---
kind: "section"
citation: "20 U.S.C. § 1440"
title: "20"
title_heading: "Education"
number: "1440"
heading: "Payor of last resort"
release: "119-102"
url: "https://uscodex.org/usc/20/1440"
units:
  - "Chapter 33 — Education of Individuals with Disabilities"
  - "Subchapter III — Infants and Toddlers with Disabilities"
---

# §1440. Payor of last resort

- (a) **Nonsubstitution—** [Funds](/usc/20/4702.md?p=3) provided under [section 1443 of this title](/usc/20/1443.md) may not be used to satisfy a financial commitment for services that would have been paid for from another public or private source, including any medical program administered by the [Secretary](/usc/20/1401.md?p=28) of Defense, but for the enactment of this subchapter, except that whenever considered necessary to prevent a delay in the receipt of appropriate [early intervention services](/usc/20/1432.md?p=4) by an infant, toddler, or family in a timely fashion, [funds](/usc/20/4702.md?p=3) provided under [section 1443 of this title](/usc/20/1443.md) may be used to pay the provider of services pending reimbursement from the agency that has ultimate responsibility for the payment.
- (b) **Obligations related to and methods of ensuring services—**
  - (1) **Establishing financial responsibility for services—**
    - (A) **In general—** The Chief Executive [Officer](/usc/20/1094.md?p=i-5) of a [State](/usc/20/1401.md?p=31) or designee of the [officer](/usc/20/1094.md?p=i-5) shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each public agency and the designated lead agency, in order to ensure—
      - (i) the provision of, and financial responsibility for, services provided under this subchapter; and
      - (ii) such services are consistent with the requirements of [section 1435 of this title](/usc/20/1435.md) and the [State](/usc/20/1401.md?p=31)’s application pursuant to [section 1437 of this title](/usc/20/1437.md), including the provision of such services during the pendency of any such dispute.
    - (B) **Consistency between agreements or mechanisms under subchapter II—** The Chief Executive [Officer](/usc/20/1094.md?p=i-5) of a [State](/usc/20/1401.md?p=31) or designee of the [officer](/usc/20/1094.md?p=i-5) shall ensure that the terms and conditions of such agreement or mechanism are consistent with the terms and conditions of the [State](/usc/20/1401.md?p=31)’s agreement or mechanism under [section 1412(a)(12) of this title](/usc/20/1412.md?p=a-12), where appropriate.
  - (2) **Reimbursement for services by public agency—**
    - (A) **In general—** If a public agency other than an educational agency fails to provide or pay for the services pursuant to an agreement required under [paragraph (1)](#b-1), the [local educational agency](/usc/20/1401.md?p=19-A) or [State](/usc/20/1401.md?p=31) agency (as determined by the Chief Executive [Officer](/usc/20/1094.md?p=i-5) or designee) shall provide or pay for the provision of such services to the child.
    - (B) **Reimbursement—** Such [local educational agency](/usc/20/1401.md?p=19-A) or [State](/usc/20/1401.md?p=31) agency is authorized to claim reimbursement for the services from the public agency that failed to provide or pay for such services and such public agency shall reimburse the [local educational agency](/usc/20/1401.md?p=19-A) or [State](/usc/20/1401.md?p=31) agency pursuant to the terms of the interagency agreement or other mechanism required under [paragraph (1)](#b-1).
  - (3) **Special rule—** The requirements of [paragraph (1)](#b-1) may be met through—
    - (A) [State](/usc/20/1401.md?p=31) statute or regulation;
    - (B) signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or
    - (C) other appropriate written methods as determined by the Chief Executive [Officer](/usc/20/1094.md?p=i-5) of the [State](/usc/20/1401.md?p=31) or designee of the [officer](/usc/20/1094.md?p=i-5) and approved by the [Secretary](/usc/20/1401.md?p=28) through the review and approval of the [State](/usc/20/1401.md?p=31)’s application pursuant to [section 1437 of this title](/usc/20/1437.md).
- (c) **Reduction of other benefits—** Nothing in this subchapter shall be construed to permit the [State](/usc/20/1401.md?p=31) to reduce medical or other assistance available or to alter eligibility under title V of the Social Security Act [[42 U.S.C. 701](/usc/42/701.md) et seq.] (relating to maternal and child health) or title XIX of the Social Security Act [[42 U.S.C. 1396](/usc/42/1396.md) et seq.] (relating to medicaid for infants or toddlers with disabilities) within the [State](/usc/20/1401.md?p=31).

## Source credit

(Pub. L. 91–230, title VI, § 640, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2757.)

## Notes

### Editorial Notes

### References in Text

The Social Security Act, referred to in subsec. (c), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles V and XIX of the Act are classified generally to subchapters V (§ 701 et seq.) and XIX (§ 1396 et seq.), respectively, of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

### Prior Provisions

A prior section 1440, Pub. L. 91–230, title VI, § 640, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 116, related to the payor of last resort, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446.