View all text of Subchapter II [§ 1411 - § 1419]
§ 1416. Monitoring, technical assistance, and enforcement
(a) Federal and State monitoring
(1) In generalThe Secretary shall—
(A) monitor implementation of this subchapter 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, described in subsection (b);
(B) enforce this subchapter in accordance with subsection (e); and
(C) require States to—
(i) monitor implementation of this subchapter by local educational agencies; and
(ii) enforce this subchapter in accordance with paragraph (3) and subsection (e).
(2) Focused monitoringThe 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 disabilities.
(3) Monitoring prioritiesThe 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 1401(34) and 1437(a)(9) of this title.
(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
(b) State performance plans
(1) Plan
(A) In general
(B) Submission for approval
(C) Review
(2) Targets
(A) In general
(B) Data collection
(i) In general
(ii) Rule of construction
(C) Public reporting and privacy
(i) In general
(ii) Report(I) Public report(II) State performance report
(iii) Privacy
(c) Approval process
(1) Deemed approval
(2) Disapproval
(3) NotificationIf 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) ResponseIf 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
(d) Secretary’s review and determination
(1) Review
(2) Determination
(A) In generalBased 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—
(i) meets the requirements and purposes of this subchapter;
(ii) needs assistance in implementing the requirements of this subchapter;
(iii) needs intervention in implementing the requirements of this subchapter; or
(iv) needs substantial intervention in implementing the requirements of this subchapter.
(B) Notice and opportunity for a hearing
(e) Enforcement
(1) Needs assistanceIf the Secretary determines, for 2 consecutive years, that a State needs assistance under subsection (d)(2)(A)(ii) in implementing the requirements of this subchapter, 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 subchapter IV, and private providers of scientifically based technical assistance.
(B) Direct the use of State-level funds under section 1411(e) of this title 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 subchapter.
(2) Needs interventionIf 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 subchapter, 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 [20 U.S.C. 1234f], 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 1411(e) of this title, 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 [20 U.S.C. 1234a].
(v) Withhold, in whole or in part, any further payments to the State under this subchapter pursuant to paragraph (5).
(vi) Refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.
(3) Needs substantial interventionNotwithstanding paragraph (1) or (2), at any time that the Secretary determines that a State needs substantial intervention in implementing the requirements of this subchapter 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 subchapter, the Secretary shall take 1 or more of the following actions:
(A) Recover funds under section 452 of the General Education Provisions Act [20 U.S.C. 1234a].
(B) Withhold, in whole or in part, any further payments to the State under this subchapter.
(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
(B) Suspension
(5) Report to Congress
(6) Nature of withholding
(A) LimitationIf the Secretary withholds further payments pursuant to paragraph (2) or (3), the Secretary may determine—
(i) that such withholding will be limited to programs or projects, or portions of programs or projects, that affected the Secretary’s determination under subsection (d)(2); or
(ii) that the State educational agency shall not make further payments under this subchapter to specified State agencies or local educational agencies that caused or were involved in the Secretary’s determination under subsection (d)(2).
(B) Withholding until rectifiedUntil the Secretary is satisfied that the condition that caused the initial withholding has been substantially rectified—
(i) payments to the State under this subchapter shall be withheld in whole or in part; and
(ii) payments by the State educational agency under this subchapter shall be limited to State agencies and local educational agencies whose actions did not cause or were not involved in the Secretary’s determination under subsection (d)(2), as the case may be.
(7) Public attention
(8) Judicial review
(A) In general
(B) Jurisdiction; review by United States Supreme Court
(C) Standard of review
(f) State enforcement
(g) Rule of construction
(h) Divided State agency responsibilityFor purposes of this section, where responsibility for ensuring that the requirements of this subchapter are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons is assigned to a public agency other than the State educational agency pursuant to section 1412(a)(11)(C) of this title, the Secretary, in instances where the Secretary finds that the failure to comply substantially with the provisions of this subchapter are related to a failure by the public agency, shall take appropriate corrective action to ensure compliance with this subchapter, except that—
(1) any reduction or withholding of payments to the State shall be proportionate to the total funds allotted under section 1411 of this title to the State as the number of eligible children with disabilities in adult prisons under the supervision of the other public agency is proportionate to the number of eligible individuals with disabilities in the State under the supervision of the State educational agency; and
(2) any withholding of funds under paragraph (1) shall be limited to the specific agency responsible for the failure to comply with this subchapter.
(i) Data capacity and technical assistance reviewThe 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 1411(c) of this title), where needed, to improve the capacity of States to meet the data collection requirements.
(Pub. L. 91–230, title VI, § 616, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2731.)