20 U.S.C. § 1412 — State eligibility

Page 946 TITLE 20—EDUCATION § 1412 amended Pub. L. 114–95, title IX, § 9215(ss)(2), Dec. 10, 2015, 129 Stat. 2181; Pub. L. 118–42, div. G, title II, § 209(b)(3), Mar. 9, 2024, 138 Stat. 442.) Editorial Notes REFERENCES IN TEXT Public Law 95–134, referred to in subsec. (b)(1)(B), is Pub. L. 95–134, Oct. 15, 1977, 91 Stat. 1159. Provisions re- lating to consolidation of grants are contained in sec- tion 501 of Pub. L. 95–134 which is classified to section 1469a of Title 48, Territories and Insular Possessions. The Social Security Act, referred to in subsec. (e)(3)(H), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Title XIX of the Act is classified generally to subchapter XIX (§ 1396 et seq.) of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables. PRIOR PROVISIONS A prior section 1411, Pub. L. 91–230, title VI, § 611, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 49, related to authorization, allotment, use of funds, and authorization of appropriations, prior to the gen- eral amendment of subchapters I to IV of this chapter by Pub. L. 108–446. Another prior section 1411, Pub. L. 91–230, title VI, § 611, Apr. 13, 1970, 84 Stat. 178; Pub. L. 93–380, title VI, § 614(a), (e)(1), (2), Aug. 21, 1974, 88 Stat. 580, 582; Pub. L. 94–142, §§ 2(a)(1)–(3), 5(a), (c), Nov. 29, 1975, 89 Stat. 773, 776, 794; Pub. L. 95–561, title XIII, § 1341(a), Nov. 1, 1978, 92 Stat. 2364; Pub. L. 96–270, § 13, June 14, 1980, 94 Stat. 498; Pub. L. 98–199, §§ 3(b), 15, Dec. 2, 1983, 97 Stat. 1358, 1374; Pub. L. 99–159, title VI, § 601, Nov. 22, 1985, 99 Stat. 904; Pub. L. 99–362, § 2, July 9, 1986, 100 Stat. 769; Pub. L. 99–457, title II, § 201(b), title IV, §§ 403, 404, Oct. 8, 1986, 100 Stat. 1158, 1173; Pub. L. 100–630, title I, § 102(a), Nov. 7, 1988, 102 Stat. 3290; Pub. L. 101–476, title II, § 201, title IX, § 901(b)(25)–(32), Oct. 30, 1990, 104 Stat. 1111, 1143; Pub. L. 102–73, title VIII, § 802(d)(2), (3), July 25, 1991, 105 Stat. 361; Pub. L. 102–119, §§ 4, 25(a)(4), (19), (b), Oct. 7, 1991, 105 Stat. 587, 606, 607; Pub. L. 103–382, title III, § 311, Oct. 20, 1994, 108 Stat. 3931, related to entitlements and allocations, prior to the general amendment of sub- chapters I to IV of this chapter by Pub. L. 105–17. AMENDMENTS 2024—Subsec. (b)(1)(A). Pub. L. 118–42 added subpar. (A) and struck out former subpar. (A) which related to reserving appropriated funds to provide assistance to outlying areas and grants to freely associated States. 2015—Subsec. (e)(2)(C)(x). Pub. L. 114–95, § 9215(ss)(2)(A)(i), substituted ‘‘6361 of this title’’ for ‘‘7301 of this title’’. Subsec. (e)(2)(C)(xi). Pub. L. 114–95, § 9215(ss)(2)(A)(ii), substituted ‘‘including direct student services de- scribed in section 6303b(c)(3) of this title to children with disabilities, to schools or local educational agen- cies implementing comprehensive support and improve- ment activities or targeted support and improvement activities under section 6311(d) of this title on the basis of consistent underperformance of the disaggregated subgroup of children with disabilities’’ for ‘‘including supplemental educational services as defined in 6316(e) of this title to children with disabilities, in schools or local educational agencies identified for improvement under section 6316 of this title on the sole basis of the assessment results of the disaggregated subgroup of children with disabilities’’ and ‘‘based on the chal- lenging academic standards described in section 6311(b)(1) of this title’’ for ‘‘to meet or exceed the objec- tives established by the State under section 6311(b)(2)(G) of this title’’. Subsec. (e)(3)(C)(ii)(I)(bb). Pub. L. 114–95, § 9215(ss)(2)(B), made technical amendment to reference in original act which appears in text as reference to section 7801 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–95 effective Dec. 10, 2015, except with respect to certain noncompetitive pro- grams and competitive programs, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of this title. EFFECTIVE DATE Subchapter effective July 1, 2005, see section 302(a) of Pub. L. 108–446, set out as a note under section 1400 of this title. EFFECT OF REDUCTION Pub. L. 118–47, div. D, title III, Mar. 23, 2024, 138 Stat. 685, provided in part: ‘‘That the Secretary [of Edu- cation] may, in any fiscal year in which a State’s allo- cation under section 611 [20 U.S.C. 1411] is reduced in accordance with section 612(a)(18)(B) [20 U.S.C. 1412(a)(18)(B)], reduce the amount a State may reserve under section 611(e)(1) [20 U.S.C. 1411(e)(1)] by an amount that bears the same relation to the maximum amount described in that paragraph as the reduction under section 612(a)(18)(B) bears to the total allocation the State would have received in that fiscal year under section 611(d) [20 U.S.C. 1411(d)] in the absence of the re- duction: Provided further, That the Secretary shall ei- ther reduce the allocation of funds under section 611 for any fiscal year following the fiscal year for which the State fails to comply with the requirement of section 612(a)(18)(A) [20 U.S.C. 1412(a)(18)(A)] as authorized by section 612(a)(18)(B), or seek to recover funds under sec- tion 452 of the General Education Provisions Act (20 U.S.C. 1234a)’’. Similar provisions were contained in the following prior appropriation act: Pub. L. 117–328, div. H, title III, Dec. 29, 2022, 136 Stat. 4890. Pub. L. 118–47, div. D, title III, Mar. 23, 2024, 138 Stat. 685, provided in part: ‘‘That the amount by which a State’s allocation under section 611(d) of the IDEA [In- dividuals with Disabilities Education Act, 20 U.S.C. 1411(d)] is reduced under section 612(a)(18)(B) [20 U.S.C. 1412(a)(18)(B)] and the amounts distributed to States under the previous provisos in fiscal year 2012 or any subsequent year shall not be considered in calculating the awards under section 611(d) for fiscal year 2013 or for any subsequent fiscal years’’. Similar provisions were contained in the following prior appropriation acts: Pub. L. 117–328, div. H, title III, Dec. 29, 2022, 136 Stat. 4890. Pub. L. 117–103, div. H, title III, Mar. 15, 2022, 136 Stat. 478. Pub. L. 116–260, div. H, title III, Dec. 27, 2020, 134 Stat. 1601. Pub. L. 116–94, div. A, title III, Dec. 20, 2019, 133 Stat. 2589, 2590. Pub. L. 115–245, div. B, title III, Sept. 28, 2018, 132 Stat. 3100. Pub. L. 115–141, div. H, title III, Mar. 23, 2018, 132 Stat. 744. Pub. L. 115–31, div. H, title III, May 5, 2017, 131 Stat. 547. Pub. L. 114–113, div. H, title III, Dec. 18, 2015, 129 Stat. 2633. Pub. L. 113–235, div. G, title III, Dec. 16, 2014, 128 Stat. 2499. Pub. L. 113–76, div. H, title III, Jan. 17, 2014, 128 Stat. 394. § 1412. State eligibility (a) In general A State is eligible for assistance under this subchapter for a fiscal year if the State submits a plan that provides assurances to the Secretary that the State has in effect policies and proce- Page 947 TITLE 20—EDUCATION § 1412 dures to ensure that the State meets each of the following conditions: (1) Free appropriate public education (A) In general A free appropriate public education is available to all children with disabilities re- siding in the State between the ages of 3 and 21, inclusive, including children with disabil- ities who have been suspended or expelled from school. (B) Limitation The obligation to make a free appropriate public education available to all children with disabilities does not apply with respect to children— (i) aged 3 through 5 and 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of pub- lic education to children in those age ranges; and (ii) aged 18 through 21 to the extent that State law does not require that special education and related services under this subchapter be provided to children with disabilities who, in the educational place- ment prior to their incarceration in an adult correctional facility— (I) were not actually identified as being a child with a disability under sec- tion 1401 of this title; or (II) did not have an individualized edu- cation program under this subchapter. (C) State flexibility A State that provides early intervention services in accordance with subchapter III to a child who is eligible for services under sec- tion 1419 of this title, is not required to pro- vide such child with a free appropriate pub- lic education. (2) Full educational opportunity goal The State has established a goal of providing full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal. (3) Child find (A) In general All children with disabilities residing in the State, including children with disabil- ities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related serv- ices, are identified, located, and evaluated and a practical method is developed and im- plemented to determine which children with disabilities are currently receiving needed special education and related services. (B) Construction Nothing in this chapter requires that chil- dren be classified by their disability so long as each child who has a disability listed in section 1401 of this title and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under this subchapter. (4) Individualized education program An individualized education program, or an individualized family service plan that meets the requirements of section 1436(d) of this title, is developed, reviewed, and revised for each child with a disability in accordance with section 1414(d) of this title. (5) Least restrictive environment (A) In general To the maximum extent appropriate, chil- dren with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, sepa- rate schooling, or other removal of children with disabilities from the regular edu- cational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and serv- ices cannot be achieved satisfactorily. (B) Additional requirement (i) In general A State funding mechanism shall not re- sult in placements that violate the re- quirements of subparagraph (A), and a State shall not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the fail- ure to provide a child with a disability a free appropriate public education accord- ing to the unique needs of the child as de- scribed in the child’s IEP. (ii) Assurance If the State does not have policies and procedures to ensure compliance with clause (i), the State shall provide the Sec- retary an assurance that the State will re- vise the funding mechanism as soon as fea- sible to ensure that such mechanism does not result in such placements. (6) Procedural safeguards (A) In general Children with disabilities and their par- ents are afforded the procedural safeguards required by section 1415 of this title. (B) Additional procedural safeguards Procedures to ensure that testing and evaluation materials and procedures utilized for the purposes of evaluation and placement of children with disabilities for services under this chapter will be selected and ad- ministered so as not to be racially or cul- turally discriminatory. Such materials or procedures shall be provided and adminis- tered in the child’s native language or mode of communication, unless it clearly is not feasible to do so, and no single procedure shall be the sole criterion for determining an appropriate educational program for a child. (7) Evaluation Children with disabilities are evaluated in accordance with subsections (a) through (c) of section 1414 of this title. Page 948 TITLE 20—EDUCATION § 1412 (8) Confidentiality Agencies in the State comply with section 1417(c) of this title (relating to the confiden- tiality of records and information). (9) Transition from subchapter III to preschool programs Children participating in early intervention programs assisted under subchapter III, and who will participate in preschool programs as- sisted under this subchapter, experience a smooth and effective transition to those pre- school programs in a manner consistent with section 1437(a)(9) of this title. By the third birthday of such a child, an individualized edu- cation program or, if consistent with sections 1414(d)(2)(B) and 1436(d) of this title, an indi- vidualized family service plan, has been devel- oped and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency under section 1435(a)(10) of this title. (10) Children in private schools (A) Children enrolled in private schools by their parents (i) In general To the extent consistent with the num- ber and location of children with disabil- ities in the State who are enrolled by their parents in private elementary schools and secondary schools in the school district served by a local educational agency, pro- vision is made for the participation of those children in the program assisted or carried out under this subchapter by pro- viding for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under subsection (f): (I) Amounts to be expended for the pro- vision of those services (including direct services to parentally placed private school children) by the local educational agency shall be equal to a proportionate amount of Federal funds made available under this subchapter. (II) In calculating the proportionate amount of Federal funds, the local edu- cational agency, after timely and mean- ingful consultation with representatives of private schools as described in clause (iii), shall conduct a thorough and com- plete child find process to determine the number of parentally placed children with disabilities attending private schools located in the local educational agency. (III) Such services to parentally placed private school children with disabilities may be provided to the children on the premises of private, including religious, schools, to the extent consistent with law. (IV) State and local funds may supple- ment and in no case shall supplant the proportionate amount of Federal funds required to be expended under this sub- paragraph. (V) Each local educational agency shall maintain in its records and provide to the State educational agency the number of children evaluated under this subparagraph, the number of children de- termined to be children with disabilities under this paragraph, and the number of children served under this paragraph. (ii) Child find requirement (I) In general The requirements of paragraph (3) (re- lating to child find) shall apply with re- spect to children with disabilities in the State who are enrolled in private, in- cluding religious, elementary schools and secondary schools. (II) Equitable participation The child find process shall be designed to ensure the equitable participation of parentally placed private school children with disabilities and an accurate count of such children. (III) Activities In carrying out this clause, the local educational agency, or where applicable, the State educational agency, shall un- dertake activities similar to those ac- tivities undertaken for the agency’s pub- lic school children. (IV) Cost The cost of carrying out this clause, including individual evaluations, may not be considered in determining wheth- er a local educational agency has met its obligations under clause (i). (V) Completion period Such child find process shall be com- pleted in a time period comparable to that for other students attending public schools in the local educational agency. (iii) Consultation To ensure timely and meaningful con- sultation, a local educational agency, or where appropriate, a State educational agency, shall consult with private school representatives and representatives of par- ents of parentally placed private school children with disabilities during the design and development of special education and related services for the children, including regarding— (I) the child find process and how pa- rentally placed private school children suspected of having a disability can par- ticipate equitably, including how par- ents, teachers, and private school offi- cials will be informed of the process; (II) the determination of the propor- tionate amount of Federal funds avail- able to serve parentally placed private school children with disabilities under this subparagraph, including the deter- mination of how the amount was cal- culated; (III) the consultation process among the local educational agency, private school officials, and representatives of Page 949 TITLE 20—EDUCATION § 1412 parents of parentally placed private school children with disabilities, includ- ing how such process will operate throughout the school year to ensure that parentally placed private school children with disabilities identified through the child find process can mean- ingfully participate in special education and related services; (IV) how, where, and by whom special education and related services will be provided for parentally placed private school children with disabilities, includ- ing a discussion of types of services, in- cluding direct services and alternate service delivery mechanisms, how such services will be apportioned if funds are insufficient to serve all children, and how and when these decisions will be made; and (V) how, if the local educational agen- cy disagrees with the views of the pri- vate school officials on the provision of services or the types of services, whether provided directly or through a contract, the local educational agency shall pro- vide to the private school officials a written explanation of the reasons why the local educational agency chose not to provide services directly or through a contract. (iv) Written affirmation When timely and meaningful consulta- tion as required by clause (iii) has oc- curred, the local educational agency shall obtain a written affirmation signed by the representatives of participating private schools, and if such representatives do not provide such affirmation within a reason- able period of time, the local educational agency shall forward the documentation of the consultation process to the State edu- cational agency. (v) Compliance (I) In general A private school official shall have the right to submit a complaint to the State educational agency that the local edu- cational agency did not engage in con- sultation that was meaningful and time- ly, or did not give due consideration to the views of the private school official. (II) Procedure If the private school official wishes to submit a complaint, the official shall provide the basis of the noncompliance with this subparagraph by the local edu- cational agency to the State educational agency, and the local educational agency shall forward the appropriate docu- mentation to the State educational agency. If the private school official is dissatisfied with the decision of the State educational agency, such official may submit a complaint to the Sec- retary by providing the basis of the non- compliance with this subparagraph by the local educational agency to the Sec- retary, and the State educational agency shall forward the appropriate docu- mentation to the Secretary. (vi) Provision of equitable services (I) Directly or through contracts The provision of services pursuant to this subparagraph shall be provided— (aa) by employees of a public agency; or (bb) through contract by the public agency with an individual, association, agency, organization, or other entity. (II) Secular, neutral, nonideological Special education and related services provided to parentally placed private school children with disabilities, includ- ing materials and equipment, shall be secular, neutral, and nonideological. (vii) Public control of funds The control of funds used to provide spe- cial education and related services under this subparagraph, and title to materials, equipment, and property purchased with those funds, shall be in a public agency for the uses and purposes provided in this chapter, and a public agency shall admin- ister the funds and property. (B) Children placed in, or referred to, private schools by public agencies (i) In general Children with disabilities in private schools and facilities are provided special education and related services, in accord- ance with an individualized education pro- gram, at no cost to their parents, if such children are placed in, or referred to, such schools or facilities by the State or appro- priate local educational agency as the means of carrying out the requirements of this subchapter or any other applicable law requiring the provision of special edu- cation and related services to all children with disabilities within such State. (ii) Standards In all cases described in clause (i), the State educational agency shall determine whether such schools and facilities meet standards that apply to State educational agencies and local educational agencies and that children so served have all the rights the children would have if served by such agencies. (C) Payment for education of children en- rolled in private schools without consent of or referral by the public agency (i) In general Subject to subparagraph (A), this sub- chapter does not require a local edu- cational agency to pay for the cost of edu- cation, including special education and re- lated services, of a child with a disability at a private school or facility if that agen- cy made a free appropriate public edu- cation available to the child and the par- ents elected to place the child in such pri- vate school or facility. Page 950 TITLE 20—EDUCATION § 1412 (ii) Reimbursement for private school placement If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a pri- vate elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reim- burse the parents for the cost of that en- rollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. (iii) Limitation on reimbursement The cost of reimbursement described in clause (ii) may be reduced or denied— (I) if— (aa) at the most recent IEP meeting that the parents attended prior to re- moval of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, includ- ing stating their concerns and their in- tent to enroll their child in a private school at public expense; or (bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agen- cy of the information described in item (aa); (II) if, prior to the parents’ removal of the child from the public school, the public agency informed the parents, through the notice requirements de- scribed in section 1415(b)(3) of this title, of its intent to evaluate the child (in- cluding a statement of the purpose of the evaluation that was appropriate and rea- sonable), but the parents did not make the child available for such evaluation; or (III) upon a judicial finding of unreasonableness with respect to actions taken by the parents. (iv) Exception Notwithstanding the notice requirement in clause (iii)(I), the cost of reimburse- ment— (I) shall not be reduced or denied for failure to provide such notice if— (aa) the school prevented the parent from providing such notice; (bb) the parents had not received no- tice, pursuant to section 1415 of this title, of the notice requirement in clause (iii)(I); or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and (II) may, in the discretion of a court or a hearing officer, not be reduced or de- nied for failure to provide such notice if— (aa) the parent is illiterate or cannot write in English; or (bb) compliance with clause (iii)(I) would likely result in serious emo- tional harm to the child. (11) State educational agency responsible for general supervision (A) In general The State educational agency is respon- sible for ensuring that— (i) the requirements of this subchapter are met; (ii) all educational programs for children with disabilities in the State, including all such programs administered by any other State agency or local agency— (I) are under the general supervision of individuals in the State who are respon- sible for educational programs for chil- dren with disabilities; and (II) meet the educational standards of the State educational agency; and (iii) in carrying out this subchapter with respect to homeless children, the require- ments of subtitle B of title VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.) are met. (B) Limitation Subparagraph (A) shall not limit the re- sponsibility of agencies in the State other than the State educational agency to pro- vide, or pay for some or all of the costs of, a free appropriate public education for any child with a disability in the State. (C) Exception Notwithstanding subparagraphs (A) and (B), the Governor (or another individual pur- suant to State law), consistent with State law, may assign to any public agency in the State the responsibility of ensuring that the requirements of this subchapter are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons. (12) Obligations related to and methods of en- suring services (A) Establishing responsibility for services The Chief Executive Officer of a State or designee of the officer shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect be- tween each public agency described in sub- paragraph (B) and the State educational agency, in order to ensure that all services described in subparagraph (B)(i) that are needed to ensure a free appropriate public education are provided, including the provi- sion of such services during the pendency of any dispute under clause (iii). Such agree- ment or mechanism shall include the fol- lowing: (i) Agency financial responsibility An identification of, or a method for de- fining, the financial responsibility of each agency for providing services described in Page 951 TITLE 20—EDUCATION § 1412 subparagraph (B)(i) to ensure a free appro- priate public education to children with disabilities, provided that the financial re- sponsibility of each public agency de- scribed in subparagraph (B), including the State medicaid agency and other public in- surers of children with disabilities, shall precede the financial responsibility of the local educational agency (or the State agency responsible for developing the child’s IEP). (ii) Conditions and terms of reimbursement The conditions, terms, and procedures under which a local educational agency shall be reimbursed by other agencies. (iii) Interagency disputes Procedures for resolving interagency dis- putes (including procedures under which local educational agencies may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism. (iv) Coordination of services procedures Policies and procedures for agencies to determine and identify the interagency co- ordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services de- scribed in subparagraph (B)(i). (B) Obligation of public agency (i) In general If any public agency other than an edu- cational agency is otherwise obligated under Federal or State law, or assigned re- sponsibility under State policy pursuant to subparagraph (A), to provide or pay for any services that are also considered spe- cial education or related services (such as, but not limited to, services described in section 1401(1) relating to assistive tech- nology devices, 1401(2) relating to assistive technology services, 1401(26) relating to re- lated services, 1401(33) relating to supple- mentary aids and services, and 1401(34) of this title relating to transition services) that are necessary for ensuring a free ap- propriate public education to children with disabilities within the State, such public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to subparagraph (A) or an agree- ment pursuant to subparagraph (C). (ii) Reimbursement for services by public agency If a public agency other than an edu- cational agency fails to provide or pay for the special education and related services described in clause (i), the local edu- cational agency (or State agency respon- sible for developing the child’s IEP) shall provide or pay for such services to the child. Such local educational agency or State agency is authorized to claim reim- bursement for the services from the public agency that failed to provide or pay for such services and such public agency shall reimburse the local educational agency or State agency pursuant to the terms of the interagency agreement or other mecha- nism described in subparagraph (A)(i) ac- cording to the procedures established in such agreement pursuant to subparagraph (A)(ii). (C) Special rule The requirements of subparagraph (A) may be met through— (i) State statute or regulation; (ii) signed agreements between respec- tive agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or (iii) other appropriate written methods as determined by the Chief Executive Offi- cer of the State or designee of the officer and approved by the Secretary. (13) Procedural requirements relating to local educational agency eligibility The State educational agency will not make a final determination that a local educational agency is not eligible for assistance under this subchapter without first affording that agency reasonable notice and an opportunity for a hearing. (14) Personnel qualifications (A) In general The State educational agency has estab- lished and maintains qualifications to en- sure that personnel necessary to carry out this subchapter are appropriately and ade- quately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities. (B) Related services personnel and para- professionals The qualifications under subparagraph (A) include qualifications for related services personnel and paraprofessionals that— (i) are consistent with any State-ap- proved or State-recognized certification, licensing, registration, or other com- parable requirements that apply to the professional discipline in which those per- sonnel are providing special education or related services; (ii) ensure that related services per- sonnel who deliver services in their dis- cipline or profession meet the require- ments of clause (i) and have not had cer- tification or licensure requirements waived on an emergency, temporary, or provisional basis; and (iii) allow paraprofessionals and assist- ants who are appropriately trained and su- pervised, in accordance with State law, regulation, or written policy, in meeting the requirements of this subchapter to be used to assist in the provision of special education and related services under this subchapter to children with disabilities. (C) Qualifications for special education teachers The qualifications described in subpara- graph (A) shall ensure that each person em- Page 952 TITLE 20—EDUCATION § 1412 1 So in original. Probably should be ‘‘200.56(a)(2)(ii)’’. 2 So in original. ployed as a special education teacher in the State who teaches elementary school, mid- dle school, or secondary school— (i) has obtained full State certification as a special education teacher (including participating in an alternate route to cer- tification as a special educator, if such al- ternate route meets minimum require- ments described in section 2005.56(a)(2)(ii) 1 of title 34, Code of Federal Regulations, as such section was in effect on November 28, 2008), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except with respect to any teacher teaching in a public charter school who shall meet the requirements set forth in the State’s public charter school law; (ii) has not had special education certifi- cation or licensure requirements waived on an emergency, temporary, or provi- sional basis; and (iii) holds at least a bachelor’s degree..2 (D) Policy In implementing this section, a State shall adopt a policy that includes a requirement that local educational agencies in the State take measurable steps to recruit, hire, train, and retain personnel who meet the applica- ble requirements described in this paragraph to provide special education and related services under this subchapter to children with disabilities. (E) Rule of construction Notwithstanding any other individual right of action that a parent or student may maintain under this subchapter, nothing in this paragraph shall be construed to create a right of action on behalf of an individual student for the failure of a particular State educational agency or local educational agency staff person to meet the applicable requirements described in this paragraph, or to prevent a parent from filing a complaint about staff qualifications with the State educational agency as provided for under this subchapter. (15) Performance goals and indicators The State— (A) has established goals for the perform- ance of children with disabilities in the State that— (i) promote the purposes of this chapter, as stated in section 1400(d) of this title; (ii) are the same as the State’s long-term goals and measurements of interim progress for children with disabilities under section 6311(c)(4)(A)(i) of this title; (iii) address graduation rates and drop- out rates, as well as such other factors as the State may determine; and (iv) are consistent, to the extent appro- priate, with any other goals and standards for children established by the State; (B) has established performance indicators the State will use to assess progress toward achieving the goals described in subpara- graph (A), including measurements of in- terim progress for children with disabilities under section 6311(c)(4)(A)(i) of this title; and (C) will annually report to the Secretary and the public on the progress of the State, and of children with disabilities in the State, toward meeting the goals established under subparagraph (A), which may include elements of the reports required under sec- tion 6311(h) of this title. (16) Participation in assessments (A) In general All children with disabilities are included in all general State and districtwide assess- ment programs, including assessments de- scribed under section 6311 of this title, with appropriate accommodations and alternate assessments where necessary and as indi- cated in their respective individualized edu- cation programs. (B) Accommodation guidelines The State (or, in the case of a districtwide assessment, the local educational agency) has developed guidelines for the provision of appropriate accommodations. (C) Alternate assessments (i) In general The State (or, in the case of a district- wide assessment, the local educational agency) has developed and implemented guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in regular assessments under subparagraph (A) with accommodations as indicated in their respective individualized education programs. (ii) Requirements for alternate assessments The guidelines under clause (i) shall pro- vide for alternate assessments that— (I) are aligned with the challenging State academic content standards under section 6311(b)(1) of this title and alter- nate academic achievement standards under section 6311(b)(1)(E) of this title; and (II) if the State has adopted alternate academic achievement standards per- mitted under section 6311(b)(1)(E) of this title, measure the achievement of chil- dren with disabilities against those standards. (iii) Conduct of alternate assessments The State conducts the alternate assess- ments described in this subparagraph. (D) Reports The State educational agency (or, in the case of a districtwide assessment, the local educational agency) makes available to the public, and reports to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following: (i) The number of children with disabil- ities participating in regular assessments, Page 953 TITLE 20—EDUCATION § 1412 and the number of those children who were provided accommodations in order to par- ticipate in those assessments. (ii) The number of children with disabil- ities participating in alternate assess- ments described in subparagraph (C)(ii)(I). (iii) The number of children with disabil- ities participating in alternate assess- ments described in subparagraph (C)(ii)(II). (iv) The performance of children with disabilities on regular assessments and on alternate assessments (if the number of children with disabilities participating in those assessments is sufficient to yield statistically reliable information and re- porting that information will not reveal personally identifiable information about an individual student), compared with the achievement of all children, including children with disabilities, on those assess- ments. (E) Universal design The State educational agency (or, in the case of a districtwide assessment, the local educational agency) shall, to the extent fea- sible, use universal design principles in de- veloping and administering any assessments under this paragraph. (17) Supplementation of State, local, and other Federal funds (A) Expenditures Funds paid to a State under this sub- chapter will be expended in accordance with all the provisions of this subchapter. (B) Prohibition against commingling Funds paid to a State under this sub- chapter will not be commingled with State funds. (C) Prohibition against supplantation and conditions for waiver by Secretary Except as provided in section 1413 of this title, funds paid to a State under this sub- chapter will be used to supplement the level of Federal, State, and local funds (including funds that are not under the direct control of State or local educational agencies) ex- pended for special education and related services provided to children with disabil- ities under this subchapter and in no case to supplant such Federal, State, and local funds, except that, where the State provides clear and convincing evidence that all chil- dren with disabilities have available to them a free appropriate public education, the Sec- retary may waive, in whole or in part, the requirements of this subparagraph if the Secretary concurs with the evidence pro- vided by the State. (18) Maintenance of State financial support (A) In general The State does not reduce the amount of State financial support for special education and related services for children with dis- abilities, or otherwise made available be- cause of the excess costs of educating those children, below the amount of that support for the preceding fiscal year. (B) Reduction of funds for failure to main- tain support The Secretary shall reduce the allocation of funds under section 1411 of this title for any fiscal year following the fiscal year in which the State fails to comply with the re- quirement of subparagraph (A) by the same amount by which the State fails to meet the requirement. (C) Waivers for exceptional or uncontrollable circumstances The Secretary may waive the requirement of subparagraph (A) for a State, for 1 fiscal year at a time, if the Secretary determines that— (i) granting a waiver would be equitable due to exceptional or uncontrollable cir- cumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State; or (ii) the State meets the standard in para- graph (17)(C) for a waiver of the require- ment to supplement, and not to supplant, funds received under this subchapter. (D) Subsequent years If, for any year, a State fails to meet the requirement of subparagraph (A), including any year for which the State is granted a waiver under subparagraph (C), the financial support required of the State in future years under subparagraph (A) shall be the amount that would have been required in the ab- sence of that failure and not the reduced level of the State’s support. (19) Public participation Prior to the adoption of any policies and procedures needed to comply with this section (including any amendments to such policies and procedures), the State ensures that there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including indi- viduals with disabilities and parents of chil- dren with disabilities. (20) Rule of construction In complying with paragraphs (17) and (18), a State may not use funds paid to it under this subchapter to satisfy State-law mandated funding obligations to local educational agen- cies, including funding based on student at- tendance or enrollment, or inflation. (21) State advisory panel (A) In general The State has established and maintains an advisory panel for the purpose of pro- viding policy guidance with respect to spe- cial education and related services for chil- dren with disabilities in the State. (B) Membership Such advisory panel shall consist of mem- bers appointed by the Governor, or any other official authorized under State law to make such appointments, be representative of the State population, and be composed of indi- viduals involved in, or concerned with, the education of children with disabilities, in- cluding— Page 954 TITLE 20—EDUCATION § 1412 (i) parents of children with disabilities (ages birth through 26); (ii) individuals with disabilities; (iii) teachers; (iv) representatives of institutions of higher education that prepare special edu- cation and related services personnel; (v) State and local education officials, including officials who carry out activities under subtitle B of title VII of the McKin- ney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.); (vi) administrators of programs for chil- dren with disabilities; (vii) representatives of other State agen- cies involved in the financing or delivery of related services to children with disabil- ities; (viii) representatives of private schools and public charter schools; (ix) not less than 1 representative of a vocational, community, or business orga- nization concerned with the provision of transition services to children with dis- abilities; (x) a representative from the State child welfare agency responsible for foster care; and (xi) representatives from the State juve- nile and adult corrections agencies. (C) Special rule A majority of the members of the panel shall be individuals with disabilities or par- ents of children with disabilities (ages birth through 26). (D) Duties The advisory panel shall— (i) advise the State educational agency of unmet needs within the State in the education of children with disabilities; (ii) comment publicly on any rules or regulations proposed by the State regard- ing the education of children with disabil- ities; (iii) advise the State educational agency in developing evaluations and reporting on data to the Secretary under section 1418 of this title; (iv) advise the State educational agency in developing corrective action plans to address findings identified in Federal mon- itoring reports under this subchapter; and (v) advise the State educational agency in developing and implementing policies relating to the coordination of services for children with disabilities. (22) Suspension and expulsion rates (A) In general The State educational agency examines data, including data disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities— (i) among local educational agencies in the State; or (ii) compared to such rates for non- disabled children within such agencies. (B) Review and revision of policies If such discrepancies are occurring, the State educational agency reviews and, if ap- propriate, revises (or requires the affected State or local educational agency to revise) its policies, procedures, and practices relat- ing to the development and implementation of IEPs, the use of positive behavioral inter- ventions and supports, and procedural safe- guards, to ensure that such policies, proce- dures, and practices comply with this chap- ter. (23) Access to instructional materials (A) In general The State adopts the National Instruc- tional Materials Accessibility Standard for the purposes of providing instructional ma- terials to blind persons or other persons with print disabilities, in a timely manner after the publication of the National Instructional Materials Accessibility Standard in the Fed- eral Register. (B) Rights of State educational agency Nothing in this paragraph shall be con- strued to require any State educational agency to coordinate with the National In- structional Materials Access Center. If a State educational agency chooses not to co- ordinate with the National Instructional Materials Access Center, such agency shall provide an assurance to the Secretary that the agency will provide instructional mate- rials to blind persons or other persons with print disabilities in a timely manner. (C) Preparation and delivery of files If a State educational agency chooses to coordinate with the National Instructional Materials Access Center, not later than 2 years after December 3, 2004, the agency, as part of any print instructional materials adoption process, procurement contract, or other practice or instrument used for pur- chase of print instructional materials, shall enter into a written contract with the pub- lisher of the print instructional materials to— (i) require the publisher to prepare and, on or before delivery of the print instruc- tional materials, provide to the National Instructional Materials Access Center electronic files containing the contents of the print instructional materials using the National Instructional Materials Accessi- bility Standard; or (ii) purchase instructional materials from the publisher that are produced in, or may be rendered in, specialized formats. (D) Assistive technology In carrying out this paragraph, the State educational agency, to the maximum extent possible, shall work collaboratively with the State agency responsible for assistive tech- nology programs. (E) Definitions In this paragraph: (i) National Instructional Materials Access Center The term ‘‘National Instructional Mate- rials Access Center’’ means the center es- tablished pursuant to section 1474(e) of this title. Page 955 TITLE 20—EDUCATION § 1412 (ii) National Instructional Materials Acces- sibility Standard The term ‘‘National Instructional Mate- rials Accessibility Standard’’ has the meaning given the term in section 1474(e)(3)(A) of this title. (iii) Specialized formats The term ‘‘specialized formats’’ has the meaning given the term in section 1474(e)(3)(D) of this title. (24) Overidentification and disproportionality The State has in effect, consistent with the purposes of this chapter and with section 1418(d) of this title, policies and procedures de- signed to prevent the inappropriate over- identification or disproportionate representa- tion by race and ethnicity of children as chil- dren with disabilities, including children with disabilities with a particular impairment de- scribed in section 1401 of this title. (25) Prohibition on mandatory medication (A) In general The State educational agency shall pro- hibit State and local educational agency personnel from requiring a child to obtain a prescription for a substance covered by the Controlled Substances Act (21 U.S.C. 801 et seq.) as a condition of attending school, re- ceiving an evaluation under subsection (a) or (c) of section 1414 of this title, or receiving services under this chapter. (B) Rule of construction Nothing in subparagraph (A) shall be con- strued to create a Federal prohibition against teachers and other school personnel consulting or sharing classroom-based obser- vations with parents or guardians regarding a student’s academic and functional per- formance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under paragraph (3). (b) State educational agency as provider of free appropriate public education or direct serv- ices If the State educational agency provides free appropriate public education to children with disabilities, or provides direct services to such children, such agency— (1) shall comply with any additional require- ments of section 1413(a) of this title, as if such agency were a local educational agency; and (2) may use amounts that are otherwise available to such agency under this sub- chapter to serve those children without regard to section 1413(a)(2)(A)(i) of this title (relating to excess costs). (c) Exception for prior State plans (1) In general If a State has on file with the Secretary policies and procedures that demonstrate that such State meets any requirement of sub- section (a), including any policies and proce- dures filed under this subchapter as in effect before the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the Secretary shall consider such State to have met such requirement for purposes of receiving a grant under this subchapter. (2) Modifications made by State Subject to paragraph (3), an application sub- mitted by a State in accordance with this sec- tion shall remain in effect until the State sub- mits to the Secretary such modifications as the State determines necessary. This section shall apply to a modification to an application to the same extent and in the same manner as this section applies to the original plan. (3) Modifications required by the Secretary If, after the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the provisions of this chapter are amended (or the regulations developed to carry out this chapter are amended), there is a new interpretation of this chapter by a Fed- eral court or a State’s highest court, or there is an official finding of noncompliance with Federal law or regulations, then the Secretary may require a State to modify its application only to the extent necessary to ensure the State’s compliance with this subchapter. (d) Approval by the Secretary (1) In general If the Secretary determines that a State is eligible to receive a grant under this sub- chapter, the Secretary shall notify the State of that determination. (2) Notice and hearing The Secretary shall not make a final deter- mination that a State is not eligible to receive a grant under this subchapter until after pro- viding the State— (A) with reasonable notice; and (B) with an opportunity for a hearing. (e) Assistance under other Federal programs Nothing in this chapter permits a State to re- duce medical and other assistance available, or to alter eligibility, under titles V and XIX of the Social Security Act [42 U.S.C. 701 et seq., 1396 et seq.] with respect to the provision of a free ap- propriate public education for children with dis- abilities in the State. (f) By-pass for children in private schools (1) In general If, on December 2, 1983, a State educational agency was prohibited by law from providing for the equitable participation in special pro- grams of children with disabilities enrolled in private elementary schools and secondary schools as required by subsection (a)(10)(A), or if the Secretary determines that a State edu- cational agency, local educational agency, or other entity has substantially failed or is un- willing to provide for such equitable participa- tion, then the Secretary shall, notwith- standing such provision of law, arrange for the provision of services to such children through arrangements that shall be subject to the re- quirements of such subsection. (2) Payments (A) Determination of amounts If the Secretary arranges for services pur- suant to this subsection, the Secretary, after Page 956 TITLE 20—EDUCATION § 1412 consultation with the appropriate public and private school officials, shall pay to the pro- vider of such services for a fiscal year an amount per child that does not exceed the amount determined by dividing— (i) the total amount received by the State under this subchapter for such fiscal year; by (ii) the number of children with disabil- ities served in the prior year, as reported to the Secretary by the State under sec- tion 1418 of this title. (B) Withholding of certain amounts Pending final resolution of any investiga- tion or complaint that may result in a deter- mination under this subsection, the Sec- retary may withhold from the allocation of the affected State educational agency the amount the Secretary estimates will be nec- essary to pay the cost of services described in subparagraph (A). (C) Period of payments The period under which payments are made under subparagraph (A) shall continue until the Secretary determines that there will no longer be any failure or inability on the part of the State educational agency to meet the requirements of subsection (a)(10)(A). (3) Notice and hearing (A) In general The Secretary shall not take any final ac- tion under this subsection until the State educational agency affected by such action has had an opportunity, for not less than 45 days after receiving written notice thereof, to submit written objections and to appear before the Secretary or the Secretary’s des- ignee to show cause why such action should not be taken. (B) Review of action If a State educational agency is dissatis- fied with the Secretary’s final action after a proceeding under subparagraph (A), such agency may, not later than 60 days after no- tice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for re- view of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings on which the Secretary based the Secretary’s action, as provided in section 2112 of title 28. (C) Review of findings of fact 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 Sec- retary to take further evidence, and the Sec- retary may thereupon make new or modified findings of fact and may modify the Sec- retary’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 sub- stantial evidence. (D) Jurisdiction of court of appeals; review by United States Supreme Court Upon the filing of a petition under sub- paragraph (B), the United States court of ap- peals 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. (Pub. L. 91–230, title VI, § 612, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2676; amended Pub. L. 114–95, title IX, §§ 9214(d)(2), 9215(ss)(3), Dec. 10, 2015, 129 Stat. 2164, 2182.) Editorial Notes REFERENCES IN TEXT The McKinney-Vento Homeless Assistance Act, re- ferred to in subsec. (a)(11)(A)(iii), (21)(B)(v), is Pub. L. 100–77, July 22, 1987, 101 Stat. 482. Subtitle B of title VII of the Act is classified generally to part B (§ 11431 et seq.) of subchapter VI of chapter 119 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 11301 of Title 42 and Tables. The Controlled Substances Act, referred to in subsec. (a)(25)(A), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242, which is classified principally to subchapter I (§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 801 of Title 21 and Tables. For the effective date of the Individuals with Disabil- ities Education Improvement Act of 2004, referred to in subsec. (c)(1), (3), see section 302(a), (b) of Pub. L. 108–446, set out as an Effective Date note under section 1400 of this title. The Social Security Act, referred to in subsec. (e), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles V and XIX of the Act are classified generally to sub- chapters V (§ 701 et seq.) and XIX (§ 1396 et seq.), respec- tively, of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables. PRIOR PROVISIONS A prior section 1412, Pub. L. 91–230, title VI, § 612, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 60, related to State eligibility for assistance, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446. Another prior section 1412, Pub. L. 91–230, title VI, § 612, Apr. 13, 1970, 84 Stat. 178; Pub. L. 92–318, title IV, § 421(b)(1)(C), June 23, 1972, 86 Stat. 341; Pub. L. 93–380, title VI, §§ 614(b), (f)(1), 615(a), title VIII, § 843(b), Aug. 21, 1974, 88 Stat. 581, 582, 611; Pub. L. 94–142, §§ 2(a)(4), (c), (d), 5(a), Nov. 29, 1975, 89 Stat. 773, 774, 780; Pub. L. 98–199, § 3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 99–457, title II, § 203(a), Oct. 8, 1986, 100 Stat. 1158; Pub. L. 100–630, title I, § 102(b), Nov. 7, 1988, 102 Stat. 3291; Pub. L. 101–476, title IX, § 901(b)(33)–(46), (c), Oct. 30, 1990, 104 Stat. 1143, 1144, 1151; Pub. L. 102–119, § 25(a)(5), (b), Oct. 7, 1991, 105 Stat. 606, 607, related to eligibility require- ments, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17. AMENDMENTS 2015—Subsec. (a)(14)(C). Pub. L. 114–95, § 9214(d)(2)(A), substituted ‘‘secondary school—’’ for ‘‘secondary school is highly qualified by the deadline established in sec- tion 6319(a)(2) of this title’’ and added cls. (i) to (iii). Subsec. (a)(14)(D). Pub. L. 114–95, § 9214(d)(2)(B), sub- stituted ‘‘personnel who meet the applicable require- ments described in this paragraph’’ for ‘‘highly quali- fied personnel’’. Page 957 TITLE 20—EDUCATION § 1413 Subsec. (a)(14)(E). Pub. L. 114–95, § 9214(d)(2)(C), sub- stituted ‘‘staff person to meet the applicable require- ments described in this paragraph’’ for ‘‘staff person to be highly qualified’’. Subsec. (a)(15)(A)(ii). Pub. L. 114–95, § 9215(ss)(3)(A)(i), added cl. (ii) and struck out former cl. (ii) which read as follows: ‘‘are the same as the State’s definition of adequate yearly progress, including the State’s objec- tives for progress by children with disabilities, under section 6311(b)(2)(C) of this title;’’. Subsec. (a)(15)(B). Pub. L. 114–95, § 9215(ss)(3)(A)(ii), which directed substitution of ‘‘including measure- ments of interim progress for children with disabilities under section 6311(c)(4)(A)(i)’’ for ‘‘including measur- able annual objectives for progress by children with disabilities under section 6311(b)(2)(C)(v)(II)’’, was exe- cuted by making the substitution for ‘‘including meas- urable annual objectives for progress by children with disabilities under section 6311(b)(2)(C)(v)(II)(cc)’’, to re- flect the probable intent of Congress. Subsec. (a)(16)(C)(ii)(I). Pub. L. 114–95, § 9215(ss)(3)(B)(i), substituted ‘‘challenging State aca- demic content standards under section 6311(b)(1) of this title and alternate academic achievement standards under section 6311(b)(1)(E) of this title’’ for ‘‘State’s challenging academic content standards and chal- lenging student academic achievement standards’’. Subsec. (a)(16)(C)(ii)(II). Pub. L. 114–95, § 9215(ss)(3)(B)(ii), substituted ‘‘section 6311(b)(1)(E) of this title,’’ for ‘‘the regulations promulgated to carry out section 6311(b)(1) of this title,’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–95 effective Dec. 10, 2015, except with respect to certain noncompetitive pro- grams and competitive programs, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of this title. § 1413. Local educational agency eligibility (a) In general A local educational agency is eligible for as- sistance under this subchapter for a fiscal year if such agency submits a plan that provides as- surances to the State educational agency that the local educational agency meets each of the following conditions: (1) Consistency with State policies The local educational agency, in providing for the education of children with disabilities within its jurisdiction, has in effect policies, procedures, and programs that are consistent with the State policies and procedures estab- lished under section 1412 of this title. (2) Use of amounts (A) In general Amounts provided to the local educational agency under this subchapter shall be ex- pended in accordance with the applicable provisions of this subchapter and— (i) shall be used only to pay the excess costs of providing special education and related services to children with disabil- ities; (ii) shall be used to supplement State, local, and other Federal funds and not to supplant such funds; and (iii) shall not be used, except as provided in subparagraphs (B) and (C), to reduce the level of expenditures for the education of children with disabilities made by the local educational agency from local funds below the level of those expenditures for the preceding fiscal year. (B) Exception Notwithstanding the restriction in sub- paragraph (A)(iii), a local educational agen- cy may reduce the level of expenditures where such reduction is attributable to— (i) the voluntary departure, by retire- ment or otherwise, or departure for just cause, of special education personnel; (ii) a decrease in the enrollment of chil- dren with disabilities; (iii) the termination of the obligation of the agency, consistent with this sub- chapter, to provide a program of special education to a particular child with a dis- ability that is an exceptionally costly pro- gram, as determined by the State edu- cational agency, because the child— (I) has left the jurisdiction of the agen- cy; (II) has reached the age at which the obligation of the agency to provide a free appropriate public education to the child has terminated; or (III) no longer needs such program of special education; or (iv) the termination of costly expendi- tures for long-term purchases, such as the acquisition of equipment or the construc- tion of school facilities. (C) Adjustment to local fiscal effort in cer- tain fiscal years (i) Amounts in excess Notwithstanding clauses (ii) and (iii) of subparagraph (A), for any fiscal year for which the allocation received by a local educational agency under section 1411(f) of this title exceeds the amount the local educational agency received for the pre- vious fiscal year, the local educational agency may reduce the level of expendi- tures otherwise required by subparagraph (A)(iii) by not more than 50 percent of the amount of such excess. (ii) Use of amounts to carry out activities under ESEA If a local educational agency exercises the authority under clause (i), the agency shall use an amount of local funds equal to the reduction in expenditures under clause (i) to carry out activities authorized under the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6301 et seq.]. (iii) State prohibition Notwithstanding clause (i), if a State educational agency determines that a local educational agency is unable to es- tablish and maintain programs of free ap- propriate public education that meet the requirements of subsection (a) or the State educational agency has taken action against the local educational agency under section 1416 of this title, the State edu- cational agency shall prohibit the local educational agency from reducing the level of expenditures under clause (i) for that fiscal year.