Federal IDEA · 34 CFR Part 300 · Regulation

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

Plain English summary

This section establishes that Part B funds must supplement, not supplant, existing federal, state, and local special education funding. However, a State may request a one-year waiver of the nonsupplanting requirement by submitting written evidence to the Secretary demonstrating that FAPE is currently available and will remain available to all eligible children with disabilities throughout the State. The waiver process requires a written request with supporting assurances, a public hearing, and a finding of clear and convincing evidence by the Secretary, with subsequent one-year waivers also available.

Key requirements

  • 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 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 § 300.704(a) and (b) without regard to the prohibition on supplanting other funds.
  • 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 § 300.162 if the Secretary concurs with the evidence provided by the State.
  • A State wishing to request a waiver must submit to the Secretary a written request that includes an assurance that FAPE is currently available and will remain available throughout the period that a waiver would be in effect, signed by an official who has the authority to provide that assurance.
  • The written request must include all evidence that the State wishes the Secretary to consider, including the basis on which the State concluded FAPE is available and procedures the State will implement to ensure FAPE remains available.
  • Procedures required in the waiver request must include: the State's procedures under § 300.111 for identifying, locating, and evaluating all eligible children; procedures for monitoring public agencies; complaint procedures under §§ 300.151 through 300.153; and hearing procedures under §§ 300.511 through 300.516 and §§ 300.530 through 300.536.
  • The written request must include 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 request, including 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.
  • The State must provide evidence that it consulted with the State advisory panel under § 300.167 in determining that FAPE is currently available to all eligible children with disabilities.
  • If the Secretary determines the request makes a prima facie showing that FAPE is and will remain available, 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 and will remain available.
  • 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.

Affected parties

  • State Educational Agencies (SEAs)
  • Local Educational Agencies (LEAs)
  • U.S. Secretary of Education
  • Children with disabilities
  • State advisory panels
  • Public agencies responsible for providing FAPE
  • General public (via public hearing)

Official source

https://www.ecfr.gov/current/title-34/part-300/section-300.164