WSR 11-06-069

PROPOSED RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[ Filed March 2, 2011, 9:25 a.m. ]

Supplemental Notice to WSR 10-22-031.

Preproposal statement of inquiry was filed as WSR 10-16-010.

Title of Rule and Other Identifying Information: Chapter 392-141 WAC, Transportation -- State allocation for operations.

Hearing Location(s): Office of Superintendent of Public Instruction, Brouillet Conference Room, 600 South Washington Street S.E., Olympia, WA 98506-7200, on April 6, 2011, at 10:00 a.m.

Date of Intended Adoption: April 15, 2011.

Submit Written Comments to: Allan J. Jones, Director, P.O. Box 47200, Olympia, WA 98504-7200, e-mail allan.jones@k12.wa.us, fax (360) 586-6124, by April 1, 2011.

Assistance for Persons with Disabilities: Contact Wanda Griffin by April 1, 2011, TTY (360) 664-3631 or (360) 725-6132.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: A complete revision of chapter 392-141 WAC is required in order to implement the new student transportation funding system implemented through EHB 2261 (2009).

The 2010 legislature through EHB 2776 modified the implementation date to September 1, 2011, and required the office of superintendent of public instruction (OSPI) to report on the language of the rule by December 1, 2010.

A hearing was conducted on December 8, 2010. In response to concerns raised during the December 8, 2010, hearing, the agency has made additional revisions to the proposed language incorporating some recommendations as well as redefining other areas for clarification.

Reasons Supporting Proposal: EHB 2261 (2009) and EHB 2776.

Statutory Authority for Adoption: RCW 28A.150.290.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: See Purpose above.

Name of Proponent: [OSPI], governmental.

Name of Agency Personnel Responsible for Drafting: Catherine Slagle, OSPI, (360) 725-6136; Implementation: Shawn Lewis, OSPI, (360) 725-6292; and Enforcement: Allan J. Jones, OSPI, (360) 725-6120.

No small business economic impact statement has been prepared under chapter 19.85 RCW.

A cost-benefit analysis is not required under RCW 34.05.328.

March 1, 2011

Randy Dorn

State Superintendent

OTS-3732.3


NEW SECTION
WAC 392-141-300   Authority and purpose.   The authority for this chapter is RCW 28A.150.290 which authorizes the superintendent of public instruction to adopt rules and regulations for the administration of chapter 28A.150 RCW, which includes student transportation programs, RCW 28A.160.030, which includes individual and in lieu transportation arrangements, RCW 28A.160.160 which includes hazardous walking conditions, and RCW 28A.160.1921 which includes the transportation reporting requirements. The purpose of this chapter is to establish the method for the allocation of funding for the operation of public school district student transportation programs.

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NEW SECTION
WAC 392-141-310   Definitions.   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise:

(1) "Superintendent" means the superintendent of public instruction.

(2) "District" means either a school district or an educational service district.

(3) The definition of "school" includes learning centers or other agencies where educational services are provided.

(4) "Eligible student" means any student served by a district transportation program either by bus, district car, or individual arrangements meeting one or more of the following criteria:

(a) A student whose route stop is outside the walk area of the student's enrollment school site; or

(b) A student whose disability is defined by RCW 28A.155.020 and who is either not ambulatory or not capable of protecting his or her own welfare while traveling to or from school.

Districts determine which students are provided with transportation services; however, only eligible students qualify for funding under the operations allocation.

(5) "To and from transportation" means all transportation between route stops and schools both before and after the school day. To and from transportation includes transportation between home and school and transportation between schools, commonly referred to as shuttles. Transportation not authorized for state allocations under this definition includes, but is not limited to, transportation for students participating in nonacademic extended day programs, field trips, and extracurricular activities.

(6) "Home to school transportation" means all student transportation between route stops and schools both before and after the school day. Home to school transportation does not include transportation between schools.

(7) "Basic program transportation" means students transported between home and school for their basic education. Basic program transportation includes those students who qualify under RCW 28A.155.020 for special services and are capable of protecting his or her own welfare while traveling to or from school and those students who are qualified for gifted programs or bilingual programs or homeless students that do not require specialized transportation. Also included in basic program transportation is transportation required to comply with the school choice provisions of the Elementary Secondary Education Act.

(8) "Special program transportation" means home to school transportation for one of the following specialized programs:

(a) Special education programs provided for by chapter 28A.155 RCW and where transportation as a related service is included on the student's individual education plan or where transportation is required under the provisions of Section 504 of the Rehabilitation Act of 1973; or

(b) Students who require special transportation to a bilingual program in a centralized location; or

(c) Students who require special transportation to a gifted program in a centralized location; or

(d) Students who require special transportation to their school of origin as required by the provisions of the McKinney-Vento Homeless Assistance Act; or

(e) Students who require special transportation to a district operated head start, early childhood education assistance program, or other early education program.

(9) "Kindergarten route" means a school bus providing home to school transportation for basic education kindergarten students operated between the beginning and end of the school day.

(10) "Private party contract" means the provision of home to school transportation service using a private provider (not in a school bus). Private party contracts shall require criminal background checks of drivers and other adults with unsupervised access to students and assurances that any students transported be provided with child safety restraint systems that are age and weight appropriate. Vehicles used must meet school bus specifications established in chapter 392-143 WAC if they have a manufacturer's design capacity of greater than ten passengers, including the driver. However, a vehicle manufactured to meet the federal specifications of a multifunction school activity bus may be used.

(11) "In lieu transportation" means a contract to provide home to school transportation with a parent, guardian or adult student, including transportation on rural roads to access a school bus stop.

(12) "Count period" is the three consecutive school day window used for establishing the reported student count on home to school routes.

(13) The school year is divided into three "report periods," as follows: September - October, November - January, and February - April. These report periods are also referred to respectively as the fall, winter and spring reports. The count period must not fall within five school days of the end of the report period.

(14) "Combined student count" is the total number of basic program or special program eligible student riders reported during each report period. The combined student count for the determination of funding consists of the prorated counts from the prior year's spring report and the current year's fall and winter reports. The prior school year's fall, winter and spring student counts are used for the determination of the efficiency rating. The combined student count is prorated based on the number of months in the respective report period. For the 2011-12 school year, the fall 2011 report values will be used to provide values for the spring 2011 report.

(15) "Average distance to school" means the average of the distances from each school bus stop measured by the shortest road path to the assigned student's school of enrollment.

(16) "Prorated average distance" is calculated by taking the average distance to school weighted by the number of months in the corresponding report period. The prorated average distance used in calculating district allocation consists of the prorated average distance from the prior year's spring report and the current year's fall and winter reports. The prior school year's fall, winter and spring average distances are used for the determination of the efficiency rating. The average distance is prorated based on the number of months in the respective report period.

(17) "Land area" is the area of the school district in square miles, excluding water and public lands, as determined by the superintendent.

(18) "Roadway miles" refers to the number of public roadway miles within the land area of the school district, as determined by the superintendent.

(19) "Walk area" is defined as the area around a school where the shortest safe walking route to school is less than one mile.

(20) "District car route" means home to school transportation where a district motor pool vehicle (not a school bus) is used to transport an eligible student or students. Any regularly scheduled home to school transportation in a district car is required to be driven by an authorized school bus driver.

(21) "District car allocation" is calculated by multiplying the total annual district car route mileage by the rate of reimbursement per mile that is authorized for state employees for the use of private motor vehicles in connection with state business in effect on September 1st of each year.

(22) "Alternate funding system" means an additional funding system as provided in RCW 28A.160.191, defined by OSPI to adjust the allocation for low enrollment school districts, nonhigh school districts, school districts participating in interdistrict transportation cooperatives, and educational service districts operating special transportation services.

(23) "Local characteristics factor" means a percentage increase added to the calculated student transportation allocation to account for site characteristics not identified in the regression analysis defined in WAC 392-141-360. The local characteristics factor for a school year will be identified in the annual student transportation operations allocation reporting bulletin in the fall of each school year.

(24) "Expected allocation" means the initial amount of funding resulting from the regression analysis calculation including the local characteristics factor.

(25) "Adjusted allocation" means the expected allocation plus any adjustments.

(26) "Actual allocation" means the lesser of the previous year's actual reported transportation expenditures or the adjusted allocation.

(27) "Efficiency evaluation" refers to the statistical evaluation of efficiency of a district's transportation operation using linear programming of the data required by the funding formula and the number of buses used on home-to-school routes. Each district is separately compared to an individualized statistical model of a district having similar site characteristics. The efficiency evaluation is expressed as a percentage efficiency rating.

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NEW SECTION
WAC 392-141-320   District reporting requirements.   (1) Reports shall be submitted by each district to the superintendent prior to the last business day in October, the first business day in February, and the first business day in May. These reports shall reflect to the extent practical the planned student transportation program for the entire report period and which is in operation during the ridership count period. The superintendent shall have the authority to make modifications or adjustments in accordance with the intent of RCW 28A.160.150. Each district shall submit the data required on a timely basis as a condition to the continuing receipt of student transportation allocations.

(2) In each report period, districts shall report such operational data and descriptions, as required by the superintendent to determine the operations allocation for each district, including:

(a) School bus route information;

(b) Student count information; and

(c) An update to the estimated total car mileage for the current school year.

(3) For the fall report, districts shall report to the superintendent as required:

(a) An annual school bus mileage report including the total to and from school bus miles for the previous school year, and other categories as requested;

(b) An annual report of each type of fuel purchased for student transportation service for the previous school year, including quantity and cost; and

(c) An annual report of the number of students transported to their school of origin as required by the McKinney-Vento Homeless Assistance Act for the previous school year, and the total mileage and cost of such transportation.

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NEW SECTION
WAC 392-141-330   School bus driver daily logs.   Districts shall require drivers to maintain a daily route log that includes the school bus driver's name, bus number, route number, destinations and student counts by destination, pretrip and post-trip verification, with the date and school bus driver's signature. These daily route logs shall be completed in ink and shall be maintained in the school district files in accordance with the school district record retention schedule. Electronic data collection systems or files may be used for any of this information.

Daily route logs are required to be completed at least once each week. If a district does not require daily route logs on a daily basis, the district must ensure that during each report period a daily log is collected on at least one additional weekday corresponding to each of the days of the count period.

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NEW SECTION
WAC 392-141-340   Determination of the walk area.   (1) Each district shall determine the walk area for each school building or learning center where students are enrolled, attend class and transportation is provided. The district is required to use a process to determine the walk area that involves as many of the following groups as possible: Parents, school administrators, law enforcement representatives, traffic engineers, public health or walking advocates and other interested parties. Hazardous conditions requiring transportation service will be documented and will include all roadways, environmental and social conditions included in the evaluation process.

(2) The process will identify preferred walking routes from each neighborhood to each elementary school as required by WAC 392-151-025. Walk areas and walking routes will be reviewed as conditions change or every two years.

(3) School districts are allowed to provide transportation service within the walk area, but basic program students who are provided transportation from school bus stops within the walk area are not eligible for funding. It is the responsibility of each school district to ensure that noneligible students who are provided with transportation service within the walk area are correctly reported during the count period.

(4) A school district is not required to document the process used to determine that transportation will not be provided from an area. School districts are only required to document the process used to make a decision to transport within one road mile of a school if the district is providing such transportation due to hazardous conditions and reports those students for funding.

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NEW SECTION
WAC 392-141-350   Authorization and limitation on district payments for individual and in lieu transportation arrangements.   Districts may commit to individual transportation or in lieu arrangements subject to approval by the educational service district superintendent or his or her designee. The following arrangements and limitations apply:

(1) A district shall contract with the custodial parent, parents, guardian(s), person(s) in loco parentis, or adult student(s) to pay the lesser of the following in lieu of transportation by the district:

(a) Mileage and tolls for home to school transportation (in whole or part) for not more than two necessary round trips per school day; or

(b) Mileage and tolls for home to school transportation for not more than five round trips per school year, plus room and board.

(2) The in lieu of transportation mileage, tolls and board and room rates of reimbursement which a district is hereby authorized to pay shall be computed as follows:

(a) Mileage reimbursement shall be computed by multiplying the actual road distance from home to school (or other location specified in the contract) with any type of transportation vehicle that is operated for the purpose of carrying one or more students by the maximum rate of reimbursement per mile that is authorized by law for state employees for the use of private motor vehicles in connection with state business;

(b) Toll reimbursement shall be computed by adding the actual fees paid as a condition to the passage of a transportation vehicle and its student passengers or its operator, or both, across a bridge or upon a ferry, and similar fees imposed as a condition to the passage, ingress, or egress of such vehicle and its student passengers or its operator, or both, while traveling to and from school; and

(c) Board and room reimbursement shall be computed at the rates established by the department of social and health services (inclusive of the basic rates and, in the case of disabled students, the additional amounts for students with special needs, but exclusive of any rates or amounts for clothing and supplies).

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NEW SECTION
WAC 392-141-360   Operation allocation computation.   (1) The operation allocation shall be calculated using the following factors:

(a) The combined student count of basic program students;

(b) The combined student count of special program students;

(c) The district's prorated average distance;

(d) The district's total land area;

(e) The district's total number of roadway miles;

(f) The district's number of destinations served by home to school routes;

(g) The district's number of kindergarten routes operated during ten consecutive school days that include the count period and are all within the report period; and

(h) If the school district is a nonhigh district, the answer to the following question: Does the district provide transportation service for the high school students residing in the district?

For each district, an expected allocation is determined using the coefficients resulting from a regression analysis of (a) through (h) of this subsection, evaluated statewide against the prior school year's total to and from transportation expenditures and including the local characteristics factor. For the 2011-12 school year, the coefficients will be calculated based on the fall 2011 report and the 2010-11 school year transportation expenditures. In the 2012-13 school year and after, the coefficients will be determined using the prior school year reports and prior school year expenditures.

(2) The adjusted allocation is the result of modifying the expected allocation by adding any district car mileage reimbursement, adding any adjustment resulting from the alternate funding systems identified in WAC 392-141-380, and making any adjustment resulting from an alternate school year calendar approved by the state board of education under the provisions of RCW 28A.305.141. If the district contracts for student transportation services, any funding in lieu of depreciation is added to this total.

(3) Each district's actual allocation for student transportation operations is the lesser of the prior school year's total allowable student transportation expenditures or the adjusted allocation.

(4) The funding assumption for the transportation operation allocation is that kindergarten through twelfth grade (K-12) school transportation services are provided by the district five days per week, to and from school, before and after the regular school day and operating one hundred eighty days per school year. K-12 service being provided on any other basis is subject to corresponding proration of the operation allocation.

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NEW SECTION
WAC 392-141-370   Transition and hold harmless provisions.   (1) For the 2011-12 through the 2013-14 school years, the transition process will prorate each district's transportation allocation to the extent funds are available based on the difference between the district's prior year's allocation and the district's allocation determined through the process described in WAC 392-141-360.

(2) For the 2011-12 through the 2013-14 school years, each district's student transportation operations allocation shall be no less than the previous year's transportation operations allocation but not more than the total of allowable transportation expenditures plus district indirect expenses using the process identified in WAC 392-141-410.

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NEW SECTION
WAC 392-141-380   Alternate funding systems for low enrollment districts, nonhigh districts, districts participating in interdistrict transportation cooperatives, and educational service districts operating special transportation services.   The superintendent shall adjust the amount of the transportation operation allocation for low enrollment, nonhigh, districts in interdistrict transportation cooperatives, and educational service districts operating special transportation services in the following manner:

(1) The allocation calculated under WAC 392-141-360 is compared with the prior year's total approved transportation expenditures for each school district;

(2) The average percentage increase for all districts above the previous year's allocation is calculated; and

(3) The district's allocation shall be either the calculated allocation or the previous year's allocation increased by the average determined in subsection (2) of this section, whichever is greater, but not more than the prior year's transportation expenditures.

No later than the first business day of June of each year, the superintendent will specify the adjustment process to be used in the coming school year.

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NEW SECTION
WAC 392-141-390   Allocation schedule for state payments.   The superintendent shall apportion the transportation operation allocation according to the schedule in RCW 28A.510.250. Such allocation may be based on estimated amounts for payments made in September, October, November, December, and January. Prior to the 15th of January of each year the superintendent shall notify school districts of the regression analysis coefficients to be used in the calculation of district transportation allocation.

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NEW SECTION
WAC 392-141-400   Efficiency evaluation review.   (1) Each district's efficiency evaluation will be reviewed annually by the regional transportation coordinators. If a school district's efficiency rating is less than ninety percent, the regional transportation coordinator shall review the district's transportation operation to identify the factors impacting the ability of the district to operate an efficient student transportation system. Such factors will include those within the district's controls and those factors that are beyond the district's control.

(2) Completed regional transportation coordinator reports will be provided to the legislature prior to December 1st of each year. Districts will be provided an opportunity to respond to the conclusions of the regional coordinator evaluation and such comments will be included in the report to the legislature. Also included in the report are any actions identified by a district in response to the regional transportation coordinator evaluation.

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NEW SECTION
WAC 392-141-410   Recovery of transportation funds.   The superintendent of public instruction shall recover (take back) state pupil transportation allocations that are not expended for the student transportation program costs that are allowable under the accounting guidance provided by the superintendent. The amount of the recovery shall be calculated as follows:

(1) Determine the district's state allocation for student transportation operations for the school year.

(2) Determine the district's allowable student transportation costs as follows:

(a) Sum the following amounts:

(i) The district's direct expenditures for general fund program 99 pupil transportation, and for educational service district student transportation operations expenditures in program 70 transportation excluding expenditures associated with the regional coordinator and bus driver training grants;

(ii) Allowable indirect charges equal to the expenditures as calculated pursuant to (a)(i) of this subsection times the percentage provided by the superintendent's school apportionment and financial services section;

(b) Subtract the district's revenues for the school year for revenue account 7199 (transportation revenues from other districts).

(3) If the allowable program costs are less than the state allocation, OSPI shall recover the difference.

Funds may not be transferred from program 99 into the transportation vehicle fund.

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NEW SECTION
WAC 392-141-420   District recordkeeping requirements.   All data and forms necessary to develop the district's student transportation report shall be maintained in accordance with the district record retention schedule and shall include the following:

(1) All school bus route logs and school bus driver daily logs including those required in WAC 392-141-330. If student lists are maintained for each school bus route, a copy (electronic or paper) of the list in effect for each count period;

(2) All documentation used to verify the number of students boarding the bus at bus stops within the walk area of their school of enrollment;

(3) All documentation used to report and verify the location of school bus stops used in home to school transportation, including school destinations and transfer points;

(4) All documentation used to develop the annual school bus mileage report;

(5) All documentation used to develop the annual fuel report;

(6) All documentation used to develop the annual report of McKinney-Vento Homeless Act transportation;

(7) All documentation used to develop the district car mileage report;

(8) Copies of any and all correspondence, publications, news articles, or other materials distributed to parents describing the transportation funding process. School districts may provide educational material regarding the funding process for student transportation. However, school districts may not promote or publicize specific count periods. Districts shall not utilize incentive programs that provide tangible gifts to reward increases in ridership counts; and

(9) Other operational data and descriptions, as required by the superintendent to determine the operation allocation requirements for each district.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 392-141-105 Authority.
WAC 392-141-110 Purpose.
WAC 392-141-115 Definition -- Eligible student.
WAC 392-141-120 Definition -- To and from school.
WAC 392-141-130 Definition -- Standard student mile allocation rate.
WAC 392-141-135 Definition -- Prorated bus.
WAC 392-141-140 Definition -- Radius mile.
WAC 392-141-146 Definition -- Basic transportation.
WAC 392-141-147 Definition -- Basic shuttle transportation.
WAC 392-141-148 Definition -- Special transportation.
WAC 392-141-150 Definition -- Midday transportation.
WAC 392-141-152 Definition -- Combined transportation route.
WAC 392-141-155 Definition -- Weighted student unit.
WAC 392-141-156 Definition -- District car allocation rate.
WAC 392-141-157 Definition -- District.
WAC 392-141-158 Definition -- Minimum load factor.
WAC 392-141-159 Definition -- Choice program transportation.
WAC 392-141-160 District reporting and recordkeeping requirements.
WAC 392-141-165 Adjustment of state allocation during year.
WAC 392-141-170 Factors used to determine allocation.
WAC 392-141-180 Limitations on the allocation for transportation between schools and learning centers.
WAC 392-141-185 Operation allocation computation.
WAC 392-141-190 Authorization and limitation on district payments for individual and in-lieu transportation arrangements.
WAC 392-141-195 Allocation schedule for state payments.
WAC 392-141-200 Recovery of transportation funds.

Washington State Code Reviser's Office