Attendance not necessary._A member of the IEP Team shall not be required to attend an IEP meeting, in whole or in part, if the parent of a child with a disability and the local educational agency agree that the attendance of such member is not necessary because no modification to the member's area of the curriculum or related services is being modified or discussed in the meeting. ``(ii) Excusal._A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member's area of the curriculum or related services, if_ ``(I) the parent and the local educational agency consent to the excusal; and ``(II) the member submits input into the development of the IEP prior to the meeting. ``(2) Requirement that program be in effect._ ``(A) In general._At the beginning of each school year, each local educational agency, State educational agency, or other State agency, as the case may be, shall have in effect, for each child with a disability in its jurisdiction, an individualized education program, as defined in paragraph (1)(A). ``(B) Program for child aged 3 through 5._In the case of a child with a disability aged 3 through 5 (or, at the discretion of the State educational agency, a 2-year-old child with a disability who will turn age 3 during the school year), an individualized family service plan that contains the material described in section 636, and that is developed in accordance with this section, may serve as the IEP of the child if using that plan as the IEP is_ ``(i) consistent with State policy; and ``(ii) agreed to by the agency and the child's parents. ``(3) Development of iep._ ``(A) In general._In developing each child's IEP, the IEP Team, subject to subparagraph (C), shall consider_ ``(i) the strengths of the child; ``(ii) the concerns of the parents for enhancing the education of their child; ``(iii) the results of the initial evaluation or most recent evaluation of the child; and ``(iv) the academic, developmental, and functional needs of the child. ``(B) Consideration of special factors._The IEP Team shall_ ``(i) in the case of a child whose behavior impedes the child's learning or that of others, provide for positive behavioral interventions and supports, and other strategies to address that behavior; ``(ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child's IEP; ``(iii) in the case of a child who is blind or visually impaired_ ``(I) provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child; and ``(II) consider, when appropriate, instructional services related to functional performance skills, orientation and mobility, and skills in the use of assistive technology devices, including low vision devices; ``(iv) in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel, and access to the general curriculum and instruction at the child's academic level in the child's language and communication mode; and ``(v) consider whether the child requires assistive technology devices and services. ``(C) Requirement with respect to regular education teacher._A regular education teacher of the child, as a member of the IEP Team shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports, and other strategies, and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1)(A)(i)(IV). ``(D) Agreement._In making changes to a child's IEP after the annual IEP meeting for a school year, the parent of a child with a disability and the local educational agency may agree not to convene an IEP meeting for the remainder of the school year, and instead develop a written document to amend or modify the child's current IEP. ``(E) Consolidation of iep team meetings._To the extent possible, the local educational agency shall encourage the consolidation of reevaluations of a child with IEP Team meetings for the child. ``(4) Review and revision of iep._ ``(A) In general._The local educational agency shall ensure that, subject to subparagraph (B), the IEP Team_ ``(i) reviews the child's IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved; and ``(ii) revise the IEP as appropriate to address_ ``(I) any lack of expected progress toward the annual goals and in the general curriculum, where appropriate; ``(II) the results of any reevaluation conducted under this section; ``(III) information about the child provided to, or by, the parents, as described in subsection (c)(1)(B); ``(IV) the child's anticipated needs; or ``(V) other matters. ``(B) Requirement with respect to regular education teacher._A regular education teacher of the child, as a member of the IEP Team, shall, consistent with paragraph (1)(C), participate in the review and revision of the IEP of the child. ``(5) Three-year iep._ ``(A) Development of 3-year iep._The local educational agency may offer a child with a disability who has reached the age of 18, the option of developing a comprehensive 3-year IEP. With the consent of the parent, when appropriate, the IEP Team shall develop an IEP, as described in paragraphs (1) and (3), that is designed to serve the child for the final 3-year transition period, which includes a statement of_ ``(i) measurable goals that will enable the child to be involved in and make progress in the general education curriculum and that will meet the child's transitional and postsecondary needs that result from the child's disability; and ``(ii) measurable annual goals for measuring progress toward meeting the postsecondary goals described in clause (i). ``(B) Review and revision of 3-year iep._ ``(i) Requirement._Each year the local educational agency shall ensure that the IEP Team_ ``(I) provides an annual review of the child's IEP to determine the child's current levels of progress and determine whether the annual goals for the child are being achieved; and ``(II) revises the IEP, as appropriate, to enable the child to continue to meet the measurable transition goals set out in the IEP. ``(ii) Comprehensive review._If the review under clause (i) determines that the child is not making sufficient progress toward the goals described in subparagraph (A), the local educational agency shall ensure that the IEP Team provides a review, within 30 calendar days, of the IEP under paragraph (4). ``(iii) Preference._At the request of the child, or when appropriate, the parent, the IEP Team shall conduct a review of the child's 3-year IEP under paragraph (4) rather than an annual review under subparagraph (B)(i). ``(6) Failure to meet transition objectives._If a participating agency, other than the local educational agency, fails to provide the transition services described in the IEP in accordance with paragraph (1)(A)(i)(VIII), the local educational agency shall reconvene the IEP Team to identify alternative strategies to meet the transition objectives for the child set out in that program. ``(7) Children with disabilities in adult prisons._ ``(A) In general._The following requirements shall not apply to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons: ``(i) The requirements contained in section 612(a)(16) and paragraph (1)(A)(i)(V) (relating to participation of children with disabilities in general assessments). ``(ii) The requirements of items (aa) and (bb) of paragraph (1)(A)(i)(VII) (relating to transition planning and transition services), do not apply with respect to such children whose eligibility under this part will end, because of their age, before they will be released from prison. ``(B) Additional requirement._If a child with a disability is convicted as an adult under State law and incarcerated in an adult prison, the child's IEP Team may modify the child's IEP or placement notwithstanding the requirements of sections 612(a)(5)(A) and 614(d)(1)(A) if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated. ``(e) Educational Placements._Each local educational agency or State educational agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child. ``(f) Alternative Means of Meeting Participation._When conducting IEP Team meetings and placement meetings pursuant to this section, the parent of a child with a disability and a local educational agency may agree to use alternative means of meeting participation, such as video conferences and conference calls. ``SEC. 615. PROCEDURAL SAFEGUARDS. ``(a) Establishment of Procedures._Any State educational agency, State agency, or local educational agency that receives assistance under this part shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies. ``(b) Types of Procedures._The procedures required by this section shall include_ ``(1) an opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child; ``(2) procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual (who shall not be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child) to act as a surrogate for the parents; ``(3) written prior notice to the parents of the child, in accordance with subsection (c)(1), whenever the local educational agency_ ``(A) proposes to initiate or change; or ``(B) refuses to initiate or change, the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child; ``(4) procedures designed to ensure that the notice required by paragraph (3) is in the native language of the parents, unless it clearly is not feasible to do so; ``(5) an opportunity for mediation in accordance with subsection (e); ``(6) an opportunity for either party to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child; ``(7)(A) procedures that require either party, or the attorney representing a party, to provide due process complaint notice in accordance with subsection (c)(2) (which shall remain confidential)_ ``(i) to the other party, in the complaint filed under paragraph (6), and forward a copy of such notice to the State educational agency; and ``(ii) that shall include_ ``(I) the name of the child, the address of the residence of the child, and the name of the school the child is attending; ``(II) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and ``(III) a proposed resolution of the problem to the extent known and available to the party at the time; and ``(B) a requirement that a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets the requirements of subparagraph (A)(ii); ``(8) a requirement that the local educational agency shall send a prior written notice pursuant to subsection (c)(1) in response to a parent's due process complaint notice under paragraph (7) if the local educational agency has not sent such a prior written notice to the parent regarding the subject matter contained in the parent's due process complaint notice; and ``(9) procedures that require the State educational agency to develop a model form to assist parents in filing a complaint and due process complaint notice in accordance with paragraphs (6) and (7), respectively. ``(c) Notification Requirements._ ``(1) Content of prior written notice._The prior written notice of the local educational agency required by subsection (b)(3) shall include_ ``(A) a description of the action proposed or refused by the agency; ``(B) an explanation of why the agency proposes or refuses to take the action; ``(C) a description of any other options that the agency considered and the reasons why those options were rejected; ``(D) a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action; ``(E) a description of any other factors that are relevant to the agency's proposal or refusal; ``(F) a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and ``(G) sources for parents to contact to obtain assistance in understanding the provisions of this part. ``(2) Due process complaint notice._ ``(A) In general._The due process complaint notice required under subsection (b)(7)(A) shall be deemed to be sufficient unless the party receiving the notice notifies the hearing officer in writing that the party believes the notice has not met the requirements of that subsection. ``(B) Timing._The party sending a hearing officer notification under subparagraph (A) shall send the notification within 20 days of receiving the complaint. ``(C) Determination._Within 5 days of receipt of the notification provided under subparagraph (B), the hearing officer shall make a determination on the face of the notice of whether the notification meets the requirements of subsection (b)(7)(A). ``(d) Procedural Safeguards Notice._ ``(1) In general._A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents only 1 time a year, except that a copy also shall be given to the parents_ ``(A) upon initial referral or parental request for evaluation; ``(B) upon registration of a complaint under subsection (b)(6); ``(C) at any individualized education program meeting required in accordance with subsection (k)(1); and ``(D) upon request by a parent. ``(2) Contents._The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner, available under this section and under regulations promulgated by the Secretary relating to_ ``(A) independent educational evaluation; ``(B) prior written notice; ``(C) parental consent; ``(D) access to educational records; ``(E) opportunity to present complaints, including the time period in which to make those complaints; ``(F) the child's placement during pendency of due process proceedings; ``(G) procedures for students who are subject to placement in an interim alternative educational setting; ``(H) requirements for unilateral placement by parents of children in private schools at public expense; ``(I) mediation; ``(J) due process hearings, including requirements for disclosure of evaluation results and recommendations; ``(K) State-level appeals (if applicable in that State); ``(L) civil actions, including the time period in which to file such actions; and ``(M) attorney's fees. ``(e) Mediation._ ``(1) In general._Any State educational agency or local educational agency that receives assistance under this part shall ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint pursuant to subsection (b)(6), to resolve such disputes through a mediation process. ``(2) Requirements._Such procedures shall meet the following requirements: ``(A) The procedures shall ensure that the mediation process_ ``(i) is voluntary on the part of the parties; ``(ii) is not used to deny or delay a parent's right to a due process hearing under subsection (f), or to deny any other rights afforded under this part; and ``(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques. ``(B) Opportunity to meet with a disinterested party._A local educational agency or a State agency may establish procedures to offer to parents who choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with_ ``(i) a parent training and information center or community parent resource center in the State established under section 671 or 672; or ``(ii) an appropriate alternative dispute resolution entity, to encourage the use, and explain the benefits, of the mediation process to the parents. ``(C) List of qualified mediators._The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services. ``(D) Costs._The State shall bear the cost of the mediation process, including the costs of meetings described in subparagraph (B). ``(E) Scheduling and location._Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute. ``(F) Written mediation agreement._An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement that is enforceable in any State court of competent jurisdiction or in a district court of the United States. ``(G) Mediation discussions._Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process. ``(f) Impartial Due Process Hearing._ ``(1) In general._ ``(A) Hearing._Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency. ``(B) Opportunity to resolve complaint._ ``(i) Preliminary meeting._Prior to the opportunity for an impartial due process hearing under subparagraph (A), the local educational agency shall convene a meeting with the parents and the IEP Team_ ``(I) within 15 days of receiving notice of the parents' complaint; ``(II) which shall include a representative of the public agency who has decisionmaking authority on behalf of such agency; and ``(III) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and ``(IV) where the parents of the child discuss their complaint, and the specific issues that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting, or agree to use the mediation process described in subsection (e). ``(ii) Hearing._If the local educational agency has not resolved the complaint to the satisfaction of the parents within 15 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this part shall commence. ``(iii) Written settlement agreement._In the case that an agreement is reached to resolve the complaint at such meeting, the agreement shall be set forth in a written settlement agreement that is enforceable in any State court of competent jurisdiction or in a district court of the United States and signed by both the parent and a representative of the public agency who has decisionmaking authority on behalf of such agency. ``(2) Disclosure of evaluations and recommendations._ ``(A) In general._Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date, and recommendations based on the offering party's evaluations, that the party intends to use at the hearing. ``(B) Failure to disclose._A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party. ``(3) Limitations on hearing._ ``(A) Person conducting hearing._A hearing officer conducting a hearing pursuant to paragraph (1)(A) shall, at a minimum_ ``(i) not be_ ``(I) an employee of the State educational agency or the local educational agency involved in the education or care of the child; or ``(II) a person having a personal or professional interest that conflicts with the person's objectivity in the hearing; ``(ii) possess a fundamental understanding of this Act, Federal and State regulations pertaining to this Act, and interpretations of this Act by State and Federal courts; ``(iii) possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and ``(iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice. ``(B) Subject matter of hearing._The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise. ``(C) Rule of construction._Nothing in this section shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed. ``(D) Statute of limitations._A parent or public agency shall request an impartial due process hearing within 2 years of the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this part, in such time as the State law allows. ``(E) Exception to the statute of limitations._The statute of limitations described in subparagraph (D) shall not apply if the parent was prevented from requesting the hearing due to_ ``(i) failure of the local educational agency to provide prior written or procedural safeguards notices; ``(ii) false representations that the local educational agency was attempting to resolve the problem forming the basis of the complaint; or ``(iii) the local educational agency's withholding of information from parents. ``(F) Decision of hearing officer._ ``(i) In general._Subject to clause (ii), a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education. ``(ii) Procedural issues._In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies_ ``(I) compromised the child's right to an appropriate public education; ``(II) seriously hampered the parents' opportunity to participate in the process; or ``(III) caused a deprivation of educational benefits. ``(iii) Enforceability._A decision made by the hearing officer is enforceable in any State court of competent jurisdiction or in a district court of the United States, unless either party appeals such decision under the provision of subsection (g) or (i)(2). ``(G) Rule of construction._Nothing in this section shall be construed to affect the right of a parent to file a complaint with the State educational agency. ``(g) Appeal._If the hearing required by subsection (f) is conducted by a local educational agency, any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency. Such State educational agency shall conduct an impartial review of such decision. The officer conducting such review shall make an independent decision upon completion of such review. ``(h) Safeguards._Any party to a hearing conducted pursuant to subsection (f) or (k), or an appeal conducted pursuant to subsection (g), shall be accorded_ ``(1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities; ``(2) the right to present evidence and confront, cross- examine, and compel the attendance of witnesses; ``(3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and ``(4) the right to a written, or, at the option of the parents, electronic findings of fact and decisions, which findings and decisions_ ``(A) shall be made available to the public consistent with the requirements of section 617(c) (relating to the confidentiality of data, information, and records); and ``(B) shall be transmitted to the advisory panel established pursuant to section 612(a)(20). ``(i) Administrative Procedures._ ``(1) In general._ ``(A) Decision made in hearing._A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g) and paragraph (2). ``(B) Decision made at appeal._A decision made under subsection (g) shall be final, except that any party may bring an action under paragraph (2). ``(2) Right to bring civil action._ ``(A) In general._Any party aggrieved by the findings and decision made under subsection (f) or (k) who does not have the right to an appeal under subsection (g), and any party aggrieved by the findings and decision under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy. ``(B) Limitation._The party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing such action under this part, in such time as the State law allows. ``(C) Additional requirements._In any action brought under this paragraph, the court_ ``(i) shall receive the records of the administrative proceedings; ``(ii) shall hear additional evidence at the request of a party; and ``(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. ``(3) Jurisdiction of district courts; attorneys' fees._ ``(A) In general._The district courts of the United States shall have jurisdiction of actions brought under this section without regard to the amount in controversy. ``(B) Award of attorneys' fees._In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party. ``(C) Determination of amount of attorneys' fees._Fees awarded under this paragraph shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection. ``(D) Prohibition of attorneys' fees and related costs for certain services._ ``(i) In general._Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if_ ``(I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins; ``(II) the offer is not accepted within 10 days; and ``(III) the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement. ``(ii) IEP team meetings._Attorneys' fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection (e). ``(iii) Opportunity to resolve complaints._A meeting conducted pursuant to subsection (f)(1)(B)(i) shall not be considered_ ``(I) a meeting convened as a result of an administrative hearing or judicial action; or ``(II) an administrative hearing or judicial action for purposes of this paragraph. ``(E) Exception to prohibition on attorneys' fees and related costs._Notwithstanding subparagraph (D), an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer. ``(F) Reduction in amount of attorneys' fees._Except as provided in subparagraph (G), whenever the court finds that_ ``(i) the parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy; ``(ii) the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience; ``(iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or ``(iv) the attorney representing the parent did not provide to the local educational agency the appropriate information in the notice of the complaint described in subsection (b)(7)(A), the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this section. ``(G) Exception to reduction in amount of attorneys' fees._The provisions of subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section. ``(j) Maintenance of Current Educational Placement._Except as provided in subsection (k)(4), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed. ``(k) Placement in Alternative Educational Setting._ ``(1) Authority of school personnel._ ``(A) In general._School personnel under this section may order a change in the placement of a child with a disability who violates a code of student conduct to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities). ``(B) Additional authority._If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability pursuant to subparagraph (C), the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which the procedures would be applied to children without disabilities, except as provided in section 612(a)(1). ``(C) Manifestation determination._ ``(i) In general._Except as provided in subparagraphs (A) and (D), within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the IEP Team shall review all relevant information in the student's file, any information provided by the parents, and teacher observations, to determine_ ``(I) if the conduct in question was the result of the child's disability; or ``(II) if the conduct in question resulted from the failure to implement the IEP or develop and implement behavioral interventions as required by section 614(d)(3)(B)(i). ``(ii) Manifestation._If the IEP Team determines that either subclause (I) or (II) of clause (i) is applicable for the child, the conduct shall be determined to be a manifestation of the child's disability. ``(D) Special circumstances._In cases where a child carries or possesses a weapon at school or a school function, possesses or uses drugs or sells or solicits the sale of drugs while at school or a school function, or has committed serious bodily injury upon another person while at school or at a school function, school personnel may remove a student to an interim alternative educational setting for not more than 45 school days, without regard to whether the behavior is determined to be a manifestation of the child's disability. ``(E) Services._A child with a disability who is removed from the child's current placement under subparagraph (B) or (D) shall_ ``(i) continue to receive educational services pursuant to section 612(a)(1), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP; and ``(ii) receive behavioral intervention services as described in section 614(d)(3)(B)(i) designed to address the behavior violation so that the violation does not recur. ``(2) Determination of setting._The alternative educational setting shall be determined by the IEP Team. ``(3) Appeal._ ``(A) In general._The parent of a child with a disability who disagrees with any decision regarding disciplinary action, placement, or the manifestation determination under this subsection may request a hearing. ``(B) Authority of hearing officer._ ``(i) In general._If a parent of a child with a disability disagrees with a decision as described in subparagraph (A), the hearing officer may determine whether the decision regarding such action was appropriate. ``(ii) Change of placement order._A hearing officer under this section may order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others. ``(4) Placement during appeals._When a parent requests a hearing regarding a disciplinary procedure described in paragraph (1)(B) or challenges the interim alternative educational setting or manifestation determination_ ``(A) the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(B), whichever occurs first, unless the parent and the State or local educational agency agree otherwise; and ``(B) the State or local educational agency shall arrange for an expedited hearing which shall occur within 20 school days of the date the hearing is requested. ``(5) Protections for children not yet eligible for special education and related services._ ``(A) In general._A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for in this part if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. ``(B) Basis of knowledge._A local educational agency shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred_ ``(i) the parent of the child has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to personnel of the appropriate educational agency that the child is in need of special education and related services; ``(ii) the parent of the child has requested an evaluation of the child pursuant to section 614; ``(iii) the teacher of the child, or other personnel of the local educational agency, has expressed concern about a pattern of behavior demonstrated by the child, to the director of special education of such agency or to other administrative personnel of the agency; or ``(iv) the child has engaged in a pattern of behavior that should have alerted personnel of the local educational agency that the child may be in need of special education and related services. ``(C) Exception._A local educational agency shall not be deemed to have knowledge that the child has a disability if the parent of the child has not agreed to allow an evaluation of the child pursuant to section 614. ``(D) Conditions that apply if no basis of knowledge._ ``(i) In general._If a local educational agency does not have knowledge that a child is a child with a disability (in accordance with subparagraph (B) or (C)) prior to taking disciplinary measures against the child, the child may be subjected to disciplinary measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii). ``(ii) Limitations._If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under paragraph (1), the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with this part, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities. ``(6) Referral to and action by law enforcement and judicial authorities._ ``(A) Construction._Nothing in this part shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability. ``(B) Transmittal of records._An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime. ``(7) Definitions._For purposes of this subsection, the following definitions apply: ``(A) Drug._The term `drug'_ ``(i) means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)); and ``(ii) does not include such a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law. ``(B) Weapon._The term `weapon' has the meaning given the term `dangerous weapon' under section 930(g)(2) of title 18, United States Code. ``(C) Serious bodily injury._The term `serious bodily injury' has the meaning given the term `serious bodily injury' under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code. ``(l) Rule of Construction._Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part. ``(m) Transfer of Parental Rights at Age of Majority._ ``(1) In general._A State that receives amounts from a grant under this part may provide that, when a child with a disability reaches the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law)_ ``(A) the public agency shall provide any notice required by this section to both the individual and the parents; ``(B) all other rights accorded to parents under this part transfer to the child; ``(C) the agency shall notify the individual and the parents of the transfer of rights; and ``(D) all rights accorded to parents under this part transfer to children who are incarcerated in an adult or juvenile Federal, State, or local correctional institution. ``(2) Special rule._If, under State law, a child with a disability who has reached the age of majority under State law, who has not been determined to be incompetent, but who is determined not to have the ability to provide informed consent with respect to the educational program of the child, the State shall establish procedures for appointing the parent of the child, or if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of eligibility of the child under this part. ``SEC. 616. MONITORING, TECHNICAL ASSISTANCE, AND ENFORCEMENT. ``(a) Federal and State Monitoring._ ``(1) In general._The Secretary shall_ ``(A) monitor implementation of this Act through_ ``(i) oversight of the States' exercise of general supervision, as required in section 612(a)(11); and ``(ii) the system of indicators, described in subsection (b)(2); and ``(B) enforce this Act in accordance with subsection (c); and ``(C) require States to monitor implementation of this Act by local educational agencies and enforce this Act in accordance with paragraph (3) of this subsection and subsection (c). ``(2) Focused monitoring._The primary focus of Federal and State monitoring activities described in paragraph (1) shall be on improving educational results and functional outcomes for all children with disabilities, while ensuring compliance with program requirements, with a particular emphasis on those requirements that are most closely related to improving educational results for children with disabilities. ``(3) Monitoring priorities._The Secretary shall monitor, and shall require States to monitor, the following priority areas: ``(A) Provision of a free appropriate public education in the least restrictive environment. ``(B) Provision of transition services, as defined in section 602(32). ``(C) State exercise of general supervisory authority, including the effective use of complaint resolution and mediation. ``(D) Overrepresentation of racial and ethnic groups in special education and related services, to the extent the overrepresentation is the result of inappropriate policies, procedures, and practices. ``(4) Permissive areas of review._The Secretary may examine other relevant information and data, including data provided by States under section 618, and data from the State's compliance plan under subsection (b)(2)(C). ``(b) Indicators._ ``(1) System._The Secretary shall implement and administer a system of required indicators as described in paragraph (2) that measures the progress of States in improving their performance under this Act. ``(2) Indicators._ ``(A) In general._Using the performance indicators established by States under section 612(a)(15), the Secretary shall review_ ``(i) the performance of children with disabilities in the State on assessments, including alternate assessments, dropout rates, and graduation rates, which for purposes of this paragraph means the number and percentage of students with disabilities who graduate with a regular diploma within the number of years specified in a student's IEP; and ``(ii) the performance of children with disabilities in the State on assessments, including alternate assessments, dropout rates, and graduation rates, as compared to the performance and rates for all children. ``(B) Secretary's assessment._Based on that review and a review of the State's compliance plan under subparagraph (C), the Secretary shall assess the State's progress in improving educational results for children with disabilities. ``(C) State compliance plan._Not later than 1 year after the date of the enactment of the Individuals with Disabilities Education Improvement Act of 2003, each State shall have in place a compliance plan developed in collaboration with the Secretary. Each State's compliance plan shall_ ``(i) include benchmarks to measure continuous progress on the priority areas described in subsection (a)(3); ``(ii) describe strategies the State will use to achieve the benchmarks; and ``(iii) be approved by the Secretary. ``(3) Data collection and analysis._The Secretary shall_ ``(A) review the data collection and analysis capacity of States to ensure that data and information determined necessary for implementation of this subsection is collected, analyzed, and accurately reported to the Secretary; and ``(B) provide technical assistance to improve the capacity of States to meet these data collection requirements. ``(c) Compliance and Enforcement._ ``(1) In general._The Secretary shall examine relevant State information and data annually, to determine whether the State is making satisfactory progress toward improving educational results for children with disabilities using the indicators described in subsection (b)(2)(A) and the benchmarks established in the State compliance plan under subsection (b)(2)(C), and is in compliance with the provisions of this Act. ``(2) Lack of satisfactory progress by a state._ ``(A) In general._If after examining data, as provided in subsection (b)(2) (A) and (C), the Secretary determines that a State failed to make satisfactory progress in meeting the indicators described in subsection (b)(2)(A) or has failed to meet the benchmarks described in subsection (b)(2)(C) for 2 consecutive years after the State has developed its compliance plan, the Secretary shall notify the State that the State has failed to make satisfactory progress, and shall take 1 or more of the following actions: ``(i) Direct the use of State level funds for technical assistance, services, or other expenditures to ensure that the State resolves the area or areas of unsatisfactory progress. ``(ii) Withhold not less than 20, but not more than 50, percent of the State's funds for State administration and activities for the fiscal year under section 611(e), after providing the State the opportunity to show cause why the withholding should not occur, until the Secretary determines that sufficient progress has been made in improving educational results for children with disabilities. ``(B) Additional secretarial action._If, at the end of the 5th year after the Secretary has approved the compliance plan that the State has developed under subsection (b)(2)(C), the Secretary determines that a State failed to meet the benchmarks in the State compliance plan and make satisfactory progress in improving educational results for children with disabilities pursuant to the indicators described in subsection (b)(2)(A), the Secretary shall take 1 or more of the following actions: ``(i) Seek to recover funds under section 452 of the General Education Provisions Act. ``(ii) After providing reasonable notice and an opportunity for a hearing to the State educational agency involved, withhold, in whole or in part, any further payments to the State under this part pursuant to subsection (c)(5). ``(iii) After providing reasonable notice and an opportunity for a hearing to the State educational agency involved, refer the matter for appropriate enforcement action, which may include referral to the Department of Justice. ``(iv) Pending the outcome of any hearing to withhold payments under clause (ii), the Secretary may suspend payments to a recipient, suspend the authority of the recipient to obligate Federal funds, or both, after such recipient has been given reasonable notice and an opportunity to show cause why future payments or authority to obligate Federal funds should not be suspended. ``(C) Substantial noncompliance._Notwithstanding subparagraph (B), at any time that the Secretary determines that a State is not in substantial compliance with any provision of this part or that there is a substantial failure to comply with any condition of a local agency's or State agency's eligibility under this part, the Secretary shall take 1 or more of the following actions: ``(i) Request that the State prepare a corrective action plan or improvement plan if the Secretary determines that the State should be able to correct the problem within 1 year. ``(ii) Identify the State as a high-risk grantee and impose special conditions on the State's grant under this part. ``(iii) Require the State to enter into a compliance agreement under section 457 of the General Education Provisions Act, if the Secretary has reason to believe that the State cannot correct the problem within 1 year. ``(iv) Recovery of funds under section 452 of the General Education Provisions Act. ``(v) After providing reasonable notice and an opportunity for a hearing to the State educational agency involved, withhold, in whole or in part, any further payments to the State under this part. ``(vi) After providing reasonable notice and an opportunity for a hearing to the State educational agency involved, refer the matter for appropriate enforcement action, which may include referral to the Department of Justice. ``(vii) Pending the outcome of any hearing to withhold payments under clause (v), the Secretary may suspend payments to a recipient, suspend the authority of the recipient to obligate Federal funds, or both, after such recipient has been given reasonable notice and an opportunity to show cause why future payments or authority to obligate Federal funds should not be suspended. ``(3) Egregious noncompliance._At any time that the Secretary determines that a State is in egregious noncompliance or is willfully disregarding the provisions of this Act, the Secretary shall take such additional enforcement actions as the Secretary determines to be appropriate from among those actions specified in paragraph (2)(C), and, additionally, may impose 1 or more of the following sanctions upon that State: ``(A) Institute a cease and desist action under section 456 of the General Education Provisions Act. ``(B) Refer the case to the Office of the Inspector General. ``(4) Report to congress._The Secretary shall report to Congress within 30 days of taking enforcement action pursuant to paragraph (2) (B) or (C), or (3), on the specific action taken and the reasons why enforcement action was taken. ``(5) Nature of withholding._If the Secretary withholds further payments under paragraphs (2)(B)(ii) and (2)(C)(v), the Secretary may determine that such withholding will be limited to programs or projects, or portions thereof, affected by the failure, or that the State educational agency shall not make further payments under this part to specified local educational agencies or State agencies affected by the failure. Until the Secretary is satisfied that there is no longer any failure to make satisfactory progress as specified in paragraph (2)(B), or to comply with the provisions of this part, as specified in paragraph (2)(C), payments to the State under this part shall be withheld in whole or in part, or payments by the State educational agency under this part shall be limited to local educational agencies and State agencies whose actions did not cause or were not involved in the failure, as the case may be. Any State educational agency, State agency, or local educational agency that has received notice under paragraph (2)(B) or (2)(C) shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of such agency. ``(6) Judicial review._ ``(A) In general._If any State is dissatisfied with the Secretary's final action with respect to the eligibility of the State under section 612, such State may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings upon which the Secretary's action was based, as provided in section 2112 of title 28, United States Code. ``(B) Jurisdiction; review by united states supreme court._Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28, United States Code. ``(C) Standard of review._The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence. ``(d) Divided State Agency Responsibility._For purposes of this section, where responsibility for ensuring that the requirements of this part are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons is assigned to a public agency other than the State educational agency pursuant to section 612(a)(11)(C), the Secretary, in instances where the Secretary finds that the failure to comply substantially with the provisions of this part are related to a failure by the public agency, shall take appropriate corrective action to ensure compliance with this part, except that_ ``(1) any reduction or withholding of payments to the State shall be proportionate to the total funds allotted under section 611 to the State as the number of eligible children with disabilities in adult prisons under the supervision of the other public agency is proportionate to the number of eligible individuals with disabilities in the State under the supervision of the State educational agency; and ``(2) any withholding of funds under paragraph (1) shall be limited to the specific agency responsible for the failure to comply with this part. ``(e) State and Local Monitoring._ ``(1) In general._The State educational agency shall monitor and enforce implementation of this Act, implement a system of monitoring the benchmarks in the State's compliance plan under subsection (b)(2)(C), and require local educational agencies to monitor and enforce implementation of this Act. ``(2) Additional enforcement options._If a State educational agency determines that a local educational agency is not meeting the requirements of this part, including the benchmarks in the State's compliance plan, the State educational agency shall prohibit the local educational agency from treating funds received under this part as local funds under section 613(a)(2)(C) for any fiscal year. ``SEC. 617. ADMINISTRATION. ``(a) Responsibilities of Secretary._The Secretary shall_ ``(1) cooperate with, and (directly or by grant or contract) furnish technical assistance necessary to, a State in matters relating to_ ``(A) the education of children with disabilities; and ``(B) carrying out this part; and ``(2) provide short-term training programs and institutes. ``(b) Rules and Regulations._In carrying out the provisions of this part, the Secretary shall issue regulations under this Act only to the extent that such regulations are necessary to ensure that there is compliance with the specific requirements of this Act. ``(c) Confidentiality._The Secretary shall take appropriate action, in accordance with section 444 of the General Education Provisions Act (20 U.S.C. 1232g), to assure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the Secretary and by State and local educational agencies pursuant to this part. ``(d) Personnel._The Secretary is authorized to hire qualified personnel necessary to carry out the Secretary's duties under subsection (a) and under sections 618, 661, and 664, without regard to the provisions of title 5, United States Code, relating to appointments in the competitive service and without regard to chapter 51 and subchapter III of chapter 53 of such title relating to classification and general schedule pay rates, except that not more than 20 such personnel shall be employed at any 1 time. ``(e) Model Forms._Not later than the date that the Secretary publishes final regulations under this Act, to implement amendments made by the Individuals with Disabilities Education Improvement Act of 2003, the Secretary shall publish and disseminate widely to States, local educational agencies, and parent and community training and information centers_ ``(1) a model IEP form; ``(2) a model form of the notice of procedural safeguards described in section 615(d); and ``(3) a model form of the prior written notice described in section 615 (b)(3) and (c)(1) that is consistent with the requirements of this part and is sufficient to meet such requirements. ``SEC. 618. PROGRAM INFORMATION. ``(a) In General._Each State that receives assistance under this part, and the Secretary of the Interior, shall provide data each year to the Secretary of Education on_ ``(1)(A)_the number and percentage of children with disabilities, by race, ethnicity, limited English proficiency status, and disability category, who are receiving a free appropriate public education; ``(B) the number and percentage of children with disabilities, by race, ethnicity, and limited English proficiency status who are receiving early intervention services; ``(C) the number and percentage of children with disabilities, by race, ethnicity, limited English proficiency status, and disability category, who are participating in regular education; ``(D) the number and percentage of children with disabilities, by race, ethnicity, limited English proficiency status, and disability category, who are in separate classes, separate schools or facilities, or public or private residential facilities; ``(E) the number and percentage of children with disabilities, by race, ethnicity, limited English proficiency status, and disability category, who, for each year of age from age 14 through 21, stopped receiving special education and related services because of program completion or other reasons, and the reasons why those children stopped receiving special education and related services; ``(F) the number and percentage of children with disabilities, by race, and ethnicity, who, from birth through age 2, stopped receiving early intervention services because of program completion or for other reasons; ``(G)(i) the number and percentage of children with disabilities, by race, ethnicity, limited English proficiency status, and disability category, who are removed to an interim alternative educational setting under section 615(k)(1); ``(ii) the acts or items precipitating those removals; and ``(iii) the number of children with disabilities who are subject to long-term suspensions or expulsions; ``(H) the incidence and duration of disciplinary actions by race, ethnicity, limited English proficiency status, and disability category, of children with disabilities, including suspensions of 1 day or more; ``(I) the number and percentage of children with disabilities who are removed to alternative educational settings or expelled as compared to children without disabilities who are removed to alternative educational settings or expelled; ``(J) the number of due process complaints filed under section 615 and the number of hearings conducted; ``(K) the number of hearings requested under section 615(k) and the number of changes in placements ordered as a result of those hearings; ``(L) the number of hearings requested under section 615(k)(3)(B) and the number of changes in placements ordered as a result of those hearings; and ``(M) the number of mediations held and the number of settlement agreements reached through such mediations; ``(2) the number and percentage of infants and toddlers, by race, and ethnicity, who are at risk of having substantial developmental delays (as defined in section 632), and who are receiving early intervention services under part C; and ``(3) any other information that may be required by the Secretary. ``(b) Technical Assistance._The Secretary may provide technical assistance to States to ensure compliance with the data collection and reporting requirements under this Act. ``(c) Disproportionality._ ``(1) In general._Each State that receives assistance under this part, and the Secretary of the Interior, shall provide for the collection and examination of data to determine if significant disproportionality based on race is occurring in the State with respect to_ ``(A) the identification of children as children with disabilities, including the identification of children as children with disabilities in accordance with a particular impairment described in section 602(3); ``(B) the placement in particular educational settings of such children; and ``(C) the incidence, duration, and type of disciplinary actions, including suspensions and expulsions. ``(2) Review and revision of policies, practices, and procedures._In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of such children, in accordance with paragraph (1), the State or the Secretary of the Interior, as the case may be, shall provide for the review and, if appropriate, revision of the policies, procedures, and practices used in such identification or placement to ensure that such policies, procedures, and practices comply with the requirements of this Act. ``SEC. 619. PRESCHOOL GRANTS. ``(a) In General._The Secretary shall provide grants under this section to assist States to provide special education and related services, in accordance with this part_ ``(1) to children with disabilities aged 3 through 5, inclusive; and ``(2) at the State's discretion, to 2-year-old children with disabilities who will turn 3 during the school year. ``(b) Eligibility._A State shall be eligible for a grant under this section if such State_ ``(1) is eligible under section 612 to receive a grant under this part; and ``(2) makes a free appropriate public education available to all children with disabilities, aged 3 through 5, residing in the State. ``(c) Allocations to States._ ``(1) In general._The Secretary shall allocate the amount made available to carry out this section for a fiscal year among the States in accordance with paragraph (2) or (3), as the case may be. ``(2) 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 section for the preceding fiscal year, those allocations shall be calculated as follows: ``(A) Allocation._ ``(i) In general._Except as provided in subparagraph (B), the Secretary shall_ ``(I) allocate to each State the amount the State received under this section for fiscal year 1997; ``(II) allocate 85 percent of any remaining funds to States on the basis of the States' relative populations of children aged 3 through 5; and ``(III) allocate 15 percent of those remaining funds to States on the basis of the States' relative populations of all children aged 3 through 5 who are living in poverty. ``(ii) Data._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) Limitations._Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following: ``(i) Preceding years._No State's allocation shall be less than its allocation under this section for the preceding fiscal year. ``(ii) Minimum._No State's allocation shall be less than the greatest of_ ``(I) the sum of_ ``(aa) the amount the State received under this section for fiscal year 1997; and ``(bb) 1/3 of 1 percent of the amount by which the amount appropriated under subsection (j) for the fiscal year exceeds the amount appropriated for this section for fiscal year 1997; ``(II) the sum of_ ``(aa) the amount the State received under this section for the preceding fiscal year; and ``(bb) that amount multiplied by the percentage by which the increase in the funds appropriated under this section from the preceding fiscal year exceeds 1.5 percent; or ``(III) the sum of_ ``(aa) the amount the State received under this section for the preceding fiscal year; and ``(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated under this section from the preceding fiscal year. ``(iii) Maximum._Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of_ ``(I) the amount the State received under this section 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 under this section from the preceding fiscal year. ``(C) Ratable reductions._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). ``(3) 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) Allocations._If the amount available for allocations is greater than the amount allocated to the States for fiscal year 1997, each State shall be allocated the sum of_ ``(i) the amount the State received under this section for fiscal year 1997; and ``(ii) an amount that bears the same relation to any remaining funds as the increase the State received under this section for the preceding fiscal year over fiscal year 1997 bears to the total of all such increases for all States. ``(B) If the amount available for allocations under this paragraph is equal to or less than the amount allocated under this section to the States for fiscal year 1997, each State shall be allocated the amount the State received for that year, ratably reduced, if necessary. ``(d) Reservation for State Activities._ ``(1) In general._Each State may reserve not more than the amount described in paragraph (2) for administration and other State-level activities in accordance with subsections (e) and (f). ``(2) Amount described._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_ ``(A) the percentage increase, if any, from the preceding fiscal year in the State's allocation under this section; or ``(B) 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. ``(e) State Administration._ ``(1) In general._For the purpose of administering this section (including the coordination of activities under this part with, and providing technical assistance to, other programs that provide services to children with disabilities) a State may use not more than 20 percent of the maximum amount the State may reserve under subsection (d) for any fiscal year. ``(2) Administration of part c._Funds described in paragraph (1) 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. ``(f) Other State-Level Activities._Each State shall use any funds the State reserves under subsection (d) and does not use for administration under subsection (e)_ ``(1) for support services (including establishing and implementing the mediation process required by section 615(e)), which may benefit children with disabilities younger than 3 or older than 5 as long as those services also benefit children with disabilities aged 3 through 5; ``(2) for direct services for children eligible for services under this section; ``(3) for activities at the State and local levels to meet the performance goals established by the State under section 612(a)(15) and to support implementation of the State plan under subpart 1 of part D if the State receives funds under that subpart; or ``(4) to supplement other funds 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 more than 1 percent of the amount received by the State under this section for a fiscal year. ``(g) Subgrants to Local Educational Agencies._ ``(1) Subgrants required._Each State that receives a grant under this section for any fiscal year shall distribute all of the grant funds that the State does not reserve under subsection (d) to local educational agencies in the State that have established their eligibility under section 613, as follows: ``(A) Base payments._The State shall first award each local educational agency described in paragraph (1) the amount that agency would have received under this section for fiscal year 1997 if the State had distributed 75 percent of its grant for that year under section 619(c)(3), as such section was then in effect. ``(B) Allocation of remaining funds._After making allocations under subparagraph (A), the State shall_ ``(i) allocate 85 percent of any remaining funds to those local educational agencies on the basis of the relative numbers of children enrolled in public and private elementary schools and secondary schools within the local educational agency's jurisdiction; and ``(ii) allocate 15 percent of those remaining funds to those local educational agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency. ``(2) 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 aged 3 through 5 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 section that are not needed by that local educational 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 aged 3 through 5 residing in the areas the other local educational agencies serve. ``(h) Part C Inapplicable._Part C of this Act does not apply to any child with a disability receiving a free appropriate public education, in accordance with this part, with funds received under this section. ``(i) Definition._For the purpose of this section, the term `State' means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. ``(j) Authorization of Appropriations._For the purpose of carrying out this section, there are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2004 through 2009.