S 06

FEDERAL AND STATE MONITORING

S 1248	HR 1350	IDEA NOW
``SEC. 616. MONITORING, TECHNICAL ASSISTANCE, AND ENFORCEMENT. ``(a) Federal and State Monitoring._ ``(1) In general._The Secretary shall_ ``(A) monitor implementation of this Act through_ ``(i) oversight of the States' exercise of general supervision, as required in section 612(a)(11); and ``(ii) the system of indicators, described in subsection (b)(2); and ``(B) enforce this Act in accordance with subsection (c); and ``(C) require States to monitor implementation of this Act by local educational agencies and enforce this Act in accordance with paragraph (3) of this subsection and subsection (c).	`SEC. 616. MONITORING, ENFORCEMENT, WITHHOLDING, AND JUDICIAL REVIEW.'; `(a) FEDERAL MONITORING- `(1) IN GENERAL- The Secretary shall monitor implementation of this Act.	SEC. 616. WITHHOLDING AND JUDICIAL REVIEW.
``(2) Focused monitoring._The primary focus of Federal and State monitoring activities described in paragraph (1) shall be on improving educational results and functional outcomes for all children with disabilities, while ensuring compliance with program requirements, with a particular emphasis on those requirements that are most closely related to improving educational results for children with disabilities.	`(2) FOCUSED MONITORING- The primary focus of Federal monitoring activities shall be to improve educational results for all children with disabilities, while ensuring compliance with program requirements, 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, and shall require States to monitor, the following priority areas: ``(A) Provision of a free appropriate public education in the least restrictive environment. ``(B) Provision of transition services, as defined in section 602(32). ``(C) State exercise of general supervisory authority, including the effective use of complaint resolution and mediation. ``(D) Overrepresentation of racial and ethnic groups in special education and related services, to the extent the overrepresentation is the result of inappropriate policies, procedures, and practices. ``(4) Permissive areas of review._The Secretary may examine other relevant information and data, including data provided by States under section 618, and data from the State's compliance plan under subsection (b)(2)(C).	`(2) PERMISSIVE INDICATORS- The Secretary also may establish other priorities for review of relevant information and data, including data provided by States under section 618, and also including the following: `(A) PRIORITIES FOR THIS PART- The Secretary may give priority to monitoring on the following areas under this part: `(i) Provision of educational services in the least restrictive environment, including-- `(I) education of children with disabilities with nondisabled peers to the maximum extent appropriate; `(II) provision of appropriate special education and related services; `(III) access to the general curriculum with appropriate accommodations; `(IV) provision of appropriate services to students whose behavior impedes learning; and `(V) participation and performance of children with disabilities on State and local assessments, including alternate assessments. `(ii) Secondary transition, including the extent to which youth exiting special education are prepared for post-secondary education, employment, and adult life, and are participants in appropriate transition planning while in school. `(iii) State exercise of general supervisory authority, including effective monitoring and use of complaint resolution, mediation, and voluntary binding arbitration. `(B) PRIORITIES FOR PART C- The Secretary may give priority to monitoring on the following areas under part C: `(i) Child find and public awareness to support the identification, evaluation and assessment of all eligible infants and toddlers, including the provision of culturally relevant materials to inform and promote referral. `(ii) Provision of early intervention services in natural environments, evaluation and assessment to identify child needs and family needs related to enhancing the development of the child, and provision of appropriate early intervention services in natural environments to meet the needs of individual children. `(iii) Effective early childhood transition to services under this part. `(iv) State exercise of general supervisory authority, including-- `(I) effective monitoring and use of other mechanisms such as complaint resolution; `(II) implementation of mediation and voluntary binding arbitration; and `(III) coordination of parent and child protections.
``(b) Indicators._ ``(1) System._The Secretary shall implement and administer a system of required indicators as described in paragraph (2) that measures the progress of States in improving their performance under this Act. ``(2) Indicators._ ``(A) In general._Using the performance indicators established by States under section 612(a)(15), the Secretary shall review_	`(b) INDICATORS- `(1) REQUIRED INDICATORS- The Secretary shall examine relevant information and data related to States' progress on improving educational results for children with disabilities by reviewing--
``(i) the performance of children with disabilities in the State on assessments, including alternate assessments, dropout rates, and graduation rates, which for purposes of this paragraph means the number and percentage of students with disabilities who graduate with a regular diploma within the number of years specified in a student's IEP; and	`(A) achievement results of children with disabilities on State or district assessments, including children with disabilities taking State or district assessments with appropriate accommodations;
``(ii) the performance of children with disabilities in the State on assessments, including alternate assessments, dropout rates, and graduation rates, as compared to the performance and rates for all children.	`(B) achievement results of children with disabilities on State or district alternate assessments; `(C) graduation rates of children with disabilities and graduation rates of children with disabilities as compared to graduation rates of nondisabled children; and `(D) dropout rates for children with disabilities and dropout rates of children with disabilities as compared to dropout rates of nondisabled children.
``(B) Secretary's assessment._Based on that review and a review of the State's compliance plan under subparagraph (C), the Secretary shall assess the State's progress in improving educational results for children with disabilities.
``(C) State compliance plan._Not later than 1 year after the date of the enactment of the Individuals with Disabilities Education Improvement Act of 2003, each State shall have in place a compliance plan developed in collaboration with the Secretary. Each State's compliance plan shall_ ``(i) include benchmarks to measure continuous progress on the priority areas described in subsection (a)(3); ``(ii) describe strategies the State will use to achieve the benchmarks; and ``(iii) be approved by the Secretary.
``(3) Data collection and analysis._The Secretary shall_ ``(A) review the data collection and analysis capacity of States to ensure that data and information determined necessary for implementation of this subsection is collected, analyzed, and accurately reported to the Secretary; and ``(B) provide technical assistance to improve the capacity of States to meet these data collection requirements.	`(3) DATA COLLECTION AND ANALYSIS- The Secretary shall review the data collection and analysis capacity of States to ensure that data and information is collected, analyzed, and accurately reported to the Secretary. The Secretary may provide technical assistance to improve the capacity of States to meet data requirements.
	`(c) ADDITIONAL PRIORITIES- `(1) IN GENERAL- The Secretary may develop additional priorities for monitoring the effective implementation of this Act. `(2) PUBLIC COMMENT- The Secretary shall provide a public comment period of at least 30 days on any additional priority proposed under this part or part C. `(3) DATE OF ENFORCEMENT- The Secretary may not begin to enforce a new priority until one year from the date of publication of the priority in the Federal Register as a final rule.
``(c) Compliance and Enforcement._ ``(1) In general._The Secretary shall examine relevant State information and data annually, to determine whether the State is making satisfactory progress toward improving educational results for children with disabilities using the indicators described in subsection (b)(2)(A) and the benchmarks established in the State compliance plan under subsection (b)(2)(C), and is in compliance with the provisions of this Act.	`(d) COMPLIANCE- `(1) IN GENERAL- The Secretary shall review State data to determine whether the State is in compliance with the provisions of this Act.
``(2) Lack of satisfactory progress by a state._ ``(A) In general._If after examining data, as provided in subsection (b)(2) (A) and (C), the Secretary determines that a State failed to make satisfactory progress in meeting the indicators described in subsection (b)(2)(A) or has failed to meet the benchmarks described in subsection (b)(2)(C) for 2 consecutive years after the State has developed its compliance plan, the Secretary shall notify the State that the State has failed to make satisfactory progress, and shall take 1 or more of the following actions:	`(2) LACK OF PROGRESS- If after examining data, as provided in section (b) or (c), the Secretary determines that a State is not making satisfactory progress in improving educational results for children with disabilities, the Secretary shall take one or more of the following actions:
``(i) Direct the use of State level funds for technical assistance, services, or other expenditures to ensure that the State resolves the area or areas of unsatisfactory progress. ``(ii) Withhold not less than 20, but not more than 50, percent of the State's funds for State administration and activities for the fiscal year under section 611(e), after providing the State the opportunity to show cause why the withholding should not occur, until the Secretary determines that sufficient progress has been made in improving educational results for children with disabilities. ``(B) Additional secretarial action._If, at the end of the 5th year after the Secretary has approved the compliance plan that the State has developed under subsection (b)(2)(C), the Secretary determines that a State failed to meet the benchmarks in the State compliance plan and make satisfactory progress in improving educational results for children with disabilities pursuant to the indicators described in subsection (b)(2)(A), the Secretary shall take 1 or more of the following actions: ``(i) Seek to recover funds under section 452 of the General Education Provisions Act. ``(ii) After providing reasonable notice and an opportunity for a hearing to the State educational agency involved, withhold, in whole or in part, any further payments to the State under this part pursuant to subsection (c)(5). ``(iii) After providing reasonable notice and an opportunity for a hearing to the State educational agency involved, refer the matter for appropriate enforcement action, which may include referral to the Department of Justice. ``(iv) Pending the outcome of any hearing to withhold payments under clause (ii), the Secretary may suspend payments to a recipient, suspend the authority of the recipient to obligate Federal funds, or both, after such recipient has been given reasonable notice and an opportunity to show cause why future payments or authority to obligate Federal funds should not be suspended.	`(A) Advise the State of available sources of technical assistance that may help the State address the lack of progress, 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. Such technical assistance may include-- `(i) the provision of advice by experts to address the areas of noncompliance, including explicit plans for ensuring compliance 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, regular education teachers, and special education 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 for technical assistance on the area or areas of unsatisfactory performance. `(C) Each year withhold at least 20 but no more than 50 percent of the State's funds under section 611(e), after providing the State the opportunity to show cause why the withholding should not occur, until the Secretary determines that sufficient progress has been made in improving educational results for children with disabilities.
``(C) Substantial noncompliance._Notwithstanding subparagraph (B), at any time that the Secretary determines that a State is not in substantial compliance with any provision of this part or that there is a substantial failure to comply with any condition of a local agency's or State agency's eligibility under this part, the Secretary shall take 1 or more of the following actions:	`(3) SUBSTANTIAL NON-COMPLIANCE- `(A) INITIAL DETERMINATION- When the Secretary determines that a State is not in substantial compliance with any provision of this part, the Secretary shall take one or more of the following actions:
``(i) Request that the State 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) Identify the State as a high-risk grantee and impose special conditions on the State's grant under this part. ``(iii) 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. ``(iv) Recovery of funds under section 452 of the General Education Provisions Act.	`(i) Request that the State prepare a corrective action plan or improvement plan if the Secretary determines that the State should be able to correct the problem within one year. `(ii) Identify the State as a high-risk grantee and impose special conditions on the State's grant. `(iii) 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 one year. `(iv) Recovery of funds under section 452 of the General Education Provisions Act.
``(v) After providing reasonable notice and an opportunity for a hearing to the State educational agency involved, withhold, in whole or in part, any further payments to the State under this part. ``(vi) After providing reasonable notice and an opportunity for a hearing to the State educational agency involved, refer the matter for appropriate enforcement action, which may include referral to the Department of Justice. ``(vii) Pending the outcome of any hearing to withhold payments under clause (v), the Secretary may suspend payments to a recipient, suspend the authority of the recipient to obligate Federal funds, or both, after such recipient has been given reasonable notice and an opportunity to show cause why future payments or authority to obligate Federal funds should not be suspended.	`(v)(I) Withholding of payments under subsection (e). `(II) Pending the outcome of any hearing to withhold payments under subsection (e), the Secretary may suspend payments to a recipient, suspend the authority of the recipient to obligate Federal funds, or both, after such recipient has been given reasonable notice and an opportunity to show cause why future payments or authority to obligate Federal funds should not be suspended.
``(3) Egregious noncompliance._At any time that the Secretary determines that a State is in egregious noncompliance or is willfully disregarding the provisions of this Act, the Secretary shall take such additional enforcement actions as the Secretary determines to be appropriate from among those actions specified in paragraph (2)(C), and, additionally, may impose 1 or more of the following sanctions upon that State: ``(A) Institute a cease and desist action under section 456 of the General Education Provisions Act. ``(B) Refer the case to the Office of the Inspector General.	`(B) CONTINUED NON-COMPLIANCE- `(i) SECRETARIAL ACTION- If the Secretary has imposed special conditions on a grant under subparagraph (A)(ii) for substantially the same compliance problems for three consecutive years, and at the end of the third year the State has not demonstrated that the violation has been corrected to the satisfaction of the Secretary, the Secretary shall take such additional enforcement actions as the Secretary determines to be appropriate from among those actions specified in clauses (iii) through (v) of subparagraph (A).
``(4) Report to congress._The Secretary shall report to Congress within 30 days of taking enforcement action pursuant to paragraph (2) (B) or (C), or (3), on the specific action taken and the reasons why enforcement action was taken.	`(ii) REPORT TO CONGRESS- The Secretary shall report to Congress within 30 days of taking enforcement action pursuant to this paragraph on the specific action taken and the reasons why enforcement action was taken.'.
	(e) WITHHOLDING OF PAYMENTS- (1) IN GENERAL- Whenever the Secretary, after reasonable notice and opportunity for hearing to the State educational agency involved (and to any local educational agency or State agency affected by any failure described in subparagraph (B)), finds -- (A) that there has been a failure by the State to comply substantially with any provision of this part; or (B) that there is a failure to comply with any condition of a local educational agency's or State agency's eligibility under this part, including the terms of any agreement to achieve compliance with this part within the timelines specified in the agreement; the Secretary shall, after notifying the State educational agency, withhold, in whole or in part, any further payments to the State under this part, or refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.	(a) WITHHOLDING OF PAYMENTS- (1) IN GENERAL- Whenever the Secretary, after reasonable notice and opportunity for hearing to the State educational agency involved (and to any local educational agency or State agency affected by any failure described in subparagraph (B)), finds -- (A) that there has been a failure by the State to comply substantially with any provision of this part; or (B) that there is a failure to comply with any condition of a local educational agency's or State agency's eligibility under this part, including the terms of any agreement to achieve compliance with this part within the timelines specified in the agreement; the Secretary shall, after notifying the State educational agency, withhold, in whole or in part, any further payments to the State under this part, or refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.
``(5) Nature of withholding._If the Secretary withholds further payments under paragraphs (2)(B)(ii) and (2)(C)(v), the Secretary may determine that such withholding will be limited to programs or projects, or portions thereof, affected by the failure, or that the State educational agency shall not make further payments under this part to specified local educational agencies or State agencies affected by the failure. Until the Secretary is satisfied that there is no longer any failure to make satisfactory progress as specified in paragraph (2)(B), or to comply with the provisions of this part, as specified in paragraph (2)(C), payments to the State under this part shall be withheld in whole or in part, or payments by the State educational agency under this part shall be limited to local educational agencies and State agencies whose actions did not cause or were not involved in the failure, as the case may be. Any State educational agency, State agency, or local educational agency that has received notice under paragraph (2)(B) or (2)(C) shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of such agency.	(2) NATURE OF WITHHOLDING- If the Secretary withholds further payments under paragraph (1), the Secretary may determine that such withholding will be limited to programs or projects, or portions thereof, affected by the failure, or that the State educational agency shall not make further payments under this part to specified local educational agencies or State agencies affected by the failure. Until the Secretary is satisfied that there is no longer any failure to comply with the provisions of this part, as specified in subparagraph (A) or (B) of paragraph (1), payments to the State under this part shall be withheld in whole or in part, or payments by the State educational agency under this part shall be limited to local educational agencies and State agencies whose actions did not cause or were not involved in the failure, as the case may be. Any State educational agency, State agency, or local educational agency that has received notice under paragraph (1) shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of such agency.	(2) NATURE OF WITHHOLDING- If the Secretary withholds further payments under paragraph (1), the Secretary may determine that such withholding will be limited to programs or projects, or portions thereof, affected by the failure, or that the State educational agency shall not make further payments under this part to specified local educational agencies or State agencies affected by the failure. Until the Secretary is satisfied that there is no longer any failure to comply with the provisions of this part, as specified in subparagraph (A) or (B) of paragraph (1), payments to the State under this part shall be withheld in whole or in part, or payments by the State educational agency under this part shall be limited to local educational agencies and State agencies whose actions did not cause or were not involved in the failure, as the case may be. Any State educational agency, State agency, or local educational agency that has received notice under paragraph (1) shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of such agency.
``(6) Judicial review._ ``(A) In general._If any State is dissatisfied with the Secretary's final action with respect to the eligibility of the State under section 612, such State may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings upon which the Secretary's action was based, as provided in section 2112 of title 28, United States Code. ``(B) Jurisdiction; review by united states supreme court._Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28, United States Code. ``(C) Standard of review._The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence. ``(d) Divided State Agency Responsibility._For purposes of this section, where responsibility for ensuring that the requirements of this part 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 612(a)(11)(C), the Secretary, in instances where the Secretary finds that the failure to comply substantially with the provisions of this part are related to a failure by the public agency, shall take appropriate corrective action to ensure compliance with this part, except that_ ``(1) any reduction or withholding of payments to the State shall be proportionate to the total funds allotted under section 611 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 part.	(f) JUDICIAL REVIEW- (1) IN GENERAL- If any State is dissatisfied with the Secretary's final action with respect to the eligibility of the State under section 612, such State may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings upon which the Secretary's action was based, as provided in section 2112 of title 28, United States Code. (2) JURISDICTION; REVIEW BY UNITED STATES SUPREME COURT- Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28, United States Code. (3) STANDARD OF REVIEW- The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence. (g) DIVIDED STATE AGENCY RESPONSIBILITY- For purposes of this section, where responsibility for ensuring that the requirements of this part 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 612(a)(11)(C), the Secretary, in instances where the Secretary finds that the failure to comply substantially with the provisions of this part are related to a failure by the public agency, shall take appropriate corrective action to ensure compliance with this part, except -- (1) any reduction or withholding of payments to the State is proportionate to the total funds allotted under section 611 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 part.	(b) JUDICIAL REVIEW- (1) IN GENERAL- If any State is dissatisfied with the Secretary's final action with respect to the eligibility of the State under section 612, such State may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings upon which the Secretary's action was based, as provided in section 2112 of title 28, United States Code. (2) JURISDICTION; REVIEW BY UNITED STATES SUPREME COURT- Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28, United States Code. (3) STANDARD OF REVIEW- The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence. (c) DIVIDED STATE AGENCY RESPONSIBILITY- For purposes of this section, where responsibility for ensuring that the requirements of this part 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 612(a)(11)(C), the Secretary, in instances where the Secretary finds that the failure to comply substantially with the provisions of this part are related to a failure by the public agency, shall take appropriate corrective action to ensure compliance with this part, except -- (1) any reduction or withholding of payments to the State is proportionate to the total funds allotted under section 611 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 part.
``(e) State and Local Monitoring._ ``(1) In general._The State educational agency shall monitor and enforce implementation of this Act, implement a system of monitoring the benchmarks in the State's compliance plan under subsection (b)(2)(C), and require local educational agencies to monitor and enforce implementation of this Act. ``(2) Additional enforcement options._If a State educational agency determines that a local educational agency is not meeting the requirements of this part, including the benchmarks in the State's compliance plan, the State educational agency shall prohibit the local educational agency from treating funds received under this part as local funds under section 613(a)(2)(C) for any fiscal year.

(2) any withholding of funds under paragraph (1) shall be limited to the specific agency responsible for the failure to comply with this part.