Search Enhanced Regulations - Sec. 300.589 Waiver of requirement regarding supplementing and not supplanting with Part B funds.

* Regulations by Section and Attachment 1 (Analysis of Comments and Changes)

Subpart E-Procedural Safeguards
Department Procedures

§300.589 Waiver of requirement regarding supplementing and not supplanting with Part B funds.

(a) Except as provided under §§300.232-300.235, funds paid to a State under Part B of the Act must be used to supplement and increase the level of Federal, State, and local funds (including funds that are not under the direct control of SEAs or LEAs) expended for special education and related services provided to children with disabilities under Part B of the Act and in no case to supplant those Federal, State, and local funds. A State may use funds it retains under §300.602 without regard to the prohibition on supplanting other funds (See §300.372).

(b) If a State provides clear and convincing evidence that all eligible children with disabilities throughout the State have FAPE available to them, the Secretary may waive for a period of one year in whole or in part the requirement under §300.153 (regarding State-level nonsupplanting) if the Secretary concurs with the evidence provided by the State.

(c) If a State wishes to request a waiver under this section, it must submit to the Secretary a written request that includes-

(1) An assurance that FAPE is currently available, and will remain available throughout the period that a waiver would be in effect, to all eligible children with disabilities throughout the State, regardless of the public agency that is responsible for providing FAPE to them. The assurance must be signed by an official who has the authority to provide that assurance as it applies to all eligible children with disabilities in the State;

(2) All evidence that the State wishes the Secretary to consider in determining whether all eligible children with disabilities have FAPE available to them, setting forth in detail-

(i) The basis on which the State has concluded that FAPE is available to all eligible children in the State; and

(ii) The procedures that the State will implement to ensure that FAPE remains available to all eligible children in the State, which must include-

(A) The State's procedures under §300.125 for ensuring that all eligible children are identified, located and evaluated;

(B) The State's procedures for monitoring public agencies to ensure that they comply with all requirements of this part;

(D) The State's hearing procedures under §§300.507- 300.511 and 300.520-300.528;

(3) A summary of all State and Federal monitoring reports, and State complaint decisions (see §§300.660- 300.662) and hearing decisions (see §§300.507-300.511 and 300.520-300.528), issued within three years prior to the date of the State's request for a waiver under this section, that includes any finding that FAPE has not been available to one or more eligible children, and evidence that FAPE is now available to all children addressed in those reports or decisions; and

(4) Evidence that the State, in determining that FAPE is currently available to all eligible children with disabilities in the State, has consulted with the State advisory panel under §300.650, the State's parent training and information center or centers, the State's protection and advocacy organization, and other organizations representing the interests of children with disabilities and their parents, and a summary of the input of these organizations.

(d) If the Secretary determines that the request and supporting evidence submitted by the State makes a prima facie showing that FAPE is, and will remain, available to all eligible children with disabilities in the State, the Secretary, after notice to the public throughout the State, conducts a public hearing at which all interested persons and organizations may present evidence regarding the following issues:

(1) Whether FAPE is currently available to all eligible children with disabilities in the State.

(2) Whether the State will be able to ensure that FAPE remains available to all eligible children with disabilities in the State if the Secretary provides the requested waiver.

(e) Following the hearing, the Secretary, based on all submitted evidence, will provide a waiver, in whole or in part, for a period of one year if the Secretary finds that the State has provided clear and convincing evidence that FAPE is currently available to all eligible children with disabilities in the State, and the State will be able to ensure that FAPE remains available to all eligible children with disabilities in the State if the Secretary provides the requested waiver.

(f) A State may receive a waiver of the requirement of section 612(a)(19)(A) and §300.154(a) if it satisfies the requirements of paragraphs (b) through (e) of this section.

(g) The Secretary may grant subsequent waivers for a period of one year each, if the Secretary determines that the State has provided clear and convincing evidence that all eligible children with disabilities throughout the State have, and will continue to have throughout the one-year period of the waiver, FAPE available to them.

(Authority: 20 U.S.C. 1412(a)(18)(C), (19)(C)(ii) and (E))

Analysis of Comments, Discussions and Changes from Attachment 1

Comment: One commenter objected that the procedures in proposed §§300.580-300.589 are overly detailed and bureaucratic. This commenter also stated that these procedures incorporate language from the old regulations concerning disapproval of State plans, which is no longer relevant in light of changes in the statute. Another commenter noted that proposed §300.583 mentioned disapproval of State plans and requested that it be revised to refer to denial of eligibility.

Discussion: The Department does not agree that the procedures in §§300.580-300.589 are overly detailed. When the Secretary proposes to deny a State's eligibility, withhold funds or take other enforcement action and when a State has requested a waiver of supplement not supplant or maintenance of effort requirements, it is important to all parties that the process through which those issues will be decided is clearly described, so that time, money and effort are not spent resolving procedural questions instead of the underlying issues. The commenter is correct that proposed §§300.580-300.586 are substantially the same as old regulations that addressed disapproval of a State plan, and that State plans are no longer required by the statute. When necessary, however, these same procedures were designated in the past by the Secretary as the procedures to follow on a proposed denial of State eligibility, a concept that remains in the law.

Changes: None.

Comment: One commenter said that because State requests for waivers of provisions of the Act are major policy proposals, the public participation requirements of §§300.280-300.284 should apply to the State's waiver request proposal. The commenter also asked that §300.589 be revised to permit public comment to be considered on any impact the waiver request will have on the State's ability to successfully implement the Act, not just the FAPE provisions of the Act.

Discussion: The procedures proposed by the Secretary provide for public comment on the question of whether a waiver should be granted by the Secretary after the State has first made a prima facie showing that FAPE is and will continue to be available if the waiver is granted. (See §300.589(d)). This process is adequate to ensure that the views of the public are considered in deciding waiver requests and §§300.280-300.284 should not be applied to the State's waiver request proposal.

Sections 612(a)(18)(C) and 612(a)(19)(C)(ii) of the Act give the Secretary the authority to grant a waiver in whole or in part if the State provides "clear and convincing evidence that all children with disabilities have available to them a free appropriate public education." Under §300.589(d), when the Secretary conducts a public hearing on a State's waiver request, interested parties are afforded the opportunity to present evidence on whether FAPE is currently available to all children with disabilities and whether the State will be able to ensure that FAPE remains available to all eligible children with disabilities if the Secretary provides a waiver. This would include a wide variety of topics, such as the State's ability to ensure an adequate supply of qualified personnel to provide FAPE, or to maintain an effective and efficient due process hearing system. Even if a waiver is granted, the State will still be required to comply with all the other requirements of Part B.

Changes: A technical change has been made to conform to the statutory provision that the Secretary provides a waiver in whole or in part.

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