118 STAT. 2678 PUBLIC LAW 108–446—DEC. 3, 2004 ‘‘(i) IN GENERAL.—A State funding mechanism shall not result in placements that violate the require ments of subparagraph (A), and a State shall not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a child with a disability a free appropriate public education according to the unique needs of the child as described in the child’s IEP. ‘‘(ii) ASSURANCE.—If the State does not have poli cies and procedures to ensure compliance with clause (i), the State shall provide the Secretary an assurance that the State will revise the funding mechanism as soon as feasible to ensure that such mechanism does not result in such placements. ‘‘(6) PROCEDURAL SAFEGUARDS.— ‘‘(A) IN GENERAL.—Children with disabilities and their parents are afforded the procedural safeguards required by section 615. ‘‘(B) ADDITIONAL PROCEDURAL SAFEGUARDS.—Proce dures 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. ‘‘(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). ‘‘(9) TRANSITION FROM PART C TO PRESCHOOL PROGRAMS.— Children participating in early intervention programs assisted under part C, and who will participate in preschool programs assisted under this part, experience a smooth and effective transition to those preschool programs in a manner consistent with section 637(a)(9). By the third birthday of such a child, an individualized education program or, if consistent with sec tions 614(d)(2)(B) and 636(d), an individualized family service plan, has been developed and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency under section 635(a)(10). ‘‘(10) CHILDREN IN PRIVATE SCHOOLS.— ‘‘(A) CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR PARENTS.— ‘‘(i) IN GENERAL.—To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in pri vate elementary schools and secondary schools in the school district served by a local educational agency, provision is made for the participation of those children in the program assisted or carried out under this part
�
