WSR 02-05-036

PERMANENT RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[ Filed February 12, 2002, 4:39 p.m. , effective February 13, 2002 ]

Date of Adoption: January 9, 2002.

Purpose: The purpose is to reflect policy changes by the State Safety Net Oversight for 2001-02 school year regarding special education safety net procedure for school districts and educational service districts.

Citation of Existing Rules Affected by this Order: Amending WAC 392-140-605, 392-140-609, 392-140-613, 392-140-616, 392-140-625, 392-140-630, 392-140-650, and 392-140-680.

Statutory Authority for Adoption: RCW 28A.150.290.

Adopted under notice filed as WSR 01-24-022 on November 27, 2001.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 7, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: These rules need to be in place by the Safety Net Oversight Committee meeting on February 13, 2002.
Effective Date of Rule: February 13, 2002.

February 7, 2002

Dr. Terry Bergeson

Superintendent of

Public Instruction

OTS-5271.1


AMENDATORY SECTION(Amending WSR 01-04-023, filed 1/30/01, effective 1/30/01)

WAC 392-140-605   Special education safety net -- Application types, certification, worksheets.   Application for safety net funding shall be made on Form SPI 1381 - Maintenance or Form SPI 1381 - Certification published by the superintendent of public instruction as follows:

(1) School districts may make application for safety net funding on one or more of the four application types described below. Applications will be considered and awards made in the order shown until the district's eligibility is exhausted.

(a) Maintenance of effort (state revenue only) hereafter referred to as MOESR. State safety net funding may be requested when a district shows a MOESR loss calculated by the superintendent of public instruction pursuant to WAC 392-140-620.

(b) Students above the funded percentage hereafter referred to as percentage. State safety net funding may be requested if district's actual resident special education enrollment exceeds the district's funded resident special education enrollment, the district is implementing ((a)) an ongoing plan of action to contain or eliminate any unnecessary, duplicative, or ineffective enrollment practices, and all available funding, including state, federal, and local if provided in the past, is insufficient to meet the expenditure level necessary for special education. State safety net funding may be requested by a school district with unfunded special education costs due to factors beyond the district's control and not attributable to district philosophy or service delivery style. The applicant district must meet the standards of WAC 392-140-613 and 392-140-625.

(c) High-cost individual student. A school district may submit applications for federal safety net funding for high-cost individual students meeting the standards in WAC 392-140-616.

(d) Factors other than students above the funded level or high-cost individual students hereafter referred to as other factors. State safety net funding may be requested by a school district with unfunded special education costs due to factors beyond the district's control and not attributable to district philosophy or service delivery style. The applicant district must meet standards of WAC 392-140-613 and 392-140-625.

(2) The school district making application for safety net funding shall certify that:

(a) The application complies with the respective safety net application standards of WAC 392-140-610, 392-140-613, or 392-140-616;

(b) The application provides true and complete information to the best of the school district's knowledge; and

(c) The district understands that safety net funding is not an entitlement, is subject to adjustment and recovery, may not be available in future years, state safety net funding must be expended in program 21 which impacts the amount that must be maintained for the federal maintenance of effort test, and federal safety net funding must be expended in program 24, and federal Medicaid has been billed for all services to eligible students.

(3) Worksheets included with the application shall demonstrate the need for safety net funding. School districts are encouraged and may be required to submit additional information designed to assist the state oversight committee in analyzing the application.

(a) MOESR applications pursuant to subsection (1)(a) of this section do not require any worksheets. Applications for MOESR shall include certification of standards and criteria described in WAC 392-140-610.

(b) Percentage applications pursuant to subsection (1)(b) of this section require completion of worksheet "A" described in WAC 392-140-625, certification of standards and criteria pursuant to WAC 392-140-613 and percentage application ((narrative)) plan.

(c) High-cost individual student applications shall include worksheets "A" and "C" and summary published in the safety net application, and certification of standards and criteria pursuant to WAC 392-140-616.

(d) Other factors applications pursuant to subsection (1)(d) of this section require completion of application narrative, worksheet "A" described in WAC 392-140-625, and certification of standards and criteria described in WAC 392-140-613.

[Statutory Authority: RCW 28A.150.290. 01-04-023, 392-140-605, filed 1/30/01, effective 1/30/01. Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 507(7). 00-03-015, 392-140-605, filed 1/7/00, effective 2/7/00. Statutory Authority: RCW 28A.150.290 and 1997 c 149 507(8). 98-08-013 (Order 98-05), 392-140-605, filed 3/18/98, effective 4/18/98. Statutory Authority: RCW 28A.150.290 and 1995 2nd sp.s. c 18 as modified by 1996 c 283. 96-19-095 (Order 96-15), 392-140-605, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 01-04-023, filed 1/30/01, effective 1/30/01)

WAC 392-140-609   Special education safety net -- Standards and criteria -- Appropriate and properly and efficiently prepared and formulated IEPs.   Individualized education programs (IEPs) which are appropriate, properly and efficiently prepared and formulated are those IEPs that meet all of the following criteria:

(1) The IEPs comply with federal and state procedural requirements.

(2) The delivery of specially designed instruction complies with state standards (regularly scheduled teaching or training activities provided or designed by special education qualified staff).

(3) Areas for the provision of special education services conform with areas of need identified in the students evaluation made pursuant to WAC 392-172-111.

(4) The state oversight committee determines:

(a) There are no unresolved state audit examination ((findings)) issues related to special education which are material in nature;

(b) There are no unresolved state child count verification ((findings)) issues which are material in nature; and

(c) All corrections to state enrollment reporting, required for resolution of (a) and (b) of this subsection, are completed.

[Statutory Authority: RCW 28A.150.290. 01-04-023, 392-140-609, filed 1/30/01, effective 1/30/01. Statutory Authority: RCW 28A.150.290 and 1995 2nd sp.s. c 18 as modified by 1996 c 283. 96-19-095 (Order 96-15), 392-140-609, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 01-04-023, filed 1/30/01, effective 1/30/01)

WAC 392-140-613   Special education safety net -- Standards and criteria -- Percentage and other factors applications.   For a school district requesting state safety net funding due to students above the funded percentage or other factors, the district shall demonstrate at a minimum that:

(1) IEPs are appropriate and are properly and efficiently prepared and formulated.

(2) The district is making reasonable effort to provide appropriate services for students in need of special education utilizing state funding generated by the basic education apportionment and special education funding formulas.

(3) The district's special education services are operated in a reasonably efficient manner and the district has adopted a plan of action to contain or eliminate any unnecessary, duplicative, or inefficient practices.

(4) Indirect costs included for purposes of determining safety net allocations do not exceed the allowable percent for the federal special education program plus one percent.

(5) Any available state and federal funding is insufficient to address the additional needs.

(6) The costs of any supplemental contracts are not included for purposes of determining safety net allocations. Supplemental contracts are those contracts made pursuant to RCW 28A.400.200(4) excluding extended school year contracts (ESY) required by an IEP.

(7) The costs of any summer school instruction are not included for purposes of making safety net determinations excluding extended school year contracts (ESY) required by an IEP.

[Statutory Authority: RCW 28A.150.290. 01-04-023, 392-140-613, filed 1/30/01, effective 1/30/01. Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 507(7). 00-03-015, 392-140-613, filed 1/7/00, effective 2/7/00. Statutory Authority: RCW 28A.150.290 and 1995 2nd sp.s. c 18 as modified by 1996 c 283. 96-19-095 (Order 96-15), 392-140-613, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 01-04-023, filed 1/30/01, effective 1/30/01)

WAC 392-140-616   Special education safety net -- Standards -- High-cost individual student applications.   For districts requesting safety net funding to meet the extraordinary needs of an eligible high-cost individual special education student, the district shall demonstrate at a minimum that:

(1) The IEP for the eligible special education student is appropriate, and properly and efficiently prepared and formulated.

(2) All of the following criteria apply to the high-cost individual student:

(a) Costs eligible for safety net consideration must be direct expenditures for services required in the IEP.

(b) In order to deliver appropriate special education to the student, the district must be providing services which incur additional costs which exceed available district annual average per-pupil revenues, including state, federal and local revenues, by seven thousand three hundred fifty-eight dollars for the 2001-02 school year. The threshold amount shall be adjusted annually thereafter based upon the increase in base salary and NERCs as budgeted in the Biennial Operating Appropriations Act and published in the Safety Net application. This threshold amount shall be adjusted pro rata for students not counted or expected to be counted for special education services on all eight enrollment count dates (October through May). For example, for a student served and reported for only six of the eight count dates, the threshold amount shall be reduced to three-quarters of the full amount. The state safety net oversight committee may set a lower threshold for small school districts.

(c) The total cost of educational services must exceed any carryover of federal flow-through special education funding as of August 31 of the prior school year.

(d) The cost of providing special education services, as directed in the IEP, for this student would be detrimental to the school district's ability to provide necessary services to the other students being provided special education in the district.

(3) The state safety net oversight committee shall adapt the high cost individual student application as appropriate for applications prepared by the Washington state school for the blind and the Washington state school for the deaf.

[Statutory Authority: RCW 28A.150.290. 01-04-023, 392-140-616, filed 1/30/01, effective 1/30/01. Statutory Authority: RCW 28A.150.290 and 1997 c 149 507(8). 98-08-013 (Order 98-05), 392-140-616, filed 3/18/98, effective 4/18/98. Statutory Authority: RCW 28A.150.290 and 1995 2nd sp.s. c 18 as modified by 1996 c 283. 96-19-095 (Order 96-15), 392-140-616, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 01-04-023, filed 1/30/01, effective 1/30/01)

WAC 392-140-625   Special education safety net -- Demonstration of percentage and other factors.   Applications for percentage or other factors shall demonstrate need for safety net funding as follows:

(1) Applications from districts with actual enrollment greater than funded enrollment pursuant to WAC 392-140-605 (1)(b) must demonstrate, through the application narrative, that the district is implementing ((a)) an ongoing plan of action to contain or eliminate any unnecessary, duplicative, or ineffective enrollment practices. The district shall demonstrate a financial need on worksheet "A" of the application. Applicants shall cooperate with the special education program audit team and shall provide the team with any information required by the team to review and verify certifications made on the safety net application.

(a) The application narrative completed by the school district shall provide any information and explanations related to students above the funded percentage as required in the published instructions.

(b) Application worksheet "A" shall demonstrate a financial need by displaying the school district's special education expenditures, revenues, and special education enrollments for the prior and current school years.

(c) Cost differences between the current and prior school years shall be explained in the application narrative. The application narrative shall detail cost differences in services to students which occurred between the current school year and the prior school year. Such details shall include costs and savings associated with each change in services.

(d) A fiscal need shall be demonstrated through the application narrative, on application worksheet "A" and other information available to the state oversight committee.

(2) Applications for other factors pursuant to WAC 392-140-605 (1)(d) must demonstrate, through application narrative and on application worksheet "A," financial need caused by factors other than the presence of students above the funded percentage or high-cost individual student(s).

(a) The narrative shall identify causal factors beyond the district's control and not attributable to the district philosophy or service delivery style, and:

(i) Outline each causal factor asserted in the application;

(ii) Provide a clear explanation of the impact of each factor to the district in terms of number and/or severity of students;

(iii) Quantify the safety net funding need due to the factor. Show the assumptions and calculations used to arrive at the dollar amount of unfunded costs attributable to each factor.

(b) Provide a copy or explanation of any action plan the district has adopted to contain or eliminate any unnecessary, duplicative, or inefficient practices pursuant to WAC 392-140-613.

(c) If the district received an award in a prior year, describe the program, prior year costs, and compare and contrast to the current year program and costs.

[Statutory Authority: RCW 28A.150.290. 01-04-023, 392-140-625, filed 1/30/01, effective 1/30/01. Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 507(7). 00-03-015, 392-140-625, filed 1/7/00, effective 2/7/00. Statutory Authority: RCW 28A.150.290 and 1997 c 149 507(8). 98-08-013 (Order 98-05), 392-140-625, filed 3/18/98, effective 4/18/98. Statutory Authority: RCW 28A.150.290 and 1995 2nd sp.s. c 18 as modified by 1996 c 283. 96-19-095 (Order 96-15), 392-140-625, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 00-03-015, filed 1/7/00, effective 2/7/00)

WAC 392-140-630   Special education safety net -- Special education program audit team -- Purpose, procedures.   The special education program audit team consists of staff of the state auditor's office funded in the Biennial Operating Appropriations Act to ((audit special education programs that exhibit unusual rates of growth, extraordinarily high costs, or other characteristics requiring the attention of the state safety net oversight committee)) assist the special education safety net committee when requested. When reviewing a school district's special education program, the audit team shall review and verify any certifications and supporting information provided by the district in a safety net application. The audit team shall provide the results of the review to the state oversight committee. The results of the audit team's review shall be considered by the oversight committee in determining, adjusting, or recovering safety net awards.

[Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 507(7). 00-03-015, 392-140-630, filed 1/7/00, effective 2/7/00. Statutory Authority: RCW 28A.150.290 and 1997 c 149 507(8). 98-08-013 (Order 98-05), 392-140-630, filed 3/18/98, effective 4/18/98.]


AMENDATORY SECTION(Amending Order 96-15, filed 9/18/96, effective 10/19/96)

WAC 392-140-650   Special education safety net -- Withdrawal of application.   If at any time a school district wishes to withdraw a submitted application, the school district superintendent ((should)) or designee must submit a letter requesting withdrawal to the state oversight committee prior to the published meeting date.

[Statutory Authority: RCW 28A.150.290 and 1995 2nd sp.s. c 18 as modified by 1996 c 283. 96-19-095 (Order 96-15), 392-140-650, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 00-03-015, filed 1/7/00, effective 2/7/00)

WAC 392-140-680   Special education safety net -- Recovery of state allocations to school districts.   State safety net funding is provided in revenue account 4121. Safety net funding:

(1) Shall be recovered or reduced for the following reasons:

(a) Unexpended account 4121 revenues are recovered in the subsequent school year pursuant to WAC 392-122-900.

(b) Any necessary adjustments pursuant to WAC 392-140-675 were not previously made.

(c) The periodic and/or final MOESR calculation performed by the superintendent of public instruction determines that a lesser amount is needed for maintenance of effort (state revenue only).

(d) The application contains a falsification or deliberate misrepresentation, including omission of a material fact.

(e) The state auditor's financial and legal compliance audit includes ((findings which)) issues that materially affect the school district's safety net application.

(2) May be recovered or reduced for the following reasons:

(a) IEPs are determined at a later date through state audit or child count verification to be inappropriate or improperly prepared, and appropriate and proper preparation would materially affect the justification or amount of need for safety net funding.

(b) The school district has carryover of federal flow-through special education funding from the previous school year.

(c) The state oversight committee finds grounds for adjustment in the special education program audit team's review pursuant to WAC 392-140-630.

[Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 507(7). 00-03-015, 392-140-680, filed 1/7/00, effective 2/7/00. Statutory Authority: RCW 28A.150.290 and 1997 c 149 507(8). 98-08-013 (Order 98-05), 392-140-680, filed 3/18/98, effective 4/18/98. Statutory Authority: RCW 28A.150.290 and 1995 2nd sp.s. c 18 as modified by 1996 c 283. 96-19-095 (Order 96-15), 392-140-680, filed 9/18/96, effective 10/19/96.]

Washington State Code Reviser's Office