SEC. 616. MONITORING,
TECHNICAL ASSISTANCE, AND ENFORCEMENT
(a) FEDERAL AND STATE MONITORING-
(1) IN GENERAL- The Secretary
shall--
(A) monitor implementation
of this part through--
(i) oversight of
the exercise of general supervision by the States, as required in section
612(a)(11); and
(ii) the State performance
plans, described in subsection (b);
(B) enforce this part
in accordance with subsection (e); and
(i) monitor implementation
of this part by local educational agencies; and
(ii) enforce this
part in accordance with paragraph (3) and subsection (e).
(2) FOCUSED MONITORING-
The primary focus of Federal and State monitoring activities described in
paragraph (1) shall be on--
(A) improving educational
results and functional outcomes for all children with disabilities; and
(B) ensuring that States
meet the program requirements under this part, 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 the States, and shall require each State to monitor
the local educational agencies located in the State (except the State exercise
of general supervisory responsibility), using quantifiable indicators in each
of the following priority areas, and using such qualitative indicators as
are needed to adequately measure performance in the following priority areas:
(A) Provision of a
free appropriate public education in the least restrictive environment.
(B) State exercise
of general supervisory authority, including child find, effective monitoring,
the use of resolution sessions, mediation, voluntary binding arbitration,
and a system of transition services as defined in sections 602(34) and 637(a)(9).
(C) Disproportionate
representation of racial and ethnic groups in special education and related
services, to the extent the representation is the result of inappropriate
identification.
(4) PERMISSIVE AREAS
OF REVIEW- The Secretary shall consider other relevant information and data,
including data provided by States under section 618.
(b) STATE PERFORMANCE PLANS-
(A) IN GENERAL- Not
later than 1 year after the date of enactment of the Individuals with Disabilities
Education Improvement Act of 2004, each State shall have in place a performance
plan that evaluates that State's efforts to implement the requirements and
purposes of this part and describes how the State will improve such implementation.
(B) SUBMISSION FOR
APPROVAL- Each State shall submit the State's performance plan to the Secretary
for approval in accordance with the approval process described in subsection
(c).
(C) REVIEW- Each State
shall review its State performance plan at least once every 6 years and
submit any amendments to the Secretary.
(A) IN GENERAL- As
a part of the State performance plan described under paragraph (1), each
State shall establish measurable and rigorous targets for the indicators
established under the priority areas described in subsection (a)(3).
(i) IN GENERAL- Each
State shall collect valid and reliable information as needed to report
annually to the Secretary on the priority areas described in subsection
(a)(3).
(ii) RULE OF CONSTRUCTION-
Nothing in this title shall be construed to authorize the development
of a nationwide database of personally identifiable information on individuals
involved in studies or other collections of data under this part.
(C) PUBLIC REPORTING
AND PRIVACY-
(i) IN GENERAL- The
State shall use the targets established in the plan and priority areas
described in subsection (a)(3) to analyze the performance of each local
educational agency in the State in implementing this part.
(I) PUBLIC REPORT-
The State shall report annually to the public on the performance of
each local educational agency located in the State on the targets in
the State's performance plan. The State shall make the State's performance
plan available through public means, including by posting on the website
of the State educational agency, distribution to the media, and distribution
through public agencies.
(II) STATE PERFORMANCE
REPORT- The State shall report annually to the Secretary on the performance
of the State under the State's performance plan.
(iii) PRIVACY- The
State shall not report to the public or the Secretary any information
on performance that would result in the disclosure of personally identifiable
information about individual children or where the available data is insufficient
to yield statistically reliable information.
(1) DEEMED APPROVAL-
The Secretary shall review (including the specific provisions described in
subsection (b)) each performance plan submitted by a State pursuant to subsection
(b)(1)(B) and the plan shall be deemed to be approved by the Secretary unless
the Secretary makes a written determination, prior to the expiration of the
120-day period beginning on the date on which the Secretary received the plan,
that the plan does not meet the requirements of this section, including the
specific provisions described in subsection (b).
(2) DISAPPROVAL- The
Secretary shall not finally disapprove a performance plan, except after giving
the State notice and an opportunity for a hearing.
(3) NOTIFICATION- If
the Secretary finds that the plan does not meet the requirements, in whole
or in part, of this section, the Secretary shall--
(A) give the State
notice and an opportunity for a hearing; and
(B) notify the State
of the finding, and in such notification shall--
(i) cite the specific
provisions in the plan that do not meet the requirements; and
(ii) request additional
information, only as to the provisions not meeting the requirements, needed
for the plan to meet the requirements of this section.
(4) RESPONSE- If the
State responds to the Secretary's notification described in paragraph (3)(B)
during the 30-day period beginning on the date on which the State received
the notification, and resubmits the plan with the requested information described
in paragraph (3)(B)(ii), the Secretary shall approve or disapprove such plan
prior to the later of--
(A) the expiration
of the 30-day period beginning on the date on which the plan is resubmitted;
or
(B) the expiration
of the 120-day period described in paragraph (1).
(5) FAILURE TO RESPOND-
If the State does not respond to the Secretary's notification described in
paragraph (3)(B) during the 30-day period beginning on the date on which the
State received the notification, such plan shall be deemed to be disapproved.
(d) SECRETARY'S REVIEW
AND DETERMINATION-
(1) REVIEW- The Secretary
shall annually review the State performance report submitted pursuant to subsection
(b)(2)(C)(ii)(II) in accordance with this section.
(A) IN GENERAL- Based
on the information provided by the State in the State performance report,
information obtained through monitoring visits, and any other public information
made available, the Secretary shall determine if the State--
(i) meets the requirements
and purposes of this part;
(ii) needs assistance
in implementing the requirements of this part;
(iii) needs intervention
in implementing the requirements of this part; or
(iv) needs substantial
intervention in implementing the requirements of this part.
(B) NOTICE AND OPPORTUNITY
FOR A HEARING- For determinations made under clause (iii) or (iv) of subparagraph
(A), the Secretary shall provide reasonable notice and an opportunity for
a hearing on such determination.
(1) NEEDS ASSISTANCE-
If the Secretary determines, for 2 consecutive years, that a State needs assistance
under subsection (d)(2)(A)(ii) in implementing the requirements of this part,
the Secretary shall take 1 or more of the following actions:
(A) Advise the State
of available sources of technical assistance that may help the State address
the areas in which the State needs assistance, which may include assistance
from the Office of Special Education Programs, other offices of the Department
of Education, other Federal agencies, technical assistance providers approved
by the Secretary, and other federally funded nonprofit agencies, and require
the State to work with appropriate entities. Such technical assistance may
include--
(i) the provision
of advice by experts to address the areas in which the State needs assistance,
including explicit plans for addressing the area for concern within a
specified period of time;
(ii) assistance in
identifying and implementing professional development, instructional strategies,
and methods of instruction that are based on scientifically based research;
(iii) designating
and using distinguished superintendents, principals, special education
administrators, special education teachers, and other teachers to provide
advice, technical assistance, and support; and
(iv) devising additional
approaches to providing technical assistance, such as collaborating with
institutions of higher education, educational service agencies, national
centers of technical assistance supported under part D, and private providers
of scientifically based technical assistance.
(B) Direct the use
of State-level funds under section 611(e) on the area or areas in which
the State needs assistance.
(C) Identify the State
as a high-risk grantee and impose special conditions on the State's grant
under this part.
(2) NEEDS INTERVENTION-
If the Secretary determines, for 3 or more consecutive years, that a State
needs intervention under subsection (d)(2)(A)(iii) in implementing the requirements
of this part, the following shall apply:
(A) The Secretary may
take any of the actions described in paragraph (1).
(B) The Secretary shall
take 1 or more of the following actions:
(i) Require the State
to 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) 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.
(iii) For each year
of the determination, withhold not less than 20 percent and not more than
50 percent of the State's funds under section 611(e), until the Secretary
determines the State has sufficiently addressed the areas in which the
State needs intervention.
(iv) Seek to recover
funds under section 452 of the General Education Provisions Act.
(v) Withhold, in
whole or in part, any further payments to the State under this part pursuant
to paragraph (5).
(vi) Refer the matter
for appropriate enforcement action, which may include referral to the
Department of Justice.
(3) NEEDS SUBSTANTIAL
INTERVENTION- Notwithstanding paragraph (1) or (2), at any time that the Secretary
determines that a State needs substantial intervention in implementing the
requirements of this part or that there is a substantial failure to comply
with any condition of a State educational agency's or local educational agency's
eligibility under this part, the Secretary shall take 1 or more of the following
actions:
(A) Recover funds under
section 452 of the General Education Provisions Act.
(B) Withhold, in whole
or in part, any further payments to the State under this part.
(C) Refer the case
to the Office of the Inspector General at the Department of Education.
(D) Refer the matter
for appropriate enforcement action, which may include referral to the Department
of Justice.
(4) OPPORTUNITY FOR HEARING-
(A) WITHHOLDING FUNDS-
Prior to withholding any funds under this section, the Secretary shall provide
reasonable notice and an opportunity for a hearing to the State educational
agency involved.
(B) SUSPENSION- Pending
the outcome of any hearing to withhold payments under subsection (b), the
Secretary may suspend payments to a recipient, suspend the authority of
the recipient to obligate funds under this part, or both, after such recipient
has been given reasonable notice and an opportunity to show cause why future
payments or authority to obligate funds under this part should not be suspended.
(5) REPORT TO CONGRESS-
The Secretary shall report to the Committee on Education and the Workforce
of the House of Representatives and the Committee on Health, Education, Labor,
and Pensions of the Senate within 30 days of taking enforcement action pursuant
to paragraph (1), (2), or (3), on the specific action taken and the reasons
why enforcement action was taken.
(6) NATURE OF WITHHOLDING-
(A) LIMITATION- If
the Secretary withholds further payments pursuant to paragraph (2) or (3),
the Secretary may determine--
(i) that such withholding
will be limited to programs or projects, or portions of programs or projects,
that affected the Secretary's determination under subsection (d)(2); or
(ii) that the State
educational agency shall not make further payments under this part to
specified State agencies or local educational agencies that caused or
were involved in the Secretary's determination under subsection (d)(2).
(B) WITHHOLDING UNTIL
RECTIFIED- Until the Secretary is satisfied that the condition that caused
the initial withholding has been substantially rectified--
(i) payments to the
State under this part shall be withheld in whole or in part; and
(ii) payments by
the State educational agency under this part shall be limited to State
agencies and local educational agencies whose actions did not cause or
were not involved in the Secretary's determination under subsection (d)(2),
as the case may be.
(7) PUBLIC ATTENTION-
Any State that has received notice under subsection (d)(2) 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 State.
(A) IN GENERAL- If
any State is dissatisfied with the Secretary's 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 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 be conclusive if supported by
substantial evidence.
(f) STATE ENFORCEMENT-
If a State educational agency determines that a local educational agency is
not meeting the requirements of this part, including the targets in the State's
performance plan, the State educational agency shall prohibit the local educational
agency from reducing the local educational agency's maintenance of effort under
section 613(a)(2)(C) for any fiscal year.
(g) RULE OF CONSTRUCTION-
Nothing in this section shall be construed to restrict the Secretary from utilizing
any authority under the General Education Provisions Act to monitor and enforce
the requirements of this title.
(h) 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.
(i) DATA CAPACITY AND TECHNICAL
ASSISTANCE REVIEW- The Secretary shall--
(1) review the data collection
and analysis capacity of States to ensure that data and information determined
necessary for implementation of this section is collected, analyzed, and accurately
reported to the Secretary; and
(2) provide technical
assistance (from funds reserved under section 611(c)), where needed, to improve
the capacity of States to meet the data collection requirements.