Fiscal Sanctions. If the state,
represented by the SEA, finds that an LEA, special school, or other agency,
herein referred to as an applicant, with the responsibility under state law for
the provision of a free appropriate public education (FAPE) to students with
disabilities is failing to comply with any requirement described under Part B
of the IDEA, the applicable federal or state regulations, or state policies and
procedures related to the requirements of the IDEA, the state may impose
sanctions, including the reduction, withholding, or recovery of payments made
relative to the IDEA grant administered by the state. In accordance with Part B
of the IDEA and EDGAR 34 C.F.R. Parts 75
2 C.F.R. Section
, the state shall provide reasonable
notice and an opportunity for a hearing prior to taking any final action
regarding the reduction, withholding, or recovery of payments to the applicant.
Hearing Issues. The state shall provide
the applicant with notification of the right to a hearing and the procedures
for a hearing if the state determines
applicant is not eligible for assistance under Part B of the IDEA;
b) an applicant, for three or more
consecutive years, needs intervention or substantial intervention in
implementing the requirements of Part B of the IDEA;
c) an applicant is unable or unwilling to
consolidate with other applicants or agencies in accordance with the
d) an applicant failed to
submit an accurate and unduplicated count of the number of students with
disabilities receiving special education and related services, or in the case
of children enrolled by their parents in private or homeschool programs, failed
to accurately report the count of students eligible to receive special
education and related services;
an applicant is not meeting the requirements of Part B of the IDEA and the
provision of an applicable FAPE to students with disabilities and the applicant
has not, or the state has reason to believe the applicant cannot, correct the
problem within one year; or
applicant is not meeting any of the other federal or state requirements
relative to Part B of the IDEA that allow the reduction, withholding, or
recovery of funds.
Hearing Appeals Panel. When an applicant requests a hearing relative to these
matters, in writing, the State Superintendent of Education (Superintendent)
shall select a three-member hearing panel to conduct the proceeding. The
hearing panel shall consist of at least two of the SEA's deputy
superintendents, or their designees, and one additional individual designated
by the superintendent.
a) An applicant shall request a
hearing by notifying the Superintendent by certified mail of its decision to
appeal a decision as set forth in these procedures.
b) The applicant shall include the nature of
the request for the hearing, including the reasons for any disagreement with
the determinations by the state, and the facts on which the request for the
hearing is based.
c) The applicant
shall request a hearing within thirty calendar days of the date of the state's
notification of the intent to impose the specified sanction. For purposes of
these procedures, the date of the notification by the state is the date the
notice is received by the applicant.
d) The hearing shall be scheduled before a
hearing panel within thirty calendar days from the receipt of the
e) The applicant shall
receive written notice at least ten days prior to the hearing date. The notice
shall include the date, location, and time of the hearing.
f) The applicant and the state may present
evidence in writing and through witnesses and may be represented by counsel at
the hearing. The parties shall exchange the names of proposed witnesses no
later than five days prior to the hearing. The parties shall have six copies
available of written materials that will be used as evidence during the
g) The hearing panel may
determine the length and order of the presentations by the parties and
determine the course of the proceedings. The hearing panel shall take all steps
necessary to conduct a fair and impartial proceeding, avoid delays, maintain
order, and comply with the additional procedures set forth in the SEA
Policies and Procedures for Programs for Students with
hearing panel shall make a formal recommendation to the Superintendent within
five calendar days following the hearing.
i) If the applicant or its authorized
representative fails to appear at the hearing, the appeal shall be considered
closed and the hearing process terminated.
j) If the state determines that its proposed
action is contrary to federal or state statutes, regulations, or applicable
policies and procedures related to the requirements of the IDEA, the state
shall review its proposal and determine what, if any, alternative action is
k) The Superintendent
shall issue a written decision within ten days of the date of the conclusion of
the hearing. The written decision shall include the findings of fact and
reasons for the decision.
Superintendent's decision is final unless the applicant disagrees with the
decision and files an appeal of the decision with a court of competent
jurisdiction. If the state does not receive notice of an intent to appeal the
decision within thirty calendar days of the issuance of the written decision,
the state shall implement the proposed action in whole or in part until the
state is satisfied that the applicant is complying with the applicable federal
and state requirements.
m) The SEA
shall keep a record of the proceedings. Any party, at its expense, may obtain a
copy of the record of the proceedings.
4. Decision. The Superintendent shall issue a
written decision within ten days of the date of the conclusion of the hearing
by transmitting the written decision to the applicant or other representative
authorized by the applicant.
Public attention. Any applicant that receives notice that the state is
proposing to take or is taking an enforcement action pursuant to this section
must, by means of public notice, take such actions as may be necessary to
notify the public of the pendency of the action, including, at a minimum,
posting the notice on the applicant's web site and distributing notice of the
proposed act to the media and through public agencies.