118 STAT. 2700 PUBLIC LAW 108–446—DEC. 3, 2004 ‘‘(B) providing educational and behavioral evaluations, services, and supports, including scientifically based lit eracy instruction. ‘‘(3) CONSTRUCTION.—Nothing in this subsection shall be construed to limit or create a right to a free appropriate public education under this part. ‘‘(4) REPORTING.—Each local educational agency that develops and maintains coordinated, early intervening services under this subsection shall annually report to the State edu cational agency on— ‘‘(A) the number of students served under this sub section; and ‘‘(B) the number of students served under this sub section who subsequently receive special education and related services under this title during the preceding 2 year period. ‘‘(5) COORDINATION WITH ELEMENTARY AND SECONDARY EDU CATION ACT OF 1965.—Funds made available to carry out this subsection may be used to carry out coordinated, early inter vening services aligned with activities funded by, and carried out under, the Elementary and Secondary Education Act of 1965 if such funds are used to supplement, and not supplant, funds made available under the Elementary and Secondary Education Act of 1965 for the activities and services assisted under this subsection. ‘‘(g) DIRECT SERVICES BY THE STATE EDUCATIONAL AGENCY.— ‘‘(1) IN GENERAL.—A State educational agency shall use the payments that would otherwise have been available to a local educational agency or to a State agency to provide special education and related services directly to children with disabilities residing in the area served by that local educational agency, or for whom that State agency is responsible, if the State educational agency determines that the local educational agency or State agency, as the case may be— ‘‘(A) has not provided the information needed to estab lish the eligibility of such local educational agency or State agency under this section; ‘‘(B) is unable to establish and maintain programs of free appropriate public education that meet the require ments of subsection (a); ‘‘(C) is unable or unwilling to be consolidated with 1 or more local educational agencies in order to establish and maintain such programs; or ‘‘(D) has 1 or more children with disabilities who can best be served by a regional or State program or service delivery system designed to meet the needs of such chil dren. ‘‘(2) MANNER AND LOCATION OF EDUCATION AND SERVICES.— The State educational agency may provide special education and related services under paragraph (1) in such manner and at such locations (including regional or State centers) as the State educational agency considers appropriate. Such education and services shall be provided in accordance with this part. ‘‘(h) STATE AGENCY ELIGIBILITY.—Any State agency that desires to receive a subgrant for any fiscal year under section 611(f) shall demonstrate to the satisfaction of the State educational agency that—
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