20 U.S.C. § 1415 — Procedural safeguards

Page 969 TITLE 20—EDUCATION § 1415 1 So in original. Probably should be ‘‘section’’. 2 So in original. Probably should be capitalized. (1)(A)(i)(VI) (relating to participation of children with disabilities in general assess- ments). (ii) The requirements of items (aa) and (bb) of paragraph (1)(A)(i)(VIII) (relating to transition planning and transition serv- ices), do not apply with respect to such children whose eligibility under this sub- chapter will end, because of such chil- dren’s age, before such children will be re- leased from prison. (B) Additional requirement If a child with a disability is convicted as an adult under State law and incarcerated in an adult prison, the child’s IEP Team may modify the child’s IEP or placement not- withstanding the requirements of sections 1 1412(a)(5)(A) of this title and paragraph (1)(A) if the State has demonstrated a bona fide security or compelling penological in- terest that cannot otherwise be accommo- dated. (e) Educational placements Each local educational agency or State edu- cational agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child. (f) Alternative means of meeting participation When conducting IEP team 2 meetings and placement meetings pursuant to this section, section 1415(e) of this title, and section 1415(f)(1)(B) of this title, and carrying out ad- ministrative matters under section 1415 of this title (such as scheduling, exchange of witness lists, and status conferences), the parent of a child with a disability and a local educational agency may agree to use alternative means of meeting participation, such as video conferences and conference calls. (Pub. L. 91–230, title VI, § 614, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2702; amended Pub. L. 114–95, title IX, § 9215(ss)(5), Dec. 10, 2015, 129 Stat. 2182.) Editorial Notes REFERENCES IN TEXT Section 6368(3) of this title, as such section was in ef- fect on the day before December 10, 2015, referred to in subsec. (b)(5)(A), means section 6368(3) of this title prior to being omitted in the general amendment of part B of subchapter I of chapter 70 of this title by Pub. L. 114–95, title I, § 1201, Dec. 10, 2015, 129 Stat. 1879. PRIOR PROVISIONS A prior section 1414, Pub. L. 91–230, title VI, § 614, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 81, related to evaluations, eligibility determinations, individualized education programs, and educational placements, prior to the general amendment of sub- chapters I to IV of this chapter by Pub. L. 108–446. Another prior section 1414, Pub. L. 91–230, title VI, § 614, Apr. 13, 1970, 84 Stat. 181; Pub. L. 94–142, § 5(a), Nov. 29, 1975, 89 Stat. 784; Pub. L. 98–199, § 3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 100–630, title I, § 102(d), Nov. 7, 1988, 102 Stat. 3293; Pub. L. 101–476, title IX, § 901(b)(59)–(70), Oct. 30, 1990, 104 Stat. 1144, 1145; Pub. L. 102–119, §§ 6, 25(b), Oct. 7, 1991, 105 Stat. 591, 607, related to requisite features of an application, approval of ap- plication by State educational agency, consolidated ap- plications of local educational agencies, and provision of special education and related services directly to children with disabilities in areas not served by local educational agency, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17. A prior section 1414a, Pub. L. 91–230, title VI, § 614A, as added Pub. L. 103–382, title III, § 312, Oct. 20, 1994, 108 Stat. 3934, which related to treatment of State agencies that received funds for fiscal year 1994 under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 (as in existence on the day preceding Oct. 20, 1994), was omitted in the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17. AMENDMENTS 2015—Subsec. (b)(5)(A). Pub. L. 114–95 inserted ‘‘, as such section was in effect on the day before December 10, 2015’’ after ‘‘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. § 1415. Procedural safeguards (a) Establishment of procedures Any State educational agency, State agency, or local educational agency that receives assist- ance under this subchapter shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies. (b) Types of procedures The procedures required by this section shall include the following: (1) An opportunity for the parents of a child with a disability to examine all records relat- ing to such child and to participate in meet- ings with respect to the identification, evalua- tion, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an inde- pendent educational evaluation of the child. (2)(A) Procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable ef- forts, locate the parents, or the child is a ward of the State, including the assignment of an individual to act as a surrogate for the par- ents, which surrogate shall not be an employee of the State educational agency, the local edu- cational agency, or any other agency that is involved in the education or care of the child. In the case of— (i) a child who is a ward of the State, such surrogate may alternatively be appointed by the judge overseeing the child’s care pro- vided that the surrogate meets the require- ments of this paragraph; and (ii) an unaccompanied homeless youth as defined in section 11434a(6) of title 42, the local educational agency shall appoint a sur- rogate in accordance with this paragraph. Page 970 TITLE 20—EDUCATION § 1415 (B) The State shall make reasonable efforts to ensure the assignment of a surrogate not more than 30 days after there is a determina- tion by the agency that the child needs a sur- rogate. (3) Written prior notice to the parents of the child, in accordance with subsection (c)(1), whenever the local educational agency— (A) proposes to initiate or change; or (B) refuses to initiate or change, the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child. (4) Procedures designed to ensure that the notice required by paragraph (3) is in the na- tive language of the parents, unless it clearly is not feasible to do so. (5) An opportunity for mediation, in accord- ance with subsection (e). (6) An opportunity for any party to present a complaint— (A) with respect to any matter relating to the identification, evaluation, or edu- cational placement of the child, or the provi- sion of a free appropriate public education to such child; and (B) which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this sub- chapter, in such time as the State law al- lows, except that the exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph. (7)(A) Procedures that require either party, or the attorney representing a party, to pro- vide due process complaint notice in accord- ance with subsection (c)(2) (which shall remain confidential)— (i) to the other party, in the complaint filed under paragraph (6), and forward a copy of such notice to the State educational agen- cy; and (ii) that shall include— (I) the name of the child, the address of the residence of the child (or available contact information in the case of a home- less child), and the name of the school the child is attending; (II) in the case of a homeless child or youth (within the meaning of section 11434a(2) of title 42), available contact in- formation for the child and the name of the school the child is attending; (III) a description of the nature of the problem of the child relating to such pro- posed initiation or change, including facts relating to such problem; and (IV) a proposed resolution of the problem to the extent known and available to the party at the time. (B) A requirement that a party may not have a due process hearing until the party, or the attorney representing the party, files a no- tice that meets the requirements of subpara- graph (A)(ii). (8) Procedures that require the State edu- cational agency to develop a model form to as- sist parents in filing a complaint and due proc- ess complaint notice in accordance with para- graphs (6) and (7), respectively. (c) Notification requirements (1) Content of prior written notice The notice required by subsection (b)(3) shall include— (A) a description of the action proposed or refused by the agency; (B) an explanation of why the agency pro- poses or refuses to take the action and a de- scription of each evaluation procedure, as- sessment, record, or report the agency used as a basis for the proposed or refused action; (C) a statement that the parents of a child with a disability have protection under the procedural safeguards of this subchapter and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; (D) sources for parents to contact to ob- tain assistance in understanding the provi- sions of this subchapter; (E) a description of other options consid- ered by the IEP Team and the reason why those options were rejected; and (F) a description of the factors that are relevant to the agency’s proposal or refusal. (2) Due process complaint notice (A) Complaint The due process complaint notice required under subsection (b)(7)(A) shall be deemed to be sufficient unless the party receiving the notice notifies the hearing officer and the other party in writing that the receiving party believes the notice has not met the re- quirements of subsection (b)(7)(A). (B) Response to complaint (i) Local educational agency response (I) In general If the local educational agency has not sent a prior written notice to the parent regarding the subject matter contained in the parent’s due process complaint no- tice, such local educational agency shall, within 10 days of receiving the com- plaint, send to the parent a response that shall include— (aa) an explanation of why the agen- cy proposed or refused to take the ac- tion raised in the complaint; (bb) a description of other options that the IEP Team considered and the reasons why those options were re- jected; (cc) a description of each evaluation procedure, assessment, record, or re- port the agency used as the basis for the proposed or refused action; and (dd) a description of the factors that are relevant to the agency’s proposal or refusal. (II) Sufficiency A response filed by a local educational agency pursuant to subclause (I) shall Page 971 TITLE 20—EDUCATION § 1415 not be construed to preclude such local educational agency from asserting that the parent’s due process complaint no- tice was insufficient where appropriate. (ii) Other party response Except as provided in clause (i), the non- complaining party shall, within 10 days of receiving the complaint, send to the com- plaint a response that specifically address- es the issues raised in the complaint. (C) Timing The party providing a hearing officer noti- fication under subparagraph (A) shall pro- vide the notification within 15 days of re- ceiving the complaint. (D) Determination Within 5 days of receipt of the notification provided under subparagraph (C), the hear- ing officer shall make a determination on the face of the notice of whether the notifi- cation meets the requirements of subsection (b)(7)(A), and shall immediately notify the parties in writing of such determination. (E) Amended complaint notice (i) In general A party may amend its due process com- plaint notice only if— (I) the other party consents in writing to such amendment and is given the op- portunity to resolve the complaint through a meeting held pursuant to sub- section (f)(1)(B); or (II) the hearing officer grants permis- sion, except that the hearing officer may only grant such permission at any time not later than 5 days before a due proc- ess hearing occurs. (ii) Applicable timeline The applicable timeline for a due process hearing under this subchapter shall recom- mence at the time the party files an amended notice, including the timeline under subsection (f)(1)(B). (d) Procedural safeguards notice (1) In general (A) Copy to parents A copy of the procedural safeguards avail- able to the parents of a child with a dis- ability shall be given to the parents only 1 time a year, except that a copy also shall be given to the parents— (i) upon initial referral or parental re- quest for evaluation; (ii) upon the first occurrence of the filing of a complaint under subsection (b)(6); and (iii) upon request by a parent. (B) Internet website A local educational agency may place a current copy of the procedural safeguards notice on its Internet website if such website exists. (2) Contents The procedural safeguards notice shall in- clude a full explanation of the procedural safe- guards, written in the native language of the parents (unless it clearly is not feasible to do so) and written in an easily understandable manner, available under this section and under regulations promulgated by the Sec- retary relating to— (A) independent educational evaluation; (B) prior written notice; (C) parental consent; (D) access to educational records; (E) the opportunity to present and resolve complaints, including— (i) the time period in which to make a complaint; (ii) the opportunity for the agency to re- solve the complaint; and (iii) the availability of mediation; (F) the child’s placement during pendency of due process proceedings; (G) procedures for students who are sub- ject to placement in an interim alternative educational setting; (H) requirements for unilateral placement by parents of children in private schools at public expense; (I) due process hearings, including require- ments for disclosure of evaluation results and recommendations; (J) State-level appeals (if applicable in that State); (K) civil actions, including the time period in which to file such actions; and (L) attorneys’ fees. (e) Mediation (1) In general Any State educational agency or local edu- cational agency that receives assistance under this subchapter shall ensure that procedures are established and implemented to allow par- ties to disputes involving any matter, includ- ing matters arising prior to the filing of a complaint pursuant to subsection (b)(6), to re- solve such disputes through a mediation proc- ess. (2) Requirements Such procedures shall meet the following re- quirements: (A) The procedures shall ensure that the mediation process— (i) is voluntary on the part of the par- ties; (ii) is not used to deny or delay a par- ent’s right to a due process hearing under subsection (f), or to deny any other rights afforded under this subchapter; and (iii) is conducted by a qualified and im- partial mediator who is trained in effec- tive mediation techniques. (B) OPPORTUNITY TO MEET WITH A DISIN- TERESTED PARTY.—A local educational agen- cy or a State agency may establish proce- dures to offer to parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disin- terested party who is under contract with— (i) a parent training and information center or community parent resource cen- ter in the State established under section 1471 or 1472 of this title; or Page 972 TITLE 20—EDUCATION § 1415 (ii) an appropriate alternative dispute resolution entity, to encourage the use, and explain the bene- fits, of the mediation process to the parents. (C) LIST OF QUALIFIED MEDIATORS.—The State shall maintain a list of individuals who are qualified mediators and knowledge- able in laws and regulations relating to the provision of special education and related services. (D) COSTS.—The State shall bear the cost of the mediation process, including the costs of meetings described in subparagraph (B). (E) SCHEDULING AND LOCATION.—Each ses- sion in the mediation process shall be sched- uled in a timely manner and shall be held in a location that is convenient to the parties to the dispute. (F) WRITTEN AGREEMENT.—In the case that a resolution is reached to resolve the com- plaint through the mediation process, the parties shall execute a legally binding agree- ment that sets forth such resolution and that— (i) states that all discussions that oc- curred during the mediation process shall be confidential and may not be used as evi- dence in any subsequent due process hear- ing or civil proceeding; (ii) is signed by both the parent and a representative of the agency who has the authority to bind such agency; and (iii) is enforceable in any State court of competent jurisdiction or in a district court of the United States. (G) MEDIATION DISCUSSIONS.—Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hear- ing or civil proceeding. (f) Impartial due process hearing (1) In general (A) Hearing Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency. (B) Resolution session (i) Preliminary meeting Prior to the opportunity for an impartial due process hearing under subparagraph (A), the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint— (I) within 15 days of receiving notice of the parents’ complaint; (II) which shall include a representa- tive of the agency who has decision- making authority on behalf of such agency; (III) which may not include an attor- ney of the local educational agency un- less the parent is accompanied by an at- torney; and (IV) where the parents of the child dis- cuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local edu- cational agency agree in writing to waive such meeting, or agree to use the medi- ation process described in subsection (e). (ii) Hearing If the local educational agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this subchapter shall commence. (iii) Written settlement agreement In the case that a resolution is reached to resolve the complaint at a meeting de- scribed in clause (i), the parties shall exe- cute a legally binding agreement that is— (I) signed by both the parent and a rep- resentative of the agency who has the authority to bind such agency; and (II) enforceable in any State court of competent jurisdiction or in a district court of the United States. (iv) Review period If the parties execute an agreement pur- suant to clause (iii), a party may void such agreement within 3 business days of the agreement’s execution. (2) Disclosure of evaluations and recommenda- tions (A) In general Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date, and recommendations based on the offering par- ty’s evaluations, that the party intends to use at the hearing. (B) Failure to disclose A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or rec- ommendation at the hearing without the consent of the other party. (3) Limitations on hearing (A) Person conducting hearing A hearing officer conducting a hearing pursuant to paragraph (1)(A) shall, at a min- imum— (i) not be— (I) an employee of the State edu- cational agency or the local educational agency involved in the education or care of the child; or (II) a person having a personal or pro- fessional interest that conflicts with the person’s objectivity in the hearing; (ii) possess knowledge of, and the ability to understand, the provisions of this chap- Page 973 TITLE 20—EDUCATION § 1415 ter, Federal and State regulations per- taining to this chapter, and legal interpre- tations of this chapter by Federal and State courts; (iii) possess the knowledge and ability to conduct hearings in accordance with ap- propriate, standard legal practice; and (iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice. (B) Subject matter of hearing The party requesting the due process hear- ing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), un- less the other party agrees otherwise. (C) Timeline for requesting hearing A parent or agency shall request an impar- tial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for re- questing such a hearing under this sub- chapter, in such time as the State law al- lows. (D) Exceptions to the timeline The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to— (i) specific misrepresentations by the local educational agency that it had re- solved the problem forming the basis of the complaint; or (ii) the local educational agency’s with- holding of information from the parent that was required under this subchapter to be provided to the parent. (E) Decision of hearing officer (i) In general Subject to clause (ii), a decision made by a hearing officer shall be made on sub- stantive grounds based on a determination of whether the child received a free appro- priate public education. (ii) Procedural issues In matters alleging a procedural viola- tion, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural in- adequacies— (I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the deci- sionmaking process regarding the provi- sion of a free appropriate public edu- cation to the parents’ child; or (III) caused a deprivation of edu- cational benefits. (iii) Rule of construction Nothing in this subparagraph shall be construed to preclude a hearing officer from ordering a local educational agency to comply with procedural requirements under this section. (F) Rule of construction Nothing in this paragraph shall be con- strued to affect the right of a parent to file a complaint with the State educational agency. (g) Appeal (1) In general If the hearing required by subsection (f) is conducted by a local educational agency, any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency. (2) Impartial review and independent decision The State educational agency shall conduct an impartial review of the findings and deci- sion appealed under paragraph (1). The officer conducting such review shall make an inde- pendent decision upon completion of such re- view. (h) Safeguards Any party to a hearing conducted pursuant to subsection (f) or (k), or an appeal conducted pur- suant to subsection (g), shall be accorded— (1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities; (2) the right to present evidence and con- front, cross-examine, and compel the attend- ance of witnesses; (3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and (4) the right to written, or, at the option of the parents, electronic findings of fact and de- cisions, which findings and decisions— (A) shall be made available to the public consistent with the requirements of section 1417(b) of this title (relating to the confiden- tiality of data, information, and records); and (B) shall be transmitted to the advisory panel established pursuant to section 1412(a)(21) of this title. (i) Administrative procedures (1) In general (A) Decision made in hearing A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g) and paragraph (2). (B) Decision made at appeal A decision made under subsection (g) shall be final, except that any party may bring an action under paragraph (2). (2) Right to bring civil action (A) In general Any party aggrieved by the findings and decision made under subsection (f) or (k) who does not have the right to an appeal under subsection (g), and any party ag- grieved by the findings and decision made Page 974 TITLE 20—EDUCATION § 1415 under this subsection, shall have the right to bring a civil action with respect to the com- plaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a dis- trict court of the United States, without re- gard to the amount in controversy. (B) Limitation The party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing such action under this subchapter, in such time as the State law allows. (C) Additional requirements In any action brought under this para- graph, the court— (i) shall receive the records of the admin- istrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponder- ance of the evidence, shall grant such re- lief as the court determines is appropriate. (3) Jurisdiction of district courts; attorneys’ fees (A) In general The district courts of the United States shall have jurisdiction of actions brought under this section without regard to the amount in controversy. (B) Award of attorneys’ fees (i) In general In any action or proceeding brought under this section, the court, in its discre- tion, may award reasonable attorneys’ fees as part of the costs— (I) to a prevailing party who is the par- ent of a child with a disability; (II) to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unrea- sonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or (III) to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent’s com- plaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of liti- gation. (ii) Rule of construction Nothing in this subparagraph shall be construed to affect section 327 of the Dis- trict of Columbia Appropriations Act, 2005. (C) Determination of amount of attorneys’ fees Fees awarded under this paragraph shall be based on rates prevailing in the commu- nity in which the action or proceeding arose for the kind and quality of services fur- nished. No bonus or multiplier may be used in calculating the fees awarded under this subsection. (D) Prohibition of attorneys’ fees and related costs for certain services (i) In general Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this sec- tion for services performed subsequent to the time of a written offer of settlement to a parent if— (I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the pro- ceeding begins; (II) the offer is not accepted within 10 days; and (III) the court or administrative hear- ing officer finds that the relief finally obtained by the parents is not more fa- vorable to the parents than the offer of settlement. (ii) IEP Team meetings Attorneys’ fees may not be awarded re- lating to any meeting of the IEP Team un- less such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection (e). (iii) Opportunity to resolve complaints A meeting conducted pursuant to sub- section (f)(1)(B)(i) shall not be considered— (I) a meeting convened as a result of an administrative hearing or judicial ac- tion; or (II) an administrative hearing or judi- cial action for purposes of this para- graph. (E) Exception to prohibition on attorneys’ fees and related costs Notwithstanding subparagraph (D), an award of attorneys’ fees and related costs may be made to a parent who is the pre- vailing party and who was substantially jus- tified in rejecting the settlement offer. (F) Reduction in amount of attorneys’ fees Except as provided in subparagraph (G), whenever the court finds that— (i) the parent, or the parent’s attorney, during the course of the action or pro- ceeding, unreasonably protracted the final resolution of the controversy; (ii) the amount of the attorneys’ fees otherwise authorized to be awarded unrea- sonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience; (iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or (iv) the attorney representing the parent did not provide to the local educational Page 975 TITLE 20—EDUCATION § 1415 agency the appropriate information in the notice of the complaint described in sub- section (b)(7)(A), the court shall reduce, accordingly, the amount of the attorneys’ fees awarded under this section. (G) Exception to reduction in amount of at- torneys’ fees The provisions of subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local edu- cational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section. (j) Maintenance of current educational place- ment Except as provided in subsection (k)(4), during the pendency of any proceedings conducted pur- suant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if apply- ing for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such pro- ceedings have been completed. (k) Placement in alternative educational setting (1) Authority of school personnel (A) Case-by-case determination School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct. (B) Authority School personnel under this subsection may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another set- ting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities). (C) Additional authority If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s dis- ability pursuant to subparagraph (E), the relevant disciplinary procedures applicable to children without disabilities may be ap- plied to the child in the same manner and for the same duration in which the proce- dures would be applied to children without disabilities, except as provided in section 1412(a)(1) of this title although it may be provided in an interim alternative edu- cational setting. (D) Services A child with a disability who is removed from the child’s current placement under subparagraph (G) (irrespective of whether the behavior is determined to be a mani- festation of the child’s disability) or sub- paragraph (C) shall— (i) continue to receive educational serv- ices, as provided in section 1412(a)(1) of this title, so as to enable the child to con- tinue to participate in the general edu- cation curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and (ii) receive, as appropriate, a functional behavioral assessment, behavioral inter- vention services and modifications, that are designed to address the behavior viola- tion so that it does not recur. (E) Manifestation determination (i) In general Except as provided in subparagraph (B), within 10 school days of any decision to change the placement of a child with a dis- ability because of a violation of a code of student conduct, the local educational agency, the parent, and relevant members of the IEP Team (as determined by the parent and the local educational agency) shall review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the par- ents to determine— (I) if the conduct in question was caused by, or had a direct and substan- tial relationship to, the child’s dis- ability; or (II) if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP. (ii) Manifestation If the local educational agency, the par- ent, and relevant members of the IEP Team determine that either subclause (I) or (II) of clause (i) is applicable for the child, the conduct shall be determined to be a manifestation of the child’s disability. (F) Determination that behavior was a mani- festation If the local educational agency, the par- ent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team shall— (i) conduct a functional behavioral as- sessment, and implement a behavioral intervention plan for such child, provided that the local educational agency had not conducted such assessment prior to such determination before the behavior that re- sulted in a change in placement described in subparagraph (C) or (G); (ii) in the situation where a behavioral intervention plan has been developed, re- view the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as nec- essary, to address the behavior; and (iii) except as provided in subparagraph (G), return the child to the placement from which the child was removed, unless the parent and the local educational agen- cy agree to a change of placement as part of the modification of the behavioral inter- vention plan. Page 976 TITLE 20—EDUCATION § 1415 (G) Special circumstances School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without re- gard to whether the behavior is determined to be a manifestation of the child’s dis- ability, in cases where a child— (i) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency; (ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a con- trolled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or (iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency. (H) Notification Not later than the date on which the deci- sion to take disciplinary action is made, the local educational agency shall notify the parents of that decision, and of all proce- dural safeguards accorded under this sec- tion. (2) Determination of setting The interim alternative educational setting in subparagraphs (C) and (G) of paragraph (1) shall be determined by the IEP Team. (3) Appeal (A) In general The parent of a child with a disability who disagrees with any decision regarding place- ment, or the manifestation determination under this subsection, or a local educational agency that believes that maintaining the current placement of the child is substan- tially likely to result in injury to the child or to others, may request a hearing. (B) Authority of hearing officer (i) In general A hearing officer shall hear, and make a determination regarding, an appeal re- quested under subparagraph (A). (ii) Change of placement order In making the determination under clause (i), the hearing officer may order a change in placement of a child with a dis- ability. In such situations, the hearing of- ficer may— (I) return a child with a disability to the placement from which the child was removed; or (II) order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that main- taining the current placement of such child is substantially likely to result in injury to the child or to others. (4) Placement during appeals When an appeal under paragraph (3) has been requested by either the parent or the local educational agency— (A) the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(C), whichever occurs first, un- less the parent and the State or local edu- cational agency agree otherwise; and (B) the State or local educational agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing. (5) Protections for children not yet eligible for special education and related services (A) In general A child who has not been determined to be eligible for special education and related services under this subchapter and who has engaged in behavior that violates a code of student conduct, may assert any of the pro- tections provided for in this subchapter if the local educational agency had knowledge (as determined in accordance with this para- graph) that the child was a child with a dis- ability before the behavior that precipitated the disciplinary action occurred. (B) Basis of knowledge A local educational agency shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action oc- curred— (i) the parent of the child has expressed concern in writing to supervisory or ad- ministrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; (ii) the parent of the child has requested an evaluation of the child pursuant to sec- tion 1414(a)(1)(B) of this title; or (iii) the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other su- pervisory personnel of the agency. (C) Exception A local educational agency shall not be deemed to have knowledge that the child is a child with a disability if the parent of the child has not allowed an evaluation of the child pursuant to section 1414 of this title or has refused services under this subchapter or the child has been evaluated and it was de- termined that the child was not a child with a disability under this subchapter. (D) Conditions that apply if no basis of knowledge (i) In general If a local educational agency does not have knowledge that a child is a child with a disability (in accordance with subpara- graph (B) or (C)) prior to taking discipli- nary measures against the child, the child may be subjected to disciplinary measures Page 977 TITLE 20—EDUCATION § 1415 applied to children without disabilities who engaged in comparable behaviors con- sistent with clause (ii). (ii) Limitations If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under this subsection, the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration in- formation from the evaluation conducted by the agency and information provided by the parents, the agency shall provide spe- cial education and related services in ac- cordance with this subchapter, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authori- ties. (6) Referral to and action by law enforcement and judicial authorities (A) Rule of construction Nothing in this subchapter shall be con- strued to prohibit an agency from reporting a crime committed by a child with a dis- ability to appropriate authorities or to pre- vent State law enforcement and judicial au- thorities from exercising their responsibil- ities with regard to the application of Fed- eral and State law to crimes committed by a child with a disability. (B) Transmittal of records An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and discipli- nary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime. (7) Definitions In this subsection: (A) Controlled substance The term ‘‘controlled substance’’ means a drug or other substance identified under schedule I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)). (B) Illegal drug The term ‘‘illegal drug’’ means a con- trolled substance but does not include a con- trolled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act [21 U.S.C. 801 et seq.] or under any other provision of Federal law. (C) Weapon The term ‘‘weapon’’ has the meaning given the term ‘‘dangerous weapon’’ under section 930(g)(2) of title 18. (D) Serious bodily injury The term ‘‘serious bodily injury’’ has the meaning given the term ‘‘serious bodily in- jury’’ under paragraph (3) of subsection (h) of section 1365 of title 18. (l) Rule of construction Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and rem- edies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], title V of the Rehabilita- tion Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the pro- cedures under subsections (f) and (g) shall be ex- hausted to the same extent as would be required had the action been brought under this sub- chapter. (m) Transfer of parental rights at age of majority (1) In general A State that receives amounts from a grant under this subchapter may provide that, when a child with a disability reaches the age of ma- jority under State law (except for a child with a disability who has been determined to be in- competent under State law)— (A) the agency shall provide any notice re- quired by this section to both the individual and the parents; (B) all other rights accorded to parents under this subchapter transfer to the child; (C) the agency shall notify the individual and the parents of the transfer of rights; and (D) all rights accorded to parents under this subchapter transfer to children who are incarcerated in an adult or juvenile Federal, State, or local correctional institution. (2) Special rule If, under State law, a child with a disability who has reached the age of majority under State law, who has not been determined to be incompetent, but who is determined not to have the ability to provide informed consent with respect to the educational program of the child, the State shall establish procedures for appointing the parent of the child, or if the parent is not available, another appropriate individual, to represent the educational inter- ests of the child throughout the period of eli- gibility of the child under this subchapter. (n) Electronic mail A parent of a child with a disability may elect to receive notices required under this section by an electronic mail (e-mail) communication, if the agency makes such option available. (o) Separate complaint Nothing in this section shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed. (Pub. L. 91–230, title VI, § 615, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2715.) Editorial Notes REFERENCES IN TEXT Section 327 of the District of Columbia Appropria- tions Act, 2005, referred to in subsec. (i)(3)(B)(ii), is sec- tion 327 of Pub. L. 108–335, title III, Oct. 18, 2004, 118 Stat. 1344, which is not classified to the Code. The Federal Rules of Civil Procedure, referred to in subsec. (i)(3)(D)(i)(I), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Page 978 TITLE 20—EDUCATION § 1416 The Controlled Substances Act, referred to in subsec. (k)(7)(B), 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. The Americans with Disabilities Act of 1990, referred to in subsec. (l), is Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to chapter 126 (§ 12101 et seq.) of Title 42, The Public Health and Wel- fare. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of Title 42 and Tables. The Rehabilitation Act of 1973, referred to in subsec. (l), is Pub. L. 93–112, Sept. 26, 1973, 87 Stat. 355. Title V of the Act is classified generally to subchapter V (§ 790 et seq.) of chapter 16 of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 701 of Title 29 and Tables. PRIOR PROVISIONS A prior section 1415, Pub. L. 91–230, title VI, § 615, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 88; amended Pub. L. 106–25, § 6(a), Apr. 29, 1999, 113 Stat. 49, related to procedural safeguards, prior to the gen- eral amendment of subchapters I to IV of this chapter by Pub. L. 108–446. Another prior section 1415, Pub. L. 91–230, title VI, § 615, as added Pub. L. 94–142, § 5(a), Nov. 29, 1975, 89 Stat. 788; amended Pub. L. 99–372, §§ 2, 3, Aug. 5, 1986, 100 Stat. 796, 797; Pub. L. 100–630, title I, § 102(e), Nov. 7, 1988, 102 Stat. 3294; Pub. L. 101–476, title IX, § 901(b)(71)–(75), Oct. 30, 1990, 104 Stat. 1145; Pub. L. 102–119, § 25(b), Oct. 7, 1991, 105 Stat. 607; Pub. L. 103–382, title III, § 314(a)(1), Oct. 20, 1994, 108 Stat. 3936, related to procedural safeguards, prior to the general amend- ment of subchapters I to IV of this chapter by Pub. L. 105–17. § 1416. Monitoring, technical assistance, and en- forcement (a) Federal and State monitoring (1) In general The Secretary shall— (A) monitor implementation of this sub- chapter through— (i) oversight of the exercise of general supervision by the States, as required in section 1412(a)(11) of this title; and (ii) the State performance plans, de- scribed in subsection (b); (B) enforce this subchapter in accordance with subsection (e); and (C) require States to— (i) monitor implementation of this sub- chapter by local educational agencies; and (ii) enforce this subchapter in accord- ance 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 subchapter, with a particular emphasis on those requirements that are most closely related to improving educational results for children with disabil- ities. (3) Monitoring priorities The Secretary shall monitor the States, and shall require each State to monitor the local educational agencies located in the State (ex- cept 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 fol- lowing priority areas: (A) Provision of a free appropriate public education in the least restrictive environ- ment. (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 de- fined in sections 1401(34) and 1437(a)(9) of this title. (C) Disproportionate representation of ra- cial and ethnic groups in special education and related services, to the extent the rep- resentation 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 1418 of this title. (b) State performance plans (1) Plan (A) In general Not later than 1 year after December 3, 2004, each State shall have in place a per- formance plan that evaluates that State’s efforts to implement the requirements and purposes of this subchapter and describes how the State will improve such implemen- tation. (B) Submission for approval Each State shall submit the State’s per- formance plan to the Secretary for approval in accordance with the approval process de- scribed in subsection (c). (C) Review Each State shall review its State perform- ance plan at least once every 6 years and submit any amendments to the Secretary. (2) Targets (A) In general As a part of the State performance plan described under paragraph (1), each State shall establish measurable and rigorous tar- gets for the indicators established under the priority areas described in subsection (a)(3). (B) Data collection (i) In general Each State shall collect valid and reli- able information as needed to report annu- ally to the Secretary on the priority areas described in subsection (a)(3). (ii) Rule of construction Nothing in this chapter shall be con- strued to authorize the development of a nationwide database of personally identifi- able information on individuals involved in studies or other collections of data under this subchapter.