20 U.S.C. § 7704 — Policies and procedures relating to chil-

Page 1599 TITLE 20—EDUCATION § 7704 Subsecs. (h) to (j). Pub. L. 118–31, § 583(a)(2), (3), redes- ignated subsecs. (i) and (j) as (h) and (i), respectively, and struck out former subsec. (h) which set out eligible uses for amounts disbursed to a local education agency under subsec. (f). § 7704. Policies and procedures relating to chil- dren residing on Indian lands (a) In general A local educational agency that claims chil- dren residing on Indian lands for the purpose of receiving funds under section 7703 of this title shall establish policies and procedures to ensure that— (1) such children participate in programs and activities supported by such funds on an equal basis with all other children; (2) parents of such children and Indian tribes are afforded an opportunity to present their views on such programs and activities, includ- ing an opportunity to make recommendations on the needs of those children and how the local educational agency may help such chil- dren realize the benefits of such programs and activities; (3) parents and Indian tribes are consulted and involved in planning and developing such programs and activities; (4) relevant applications, evaluations, and program plans are disseminated to the parents and Indian tribes; and (5) parents and Indian tribes are afforded an opportunity to present their views to such agency regarding such agency’s general edu- cational program. (b) Records A local educational agency that claims chil- dren residing on Indian lands for the purpose of receiving funds under section 7703 of this title shall maintain records demonstrating such agency’s compliance with the requirements con- tained in subsection (a). (c) Waiver A local educational agency that claims chil- dren residing on Indian lands for the purpose of receiving funds under section 7703 of this title shall not be required to comply with the re- quirements of subsections (a) and (b) for any fis- cal year with respect to any Indian tribe from which such agency has received a written state- ment that the agency need not comply with those subsections because the tribe is satisfied with the provision of educational services by such agency to such children. (d) Technical assistance and enforcement The Secretary shall— (1) provide technical assistance to local edu- cational agencies, parents, and Indian tribes to enable such agencies, parents, and tribes to carry out this section; and (2) enforce this section through such actions, which may include the withholding of funds, as the Secretary determines to be appropriate, after affording the affected local educational agency, parents, and Indian tribe an oppor- tunity to present their views. (e) Complaints (1) In general (A) Any tribe, or its designee, which has stu- dents in attendance at a local educational agency may, in its discretion and without re- gard to the requirements of any other provi- sion of law, file a written complaint with the Secretary regarding any action of a local edu- cational agency taken pursuant to, or relevant to, the requirements of this section. (B) Within ten working days from receipt of a complaint, the Secretary shall— (i) designate a time and place for a hearing into the matters relating to the complaint at a location in close proximity to the local educational agency involved, or if the Sec- retary determines there is good cause, at some other location convenient to both the tribe, or its designee, and the local edu- cational agency; (ii) designate a hearing examiner to con- duct the hearing; and (iii) notify the affected tribe or tribes and the local educational agency involved of the time, place, and nature of the hearing and send copies of the complaint to the local educational agency and the affected tribe or tribes. (2) Hearing The hearing shall be held within 30 days of the designation of a hearing examiner and shall be open to the public. A record of the proceedings shall be established and main- tained. (3) Evidence; recommendations; cost The complaining tribe, or its designee, and the local educational agency shall be entitled to present evidence on matters relevant to the complaint and to make recommendations con- cerning the appropriate remedial actions. Each party to the hearing shall bear only its own costs in the proceedings. (4) Findings and recommendations Within 30 days of the completion of the hear- ing, the hearing examiner shall, on the basis of the record, make written findings of fact and recommendations concerning appropriate remedial action, if any, which should be taken. The hearing examiner’s findings and recommendations, along with the hearing record, shall be forwarded to the Secretary. (5) Written determination Within 30 days of the Secretary’s receipt of the findings, recommendations, and record, the Secretary shall, on the basis of the record, make a written determination of the appro- priate remedial action, if any, to be taken by the local educational agency, the schedule for completion of the remedial action, and the reasons for the Secretary’s decision. (6) Copies provided Upon completion of the Secretary’s final de- termination, the Secretary shall provide the complaining tribe, or its designee, and the local educational agency with copies of the hearing record, the hearing examiner’s find- ings and recommendations, and the Sec- retary’s final determination. The final deter- mination of the Secretary shall be subject to judicial review. (7) Consolidation In all actions under this subsection, the Sec- retary shall have discretion to consolidate Page 1600 TITLE 20—EDUCATION § 7705 complaints involving the same tribe or local educational agency. (8) Withholding If the local educational agency rejects the determination of the Secretary, or if the rem- edy required is not undertaken within the time established and the Secretary determines that an extension of the time established will not effectively encourage the remedy required, the Secretary shall withhold payment of all moneys to which such local agency is eligible under section 7703 of this title until such time as the remedy required is undertaken, except where the complaining tribe or its designee formally requests that such funds be released to the local educational agency, except that the Secretary may not withhold such moneys during the course of the school year if the Sec- retary determines that such withholding would substantially disrupt the educational programs of the local educational agency. (9) Rejection of determination If the local educational agency rejects the determination of the Secretary and a tribe ex- ercises the option under section 1101(d) of the Education Amendments of 1978, to have edu- cation services provided either directly by the Bureau of Indian Education or by contract with the Bureau of Indian Education, any In- dian students affiliated with that tribe who wish to remain in attendance at the local edu- cational agency against whom the complaint which led to the tribal action under such sub- section (d) was lodged may be counted with re- spect to that local educational agency for the purpose of receiving funds under section 7703 of this title. In such event, funds under such section shall not be withheld pursuant to para- graph (8) and no further complaints with re- spect to such students may be filed under paragraph (1). (f) Construction This section is based upon the special relation- ship between the Indian nations and the United States and nothing in this section shall be con- strued to relieve any State of any duty with re- spect to any citizens of that State. (Pub. L. 89–10, title VII, § 7004, formerly title VIII, § 8004, as added Pub. L. 103–382, title I, § 101, Oct. 20, 1994, 108 Stat. 3759; renumbered title VII, § 7004, and amended Pub. L. 114–95, title VII, §§ 7001(c)(1), (d)(2), 7005, Dec. 10, 2015, 129 Stat. 2074, 2086.) Editorial Notes REFERENCES IN TEXT Section 1101(d) of the Education Amendments of 1978, referred to in subsec. (e)(9), is section 1101(d) of Pub. L. 95–561, Nov. 1, 1978, 92 Stat. 2315, set out below. AMENDMENTS 2015—Pub. L. 114–95, § 7001(d)(2), made technical amendments to references in original act which appear in text as references to section 7703 of this title. Subsec. (e)(9). Pub. L. 114–95, § 7005, substituted ‘‘In- dian Education’’ for ‘‘Indian Affairs’’ in two places. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–95 effective Dec. 10, 2015, and effective with respect to appropriations for use under this subchapter beginning fiscal year 2017, except as otherwise provided in such amendment, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of this title. CONTRACT AUTHORITY OF INDIAN TRIBES IF REMEDIAL ACTION IS NOT TAKEN; ELECTION TO HAVE SERVICES PROVIDED BY BUREAU SCHOOLS; SPECIAL REGULA- TIONS Pub. L. 95–561, title XI, § 1101(d), Nov. 1, 1978, 92 Stat. 2315, directed Secretary of Health, Education, and Wel- fare, in cooperation with Commissioner of Education, within one year of Nov. 1, 1978, to promulgate special regulations which would provide that where a local educational agency had not undertaken the remedial action required by the Commissioner under 20 U.S.C. 240(b)(3)(C)(vi), the affected tribes could elect for the Bureau of Indian Affairs to provide educational serv- ices provided by the local educational agency. § 7705. Application for payments under sections 7702 and 7703 of this title (a) In general A local educational agency desiring to receive a payment under section 7702 or 7703 of this title shall— (1) submit an application for such payment to the Secretary; and (2) provide a copy of such application to the State educational agency. (b) Contents Each such application shall be submitted in such form and manner as the Secretary may re- quire, including— (1) information to determine the eligibility of the local educational agency for a payment and the amount of such payment; and (2) where applicable, an assurance that such agency is in compliance with section 7704 of this title (relating to children residing on In- dian lands). (c) Deadline for submission The Secretary shall establish deadlines for the submission of applications under this section. (d) Approval (1) In general The Secretary shall approve an application submitted under this section that— (A) except as provided in paragraph (2), is filed by the deadline established under sub- section (c); and (B) otherwise meets the requirements of this subchapter. (2) Reduction in payment The Secretary shall approve an application filed not more than 60 days after a deadline es- tablished under subsection (c), or not more than 60 days after the date on which the Sec- retary sends written notice to the local edu- cational agency pursuant to paragraph (3)(A), as the case may be, that otherwise meets the requirements of this subchapter, except that, notwithstanding section 7703(e) of this title, the Secretary shall reduce the payment based on such late application by 10 percent of the amount that would otherwise be paid.