RELATES TO: KRS 157.200, 157.220, 157.224, 157.226, 157.230,
157.250, 157.260, 157.270, 157.280, 157.285, 157.290, 157.360, 158.030,
158.100, 158.150, 160.290, 34 C.F.R. 300.1-300.818, 20 U.S.C. 1400-1419
NECESSITY, FUNCTION, AND CONFORMITY: KRS 157.200 to 157.290
establish the statutory framework for special education programs in local
school districts. KRS 157.220 requires the Kentucky Board of Education to adopt
rules and administrative regulations for proper administration of these
programs. KRS 156.035 authorizes the Kentucky Board of Education to implement
any act of Congress appropriating funds to the state and to provide for the
proper apportionment and disbursement of these funds in accordance with state
and federal laws. 20 U.S.C. 1407 and 1412 and 34 C.F.R. 300.100 require that
policies and procedures be adopted to assure the apportionment and disbursement
of federal funds for exceptional children programs in accordance with
applicable laws. This administrative regulation establishes the procedures that
will be followed by the Department of Education in the event it is necessary to
take corrective action on behalf of children with disabilities.
Section 1. Monitoring.
(1) The Kentucky Department of Education
shall conduct monitoring of LEAs and other agencies that provide educational
services to children with disabilities on a regular basis to determine
compliance with federal and state requirements. Off-site monitoring shall
include review of the following:
(a) LEA'S
self-assessment;
(b) Reports,
including count and data tables, and performance reports;
(c) Complaints and due process
hearings;
(d) Finance reports;
and
(e) Documentation indicating
inclusion of children with disabilities in the assessment and accountability
system.
(2) Off-site
monitoring shall identify any areas of noncompliance that indicate the need for
further investigation, including an on-site review.
(3) On-site monitoring may include:
(a) Review of individual children's records,
including records of children served by private or state-operated
schools;
(b) Interviews with
staff;
(c) A survey of
parents;
(d) Visits in schools and
classrooms; and
(e) Other
activities, including review of financial records.
(4) Following an off-site or on-site review,
the Kentucky Department of Education shall issue a written report. Deficiencies
specified in the report shall be the basis for the LEA to develop a corrective
action plan (CAP) for review and approval by the Kentucky Department of
Education. Prior to the development of the CAP, the LEA shall have the
opportunity to submit additional information to verify or clarify issues
related to the report. Each CAP shall be monitored and enforced by the Kentucky
Department of Education.
(5) A CAP
shall be submitted to the Kentucky Department of Education no later than thirty
(30) business days after the LEA receives the report of noncompliance. The CAP
shall include:
(a) A statement of the matter
to be corrected; and
(b) The steps
the LEA shall take to correct the problem and document compliance.
(6) Within thirty (30) business
days of receiving the CAP, the Kentucky Department of Education shall notify
the LEA of the status of the CAP. If the Kentucky Department of Education
rejects the CAP, the LEA shall have fifteen (15) business days to submit a new
CAP.
(7) A CAP approved by the
Kentucky Department of Education shall be monitored and shall be an official
document requiring the LEA to meet the specified activities. The Kentucky
Department of Education shall not initiate further sanctions during the time
period specified in the CAP unless requested by the LEA.
(8) Any noncompliance verified by monitoring
shall be corrected within twelve (12) months from the date of the notification
to the LEA of the noncompliance.
Section 2. Special Education Program Found
Noncompliant.
(1) The Kentucky Department of
Education shall ensure that each LEA or other state agency responsible for
providing the child's education complies with the LEA eligibility requirements
contained in IDEA, 34 C.F.R. Part
300 . To fulfill this obligation, the Kentucky
Department of Education may implement the procedures established in this
administrative regulation.
(2) A
special education program may be found noncompliant through deficiencies
identified in:
(a) Off-site or on-site
monitoring that were not corrected by a corrective action plan;
(b) A final decision issued in complaint
investigations after appeals have been exhausted;
(c) Decisions issued in due process hearings
or by the Exceptional Children Appeals Board that have become final after the
appeal rights have been exhausted; or
(d) Review of other data routinely collected
by the Kentucky Department of Education.
Section 3. Causes for Imposing Sanctions.
(1) The Kentucky Department of Education
shall employ progressive sanctions until compliance is achieved, if an LEA:
(a) Fails to comply with a CAP, including not
implementing the activities in an approved CAP;
(b) Fails to comply with the final decision
in a complaint investigation after appeals have been exhausted, or the decision
of a due process hearing officer or the Exceptional Children Appeals Board that
has become final after appeal rights have been exhausted;
(c) Fails to manage the special education
program in compliance with state and federal law;
(d) Fails to manage funds in compliance with
state and federal law;
(e) Obtains
funds through deception including falsifying application information for the
purpose of obtaining funds; or
(f)
Has been brought before a court of competent jurisdiction and found in
noncompliance with state and federal special education requirements after
appeal rights have been exhausted.
(2) Sanctions may be imposed if an LEA fails
or refuses to correct an identified deficiency. The Kentucky Department of
Education shall give notice at least ten (10) schools days prior to initiating
actions related to sanctions. The Kentucky Department of Education shall remain
in contact with the appropriate LEA staff during the imposition of sanctions
until the deficiencies are remedied.
Section 4. Sanctions.
(1) The Kentucky Department of Education
shall employ intensive assistance for at least a two (2) year period, including
providing consultation, training, and technical assistance, or assigning a
special education mentor, to remedy deficiencies and obtain voluntary
compliance before imposing sanctions beyond a corrective action plan
(CAP).
(2) The Kentucky Department
of Education shall employ less severe sanctions before more severe sanctions
until the LEA is in compliance. Progressive sanctions may include the
following:
(a) Conditional approval of IDEA
funds. If verifiable progress is not made in implementing a CAP, conditional
funding shall be imposed. Conditions and timelines for continuing to receive
IDEA funds shall be stated in the application approval letter or an attachment.
Conditional funding may be employed for more than one year before imposing the
next sanction, unless the LEA fails or refuses to meet the conditions or
timelines. This sanction shall be lifted when the Kentucky Department of
Education verifies compliance;
(b)
Withholding of payments of IDEA funds. If an LEA fails or refuses to meet the
conditions or timelines in the conditional approval letter, IDEA funds may be
withheld by the Kentucky Department of Education. The Kentucky Department of
Education shall make no further payments to the LEA until the Kentucky
Department of Education verifies that compliance has been achieved. If the LEA
makes no effort to correct the deficiency within sixty (60) calendar days of
withholding of IDEA funds, further sanctions may be imposed pursuant to
appropriate provisions in KRS 156.132. Withholding shall remain in effect
during the pendency of any additional sanctions;
(c) Withholding of Support Education
Excellence in Kentucky (SEEK) add-on funds. SEEK add-on funds for exceptional
children shall be withheld in trust as required in KRS 157.224. This sanction
shall be lifted when the Kentucky Department of Education verifies compliance
with substantive special education requirements; or
(d) Other actions available under state and
federal law shall be employed as circumstances warrant.
(3) The Kentucky Department of Education may
conduct an off-site or on-site review to validate compliance.
Section 5. Opportunity for a
Hearing. Prior to the withholding of IDEA or SEEK add-on funds, the LEA shall
be provided notice and an opportunity for an administrative hearing in
accordance with KRS Chapter 13B.
Section
6. Child Count Audit.
(1) Child
count figures submitted to the Kentucky Department of Education for the purpose
of receiving funds under IDEA shall be subject to an audit validating the
count. The Kentucky Department of Education shall conduct the child count
audits prior to withholding funds pursuant to Section 4(2)(b) of this
administrative regulation.
(2) If
an LEA counts more children on its December 1 child count than are actually
being served, or counts children who are ineligible to be counted for funding,
the LEA shall reduce its child count or return the funds received for each
misclassified child.
(3) The
reduction may be initiated by:
(a) The LEA
upon recognizing an error exists; or
(b) The Kentucky Department of Education
through an on-site or off-site validation of the child count figures.
(4) Notice and an opportunity for
a hearing under KRS Chapter 13B shall be provided before recovery of
funds.
(5) Annually, the Kentucky
Department of Education shall review and, as needed, select LEAs for a child
count audit. An LEA may be selected for audit based on the following:
(a) Recurring noncompliances identified
through off-site or on-site monitoring;
(b) Recurring substantiated complaints or
final decisions from due process hearings or the Exceptional Children Appeals
Board on similar issues;
(c)
Failure to comply with a CAP within the specified timelines, or with the final
decision in a complaint investigation after appeals have been exhausted, or
with a hearing or appeal decision after appeals rights have been exhausted
within specified timelines;
(d)
Increases or decreases of total child counts, changes in categorical areas, or
amendments to the original IDEA-B child count report that cannot be justified
by district-supplied data like annual child count data and districtwide
enrollment data or other district-supplied sources of data;
(e) Unusual child count data, such as, more
than fifteen (15) percent of the total school population reported as having
disabilities, no change in numbers from year to year, high numbers of low
incidence populations, or unusually low percentages of children with
disabilities when compared to similar LEAs; or
(f) Previous audits resulting in reductions
in addition to the presence of any of the items listed in paragraphs (a)
through (e) of this subsection.
(6) Prior to initiating a child count audit,
the Kentucky Department of Education shall:
(a) Notify the LEA in writing of the pending
audit and request a roster of children by school, teacher, age, and individual
disability category as reported on the specific count being audited;
(b) Verify the number of children on the
roster with the number reported on the LEA's child count; and
(c) Randomly select from the roster the
educational records to be audited.
(7) The Kentucky Department of Education
shall conduct an on-site record review based on the standards in 707 KAR
Chapter 1 and analyze the data collected to determine the number of records out
of compliance.
(8) The Kentucky
Department of Education shall prepare a draft audit report which includes:
(a) The reason for the child count
audit;
(b) The date the audit was
conducted;
(c) The total number of
records reviewed;
(d) An analysis
of the data obtained during the audit;
(e) The specific reductions by disability;
and
(f) Notice that the LEA has
thirty (30) business days from the date of the report to submit additional
information for each child to demonstrate compliance.
(9) The LEA may request copies of the data
collected and used to produce the findings in the audit report and submit
additional information for each child to demonstrate compliance. If the LEA
submits additional information to demonstrate compliance, the Kentucky
Department of Education shall have thirty (30) business days from receipt of
the information to review the documentation and issue a final report.
(10) Within thirty (30) business days of the
date of the final audit report, if applicable, the LEA shall submit to the
Kentucky Department of Education an amended child count report and a CAP to
address deficiencies identified during the audit.
(11) The Kentucky Department of Education
shall certify the reduced count and submit a correction to the U.S. Department
of Education and the Kentucky Department of Education's Division of
Finance.
(12) The IDEA grant award
for the fiscal year affected shall be recalculated and:
(a) If the child count reduction affects the
current year's project then the amount of the recovery shall be subtracted from
the original allocation and shall not be sent to the LEA the following
year;
(b) If the reduction in grant
award is for a year in which funds have already been expended, the LEA's grant
shall be reduced the following year by the reduced amount in a manner that
shall not disrupt current delivery of instructional services; or
(c) If the reduction affects an application
for the fiscal year, the LEA shall be notified of the reduction of the
recalculated grant award for the following year.
(13) Follow-up audit. The Kentucky Department
of Education shall conduct a follow-up audit at the time the CAP is scheduled
for completion. The Kentucky Department of Education shall verify that
deficiencies have been corrected. If the follow-up visit verifies that the LEA
has completed all CAP activities and no areas of noncompliance are identified,
the Kentucky Department of Education shall issue a final report.