Individuals with Disabilities Education Improvement Act of 2004
| Individuals with Disabilities Education Improvement Act of 2004 | |
|---|---|
| Short Title | IDEA 2004 |
| Official Text | Individuals with Disabilities Education Improvement Act of 2004 |
| Country/Jurisdiction | United States |
| State or Province | |
| Regulatory Bodies | |
| Date Enacted | 2004/12/03 |
| Scope of the Law | Children with disabilities, Government |
| Information | |
| Taxonomy | Aggregation, Decisional Interference, Disclosure, Exclusion, Identification, Increased Accessibility, Insecurity, Interrogation, Surveillance |
| Strategies | |
The Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) mandates equity, accountability, and excellence in education for children with disabilities.
Text of the law
SEC. 612. [20 U.S.C. 1412] STATE ELIGIBILITY.
(6) PROCEDURAL SAFEGUARDS.—
(A) IN GENERAL.—Children with disabilities and their parents are afforded the procedural safeguards required by section 615. Physical Characteristic, Medical and Health "Personal#list" contains a listed "#" character as part of the property label and has therefore been classified as invalid.
(B) ADDITIONAL PROCEDURAL SAFEGUARDS.—Procedures to ensure that testing and evaluation materials and procedures utilized for the purposes of evaluation and placement of children with disabilities for services under this title will be selected and administered so as not to be racially or culturally discriminatory. Such materials or procedures shall be provided and administered in the child’s native language or mode of communication, unless it clearly is not feasible to do so, and no single procedure shall be the sole criterion for determining an appropriate educational program for a child. Interrogation, Insecurity, Identification
(7) EVALUATION.—Children with disabilities are evaluated
in accordance with subsections (a) through (c) of section 614.
(8) CONFIDENTIALITY.—Agencies in the State comply with section 617(c) (relating to the confidentiality of records and information). Insecurity, Disclosure
(24) OVERIDENTIFICATION AND DISPROPORTIONALITY.—The State has in effect, consistent with the purposes of this title
and with section 618(d), policies and procedures designed to
prevent the inappropriate overidentification or disproportionate
representation by race and ethnicity of children as children
with disabilities, including children with disabilities with a
particular impairment described in section 602. Identifying, Ethnicity
"Personal#list" contains a listed "#" character as part of the property label and has therefore been classified as invalid.
(iii) CONSENT FOR WARDS OF THE STATE.—
(I) IN GENERAL.—If the child is a ward of the State and is not residing with the child’s parent, the agency shall make reasonable efforts to obtain the informed consent from the parent (as defined in section 602) of the child for an initial evaluation to determine whether the child is a child with a disability. Exclusion, Decisional Interference
(II) EXCEPTION.—The agency shall not be required to obtain informed consent from the parent of a child for an initial evaluation to determine whether the child is a child with a disability if—
(aa) despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child;
(bb) the rights of the parents of the child have been terminated in accordance with State law; or
(cc) the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.
(b) EVALUATION PROCEDURES.—
(1) NOTICE.—The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b)(3), (b)(4), and (c) of section 615, that describes any evaluation procedures such agency proposes to conduct. Exclusion
(2) CONDUCT OF EVALUATION.—In conducting the evaluation, the local educational agency shall—
(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining— Professional, Preference "Personal#list" contains a listed "#" character as part of the property label and has therefore been classified as invalid.
(i) whether the child is a child with a disability; and
(ii) the content of the child’s individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum, or, for preschool children, to participate in appropriate activities;
(B) not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and
(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
(c) ADDITIONAL REQUIREMENTS FOR EVALUATION AND REEVALU- ATIONS.—
(1) REVIEW OF EXISTING EVALUATION DATA.—As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team and other qualified professionals, as appropriate, shall— Aggregation, Decisional Interference
(A) review existing evaluation data on the child, including—
(i) evaluations and information provided by the parents of the child;
(ii) current classroom-based, local, or State assessments, and classroom-based observations; and
(iii) observations by teachers and related services providers; and
(B) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine—
(i) whether the child is a child with a disability as defined in section 602(3), and the educational needs of the child, or, in case of a reevaluation of a child, whether the child continues to have such a disability and such educational needs;
(ii) the present levels of academic achievement and related developmental needs of the child;
(iii) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and (iv) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general education curriculum.
(2) SOURCE OF DATA.—The local educational agency shall administer such assessments and other evaluation measures as may be needed to produce the data identified by the IEP Team under paragraph (1)(B).
(3) PARENTAL CONSENT.—Each local educational agency shall obtain informed parental consent, in accordance with subsection (a)(1)(D), prior to conducting any reevaluation of a child with a disability, except that such informed parental consent need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child’s parent has failed to respond.
(4) REQUIREMENTS IF ADDITIONAL DATA ARE NOT NEEDED.— If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability and to determine the child’s educational needs, the local educational agency— Exclusion
(A) shall notify the child’s parents of—
(i) that determination and the reasons for the determination; and
(ii) the right of such parents to request an assessment to determine whether the child continues to be a child with a disability and to determine the child’s educational needs; and
(B) shall not be required to conduct such an assessment unless requested to by the child’s parents.
(5) EVALUATIONS BEFORE CHANGE IN ELIGIBILITY.—
(A) IN GENERAL.—Except as provided in subparagraph
(B), a local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.
(B) EXCEPTION.—
(i) IN GENERAL.—The evaluation described in subparagraph (A) shall not be required before the termination of a child’s eligibility under this part due to graduation from secondary school with a regular diploma, or due to exceeding the age eligibility for a free appropriate public education under State law.
(ii) SUMMARY OF PERFORMANCE.—For a child whose eligibility under this part terminates under circumstances described in clause (i), a local educational agency shall provide the child with a summary of the child’s academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child’s postsecondary goals.
SEC. 615. [20 U.S.C. 1415] PROCEDURAL SAFEGUARDS.
(2) DISCLOSURE OF EVALUATIONS AND RECOMMENDATIONS.—
(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 party’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 recommendation at the hearing without the consent of the other party.
SEC. 616. [20 U.S.C. 1416] MONITORING, TECHNICAL ASSISTANCE, AND ENFORCEMENT.
(a) FEDERAL AND STATE MONITORING.—
(1) IN GENERAL.—The Secretary shall—
(A) monitor implementation of this part through—
(i) oversight of the exercise of general supervision by the States, as required in section 612(a)(11); and
(ii) the State performance plans, described in subsection (b);
(B) enforce this part in accordance with subsection (e); and
(C) require States to—
(i) monitor implementation of this part by local educational agencies; and
(ii) enforce this part in accordance with paragraph
(3) and subsection (e).
(2) FOCUSED MONITORING.—The primary focus of Federal and State monitoring activities described in paragraph (1) shall be on— Surveillance, Insecurity
(A) improving educational results and functional outcomes for all children with disabilities; and
(B) ensuring that States meet the program requirements under this part, with a particular emphasis on those requirements that are most closely related to improving educational results for children with disabilities.
(3) MONITORING PRIORITIES.—The Secretary shall monitor the States, and shall require each State to monitor the local educational agencies located in the State (except the State exercise of general supervisory responsibility), using quantifiable indicators in each of the following priority areas, and using such qualitative indicators as are needed to adequately measure performance in the following priority areas:
(A) Provision of a free appropriate public education in the least restrictive environment.
(B) State exercise of general supervisory authority, including child find, effective monitoring, the use of resolution sessions, mediation, voluntary binding arbitration, and a system of transition services as defined in sections 602(34) and 637(a)(9).
(C) Disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representation is the result of inappropriate identification.
(4) PERMISSIVE AREAS OF REVIEW.—The Secretary shall consider other relevant information and data, including data provided by States under section 618.
(b) STATE PERFORMANCE PLANS.—
(1) PLAN.— (A) IN GENERAL.—Not later than 1 year after the date of enactment of the Individuals with Disabilities Education Improvement Act of 2004, each State shall have in place a performance plan that evaluates that State’s efforts to implement the requirements and purposes of this part and describes how the State will improve such implementation.
(B) SUBMISSION FOR APPROVAL.—Each State shall submit the State’s performance plan to the Secretary for approval in accordance with the approval process described in subsection (c).
(C) REVIEW.—Each State shall review its State performance plan at least once every 6 years and submit any amendments to the Secretary.
(2) TARGETS.—
(A) IN GENERAL.—As a part of the State performance plan described under paragraph (1), each State shall establish measurable and rigorous targets for the indicators established under the priority areas described in subsection (a)(3).
(B) DATA COLLECTION.— Surveillance
(i) IN GENERAL.—Each State shall collect valid and
reliable information as needed to report annually to
the Secretary on the priority areas described in subsection (a)(3).
(ii) RULE OF CONSTRUCTION.—Nothing in this title shall be construed to authorize the development of a nationwide database of personally identifiable information on individuals involved in studies or other collections of data under this part.
(C) PUBLIC REPORTING AND PRIVACY.—
(i) IN GENERAL.—The State shall use the targets established in the plan and priority areas described in subsection (a)(3) to analyze the performance of each local educational agency in the State in implementing this part.
(ii) REPORT.—
(I) PUBLIC REPORT.—The State shall report annually to the public on the performance of each local educational agency located in the State on the targets in the State’s performance plan. The State shall make the State’s performance plan available through public means, including by posting on the website of the State educational agency, distribution to themedia, and distribution through public agencies. Increased Accessibility
(II) STATE PERFORMANCE REPORT.—The State
shall report annually to the Secretary on the performance of the State under the State’s performance plan.
(iii) PRIVACY.—The State shall not report to the public or the Secretary any information on performance that would result in the disclosure of personally identifiable information about individual children or where the available data is insufficient to yield statistically reliable information. Disclosure, Identification
(c) APPROVAL PROCESS.—
(1) DEEMED APPROVAL.—The Secretary shall review (including the specific provisions described in subsection (b)) each performance plan submitted by a State pursuant to subsection (b)(1)(B) and the plan shall be deemed to be approved by the Secretary unless the Secretary makes a written determination, prior to the expiration of the 120-day period beginning on the date on which the Secretary received the plan, that the plan does not meet the requirements of this section, including the specific provisions described in subsection (b).
(2) DISAPPROVAL.—The Secretary shall not finally disapprove a performance plan, except after giving the State notice and an opportunity for a hearing.
(3) NOTIFICATION.—If the Secretary finds that the plan does not meet the requirements, in whole or in part, of this section, the Secretary shall—
(A) give the State notice and an opportunity for a hearing; and
(B) notify the State of the finding, and in such notification shall—
(i) cite the specific provisions in the plan that do not meet the requirements; and
(ii) request additional information, only as to the provisions not meeting the requirements, needed for the plan to meet the requirements of this section.
(4) RESPONSE.—If the State responds to the Secretary’s notification described in paragraph (3)(B) during the 30-day period beginning on the date on which the State received the notification, and resubmits the plan with the requested information described in paragraph (3)(B)(ii), the Secretary shall approve or disapprove such plan prior to the later of—
(A) the expiration of the 30-day period beginning on the date on which the plan is resubmitted; or
(B) the expiration of the 120-day period described in paragraph (1).
(5) FAILURE TO RESPOND.—If the State does not respond to the Secretary’s notification described in paragraph (3)(B) during the 30-day period beginning on the date on which the State received the notification, such plan shall be deemed to be disapproved.
(d) SECRETARY’S REVIEW AND DETERMINATION.—
(1) REVIEW.—The Secretary shall annually review the State performance report submitted pursuant to subsection (b)(2)(C)(ii)(II) in accordance with this section.
(2) DETERMINATION.—
(A) IN GENERAL.—Based on the information provided by the State in the State performance report, information obtained through monitoring visits, and any other public information made available, the Secretary shall determine if the State— Increased Accessibility
(i) meets the requirements and purposes of this
part;
(ii) needs assistance in implementing the requirements of this part;
(iii) needs intervention in implementing the requirements of this part; or
(iv) needs substantial intervention in implementing the requirements of this part.
(B) NOTICE AND OPPORTUNITY FOR A HEARING.—For determinations made under clause (iii) or (iv) of subparagraph (A), the Secretary shall provide reasonable notice and an opportunity for a hearing on such determination.
(e) ENFORCEMENT.—
(1) NEEDS ASSISTANCE.—If the Secretary determines, for 2 consecutive years, that a State needs assistance under subsection (d)(2)(A)(ii) in implementing the requirements of this part, the Secretary shall take 1 or more of the following actions:
(A) Advise the State of available sources of technical assistance that may help the State address the areas in which the State needs assistance, which may include assistance from the Office of Special Education Programs, other offices of the Department of Education, other Federal agencies, technical assistance providers approved by the Secretary, and other federally funded nonprofit agencies, and require the State to work with appropriate entities. Such technical assistance may include—
(i) the provision of advice by experts to address the areas in which the State needs assistance, including explicit plans for addressing the area for concern within a specified period of time;
(ii) assistance in identifying and implementing professional development, instructional strategies, and methods of instruction that are based on scientifically based research;
(iii) designating and using distinguished superintendents, principals, special education administrators, special education teachers, and other teachers to provide advice, technical assistance, and support; and
(iv) devising additional approaches to providing technical assistance, such as collaborating with institutions of higher education, educational service agencies, national centers of technical assistance supported under part D, and private providers of scientifically based technical assistance.
(B) Direct the use of State-level funds under section 611(e) on the area or areas in which the State needs assistance.
(C) Identify the State as a high-risk grantee and impose special conditions on the State’s grant under this part.
(2) NEEDS INTERVENTION.—If the Secretary determines, for 3 or more consecutive years, that a State needs intervention under subsection (d)(2)(A)(iii) in implementing the requirements of this part, the following shall apply:
(A) The Secretary may take any of the actions described in paragraph (1).
(B) The Secretary shall take 1 or more of the following actions:
(i) Require the State to prepare a corrective action plan or improvement plan if the Secretary determines that the State should be able to correct the problem within 1 year.
(ii) Require the State to enter into a compliance agreement under section 457 of the General Education Provisions Act, if the Secretary has reason to believe that the State cannot correct the problem within 1 year.
(iii) For each year of the determination, withhold not less than 20 percent and not more than 50 percent of the State’s funds under section 611(e), until the Secretary determines the State has sufficiently addressed the areas in which the State needs intervention.
(iv) Seek to recover funds under section 452 of the General Education Provisions Act.
(v) Withhold, in whole or in part, any further payments to the State under this part pursuant to paragraph (5).
(vi) Refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.
(3) NEEDS SUBSTANTIAL INTERVENTION.—Notwithstanding paragraph (1) or (2), at any time that the Secretary determines that a State needs substantial intervention in implementing the requirements of this part or that there is a substantial failure to comply with any condition of a State educational agency’s or local educational agency’s eligibility under this part, the Secretary shall take 1 or more of the following actions:
(A) Recover funds under section 452 of the General Education Provisions Act.
(B) Withhold, in whole or in part, any further payments to the State under this part.
(C) Refer the case to the Office of the Inspector General at the Department of Education.
(D) Refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.
(4) OPPORTUNITY FOR HEARING.—
(A) WITHHOLDING FUNDS.—Prior to withholding any funds under this section, the Secretary shall provide reasonable notice and an opportunity for a hearing to the State educational agency involved.
(i) DATA CAPACITY AND TECHNICAL ASSISTANCE REVIEW.— Insecurity
The Secretary shall—
(1) review the data collection and analysis capacity of States to ensure that data and information determined necessary for implementation of this section is collected, analyzed, and accurately reported to the Secretary; and
(2) provide technical assistance (from funds reserved under section 611(c)), where needed, to improve the capacity of States to meet the data collection requirements.
SEC. 618. [20 U.S.C. 1418] PROGRAM INFORMATION. Insecurity
(b) DATA REPORTING.—
(1) PROTECTION OF IDENTIFIABLE DATA.—The data described in subsection (a) shall be publicly reported by each State in a manner that does not result in the disclosure of data identifiable to individual children.
(2) SAMPLING.—The Secretary may permit States and the Secretary of the Interior to obtain the data described in subsection (a) through sampling.
(c) TECHNICAL ASSISTANCE.—The Secretary may provide technical assistance to States to ensure compliance with the data collection and reporting requirements under this title.
(d) DISPROPORTIONALITY.—
(1) IN GENERAL.—Each State that receives assistance under this part, and the Secretary of the Interior, shall provide for the collection and examination of data to determine if significant disproportionality based on race and ethnicity is occurring in the State and the local educational agencies of the State with respect to—
(A) the identification of children as children with disabilities, including the identification of children as children with disabilities in accordance with a particular impairment described in section 602(3);
(B) the placement in particular educational settings of such children; and
(C) the incidence, duration, and type of disciplinary actions, including suspensions and expulsions.
(2) REVIEW AND REVISION OF POLICIES, PRACTICES, AND PROCEDURES.—In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of such children, in accordance with paragraph (1), the State or the Secretary of the Interior, as the case may be, shall—
(A) provide for the review and, if appropriate, revision of the policies, procedures, and practices used in such identification or placement to ensure that such policies, procedures, and practices comply with the requirements of this title;
(B) require any local educational agency identified under paragraph (1) to reserve the maximum amount of funds under section 613(f) to provide comprehensive coordinated early intervening services to serve children in the local educational agency, particularly children in those groups that were significantly overidentified under paragraph (1); and
(C) require the local educational agency to publicly report on the revision of policies, practices, and procedures described under subparagraph (A).
SEC. 639. [20 U.S.C. 1439] PROCEDURAL SAFEGUARDS. Insecurity
(a) MINIMUM PROCEDURES.—The procedural safeguards required to be included in a statewide system under section
635(a)(13) shall provide, at a minimum, the following:
(1) The timely administrative resolution of complaints by parents. Any party aggrieved by the findings and decision regarding an administrative complaint shall have the right to bring a civil action with respect to the complaint in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. 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 consent 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 part in accordance with State law without jeopardizing other early intervention services under this part.
(4) The opportunity for parents to examine records relating to assessment, screening, eligibility determinations, and the development and implementation of the individualized family service plan.
(5) Procedures to protect the rights of the infant or toddler whenever the parents of the infant 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 individual (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 services 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 disability, 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 615, except 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 established or designated under section 635(a)(10);
(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 part, as the case may be; and
(C) any reference in the section to the provision of a free appropriate public education to children with disabilities shall be considered to be a reference to the provision of appropriate early intervention services to infants and toddlers with disabilities.
(b) SERVICES DURING PENDENCY OF PROCEEDINGS.—During the pendency of any proceeding or action 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 currently being provided or, if applying for initial services, shall receive the services not in dispute.
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