Section 1416 (e)
(e) Enforcement
- If the Secretary determines, for 2 consecutive years, that a State needs assistance under subsection (d)(2)(A)(ii) in implementing the requirements of this subchapter, the Secretary shall take 1 or more of the following actions:
- (A) Advise the State of available sources of technical assistance that may help the State address the areas in which the State needs assistance, which may include assistance from the Office of Special Education Programs, other offices of the Department of Education, other Federal agencies, technical assistance providers approved by the Secretary, and other federally funded nonprofit agencies, and require the State to work with appropriate entities. Such technical assistance may include—
- (i) the provision of advice by experts to address the areas in which the State needs assistance, including explicit plans for addressing the area for concern within a specified period of time;
- (ii) assistance in identifying and implementing professional development, instructional strategies, and methods of instruction that are based on scientifically based research;
- (iii) designating and using distinguished superintendents, principals, special education administrators, special education teachers, and other teachers to provide advice, technical assistance, and support; and
- (iv) devising additional approaches to providing technical assistance, such as collaborating with institutions of higher education, educational service agencies, national centers of technical assistance supported under subchapter IV, and private providers of scientifically based technical assistance.
- (B) Direct the use of State-level funds under section 1411(e) of this title on the area or areas in which the State needs assistance.
- (C) Identify the State as a high-risk grantee and impose special conditions on the State’s grant under this subchapter.
- If the Secretary determines, for 3 or more consecutive years, that a State needs intervention under subsection (d)(2)(A)(iii) in implementing the requirements of this subchapter, the following shall apply:
- (A) The Secretary may take any of the actions described in paragraph (1).
- (B) The Secretary shall take 1 or more of the following actions:
- (i) Require the State to prepare a corrective action plan or improvement plan if the Secretary determines that the State should be able to correct the problem within 1 year.
- (ii) Require the State to enter into a compliance agreement under section 457 of the General Education Provisions Act [20 U.S.C. 1234f], if the Secretary has reason to believe that the State cannot correct the problem within 1 year.
- (iii) For each year of the determination, withhold not less than 20 percent and not more than 50 percent of the State’s funds under section 1411(e) of this title, until the Secretary determines the State has sufficiently addressed the areas in which the State needs intervention.
- (iv) Seek to recover funds under section 452 of the General Education Provisions Act [20 U.S.C. 1234a].
- (v) Withhold, in whole or in part, any further payments to the State under this subchapter pursuant to paragraph (5).
- (vi) Refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.
- Notwithstanding paragraph (1) or (2), at any time that the Secretary determines that a State needs substantial intervention in implementing the requirements of this subchapter or that there is a substantial failure to comply with any condition of a State educational agency’s or local educational agency’s eligibility under this subchapter, the Secretary shall take 1 or more of the following actions:
- (A) Recover funds under section 452 of the General Education Provisions Act [20 U.S.C. 1234a].
- (B) Withhold, in whole or in part, any further payments to the State under this subchapter.
- (C) Refer the case to the Office of the Inspector General at the Department of Education.
- (D) Refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.
- Prior to withholding any funds under this section, the Secretary shall provide reasonable notice and an opportunity for a hearing to the State educational agency involved.
- Pending the outcome of any hearing to withhold payments under subsection (b), the Secretary may suspend payments to a recipient, suspend the authority of the recipient to obligate funds under this subchapter, or both, after such recipient has been given reasonable notice and an opportunity to show cause why future payments or authority to obligate funds under this subchapter should not be suspended.
- The Secretary shall report to the Committee on Education and the Workforce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate within 30 days of taking enforcement action pursuant to paragraph (1), (2), or (3), on the specific action taken and the reasons why enforcement action was taken.
- If the Secretary withholds further payments pursuant to paragraph (2) or (3), the Secretary may determine—
- (i) that such withholding will be limited to programs or projects, or portions of programs or projects, that affected the Secretary’s determination under subsection (d)(2); or
- (ii) that the State educational agency shall not make further payments under this subchapter to specified State agencies or local educational agencies that caused or were involved in the Secretary’s determination under subsection (d)(2).
- Until the Secretary is satisfied that the condition that caused the initial withholding has been substantially rectified—
- (i) payments to the State under this subchapter shall be withheld in whole or in part; and
- (ii) payments by the State educational agency under this subchapter shall be limited to State agencies and local educational agencies whose actions did not cause or were not involved in the Secretary’s determination under subsection (d)(2), as the case may be.
- Any State that has received notice under subsection (d)(2) shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the State.
- If any State is dissatisfied with the Secretary’s action with respect to the eligibility of the State under section 1412 of this title, such State may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings upon which the Secretary’s action was based, as provided in section 2112 of title 28.
- Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28.
- The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary’s previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall be conclusive if supported by substantial evidence.
(1) Needs assistance
(2) Needs intervention
(3) Needs substantial intervention
(4) Opportunity for hearing
(A) Withholding funds
(B) Suspension
(5) Report to Congress
(6) Nature of withholding
(A) Limitation
(B) Withholding until rectified
(7) Public attention
(8) Judicial review
(A) In general
(B) Jurisdiction; review by United States Supreme Court
(C) Standard of review
Discipline, Severe Discrepancy
Last modified on November 7, 2019