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20
U.S.C. §1401.
Definitions
Except as otherwise provided, in this chapter:
(1)
Assistive technology device
(A)
In general
The
term "assistive technology device" means any
item, piece of equipment, or product system, whether
acquired commercially off the shelf, modified, or
customized, that is used to increase, maintain, or
improve functional capabilities of a child with a
disability.
(B)
Exception
The
term does not include a medical device that is
surgically implanted, or the replacement of such
device.
(2)
Assistive technology service
The
term "assistive technology service" means
any service that directly assists a child with a
disability in the selection, acquisition, or use of an
assistive technology device. Such term includes--
(A) the evaluation of the needs of such child, including a
functional evaluation of the child in the child's
customary environment;
(B) purchasing, leasing, or otherwise providing
for the acquisition of assistive technology devices by
such child;
(C) selecting, designing, fitting, customizing,
adapting, applying, maintaining, repairing, or
replacing assistive technology devices;
(D) coordinating and using other therapies,
interventions, or services with assistive technology
devices, such as those associated with existing
education and rehabilitation plans and programs;
(E)
training or technical assistance for such child, or,
where appropriate, the family of such child; and
(F) training or technical assistance for
professionals (including individuals providing
education and rehabilitation services), employers, or
other individuals who provide services to, employ, or
are otherwise substantially involved in the major life
functions of such child.
(3)
Child with a disability
(A)
In general
The
term "child with a disability" means a
child--
(i) with mental retardation, hearing impairments
(including deafness), speech or language impairments,
visual impairments (including blindness), serious
emotional disturbance (referred to in this chapter as
"emotional disturbance"), orthopedic
impairments, autism, traumatic brain injury, other
health impairments, or specific learning disabilities;
and
(ii) who, by reason thereof, needs special
education and related services.
(B)
Child aged 3 through 9
The
term "child with a disability" for a child
aged 3 through 9 (or any subset of that age range,
including ages 3 through 5), may, at the discretion of
the State and the local educational agency, include a
child--
(i)
experiencing developmental delays, as defined by the
State and as measured by appropriate diagnostic
instruments and procedures, in 1 or more of the
following areas: physical development; cognitive
development; communication development; social or
emotional development; or adaptive development; and
(ii) who, by reason thereof, needs special
education and related services.
(4) Core academic subjects
The
term "core academic subjects" has the
meaning given the term in section 9101 of the
Elementary and Secondary Education Act of 1965 [20
U.S.C.A. § 7801].
(5)
Educational service agency
The
term "educational service agency"--
(A)
means a regional public multiservice agency--
(i) authorized by State law to develop, manage,
and provide services or programs to local educational
agencies; and
(ii) recognized as an administrative agency for
purposes of the provision of special education and
related services provided within public elementary
schools and secondary schools of the State; and
(B) includes any other public institution or
agency having administrative control and direction
over a public elementary school or secondary school.
(6)
Elementary school
The
term "elementary school" means a nonprofit
institutional day or residential school, including a
public elementary charter school, that provides
elementary education, as determined under State law.
(7)
Equipment
The
term "equipment" includes--
(A) machinery, utilities, and built-in equipment,
and any necessary enclosures or structures to house
such machinery, utilities, or equipment; and
(B)
all other items necessary for the functioning of a
particular facility as a facility for the provision
of educational services, including items such as
instructional equipment and necessary furniture;
printed, published, and audio-visual instructional
materials; telecommunications, sensory, and other
technological aids and devices; and books,
periodicals, documents, and other related materials.
(8)
Excess costs
The
term "excess costs" means those costs that
are in excess of the average annual per-student
expenditure in a local educational agency during the
preceding school year for an elementary school or
secondary school student, as may be appropriate, and
which shall be computed after deducting--
(A) amounts received--
(i) under part B [subchapter II of this chapter];
(ii) under part A of title I of the Elementary and
Secondary Education Act of 1965 [20
U.S.C.A. § 6311 et seq.]; and
(iii) under parts A and B of title III of that Act [20
U.S.C.A. § 6811 et seq. and 20
U.S.C.A. § 6891 et seq.]; and
(B) any State or local funds expended for programs
that would qualify for assistance
under any of those parts.
(9)
Free appropriate public education
The
term "free appropriate public education"
means special education and related services that--
(A) have been provided at public expense, under
public supervision and direction, and without charge;
(B) meet the standards of the State educational
agency;
(C) include an appropriate preschool, elementary
school, or secondary school education in the State
involved; and
(D) are provided in conformity with the
individualized education program required under section
1414(d) of this title.
(10)
Highly qualified
(A)
In general
For
any special education teacher, the term "highly
qualified" has the meaning given
the term in section 9101 of the Elementary and
Secondary Education Act of 1965 [20
U.S.C.A. § 7801], except that such term
also--
(i) includes the requirements described in
subparagraph (B); and
(ii) includes the option for teachers to meet the
requirements of section 9101 of such Act by meeting
the requirements of subparagraph (C) or (D).
(B)
Requirements for special education teachers
When
used with respect to any public elementary school or
secondary school special education teacher teaching in
a State, such term means that--
(i) the teacher has obtained full State
certification as a special education teacher
(including certification obtained through alternative
routes to certification), or passed the State special
education teacher licensing examination, and holds a
license to teach in the State as a special education
teacher, except that when used with respect to any
teacher teaching in a public charter school, the term
means that the teacher meets the requirements set
forth in the State's public charter school law;
(ii) the teacher has not had special education
certification or licensure requirements waived on an
emergency, temporary, or provisional basis; and
(iii) the teacher holds at least a bachelor's
degree.
(C)
Special education teachers teaching to alternate
achievement standards
When
used with respect to a special education teacher who
teaches core academic subjects exclusively to children
who are assessed against alternate achievement
standards established under the regulations
promulgated under section 1111(b)(1) of the Elementary
and Secondary Education Act of 1965 [20
U.S.C.A. § 6311(b)(1)], such term means
the teacher, whether new or not new to the profession,
may either--
(i) meet the applicable requirements of section
9101 of such Act for any elementary, middle, or
secondary school teacher who is new or not new to the
profession; or
(ii) meet the requirements of subparagraph (B) or
(C) of section 9101(23) of such Act as applied to an
elementary school teacher, or, in the case of
instruction above the elementary level, has subject
matter knowledge appropriate to the level of
instruction being provided, as determined by the
State, needed to effectively teach to those standards.
(D)
Special education teachers teaching multiple subjects
When
used with respect to a special education teacher who
teaches 2 or more core academic subjects exclusively
to children with disabilities, such term means that
the teacher may either--
(i) meet the applicable requirements of section
9101 of the Elementary and Secondary Education Act of
1965 [20
U.S.C.A. § 7801] for any elementary,
middle, or secondary school teacher who is new or not
new to the profession;
(ii) in the case of a teacher who is not new to the
profession, demonstrate competence in all the core
academic subjects in which the teacher teaches in the
same manner as is required for an elementary, middle,
or secondary school teacher who is not new to the
profession under section 9101(23)(C)(ii) of such Act [20
U.S.C.A. § 7801(23)(C)(ii)], which may
include a single, high objective uniform State
standard of evaluation covering multiple subjects; or
(iii) in the case of a new special education teacher
who teaches multiple subjects and who is highly
qualified in mathematics, language arts, or science,
demonstrate competence in the other core academic
subjects in which the teacher teaches in the same
manner as is required for an elementary, middle, or
secondary school teacher under section 9101(23)(C)(ii)
of such Act [20
U.S.C.A. § 7801(23)(C)(ii)], which may
include a single, high objective uniform State
standard of evaluation covering multiple subjects, not
later than 2 years after the date of employment.
(E)
Rule of construction
Notwithstanding
any other individual right of action that a parent or
student may maintain under this subchapter, nothing in
this section or subchapter shall be construed to
create a right of action on behalf of an individual
student or class of students for the failure of a
particular State educational agency or local
educational agency employee to be highly qualified.
(F)
Definition for purposes of the ESEA
A
teacher who is highly qualified under this paragraph
shall be considered highly qualified for purposes of
the Elementary and Secondary Education Act of 1965 [20
U.S.C.A. § 6301 et seq.].
(11)
Homeless children
The
term "homeless children" has the meaning
given the term "homeless children and
youths" in section
11434a of Title 42.
(12)
Indian
The
term "Indian" means an individual who is a
member of an Indian tribe.
(13)
Indian tribe
The
term "Indian tribe" means any Federal or
State Indian tribe, band, rancheria, pueblo, colony,
or community, including any Alaska Native village or
regional village corporation (as defined in or
established under the Alaska Native Claims Settlement
Act (43
U.S.C. 1601 et seq.)).
(14)
Individualized education program; IEP
The
term "individualized education program" or
"IEP" means a written statement for each
child with a disability that is developed, reviewed,
and revised in accordance with section
1414(d) of this title.
(15)
Individualized family service plan
The
term "individualized family service plan"
has the meaning given the term in
section
1436 of this title.
(16)
Infant or toddler with a disability
The
term "infant or toddler with a disability"
has the meaning given the term in section
1432 of this title.
(17)
Institution of higher education
The
term "institution of higher education"--
(A) has the meaning given the term in section
1001 of this title; and
(B) also includes any community college receiving
funding from the Secretary of the Interior under the
Tribally Controlled College or University Assistance
Act of 1978 [25
U.S.C.A. § 1801 et seq.].
(18)
Limited English proficient
The
term "limited English proficient" has the
meaning given the term in section 9101 of the
Elementary and Secondary Education Act of 1965 [20
U.S.C.A. § 7801].
(19)
Local educational agency
(A)
In general
The
term "local educational agency" means a
public board of education or other public authority
legally constituted within a State for either
administrative control or direction of, or to perform
a service function for, public elementary schools or
secondary schools in a city, county, township, school
district, or other political subdivision of a State,
or for such combination of school districts or
counties as are recognized in a State as an
administrative agency for its public elementary
schools or secondary schools.
(B)
Educational service agencies and other public
institutions or agencies
The
term includes--
(i) an educational service agency; and
(ii) any other public institution or agency having
administrative control and direction of a public
elementary school or secondary school.
(C)
BIA funded schools
The
term includes an elementary school or secondary school
funded by the Bureau of Indian Affairs, but only to
the extent that such inclusion makes the school
eligible for programs for which specific eligibility
is not provided to the school in another provision of
law and the school does not have a student population
that is smaller than the student population of the
local educational agency receiving assistance under
this chapter with the smallest student population,
except that the school shall not be subject to the
jurisdiction of any State educational agency other
than the Bureau of Indian Affairs.
(20)
Native language
The
term "native language", when used with
respect to an individual who is limited English
proficient, means the language normally used by the
individual or, in the case of a child, the language
normally used by the parents of the child.
(21)
Nonprofit
The
term "nonprofit", as applied to a school,
agency, organization, or institution, means a school,
agency, organization, or institution owned and
operated by 1 or more nonprofit corporations or
associations no part of the net earnings of which
inures, or may lawfully inure, to the benefit of any
private shareholder or individual.
(22)
Outlying area
The
term "outlying area" means the United States
Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands.
(23)
Parent
The
term "parent" means--
(A) a natural, adoptive, or foster parent of a
child (unless a foster parent is prohibited by State
law from serving as a parent);
(B) a guardian (but not the State if the child is
a ward of the State);
(C) an individual acting in the place of a natural
or adoptive parent (including a grandparent,
stepparent, or other relative) with whom the child lives,
or an individual who is legally responsible for the
child's welfare; or
(D) except as used in sections
1415(b)(2) of this title and 1439(a)(5) of
this title, an individual assigned under either of
those sections to be a surrogate parent.
(24)
Parent organization
The
term "parent organization" has the meaning
given the term in section
1471(g) of this title.
(25)
Parent training and information center
The
term "parent training and information
center" means a center assisted under section
1471 or 1472
of this title.
(26)
Related services
(A)
In general
The
term "related services" means
transportation, and such developmental, corrective,
and other supportive services (including
speech-language pathology and audiology services,
interpreting services, psychological services,
physical and occupational therapy, recreation,
including therapeutic recreation, social work
services, school nurse services designed to enable a
child with a disability to receive a free appropriate
public education as described in the individualized
education program of the child, counseling services,
including rehabilitation counseling, orientation and
mobility services, and medical services, except that
such medical services shall be for diagnostic and
evaluation purposes only) as may be required to assist
a child with a disability to benefit from special
education, and includes the early identification and
assessment of disabling conditions in children.
(B)
Exception
The
term does not include a medical device that is
surgically implanted, or the replacement of such
device.
(27)
Secondary school
The
term "secondary school" means a nonprofit
institutional day or residential school, including a
public secondary charter school, that provides
secondary education, as determined under State law,
except that it does not include any education beyond
grade 12.
(28)
Secretary
The
term "Secretary" means the Secretary of
Education.
(29)
Special education
The
term "special education" means specially
designed instruction, at no cost to parents, to meet
the unique needs of a child with a disability,
including--
(A) instruction conducted in the classroom, in the home, in
hospitals and institutions, and in other settings; and
(B) instruction in physical education.
(30)
Specific learning disability
(A)
In general
The
term "specific learning disability" means a
disorder in 1 or more of the basic psychological
processes involved in understanding or in using
language, spoken or written, which disorder may
manifest itself in the imperfect ability to listen,
think, speak, read, write, spell, or do mathematical
calculations.
(B)
Disorders included
Such
term includes such conditions as perceptual
disabilities, brain injury, minimal brain dysfunction,
dyslexia, and developmental aphasia.
(C)
Disorders not included
Such
term does not include a learning problem that is
primarily the result of visual, hearing, or motor
disabilities, of mental retardation, of emotional
disturbance, or of environmental, cultural, or
economic disadvantage.
(31)
State
The
term "State" means each of the 50 States,
the District of Columbia, the Commonwealth of Puerto
Rico, and each of the outlying areas.
(32)
State educational agency
The
term "State educational agency" means the
State board of education or other agency or officer
primarily responsible for the State supervision of
public elementary schools and secondary schools, or,
if there is no such officer or agency, an officer or
agency designated by the Governor or by State law.
(33)
Supplementary aids and services
The
term "supplementary aids and services" means
aids, services, and other supports that are provided
in regular education classes or other
education-related settings to enable children with
disabilities to be educated with nondisabled children
to the maximum extent appropriate in accordance with section
1412(a)(5) of this title.
(34)
Transition services
The
term "transition services" means a
coordinated set of activities for a child with a
disability that--
(A) is designed to be within a results-oriented process, that
is focused on improving the academic and functional
achievement of the child with a disability to
facilitate the child's movement from school to
post-school activities, including post-secondary
education, vocational education, integrated employment
(including supported employment), continuing and adult
education, adult services, independent living, or
community participation;
(B) is based on the individual child's needs,
taking into account the child's strengths,
preferences, and interests; and
(C) includes instruction, related services,
community experiences, the development of employment
and other post-school adult living objectives, and,
when appropriate, acquisition of daily living skills
and functional vocational evaluation.
(35)
Universal design
The
term "universal design" has the meaning
given the term in section
3002 of Title 29.
(36)
Ward of the State
(A)
In general
The
term "ward of the State" means a child who,
as determined by the State where the child resides, is
a foster child, is a ward of the State, or is in the
custody of a public child welfare agency.
(B)
Exception
The
term does not include a foster child who has a foster
parent who meets the definition of a parent in
paragraph (23).
__________________________________________
Susan S. DePaola, Attorney
Montgomery, Alabama
Specializing in Special Education for Children with Disabilities
http://specialeducationattorney.com
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