NC Education Code · NC Policy Manual

NC 1501-12.7 Waiver of Requirements Regarding Supplementing and Not Supplanting

Plain English summary

This regulation establishes the process by which a state may obtain a waiver from the federal requirement that Part B IDEA funds supplement rather than supplant existing state and local special education funding. The waiver is available only if the state can demonstrate with clear and convincing evidence that FAPE is currently available to all eligible children with disabilities throughout the state. The waiver is granted for one-year periods and requires a formal written request, public hearing, and Secretary approval.

Key requirements

  • Funds paid to the State under Part B of the IDEA must be used to supplement and increase the level of Federal, State, and local funds expended for special education and related services provided to children with disabilities under Part B of the IDEA and in no case to supplant those Federal, State, and local funds.
  • The State may use funds it retains under NC 1506-1.3(a) and (b) without regard to the prohibition on supplanting other funds.
  • If the 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 NC 1501-12.5.
  • The State's written request must include 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.
  • 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.
  • The request must include all evidence that the State wishes the Secretary to consider in determining whether all eligible children with disabilities have FAPE available to them.
  • The request must include the basis on which the State has concluded that FAPE is available to all eligible children in the State.
  • The request must include the procedures that the State will implement to ensure that FAPE remains available to all eligible children in the State.
  • The State's procedures under NC 1501-2.9 for ensuring that all eligible children are identified, located and evaluated must be included.
  • The State's procedures for monitoring public agencies to ensure that they comply with all requirements of this part must be included.
  • The State's complaint procedures under NC 1501-10.1 through NC 1501-10.3 must be included.
  • The State's hearing procedures under NC 1504-1.12 through NC 1504-1.17 and NC 1504-2.1 through 1504-2.7 must be included.
  • A summary of all State and Federal monitoring reports, and State complaint decisions and hearing decisions, issued within three years prior to the date of the State's request for a waiver must be submitted.
  • Evidence that the State has consulted with the State advisory panel under NC 1501-13.1 in determining that FAPE is currently available must be included.
  • If the Secretary determines the request makes a prima facie showing, the Secretary, after notice to the public throughout the State, conducts a public hearing at which all interested persons and organizations may present evidence.
  • Following the hearing, the Secretary 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.
  • 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 FAPE available to them.

Affected parties

  • State Education Agency (SEA)
  • Local Education Agencies (LEAs)
  • Children with disabilities
  • State advisory panel
  • Public agencies responsible for providing FAPE
  • U.S. Secretary of Education

Official source

https://www.dpi.nc.gov/documents/publications/catalog/ec144-policies-governing-services/open#page=46