Section 3088.1 - Sanctions: Withholding Funds to Enforce Special Education Compliance(a) When a district, special education local plan area, or county office of education fails to comply substantially with a provision of law regarding special education and related services, the superintendent may withhold funds allocated to such LEA under Chapter 7.2 (commencing with section 56836) of Part 30 of the Education Code and the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.). Such noncompliance may result from failure of the LEA to substantially comply with corrective action orders issued by the CDE in monitoring findings or complaint investigation reports. "Substantial noncompliance" means an incident of significant failure to provide a child with a disability with a free appropriate public education, an act which results in the loss of an educational opportunity to the child or interferes with the opportunity of the parents or guardians of the pupil to participate in the formulation of the IEP, a history of chronic noncompliance in a particular area, or a systemic agency-wide problem of noncompliance.(b) Prior to withholding funds, the CDE shall provide written notice to the LEA, by certified mail, of the noncompliance findings that are the basis of the CDE's intent to withhold funds. The notice shall also inform the LEA of the opportunity to request a hearing to contest the findings and the proposed withholding of funds.(c) The notice shall include the following information:(1) The specific past and existing noncompliance that is the basis of the withholding of funds.(2) The efforts that have been made by the CDE to verify that all required corrective actions have been taken.(3) The specific actions that must be taken by the LEA to bring it into compliance by an exact date to avoid the withholding of funds.(d) The LEA shall have 30 calendar days from the date of the notice to make a written request for a hearing. The CDE shall schedule a hearing within 30 days of receipt of a request for hearing, and notify the LEA of the time and place for hearing. A hearing officer with experience in special education and with administrative hearing procedures shall be assigned by the CDE to conduct the hearing and make an audio recording of the proceeding. The hearing officer may grant continuances of the date for hearing for good cause.(e) The LEA shall have the opportunity, prior to the hearing, to obtain all documentary evidence maintained by the CDE's Special Education Division that supports the findings of noncompliance at issue in the notice of intent to withhold funds.(f) Technical rules of evidence shall not apply to the hearing, but relevant written evidence or oral testimony may be submitted, and given probative effect only if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. A decision of the hearing officer to withhold funding shall not be based solely on hearsay evidence but must be supported by evidence produced at the hearing showing substantial noncompliance with the provisions of special education law. LEA's may be represented by counsel and the hearings will be open to the public.(g) If a hearing is not requested, the CDE shall withhold funds as stated in the notice. If a hearing is held, a written decision shall be rendered within 30 calendar days from the date the hearing is held.Cal. Code Regs. Tit. 5, § 3088.1
1. New section filed 1-10-2005; operative 2-9-2005 (Register 2005, No. 2).
2. Change without regulatory effect amending section filed 12-23-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 52).
3. Change without regulatory effect amending subsection (a) and NOTE filed 9-27-2012 pursuant to section 100, title 1, California Code of Regulations (Register 2012, No. 39). Note: Authority cited: Sections 33031 and 56100, Education Code. Reference: Section 56845, Education Code.
1. New section filed 1-10-2005; operative 2-9-2005 (Register 2005, No. 2).
2. Change without regulatory effect amending section filed 12-23-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 52).
3. Change without regulatory effect amending subsection (a) and Note filed 9-27-2012 pursuant to section 100, title 1, California Code of Regulations (Register 2012, No. 39).