WSR 12-23-010

PROPOSED RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[ Filed November 8, 2012, 2:54 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 11-19-041.

     Title of Rule and Other Identifying Information: WAC 392-140-600 through 392-140-685, state special education safety net funding.

     Hearing Location(s): Office of Superintendent of Public Instruction (OSPI), Wanamaker Conference Room, 600 Washington Street S.E., Olympia, WA 98502, on January 8, 2013, at 1:30 p.m.

     Date of Intended Adoption: January 8, 2013.

     Submit Written Comments to: Rules Coordinator, Legal Services, OSPI, P.O. Box 47200, Olympia, WA 98504-7200, e-mail maryellen.parrish@k12.wa.us, fax (360) 753-4201, by January 7, 2013.

     Assistance for Persons with Disabilities: Contact Wanda Griffin by January 3, 2013, TTY (360) 664-3631 or (360) 725-6132.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Update of language as a result of legislative changes.


• Eliminate rule pertaining to reapplication as ESHB 1086 language limits award determination to August of each year;
• Modify language pertaining to special education safety net award adjustments due to percentage of medicaid billings for eligible students;
• Minor wording changes to ensure consistent language throughout rules.

     Reasons Supporting Proposal: Proposed language is a result of changes enacted in ESHB 1086.

     Statutory Authority for Adoption: RCW 28A.150.290.

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

     Name of Proponent: [OSPI], governmental.

     Name of Agency Personnel Responsible for Drafting: Mary Ellen Parrish, OSPI, (360) 725-6086; Implementation: Doug Gill, OSPI, (360) 725-6075; and Enforcement: Bob Harmon, OSPI, (360) 725-6170.

     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. Not applicable.

November 8, 2012

Randy Dorn

Superintendent of

Public Instruction

OTS-5086.2


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-600   Special education safety net -- Applicable provisions.   The provisions of WAC 392-140-600 through 392-140-685 apply to the determination of safety net ((allocations)) awards of state special education ((moneys)) funds and Individuals with Disabilities Education Act (IDEA) federal funds for the ((2007-08)) 2012-13 school year and thereafter. Beginning with the 2010-11 school year award cycle, the office of the superintendent of public instruction shall make award determinations for safety net funding in August of each year.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-600, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-600, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 04-08-118, § 392-140-600, filed 4/6/04, effective 5/7/04; 03-02-053, § 392-140-600, filed 12/26/02, effective 1/26/03. Statutory Authority: RCW 28A.150.290. 01-04-023, § 392-140-600, filed 1/30/01, effective 1/30/01. Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 § 507(7). 00-03-015, § 392-140-600, 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), § 392-140-600, filed 9/18/96, effective 10/19/96.]


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

WAC 392-140-601   Special education safety net -- Authority.   The authority for WAC 392-140-600 through 392-140-685 is:

     (1) The appropriation language for special education programs in the Washington state Biennial Operating Appropriations Act; and

     (2) RCW 28A.150.290(1); and

     (3) RCW 28A.150.392.

[Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 § 507(7). 00-03-015, § 392-140-601, 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), § 392-140-601, 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), § 392-140-601, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 06-01-017, filed 12/9/05, effective 1/9/06)

WAC 392-140-60105   Definition -- High need student.   ((A student with a disability whose program cost is greater than three times the statewide average per pupil expenditures as defined in section 9101 of the Elementary and Secondary Education Act of 1965 or a multiple of the statewide average per pupil expenditures as established by the superintendent of public instruction and published in the Safety Net Bulletin shall be considered a high need student for purposes of this chapter.)) For purposes of special education safety net funding, high need student means a student eligible for special education services whose properly formulated Individualized Education Program (IEP) costs as calculated on worksheet C exceed a multiple of the statewide average per pupil expenditures (APPE) as defined in section 9101 of the Elementary and Secondary Education Act of 1965.

     (1) For federal special education safety net funding, the multiple of the statewide average per pupil expenditures shall be at least three times the statewide average; and

     (2) For state special education funding, the multiple of the statewide average per pupil expenditure shall be the multiple of the statewide average per pupil amount established by the office of the superintendent of public instruction in consultation with the office of financial management and the fiscal committees of the legislature, and published in the annual Safety Net Bulletin.

[Statutory Authority: RCW 28A.150.290. 06-01-017, § 392-140-60105, filed 12/9/05, effective 1/9/06.]


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-602   Special education safety net -- Eligible applicants.   (1) An individual school district of the state of Washington is eligible to apply for special education safety net ((moneys)) awards on behalf of its resident students. Resident students include those students as defined ((as resident pursuant to WAC 392-137-115, those enrolled through choice (RCW 28A.225.225), those from nonhigh districts (RCW 28A.225.210), and those enrolled as institutional education students pursuant to WAC 392-122-205 (4) and (5))) by state law. Resident students exclude those residing in another district and enrolled as part of an interdistrict cooperative program (RCW 28A.225.250).

     (2) An interdistrict cooperative or educational service agency consistent with WAC 392-172A-01055 and 392-172A-01115 of at least fifteen districts in which all excess cost services for special education students of the member districts are provided by the cooperative or educational agency is eligible to apply for special education safety net ((moneys)) awards. ((The cooperative and the participating school)) Member districts shall be treated as a single school district for the purposes of this chapter((. Participating school districts)) and are not eligible to apply for safety net ((moneys)) awards individually.

     (3) The Washington ((school for the deaf)) state center for childhood deafness and hearing loss and the Washington state school for the blind are eligible to apply for high need students under WAC 392-140-616.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-602, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-602, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1997 c 149 § 507(8). 98-08-013 (Order 98-05), § 392-140-602, 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), § 392-140-602, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-605   Special education safety net -- Application types, certification, worksheets.   Application for safety net ((funding)) awards shall be made on Form SPI 1381 - Certification published by the office of the superintendent of public instruction. Applications will be considered and awards made according to the schedule published in the annual Safety Net Bulletin.

     (1) School districts may make application for safety net ((funding)) awards in two ((application)) categories - High need student(s) and/or community impact factors ((for costs associated with communities that draw a larger number of families with children in need of special education services)). The ((school district making application)) applicant for either or both categories of safety net ((funding)) awards shall certify that:

     (a) ((The district recognizes that)) Differences in costs attributable to district philosophy, service delivery choice, or accounting practice are not a legitimate basis for safety net awards((.));

     (b) The application complies with the respective safety net application standards of WAC 392-140-616 and 392-140-617;

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

     (d) The ((district understands)) applicant acknowledges that safety net funding is not an entitlement, is subject to adjustment and recovery, may not be available in future years, must be expended in program 21 or program 24 as specified in the award letter, and certifies that federal medicaid has been billed for all services to eligible students consistent with RCW 28A.150.392(e);

     (e) The ((district)) applicant is making reasonable effort to provide appropriate services for students in need of special education using state funding generated by the basic education apportionment and special education funding formulas and federal funding;

     (f) The ((district's)) applicant's special education services are operated in a reasonably efficient manner;

     (g) Indirect costs included for purposes of determining safety net ((allocations)) awards do not exceed the allowable ((percent for federal special education program)) federally restricted indirect rate plus one percent;

     (h) Any available state and federal funding is insufficient to address the ((additional needs)) request for additional funds;

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

     (j) 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)) a properly formulated IEP.

     (2) Worksheet A shall be included with the application and must demonstrate the ((need)) applicant's capacity for safety net ((funding)) awards. Worksheet A is used to determine a maximum amount of safety net award eligibility ((for a school district)). Award amounts may be less than the maximum potential amount of safety net award eligibility determined on worksheet A. ((School districts are encouraged and may be required to submit additional information designed to assist the state oversight committee in analyzing the application.))

     (3) All high need student applications shall include worksheets "A" and "C" and ((individuals)) Summary of Applications for High Need Individual Students published in the safety net application, and certification of standards and criteria pursuant to WAC 392-140-616.

     (4) All community impact applications shall include worksheet A, the community impact application, all supporting documentation, and certification of standards and criteria pursuant to WAC 392-140-617.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-605, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-605, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 04-08-118, § 392-140-605, filed 4/6/04, effective 5/7/04; 03-02-053, § 392-140-605, filed 12/26/02, effective 1/26/03. Statutory Authority: RCW 28A.150.290. 02-05-036, § 392-140-605, filed 2/12/02, effective 2/13/02; 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 04-08-118, filed 4/6/04, effective 5/7/04)

WAC 392-140-608   Special education safety net -- Safety net application -- Timing.   Safety net applications shall be submitted and reviewed pursuant to the schedule of dates published by the office of the superintendent of public instruction in the annual safety net bulletin. ((Late)) Applications not received by the published dates and times in the bulletin will not be accepted and no applications for the school year will be accepted after the final application due date.

[Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 04-08-118, § 392-140-608, filed 4/6/04, effective 5/7/04. 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), § 392-140-608, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

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 identified on the IEP also complies with state and federal requirements (((i.e., regularly scheduled teaching or training activities provided or designed by special education qualified staff))) consistent with WAC 392-172A-01155 or as amended.

     (3) The provision of special education services ((conforms)) is consistent with areas of need identified in the student's evaluation and/or reevaluation made pursuant to chapter 392-172A WAC or as amended.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-609, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-609, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 04-08-118, § 392-140-609, filed 4/6/04, effective 5/7/04; 03-02-053, § 392-140-609, filed 12/26/02, effective 1/26/03. Statutory Authority: RCW 28A.150.290. 02-05-036, § 392-140-609, filed 2/12/02, effective 2/13/02; 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 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-616   Special education safety net -- Standards -- High need student applications.   For ((districts)) applicants requesting safety net ((funding)) awards to meet the ((extraordinary)) needs of an eligible high need special education student, the ((district)) applicant shall convincingly demonstrate to a majority of the state oversight committee members at a minimum that:

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

     (2) ((All of the following criteria apply to the high need student:

     (a))) Costs eligible for safety net consideration must be associated with providing direct special education and related services identified in a properly formulated IEP((.

     (b))) and quantifiable by the committee on worksheet C; and

     (3) In order to deliver appropriate special education and related services to the student, the ((district)) applicant must be providing services which incur costs exceeding:

     (((i))) (a) The annual threshold as established in WAC 392-140-60105 by the office of superintendent of public instruction for state ((funding; then

     (ii) Three times the average per pupil expenditure (as defined in section 9101 of the Elementary and Secondary Education Act of 1965) for the state of Washington for federal funding)) safety net awards.

     (b) Threshold amounts shall be adjusted pro rata for eligible students not ((counted or expected to be counted for special education services)) served by the applicant on all ((eight)) nine enrollment count dates (October through ((May)) June). For example, for a student served ((and reported for only)) six of the ((eight)) nine count dates, the threshold amount shall be reduced to ((three-quarters)) two-thirds of the full amount.

     (((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.

     (3))) (4) The state safety net oversight committee shall adapt the high need student application ((as appropriate for applications prepared by)) for the Washington state school for the blind and the Washington ((school for the deaf)) state center for childhood deafness and hearing loss.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-616, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-616, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 03-02-053, § 392-140-616, filed 12/26/02, effective 1/26/03. Statutory Authority: RCW 28A.150.290. 02-05-036, § 392-140-616, filed 2/12/02, effective 2/13/02; 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 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-617   Special education safety net -- Standards -- Community impact applications.   For ((districts)) applicants requesting state safety net ((funding)) awards to meet the extraordinary costs associated with communities that draw a larger number of families with children in need of special education services, the ((district)) applicant must meet the standards of WAC 392-140-605 (1)(a) through (j) and convincingly demonstrate that:

     (1) Demographic, environmental, sociological or other factor(s) cause the district's special education enrollment to be disproportional by category of disability or the overall number of students identified as eligible for special education; and

     (2) The unique factor(s) identified by the ((district)) applicant is not the result of district philosophy, service delivery choice, or accounting practice; and

     (3) The identified factor(s) creates an ((adverse)) extraordinary documentable fiscal impact upon the ((district's)) applicant's special education program; and

     (4) The ((district)) applicant summarizes the steps the applicant has taken ((in the current year)) or ((steps the district)) plans to take ((in the future)) in response to the factors identified in the application.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-617, filed 1/17/08, effective 2/17/08.]


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-626   Special education safety net -- Worksheet A -- Demonstration of need.   Applications for safety net funds shall demonstrate ((district financial need)) capacity for safety net awards as follows:

     (1) Application worksheet "A" shall demonstrate a fiscal ((need)) capacity in excess of((:

     (a) Any previous safety net awards for the current school year; and

     (b))) all available revenue to the applicant for special education, including state and federal revenue, program income generated by such state and/or federally funded special education programs, and all carryover of state and federal special education revenue.

     (2) Awards shall not exceed the potential capacity for safety net funding on the worksheet "A."

     (3) Beginning with the 2007-08 school year, worksheets submitted with safety net applications ((are to)) must reflect the full cost method of accounting, pursuant to section 501(1)(k), chapter 372, Laws of 2006.

     (4) The safety net oversight committee may revise the ((district's)) applicant's worksheet "A" as submitted for errors or omissions or more current information.

     (5) The ((school district)) applicant shall provide clarifying information ((as requested by)) at the request of the state oversight committee.

     (6) After the close of the school year, ((the safety net oversight committee may review)) the worksheet "A" used to determine ((need)) capacity for ((a district's)) an award may be reviewed against the actual final school year enrollments, available revenues, and legitimate expenditures reported by the ((district)) applicant. Based upon the results of this review((:

     (a))) the safety net allocation for the school year may be adjusted or recovered((; or

     (b))) if the ((committee finds that)) award or a portion of the safety net ((allocation was not needed to balance revenues and expenditures, the committee may consider that portion of the allocation available to meet the needs of the ensuing school year.

     (7) The state safety net oversight committee shall adapt the worksheet "A" - Demonstration of Need as appropriate for applications prepared by districts participating in the pilot program according to the provisions of RCW 28A.630.015(4))) award exceeded the demonstrated capacity for funding based upon consideration of all available revenues and legitimate expenditures.

     (((8))) (7) In accordance with the state of Washington Accounting Manual for Public School Districts and statutory federal language, potential capacity for safety net ((funding)) awards shall not include legal fees, court costs, or other costs associated with a cause of action brought on behalf of a child to ensure a free ((appropriated)) appropriate public education.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-626, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-626, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 04-08-118, § 392-140-626, filed 4/6/04, effective 5/7/04; 03-02-053, § 392-140-626, filed 12/26/02, effective 1/26/03. Statutory Authority: RCW 28A.150.290. 01-04-023, § 392-140-626, filed 1/30/01, effective 1/30/01. Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 § 507(7). 00-03-015, § 392-140-626, filed 1/7/00, effective 2/7/00.]


AMENDATORY SECTION(Amending WSR 04-08-118, filed 4/6/04, effective 5/7/04)

WAC 392-140-630   Special education safety net -- Special education program audit ((team)) -- Purpose, procedures.   Special education program audits by staff of the state auditor's office may be requested to assist the special education safety net committee. When reviewing ((a school district's)) an applicant's special education program, the auditors may review and verify any certifications and supporting information provided by the ((district)) applicant in a safety net application. The auditors ((may)) will provide the results of the review to the state oversight committee. The results of the auditor's review may be considered by the oversight committee in determining, adjusting, or recovering safety net awards.

[Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 04-08-118, § 392-140-630, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 28A.150.290. 02-05-036, § 392-140-630, filed 2/12/02, effective 2/13/02. 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 WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-640   Special education safety net -- State oversight committee -- Membership, structure.   Membership of the state oversight committee shall consist of: Staff of the office of the state auditor who shall be nonvoting, and one or more representatives from ((a)) school ((district(s), and one)) districts or ((more representatives from an)) educational service districts.

     (1) ((The state oversight committee members will be appointed by the office of superintendent of public instruction.

     (2))) The state director of special education shall serve as an ex officio, nonvoting committee member and act as the state oversight committee manager.

     (2) The state oversight committee members will be appointed by the state oversight committee manager.

     (3) Members of the state oversight committee ((from school districts and/or educational service districts)) will be appointed based on their knowledge of special education program service delivery and funding, geographical representation, size of district(s) served, and other demographic considerations which will ((guarantee)) ensure a representative state committee.

     (4) ((Alternate members shall be appointed. In the event a member is unable to vote at a committee meeting, an alternate member shall vote.

     (5) Membership appointments shall be made for a period of one year unless OSPI agrees on an annual basis that the member will continue to serve on the committee.)) The oversight committee manager may replace a portion of the committee each year in order to ((enhance representation)) ensure a representative state committee.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-640, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-640, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 04-08-118, § 392-140-640, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 28A.150.290 and 1997 c 149 § 507(8). 98-08-013 (Order 98-05), § 392-140-640, 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), § 392-140-640, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-643   Special education safety net -- Definition -- State oversight committee -- Procedures.   (1) The state oversight committee will review applications as deemed necessary by the office of superintendent of public instruction pursuant to WAC 392-140-608.

     (2) All applications received by the state oversight committee will be reviewed for completeness by the state oversight committee manager or designee. Applications must include all necessary forms, worksheets, and attachments described in the ((instruction)) annual bulletin published by the office of superintendent of public instruction. Incomplete applications will not be considered by the committee.

     (3) The state oversight committee manager or designee will forward to the committee members copies of the applications for review in a timely manner.

     (4) The state oversight committee manager or designee will be responsible for presenting each application for consideration to the committee.

     (5) Committee members shall review and discuss the ((application content)) applicant's request for safety net awards for completeness((,)) and accuracy((, and understanding of the reason(s) for the applicant's need for safety net funding)).

     (6) The committee may ((request)) require that ((a submitting school district)) an applicant provide clarifying information.

     (7) Committee members will individually indicate their agreement, disagreement, or abstention with the action of the committee pursuant to WAC 392-140-646.

     (8) A majority vote by the committee members ((will)) shall be sufficient to determine the committee action.

     (9) The state oversight committee manager will ensure that notes are taken which summarize the ((questions and)) discussion related to each application. A decision summary for each application shall include the amount of the initial request, funding adjustments ((recommended)) applied by the committee, the amount of any award to be made, and the reasons for ((and against)) the action taken by the committee.

     (10) ((Committee)) Voting members of the committee shall each sign the decision summary.

     (11) The state oversight committee manager, on behalf of the committee, will notify the applicant ((school district)) in writing of the determination of the committee. The ((school district)) applicant will be provided a copy of the decision summary.

     (12) All applications received by the state oversight committee will be retained by the office of the superintendent of public instruction for use in the evaluation of the safety net ((funding)) award process and to provide the office of the superintendent of public instruction with information with which to make future decisions regarding the safety net process.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-643, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-643, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 04-08-118, § 392-140-643, filed 4/6/04, effective 5/7/04; 03-02-053, § 392-140-643, filed 12/26/02, effective 1/26/03. 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), § 392-140-643, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-646   Special education safety net -- State oversight committee actions.   The state oversight committee shall ((take the following actions:)) review all safety net applications.

     (1) ((After the state oversight committee determines:

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

     (b) There are no unresolved child count verification 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.

     (2))) An application reviewed during an application cycle may be:

     (a) Approved; or

     (b) Disapproved.

     (((3))) (2) The amount approved shall ((be equal to or less than)) not exceed the amount for which application was made.

     (((4) The approval may be contingent on additional requirements imposed by the committee such as development of an action plan to resolve a specified problem prior to submission of any future safety net application to assure school district compliance with the criteria and standards set forth in these safety net regulations.

     (5) The approvals are subject to adjustment and recovery pursuant to WAC 392-140-675 through 392-140-685.)) (3) The state oversight committee may not approve an application if there are unresolved audit issues related to special education that are material to the application. For purposes of this section, "audit" means an examination of a subrecipient to determine compliance with the state or federal laws and regulations governing the operation of a specific program and includes program audits, single audits, or any special purpose audit consistent with chapter 392-115 WAC and WAC 392-140-630. "Unresolved" means that the subrecipient has exhausted the audit resolution process described in chapter 392-115 WAC as amended.

     (4) Awards approved by the state oversight committee are subject to recovery pursuant to WAC 392-140-675 through 392-140-685.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-646, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-646, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 04-08-118, § 392-140-646, filed 4/6/04, effective 5/7/04. 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), § 392-140-646, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 02-05-036, filed 2/12/02, effective 2/13/02)

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

[Statutory Authority: RCW 28A.150.290. 02-05-036, § 392-140-650, filed 2/12/02, effective 2/13/02. 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 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-656   Special education safety net -- Request for review and reconsideration of an action.   An applicant ((district)) may request review and reconsideration of an action of the state oversight committee made pursuant to WAC 392-140-646.

     (1) The ((district)) applicant shall make the request in writing to the ((office of the superintendent of public instruction)) oversight committee manager within ((thirty)) twenty days of the date that the state oversight committee's written determination ((notice)) is sent to the ((district)) applicant pursuant to WAC 392-140-643(11).

     (2) The applicant ((district)) shall request reconsideration of the state oversight committee's action on one or more of the following grounds:

     (a) The action was outside the statutory authority of the committee;

     (b) The action failed to follow prescribed procedures;

     (c) The action erroneously interpreted or applied the law;

     (d) The action was not supported by substantial evidence; or

     (e) The action was inconsistent with the agency rules regarding safety net funding.

     (3) If the office of the superintendent of public instruction finds grounds for reconsideration pursuant to subsection (2) of this section, OSPI shall request reconsideration of the action by the state oversight committee. OSPI shall state the grounds for reconsideration supported by the facts considered.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-656, filed 1/17/08, effective 2/17/08. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 03-02-053, § 392-140-656, filed 12/26/02, effective 1/26/03. Statutory Authority: RCW 28A.150.290 and 1997 c 149 § 507(8). 98-08-013 (Order 98-05), § 392-140-656, 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), § 392-140-656, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-660   Special education safety net -- Approved application -- Special education safety net ((allocations)) awards.   (1) The special education safety net ((allocation)) award for an individual district shall be the ((smaller)) lesser of:

     (a) The amount requested ((by the school district)); or

     (b) The amount authorized by the state oversight committee.

     (2) Special education safety net ((allocations)) awards for high need students under WAC 392-140-605(1) shall use ((appropriated)) federal and state ((moneys)) funds appropriated by the legislature consistent with RCW 28A.150.392(1).

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-660, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-660, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 03-02-053, § 392-140-660, filed 12/26/02, effective 1/26/03. Statutory Authority: RCW 28A.150.290. 01-04-023, § 392-140-660, filed 1/30/01, effective 1/30/01. Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 § 507(7). 00-03-015, § 392-140-660, 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), § 392-140-660, 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), § 392-140-660, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-675   Special education safety net -- Adjustments to special education safety net ((allocations)) awards.   Final safety net ((allocations may)) awards shall be adjusted ((as follows:

     (1) For those districts not maximizing medicaid billing for special education students under RCW 74.09.5255, special education safety net allocations shall be reduced by the estimated potential additional incentive payments for the school year if the district maximized medicaid incentive payments. Potential additional incentive payments shall be estimated by the superintendent of public instruction based on the district's percent of medicaid eligible students billed and a statewide average incentive payment per student determined by the superintendent in October of the school year. The average incentive payment per student shall be determined using the prior school year's statewide medicaid billing data assuming fifty percent incentive payments for all school districts. The superintendent of public instruction shall update medicaid billing adjustments to safety net allocations periodically during the school year and again in January following the close of the school year.)) based on:

     (1) The percent of potential medicaid eligible students billed. Potential medicaid revenue will be estimated by the office of the superintendent of public instruction based on the applicant's percent of medicaid eligible students billed and the statewide average payment per student as determined in July of the school year for which the applicant is requesting safety net awards. The office of the superintendent of public instruction shall provide Form SPI 1679 for district reporting of medicaid eligible students and shall update the district's special education medicaid eligibility count and finalize the count for the year based upon the applicant's most recent submission of Form SPI 1679; and

     (2) ((Special education safety net allocations for a school district may be adjusted to reflect)) Changes in factors for which additional or revised information becomes available after the awarding of the initial safety net ((allocation)) award. ((This means:))

     (a) High need awards and/or community impact awards ((may)) will be reduced or nullified when the ((school district's actual)) applicant's available revenues and legitimate expenditures for the school year differ significantly from the estimates on which the initial safety net award was based.

     (b) ((A school district's)) An applicant's safety net award may be recovered or adjusted ((by the safety net oversight committee)) based on the results of the review conducted by the ((special education program audit team)) state auditor's office pursuant to WAC 392-140-630.

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-675, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-675, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1999 c 309 § 507(7). 03-02-053, § 392-140-675, filed 12/26/02, effective 1/26/03. Statutory Authority: RCW 28A.150.290. 01-04-023, § 392-140-675, filed 1/30/01, effective 1/30/01. Statutory Authority: RCW 28A.150.290(2) and 1999 c 309 § 507(7). 00-03-015, § 392-140-675, 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), § 392-140-675, 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), § 392-140-675, filed 9/18/96, effective 10/19/96.]


AMENDATORY SECTION(Amending WSR 08-03-096, filed 1/17/08, effective 2/17/08)

WAC 392-140-685   Special education safety net -- Recovery of state and/or federal ((allocations to school districts)) awards.   High need student state and/or federal special education safety net ((allocations)) awards and state community impact safety net awards((:

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

     (((a))) (1) The application omits pertinent information and/or contains a falsification or ((deliberate)) misrepresentation((, including omission)) of ((a material fact)) information in the application.

     (((b))) (2) The ((allocation)) award is unexpended for the purpose allocated including but not limited to situations where the student leaves the district or has a change in services. For students who transfer to another Washington public school district, expenditures for specialized equipment purchased with these funds shall not be recovered provided the district transfers the equipment to the other school district.

     (((c) The IEP is 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.

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

     (a))) (3) The ((school district)) applicant has carryover of state and/or federal flow-through special education funding from the school year for which the award was made.

     (((b))) (4) The ((district's actual)) applicant's available revenues are significantly higher than estimated revenues on which the award was based or the ((district's)) applicant's legitimate actual expenditures are significantly lower than the estimated expenditures on which the award was based.

     (((c))) (5) The state oversight committee finds grounds for adjustment in the special education program audit team's review pursuant to WAC 392-140-630.

     ((Recovery adjustments not made in the current school year shall be added to the amount calculated pursuant to WAC 392-140-616 (2)(c) for the following school year. Such amounts reduce state and/or federal safety net awards in the following year.))

[Statutory Authority: RCW 28A.150.290. 08-03-096, § 392-140-685, filed 1/17/08, effective 2/17/08; 06-01-017, § 392-140-685, filed 12/9/05, effective 1/9/06. Statutory Authority: RCW 28A.150.290 and 1997 c 149 § 507(8). 98-08-013 (Order 98-05), § 392-140-685, 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), § 392-140-685, filed 9/18/96, effective 10/19/96.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 392-140-653 Special education safety net -- Reapplication.