20 U.S.C. § 1439 — Procedural safeguards

Page 993 TITLE 20—EDUCATION § 1439 (A) will not be commingled with State funds; and (B) will be used so as to supplement the level of State and local funds expended for infants and toddlers with disabilities and their families and in no case to supplant those State and local funds; (6) shall provide satisfactory assurance that such fiscal control and fund accounting proce- dures will be adopted as may be necessary to ensure proper disbursement of, and accounting for, Federal funds paid under section 1443 of this title to the State; (7) shall provide satisfactory assurance that policies and procedures have been adopted to ensure meaningful involvement of underserved groups, including minority, low-income, home- less, and rural families and children with dis- abilities who are wards of the State, in the planning and implementation of all the re- quirements of this subchapter; and (8) shall contain such other information and assurances as the Secretary may reasonably require by regulation. (c) Standard for disapproval of application The Secretary may not disapprove such an ap- plication unless the Secretary determines, after notice and opportunity for a hearing, that the application fails to comply with the require- ments of this section. (d) Subsequent State application If a State has on file with the Secretary a pol- icy, procedure, or assurance that demonstrates that the State meets a requirement of this sec- tion, including any policy or procedure filed under this subchapter (as in effect before De- cember 3, 2004), the Secretary shall consider the State to have met the requirement for purposes of receiving a grant under this subchapter. (e) Modification of application An application submitted by a State in ac- cordance with this section shall remain in effect until the State submits to the Secretary such modifications as the State determines nec- essary. This section shall apply to a modifica- tion of an application to the same extent and in the same manner as this section applies to the original application. (f) Modifications required by the Secretary The Secretary may require a State to modify its application under this section, but only to the extent necessary to ensure the State’s com- pliance with this subchapter, if— (1) an amendment is made to this chapter, or a Federal regulation issued under this chapter; (2) a new interpretation of this chapter is made by a Federal court or the State’s highest court; or (3) an official finding of noncompliance with Federal law or regulations is made with re- spect to the State. (Pub. L. 91–230, title VI, § 637, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2752.) Editorial Notes PRIOR PROVISIONS A prior section 1437, Pub. L. 91–230, title VI, § 637, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 112, related to State application and assurances, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446. § 1438. Uses of funds In addition to using funds provided under sec- tion 1433 of this title to maintain and implement the statewide system required by such section, a State may use such funds— (1) for direct early intervention services for infants and toddlers with disabilities, and their families, under this subchapter that are not otherwise funded through other public or private sources; (2) to expand and improve on services for in- fants and toddlers and their families under this subchapter that are otherwise available; (3) to provide a free appropriate public edu- cation, in accordance with subchapter II, to children with disabilities from their third birthday to the beginning of the following school year; (4) with the written consent of the parents, to continue to provide early intervention serv- ices under this subchapter to children with disabilities from their 3rd birthday until such children enter, or are eligible under State law to enter, kindergarten, in lieu of a free appro- priate public education provided in accordance with subchapter II; and (5) in any State that does not provide serv- ices for at-risk infants and toddlers under sec- tion 1437(a)(4) of this title, to strengthen the statewide system by initiating, expanding, or improving collaborative efforts related to at- risk infants and toddlers, including estab- lishing linkages with appropriate public or private community-based organizations, serv- ices, and personnel for the purposes of— (A) identifying and evaluating at-risk in- fants and toddlers; (B) making referrals of the infants and toddlers identified and evaluated under sub- paragraph (A); and (C) conducting periodic follow-up on each such referral to determine if the status of the infant or toddler involved has changed with respect to the eligibility of the infant or toddler for services under this subchapter. (Pub. L. 91–230, title VI, § 638, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2755.) Editorial Notes PRIOR PROVISIONS A prior section 1438, Pub. L. 91–230, title VI, § 638, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 114, related to uses of funds, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446. § 1439. Procedural safeguards (a) Minimum procedures The procedural safeguards required to be in- cluded in a statewide system under section 1435(a)(13) of this title shall provide, at a min- imum, the following: (1) The timely administrative resolution of complaints by parents. Any party aggrieved by the findings and decision regarding an admin- Page 994 TITLE 20—EDUCATION § 1440 istrative complaint shall have the right to bring a civil action with respect to the com- plaint in any State court of competent juris- diction or in a district court of the United States without regard to the amount in con- troversy. In any action brought under this paragraph, the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. (2) The right to confidentiality of personally identifiable information, including the right of parents to written notice of and written con- sent to the exchange of such information among agencies consistent with Federal and State law. (3) The right of the parents to determine whether they, their infant or toddler, or other family members will accept or decline any early intervention service under this sub- chapter in accordance with State law without jeopardizing other early intervention services under this subchapter. (4) The opportunity for parents to examine records relating to assessment, screening, eli- gibility determinations, and the development and implementation of the individualized fam- ily service plan. (5) Procedures to protect the rights of the in- fant or toddler whenever the parents of the in- fant or toddler are not known or cannot be found or the infant or toddler is a ward of the State, including the assignment of an indi- vidual (who shall not be an employee of the State lead agency, or other State agency, and who shall not be any person, or any employee of a person, providing early intervention serv- ices to the infant or toddler or any family member of the infant or toddler) to act as a surrogate for the parents. (6) Written prior notice to the parents of the infant or toddler with a disability whenever the State agency or service provider proposes to initiate or change, or refuses to initiate or change, the identification, evaluation, or placement of the infant or toddler with a dis- ability, or the provision of appropriate early intervention services to the infant or toddler. (7) Procedures designed to ensure that the notice required by paragraph (6) fully informs the parents, in the parents’ native language, unless it clearly is not feasible to do so, of all procedures available pursuant to this section. (8) The right of parents to use mediation in accordance with section 1415 of this title, ex- cept that— (A) any reference in the section to a State educational agency shall be considered to be a reference to a State’s lead agency estab- lished or designated under section 1435(a)(10) of this title; (B) any reference in the section to a local educational agency shall be considered to be a reference to a local service provider or the State’s lead agency under this subchapter, as the case may be; and (C) any reference in the section to the pro- vision of a free appropriate public education to children with disabilities shall be consid- ered to be a reference to the provision of ap- propriate early intervention services to in- fants and toddlers with disabilities. (b) Services during pendency of proceedings During the pendency of any proceeding or ac- tion involving a complaint by the parents of an infant or toddler with a disability, unless the State agency and the parents otherwise agree, the infant or toddler shall continue to receive the appropriate early intervention services cur- rently being provided or, if applying for initial services, shall receive the services not in dis- pute. (Pub. L. 91–230, title VI, § 639, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2755.) Editorial Notes PRIOR PROVISIONS A prior section 1439, Pub. L. 91–230, title VI, § 639, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 115, set out procedural safeguards, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446. § 1440. Payor of last resort (a) Nonsubstitution Funds provided under section 1443 of this title may not be used to satisfy a financial commit- ment for services that would have been paid for from another public or private source, including any medical program administered by the Sec- retary of Defense, but for the enactment of this subchapter, except that whenever considered necessary to prevent a delay in the receipt of ap- propriate early intervention services by an in- fant, toddler, or family in a timely fashion, funds provided under section 1443 of this title may be used to pay the provider of services pending reimbursement from the agency that has ultimate responsibility for the payment. (b) Obligations related to and methods of ensur- ing services (1) Establishing financial responsibility for services (A) In general 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 and the designated lead agency, in order to ensure— (i) the provision of, and financial respon- sibility for, services provided under this subchapter; and (ii) such services are consistent with the requirements of section 1435 of this title and the State’s application pursuant to section 1437 of this title, including the pro- vision of such services during the pend- ency of any such dispute. (B) Consistency between agreements or mechanisms under subchapter II The Chief Executive Officer of a State or designee of the officer shall ensure that the terms and conditions of such agreement or mechanism are consistent with the terms and conditions of the State’s agreement or