Recovery of funds for misclassified children under part B of IDEA

1. The department shall seek to recover any funds made available under part B of IDEA as amended for services to any child who has been determined erroneously classified as eligible to be counted through the December first child count. 2. The department shall use the following procedures for implementing and monitoring child count: a. The department shall review annually the federal part B of IDEA regulations for conducting a statewide child count; b. The department shall send letters annually explaining December first child count procedures as required by part B of IDEA to all special education units; c. Each local education agency shall respond to the request by submitting required data in an electronic format specified by the department; d. Each individual responsible for collecting child count information shall verify to the best of the individual's knowledge that the child count is a true, accurate count by submitting a sworn affidavit; e. Data must be edited through computer checks as well as visual scanning to identify errors. Each apparent error must be checked with the local education agency from which it was submitted and changes entered into a statewide child count data base; f. The department shall compile all child count information on a federally required reporting form; g. Child count information must be submitted by special education units for analysis and comparison of data to other records collected by the department containing numbers of served students with disabilities; and h. The department must monitor procedures to verify accuracy of special education unit child counts as follows: (1) A sample of students from the current child count must be selected, with an attempt made to include all categories of disability; (2) The files of the selected students must be reviewed onsite for timeliness and completeness; and (3) Evidence of student eligibility must be based on the following criteria: (a) The IEP must have been in effect and the child with disabilities receiving special education and related services at the time of the child count; (b) That the child with disabilities has been evaluated and determined to be a child with a disability eligible to receive special education and related services; and (c) That the student was enrolled in school at the time of the child count. 3. The department shall request the special education units to return federal funds for all misclassified children who were included in the child count. 4. Funds for misclassified students must be returned to the department within thirty days of the department's notification to the special education unit. 5. The department shall request the return of federal per pupil allocations in a direct ratio to the percentage of error found during monitoring. 6. The request for return of funds may not be made without first affording the special education unit a review after reasonable notice has been given and the unit has had an opportunity to present information and data relating to the error calculation. a. If the error is substantiated, the funds in question must be returned within thirty days of the request. b. If the special education unit does not return the funds, the department shall suspend federal financial assistance immediately until the situation is corrected. 7. The department shall return all funds to the United States department of education office of special education programs for misclassified children who were included in the child count. 8. Final disapproval action may not be taken by the department on any applications submitted by a special education unit without first affording the applicant reasonable notice and opportunity for a hearing. 9. The following procedure, set forth under section 76.401 of the education department general administrative regulations as amended provides the procedures for an appeal: a. The applicant must request the hearing of the department within thirty days of the action of the department; b. Within thirty days after it receives a request, the department will request the assignment of an administrative law judge from the North Dakota office of administrative hearings, who shall hold a hearing on the record and shall review the department's action; c. No later than ten days after the hearing by the administrative law judge, the administrative law judge shall issue a written ruling, including findings of fact and reasons for the ruling. (1) If the administrative law judge determines that its action was contrary to state or federal statutes or regulations that govern the applicable program, the department shall rescind its action; or (2) If the department does not rescind its final action after a review, the applicant may appeal to the secretary of the United States Department of Education, 400 Maryland Avenue Southwest, Washington, DC 20202-0002. The applicant must file a notice of the appeal with the secretary within twenty days after the applicant has been notified by the department of the results of the department's review. For purposes of appeal, the notice must state a description of the violation, the corrective action sought by the department, and the relief sought by the applicant. If supported by substantial evidence, findings of fact of the department are final; and d. The department shall make available at reasonable times and places to each applicant all records of the agency pertaining to any review or appeal the applicant is conducting under this section, including records of other applicants.