118 STAT. 2693 PUBLIC LAW 108–446—DEC. 3, 2004 disabilities enrolled in private elementary schools and sec ondary schools as required by subsection (a)(10)(A), or if the Secretary determines that a State educational agency, local educational agency, or other entity has substantially failed or is unwilling to provide for such equitable participation, then the Secretary shall, notwithstanding such provision of law, arrange for the provision of services to such children through arrangements that shall be subject to the requirements of such subsection. ‘‘(2) PAYMENTS.— ‘‘(A) DETERMINATION OF AMOUNTS.—If the Secretary arranges for services pursuant to this subsection, the Sec retary, after consultation with the appropriate public and private school officials, shall pay to the provider of such services for a fiscal year an amount per child that does not exceed the amount determined by dividing— ‘‘(i) the total amount received by the State under this part for such fiscal year; by ‘‘(ii) the number of children with disabilities served in the prior year, as reported to the Secretary by the State under section 618. ‘‘(B) WITHHOLDING OF CERTAIN AMOUNTS.—Pending final resolution of any investigation or complaint that may result in a determination under this subsection, the Sec retary may withhold from the allocation of the affected State educational agency the amount the Secretary esti mates will be necessary to pay the cost of services described in subparagraph (A). ‘‘(C) PERIOD OF PAYMENTS.—The period under which payments are made under subparagraph (A) shall continue until the Secretary determines that there will no longer be any failure or inability on the part of the State edu cational agency to meet the requirements of subsection (a)(10)(A). ‘‘(3) NOTICE AND HEARING.— ‘‘(A) IN GENERAL.—The Secretary shall not take any final action under this subsection until the State edu cational agency affected by such action has had an oppor tunity, for not less than 45 days after receiving written notice thereof, to submit written objections and to appear before the Secretary or the Secretary’s designee to show cause why such action should not be taken. ‘‘(B) REVIEW OF ACTION.—If a State educational agency is dissatisfied with the Secretary’s final action after a pro ceeding under subparagraph (A), such agency 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 there upon shall file in the court the record of the proceedings on which the Secretary based the Secretary’s action, as provided in section 2112 of title 28, United States Code. ‘‘(C) REVIEW OF FINDINGS OF FACT.—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 Deadlines.
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