Section 7-34-B-300.164 - Waiver of requirement regarding supplementing and not supplanting with Part B funds(a) Except as provided under §§300.202 through 300.205(Use of amounts; Maintenance of Effort; Exception to the Maintenance of Effort; and Adjustment to Local Fiscal Efforts in Certain Fiscal Years), funds paid to Mississippi under Part B of IDEA are used to supplement and increase the level of federal, State, and local funds (including funds that are not under the direct control of the MDE and LEAs) expended for special education and related services provided to children with disabilities under Part B of IDEA and in no case to supplant those federal, State, and local funds. The State may use funds it retains under §300.704(a) and (b)(State Administration and other State-level Activities) without regard to the prohibition on supplanting other funds.(b) If Mississippi provides clear and convincing evidence that all eligible children with disabilities throughout the State have FAPE available to them, the Secretary of the U.S. Department of Education may waive for a period of one year in whole or in part the requirement under §300.162 (regarding State-level nonsupplanting) if the Secretary of the U.S. Department of Education concurs with the evidence provided by the State.(c) If Mississippi wishes to request a waiver, it must submit to the Secretary of the U.S. Department of Education a written request that includes- (1) 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, regardless of the public agency that is responsible for providing FAPE to them. 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;(2) All evidence that the State wishes the Secretary of the U.S. Department of Education to consider in determining whether all eligible children with disabilities have FAPE available to them, setting forth in detail- (i) The basis on which the State has concluded that FAPE is available to all eligible children in the State; and(ii) The procedures that Mississippi will implement to ensure that FAPE remains available to all eligible children in the State, which must include- (A) The State's Child Find procedures for ensuring that all eligible children are identified, located and evaluated;(B) The State's procedures for monitoring public agencies to ensure that they comply with all requirements of Part B of IDEA;(C) The State's formal complaint procedures; and(D) The State's due process hearing procedures;(3) A summary of all State and federal monitoring reports, and formal State complaint decisions and due process hearing decisions issued within three (3) years prior to the date of the State's request for a waiver under Part B of IDEA, that includes 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; and(4) Evidence that the MDE, in determining that FAPE is currently available to all eligible children with disabilities in the State, has consulted with the State advisory panel.(d) If the Secretary of the U.S. Department of Education determines that the request and supporting evidence submitted by the State makes a prima facie showing that FAPE is, and will remain, available to all eligible children with disabilities in the State, the Secretary of the U.S. Department of Education, after notice to the public throughout the State, conducts a public hearing at which all interested persons and organizations may present evidence regarding the following issues- (1) Whether FAPE is currently available to all eligible children with disabilities in the State.(2) Whether the MDE will be able to ensure that FAPE remains available to all eligible children with disabilities in the State if the Secretary of the U.S. Department of Education provides the requested waiver.(e) Following the hearing, the Secretary of the U.S. Department of Education, based on all submitted evidence, will provide a waiver, in whole or in part, for a period of one year if the Secretary of the U.S. Department of Education finds that the MDE has provided clear and convincing evidence that FAPE is currently available to all eligible children with disabilities in the State, and the MDE will be able to ensure that FAPE remains available to all eligible children with disabilities in the State if the Secretary of the U.S. Department of Education provides the requested waiver.(f)Mississippi may receive a waiver of the requirement of section 612(a)(18)(A) of IDEA and §300.164(Waiver of Requirement regarding Supplementing and not Supplanting with Part B Funds) if it satisfies the requirements of paragraphs (b) through (e) above.(g) The Secretary of the U.S. Department of Education may grant subsequent waivers for a period of one year each, if the Secretary determines that the MDE 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.7 Miss. Code. R. 34-B-300.164