20 U.S.C. § 1413 — Local educational agency eligibility

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. Page 958 TITLE 20—EDUCATION § 1413 (iv) Special rule The amount of funds expended by a local educational agency under subsection (f) shall count toward the maximum amount of expenditures such local educational agency may reduce under clause (i). (D) Schoolwide programs under title I of the ESEA Notwithstanding subparagraph (A) or any other provision of this subchapter, a local educational agency may use funds received under this subchapter for any fiscal year to carry out a schoolwide program under sec- tion 1114 of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6314], except that the amount so used in any such pro- gram shall not exceed— (i) the number of children with disabil- ities participating in the schoolwide pro- gram; multiplied by (ii)(I) the amount received by the local educational agency under this subchapter for that fiscal year; divided by (II) the number of children with disabil- ities in the jurisdiction of that agency. (3) Personnel development The local educational agency shall ensure that all personnel necessary to carry out this subchapter are appropriately and adequately prepared, subject to the requirements of sec- tion 1412(a)(14) of this title and section 2102(b) of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6612(b)]. (4) Permissive use of funds (A) Uses Notwithstanding paragraph (2)(A) or sec- tion 1412(a)(17)(B) of this title (relating to commingled funds), funds provided to the local educational agency under this sub- chapter may be used for the following activi- ties: (i) Services and aids that also benefit non- disabled children For the costs of special education and re- lated services, and supplementary aids and services, provided in a regular class or other education-related setting to a child with a disability in accordance with the individualized education program of the child, even if 1 or more nondisabled chil- dren benefit from such services. (ii) Early intervening services To develop and implement coordinated, early intervening educational services in accordance with subsection (f). (iii) High cost education and related serv- ices To establish and implement cost or risk sharing funds, consortia, or cooperatives for the local educational agency itself, or for local educational agencies working in a consortium of which the local educational agency is a part, to pay for high cost spe- cial education and related services. (B) Administrative case management A local educational agency may use funds received under this subchapter to purchase appropriate technology for recordkeeping, data collection, and related case manage- ment activities of teachers and related serv- ices personnel providing services described in the individualized education program of children with disabilities, that is needed for the implementation of such case manage- ment activities. (5) Treatment of charter schools and their stu- dents In carrying out this subchapter with respect to charter schools that are public schools of the local educational agency, the local edu- cational agency— (A) serves children with disabilities at- tending those charter schools in the same manner as the local educational agency serves children with disabilities in its other schools, including providing supplementary and related services on site at the charter school to the same extent to which the local educational agency has a policy or practice of providing such services on the site to its other public schools; and (B) provides funds under this subchapter to those charter schools— (i) on the same basis as the local edu- cational agency provides funds to the local educational agency’s other public schools, including proportional distribution based on relative enrollment of children with disabilities; and (ii) at the same time as the agency dis- tributes other Federal funds to the agen- cy’s other public schools, consistent with the State’s charter school law. (6) Purchase of instructional materials (A) In general Not later than 2 years after December 3, 2004, a local educational agency that chooses to coordinate with the National Instruc- tional Materials Access Center, when pur- chasing print instructional materials, shall acquire the print instructional materials in the same manner and subject to the same conditions as a State educational agency ac- quires print instructional materials under section 1412(a)(23) of this title. (B) Rights of local educational agency Nothing in this paragraph shall be con- strued to require a local educational agency to coordinate with the National Instruc- tional Materials Access Center. If a local educational agency chooses not to coordi- nate with the National Instructional Mate- rials Access Center, the local educational agency shall provide an assurance to the State educational agency that the local edu- cational agency will provide instructional materials to blind persons or other persons with print disabilities in a timely manner. (7) Information for State educational agency The local educational agency shall provide the State educational agency with informa- tion necessary to enable the State educational agency to carry out its duties under this sub- chapter, including, with respect to paragraphs (15) and (16) of section 1412(a) of this title, in- Page 959 TITLE 20—EDUCATION § 1413 formation relating to the performance of chil- dren with disabilities participating in pro- grams carried out under this subchapter. (8) Public information The local educational agency shall make available to parents of children with disabil- ities and to the general public all documents relating to the eligibility of such agency under this subchapter. (9) Records regarding migratory children with disabilities The local educational agency shall cooperate in the Secretary’s efforts under section 1308 of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6398] to ensure the linkage of records pertaining to migratory children with a disability for the purpose of electronically exchanging, among the States, health and edu- cational information regarding such children. (b) Exception for prior local plans (1) In general If a local educational agency or State agen- cy has on file with the State educational agen- cy policies and procedures that demonstrate that such local educational agency, or such State agency, as the case may be, meets any requirement of subsection (a), including any policies and procedures filed under this sub- chapter as in effect before the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the State edu- cational agency shall consider such local edu- cational agency or State agency, as the case may be, to have met such requirement for pur- poses of receiving assistance under this sub- chapter. (2) Modification made by local educational agency Subject to paragraph (3), an application sub- mitted by a local educational agency in ac- cordance with this section shall remain in ef- fect until the local educational agency sub- mits to the State educational agency such modifications as the local educational agency determines necessary. (3) Modifications required by State educational agency 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 Fed- eral or State courts, or there is an official finding of noncompliance with Federal or State law or regulations, then the State edu- cational agency may require a local edu- cational agency to modify its application only to the extent necessary to ensure the local educational agency’s compliance with this subchapter or State law. (c) Notification of local educational agency or State agency in case of ineligibility If the State educational agency determines that a local educational agency or State agency is not eligible under this section, then the State educational agency shall notify the local edu- cational agency or State agency, as the case may be, of that determination and shall provide such local educational agency or State agency with reasonable notice and an opportunity for a hearing. (d) Local educational agency compliance (1) In general If the State educational agency, after rea- sonable notice and an opportunity for a hear- ing, finds that a local educational agency or State agency that has been determined to be eligible under this section is failing to comply with any requirement described in subsection (a), the State educational agency shall reduce or shall not provide any further payments to the local educational agency or State agency until the State educational agency is satisfied that the local educational agency or State agency, as the case may be, is complying with that requirement. (2) Additional requirement Any State agency or local educational agen- cy in receipt of a notice described in para- graph (1) shall, by means of 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 with- in the jurisdiction of such agency. (3) Consideration In carrying out its responsibilities under paragraph (1), the State educational agency shall consider any decision made in a hearing held under section 1415 of this title that is ad- verse to the local educational agency or State agency involved in that decision. (e) Joint establishment of eligibility (1) Joint establishment (A) In general A State educational agency may require a local educational agency to establish its eli- gibility jointly with another local edu- cational agency if the State educational agency determines that the local edu- cational agency will be ineligible under this section because the local educational agency will not be able to establish and maintain programs of sufficient size and scope to ef- fectively meet the needs of children with disabilities. (B) Charter school exception A State educational agency may not re- quire a charter school that is a local edu- cational agency to jointly establish its eligi- bility under subparagraph (A) unless the charter school is explicitly permitted to do so under the State’s charter school law. (2) Amount of payments If a State educational agency requires the joint establishment of eligibility under para- graph (1), the total amount of funds made available to the affected local educational agencies shall be equal to the sum of the pay- ments that each such local educational agency would have received under section 1411(f) of this title if such agencies were eligible for such payments. Page 960 TITLE 20—EDUCATION § 1413 (3) Requirements Local educational agencies that establish joint eligibility under this subsection shall— (A) adopt policies and procedures that are consistent with the State’s policies and pro- cedures under section 1412(a) of this title; and (B) be jointly responsible for implementing programs that receive assistance under this subchapter. (4) Requirements for educational service agen- cies (A) In general If an educational service agency is re- quired by State law to carry out programs under this subchapter, the joint responsibil- ities given to local educational agencies under this subsection shall— (i) not apply to the administration and disbursement of any payments received by that educational service agency; and (ii) be carried out only by that edu- cational service agency. (B) Additional requirement Notwithstanding any other provision of this subsection, an educational service agen- cy shall provide for the education of children with disabilities in the least restrictive envi- ronment, as required by section 1412(a)(5) of this title. (f) Early intervening services (1) In general A local educational agency may not use more than 15 percent of the amount such agen- cy receives under this subchapter for any fis- cal year, less any amount reduced by the agen- cy pursuant to subsection (a)(2)(C), if any, in combination with other amounts (which may include amounts other than education funds), to develop and implement coordinated, early intervening services, which may include inter- agency financing structures, for students in kindergarten through grade 12 (with a par- ticular emphasis on students in kindergarten through grade 3) who have not been identified as needing special education or related serv- ices but who need additional academic and be- havioral support to succeed in a general edu- cation environment. (2) Activities In implementing coordinated, early inter- vening services under this subsection, a local educational agency may carry out activities that include— (A) professional development (which may be provided by entities other than local edu- cational agencies) for teachers and other school staff to enable such personnel to de- liver scientifically based academic instruc- tion and behavioral interventions, including scientifically based literacy instruction, and, where appropriate, instruction on the use of adaptive and instructional software; and (B) providing educational and behavioral evaluations, services, and supports, includ- ing scientifically based literacy instruction. (3) Construction Nothing in this subsection shall be con- strued to limit or create a right to a free ap- propriate public education under this sub- chapter. (4) Reporting Each local educational agency that develops and maintains coordinated, early intervening services under this subsection shall annually report to the State educational agency on— (A) the number of students served under this subsection; and (B) the number of students served under this subsection who subsequently receive special education and related services under this chapter during the preceding 2-year pe- riod. (5) Coordination with Elementary and Sec- ondary Education Act of 1965 Funds made available to carry out this sub- section may be used to carry out coordinated, early intervening services aligned with activi- ties funded by, and carried out under, the Ele- mentary and Secondary Education Act of 1965 [20 U.S.C. 6301 et seq.] if such funds are used to supplement, and not supplant, funds made available under the Elementary and Sec- ondary Education Act of 1965 for the activities and services assisted under this subsection. (g) Direct services by the State educational agen- cy (1) In general A State educational agency shall use the payments that would otherwise have been available to a local educational agency or to a State agency to provide special education and related services directly to children with dis- abilities residing in the area served by that local educational agency, or for whom that State agency is responsible, if the State edu- cational agency determines that the local edu- cational agency or State agency, as the case may be— (A) has not provided the information need- ed to establish the eligibility of such local educational agency or State agency under this section; (B) is unable to establish and maintain programs of free appropriate public edu- cation that meet the requirements of sub- section (a); (C) is unable or unwilling to be consoli- dated with 1 or more local educational agen- cies in order to establish and maintain such programs; or (D) has 1 or more children with disabilities who can best be served by a regional or State program or service delivery system de- signed to meet the needs of such children. (2) Manner and location of education and serv- ices The State educational agency may provide special education and related services under paragraph (1) in such manner and at such loca- tions (including regional or State centers) as the State educational agency considers appro- priate. Such education and services shall be provided in accordance with this subchapter. Page 961 TITLE 20—EDUCATION § 1413 (h) State agency eligibility Any State agency that desires to receive a subgrant for any fiscal year under section 1411(f) of this title shall demonstrate to the satisfac- tion of the State educational agency that— (1) all children with disabilities who are par- ticipating in programs and projects funded under this subchapter receive a free appro- priate public education, and that those chil- dren and their parents are provided all the rights and procedural safeguards described in this subchapter; and (2) the agency meets such other conditions of this section as the Secretary determines to be appropriate. (i) Disciplinary information The State may require that a local edu- cational agency include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken against the child and transmit such statement to the same extent that such disciplinary infor- mation is included in, and transmitted with, the student records of nondisabled children. The statement may include a description of any be- havior engaged in by the child that required dis- ciplinary action, a description of the discipli- nary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child. If the State adopts such a policy, and the child trans- fers from 1 school to another, the transmission of any of the child’s records shall include both the child’s current individualized education pro- gram and any such statement of current or pre- vious disciplinary action that has been taken against the child. (j) State agency flexibility (1) Adjustment to State fiscal effort in certain fiscal years For any fiscal year for which the allotment received by a State under section 1411 of this title exceeds the amount the State received for the previous fiscal year and if the State in school year 2003–2004 or any subsequent school year pays or reimburses all local educational agencies within the State from State revenue 100 percent of the non-Federal share of the costs of special education and related services, the State educational agency, notwith- standing paragraphs (17) and (18) of section 1412(a) of this title and section 1412(b) of this title, may reduce the level of expenditures from State sources for the education of chil- dren with disabilities by not more than 50 per- cent of the amount of such excess. (2) Prohibition Notwithstanding paragraph (1), if the Sec- retary determines that a State educational agency is unable to establish, maintain, or oversee programs of free appropriate public education that meet the requirements of this subchapter, or that the State needs assistance, intervention, or substantial intervention under section 1416(d)(2)(A) of this title, the Secretary shall prohibit the State educational agency from exercising the authority in para- graph (1). (3) Education activities If a State educational agency exercises the authority under paragraph (1), the agency shall use funds from State sources, in an amount equal to the amount of the reduction under paragraph (1), to support activities au- thorized under the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6301 et seq.] or to support need based student or teacher high- er education programs. (4) Report For each fiscal year for which a State edu- cational agency exercises the authority under paragraph (1), the State educational agency shall report to the Secretary the amount of expenditures reduced pursuant to such para- graph and the activities that were funded pur- suant to paragraph (3). (5) Limitation Notwithstanding paragraph (1), a State edu- cational agency may not reduce the level of expenditures described in paragraph (1) if any local educational agency in the State would, as a result of such reduction, receive less than 100 percent of the amount necessary to ensure that all children with disabilities served by the local educational agency receive a free ap- propriate public education from the combina- tion of Federal funds received under this chap- ter and State funds received from the State educational agency. (Pub. L. 91–230, title VI, § 613, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2694; amended Pub. L. 114–95, title IX, § 9215(ss)(4), Dec. 10, 2015, 129 Stat. 2182.) Editorial Notes REFERENCES IN TEXT The Elementary and Secondary Education Act of 1965, referred to in subsecs. (a)(2)(C)(ii), (f)(5), and (j)(3), is Pub. L. 89–10, Apr. 11, 1965, 79 Stat. 27, which is classi- fied generally to chapter 70 (§ 6301 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6301 of this title and Tables. For the effective date of the Individuals with Disabil- ities Education Improvement Act of 2004, referred to in subsec. (b)(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. PRIOR PROVISIONS A prior section 1413, Pub. L. 91–230, title VI, § 613, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 73; amended Pub. L. 107–110, title X, § 1076(i), Jan. 8, 2002, 115 Stat. 2091, related to local educational agency eligibility, prior to the general amendment of sub- chapters I to IV of this chapter by Pub. L. 108–446. Another prior section 1413, Pub. L. 91–230, title VI, § 613, Apr. 13, 1970, 84 Stat. 179; Pub. L. 93–380, title VI, §§ 614(c), (d), 615(b), (c), title VIII, § 843(b)(2), Aug. 21, 1974, 88 Stat. 581, 583, 611; Pub. L. 94–142, § 5(a), Nov. 29, 1975, 89 Stat. 782; Pub. L. 98–199, §§ 3(b), 7, Dec. 2, 1983, 97 Stat. 1358, 1359; Pub. L. 99–457, title II, § 203(b), title IV, § 405, Oct. 8, 1986, 100 Stat. 1159, 1174; Pub. L. 100–630, title I, § 102(c), Nov. 7, 1988, 102 Stat. 3291; Pub. L. 101–476, title II, § 202, title IX, § 901(b)(47)–(58), Oct. 30, 1990, 104 Stat. 1111, 1144; Pub. L. 102–119, §§ 5, 25(a)(6), (b), Oct. 7, 1991, 105 Stat. 591, 606, 607; Pub. L. 103–382, title III, § 391(f)(2), Oct. 20, 1994, 108 Stat. 4023, related to req- uisite features of a State plan, approval of State plan Page 962 TITLE 20—EDUCATION § 1414 by Secretary, and participation of children with dis- abilities enrolled in private schools, prior to the gen- eral amendment of subchapters I to IV of this chapter by Pub. L. 105–17. AMENDMENTS 2015—Subsec. (a)(3). Pub. L. 114–95 substituted ‘‘sub- ject to the requirements of section 1412(a)(14) of this title and section 2102(b) of the Elementary and Sec- ondary Education Act of 1965’’ for ‘‘subject to the re- quirements of section 1412(a)(14) of this title and sec- tion 2122 of the Elementary and Secondary Education Act of 1965’’. 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. § 1414. Evaluations, eligibility determinations, in- dividualized education programs, and edu- cational placements (a) Evaluations, parental consent, and reevalua- tions (1) Initial evaluations (A) In general A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evalua- tion 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 sub- chapter. (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 edu- cational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability. (C) Procedures (i) In general Such initial evaluation shall consist of procedures— (I) to determine whether a child is a child with a disability (as defined in 1401 of this title) within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and (II) to determine the educational needs of such child. (ii) Exception The relevant timeframe in clause (i)(I) shall not apply to a local educational agency if— (I) a child enrolls in a school served by the local educational agency after the relevant timeframe in clause (i)(I) has begun and prior to a determination by the child’s previous local educational agency as to whether the child is a child with a disability (as defined in section 1401 of this title), but only if the subse- quent local educational agency is mak- ing sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent local edu- cational agency agree to a specific time when the evaluation will be completed; or (II) the parent of a child repeatedly fails or refuses to produce the child for the evaluation. (D) Parental consent (i) In general (I) Consent for initial evaluation The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a dis- ability as defined in section 1401 of this title shall obtain informed consent from the parent of such child before con- ducting the evaluation. Parental consent for evaluation shall not be construed as consent for placement for receipt of spe- cial education and related services. (II) Consent for services An agency that is responsible for mak- ing a free appropriate public education available to a child with a disability under this subchapter shall seek to ob- tain informed consent from the parent of such child before providing special edu- cation and related services to the child. (ii) Absence of consent (I) For initial evaluation If the parent of such child does not provide consent for an initial evaluation under clause (i)(I), or the parent fails to respond to a request to provide the con- sent, the local educational agency may pursue the initial evaluation of the child by utilizing the procedures described in section 1415 of this title, except to the extent inconsistent with State law relat- ing to such parental consent. (II) For services If the parent of such child refuses to consent to services under clause (i)(II), the local educational agency shall not provide special education and related services to the child by utilizing the pro- cedures described in section 1415 of this title. (III) Effect on agency obligations If the parent of such child refuses to consent to the receipt of special edu- cation and related services, or the parent fails to respond to a request to provide such consent— (aa) the local educational agency shall not be considered to be in viola- tion of the requirement to make avail- able a free appropriate public edu- cation to the child for the failure to provide such child with the special education and related services for which the local educational agency re- quests such consent; and