WSR 15-15-106

PROPOSED RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[Filed July 16, 2015, 9:54 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 15-10-104.

Title of Rule and Other Identifying Information: The office of superintendent of public instruction (OSPI) special education section is amending WAC 392-172A-06015 Maintenance of effort, 392-172A-06025 Adjustment to local fiscal efforts in certain fiscal years, and 392-172A-06030 School wide programs under Title 1 of the ESEA. The proposed amendments are made to address recent amendments to federal regulations and to clarify federal maintenance of effort requirements. On April 28, 2015, the United States Department of Education, Office of Special Education Programs, adopted regulations amending their current maintenance of effort regulations.

Hearing Location(s): OSPI, Brouillet Conference Room, Room 430, 4th Floor, 600 Washington Street S.E., Olympia, WA 98504, on August 26, 2015, at 10:00 a.m.

Date of Intended Adoption: August 28, 2015.

Submit Written Comments to: Douglas H. Gill, Assistant Superintendent, Special Education, OSPI, P.O. Box 47200, Olympia, WA 98504-7200, Attn Special Education Section, e-mail speced@k12.wa.us (please put "2015 Rulemaking" in the subject line), fax (360) 786-0247, by August 26, 2015.

Assistance for Persons with Disabilities: Contact Kristin Murphy by August 12, 2015, TTY (360) 664-3631 or (360) 725-6133.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to ensure that the state special education fiscal rules are consistent with federal rules addressing school district requirements for standard of eligibility and maintenance of effort. This change is consistent with federal language, and is also consistent with OSPI's current standards and maintenance of effort requirements for local school districts.

Reasons Supporting Proposal: The proposed amendments will ensure that the regulations are consistent with current federal requirements for determining whether a school district is maintaining expenditures from funding sources other than federal funds.

Statutory Authority for Adoption: RCW 28A.155.090.

Statute Being Implemented: Chapter 28A.155 RCW.

Rule is necessary because of federal law, 34 C.F.R. § 300.203.

Name of Proponent: OSPI, governmental.

Name of Agency Personnel Responsible for Drafting: Pamela McPartland, OSPI, P.O. Box 47200, Olympia, WA 98504-7200, (360) 725-6075; Implementation and Enforcement: Douglas H. Gill, OSPI, P.O. Box 47200, Olympia, WA 98504-7200, (360) 725-6075.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The joint adminstrative [administrative] rules review committee has not requested the preparation of a small business economic impact statement. Section 1, chapter 201, Laws of 2012, applies only to rules proposed by the state board of education.

A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to OSPI proposed rules unless requested by the joint administrative rules review committee or applied voluntarily.

July 16, 2015

Randy Dorn

State Superintendent

of Public Instruction

AMENDATORY SECTION (Amending WSR 07-14-078, filed 6/29/07, effective 7/30/07)

WAC 392-172A-06015 Maintenance of effort.

(1)(a) Eligibility standard. For purposes of establishing the school district's eligibility for an award for a fiscal year, the OSPI must determine that the school district budgets, for the education of students eligible for special education, at least the same amount, from at least one of the following sources, as the school district spent for that purpose from the same source for the most recent fiscal year for which information is available:

(i) Local funds only;

(ii) The combination of state and local funds;

(iii) Local funds only on a per capita basis; or

(iv) The combination of state and local funds on a per capita basis.

(b) When determining the amount of funds that the school district must budget to meet the requirement in (a) of this subsection, the school district may take into consideration, to the extent the information is available, the exceptions and adjustment provided in WAC 392-172A-06020 and 392-172A-06025 that the school district:

(i) Took in the intervening year or years between the most recent fiscal year for which information is available and the fiscal year for which the school district is budgeting; and

(ii) Reasonably expects to take in the fiscal year for which the school district is budgeting.

(c) Expenditures made from funds provided by the federal government for which the OSPI is required to account to the federal government or for which the school district is required to account to the federal government directly or through the OSPI may not be considered in determining whether a school district meets the standard in (a) of this subsection.

(2)(a) Compliance standard. Except as provided under WAC 392-172A-06020 and 392-172A-06025, funds provided to school districts or other public agencies under Part B of the IDEA may not be used to reduce the level of expenditures for the education of students eligible for special education made by it from local funds below the level of those expenditures for the preceding fiscal year.

(((2) Except as provided in subsection (3) of this section, the OSPI determines that a school district complies with this section for purposes of establishing the school district's eligibility for an award for a fiscal year if the district budgets, for the education of special education students, at least the same total or per capita amount from either of the following sources as the district spent for that purpose from the same source for the most recent prior year for which information is available:

(a))) (b) A school district meets this standard if it does not reduce the level of expenditures made by the school district for the education of students eligible for special education from at least one of the following sources below the level of those expenditures from the same source for the preceding year except as provided under WAC 392-172A-06020 and 392-172A-06025:

(i) Local funds only.

(((b))) (ii) The combination of state and local funds.

(((3) A district that relies on subsection (2)(a) of this section for any fiscal year must ensure that the amount of local funds it budgets for the education of students eligible for special education in that year is at least the same, either in total or per capita, as the amount it spent for that purpose in the most recent fiscal year for which information is available, if that year is, or is before, the first fiscal year beginning on or after July 1, 1997, or later, if the most recent fiscal year for which information is available and the standard in subsection (2)(a) of this section was used to establish its compliance with this section.

(4))) (iii) Local funds only on a per capita basis; or

(iv) The combination of state and local funds on a per capita basis.

(c) The OSPI may not consider any expenditures made from funds provided by the federal government for which the OSPI is required to account to the federal government or for which the school district is required to account to the federal government directly or through the OSPI in determining a school district's compliance with the requirement in subsection (1)(a) and (b) of this section.

(3)(a) Subsequent years. If, in the fiscal year beginning on July 1, 2013, or July 1, 2014, a school district fails to meet the requirements of 34 C.F.R. 300.203 in effect at that time, the level of expenditures required of the school district for the fiscal year subsequent to the year of the failure is the amount that would have been required in the absence of that failure, not the school district's reduced levels of expenditures.

(b) If, in any fiscal year beginning on July 1, 2015, a school district fails to meet the requirement of subsection (1)(a)(i) or (iii) of this section and the school district is relying on local funds only, or local funds only on a per capita basis, to meet the requirements of 34 C.F.R. 203 (a) and (b), the level of expenditures required of the school district for the fiscal year subsequent to the year of the failure is the amount that would have been required under subsection (1)(a)(i) or (iii) of this section in the absence of that failure, not the school district's reduced level of expenditures.

(c) If, in any fiscal year beginning on July 1, 2015, a school district fails to meet the requirement of subsection (1)(a)(ii) or (iv) of this section and the school district is relying on the combination of state and local funds or the combination of state and local funds on a per capita basis, to meet the requirements of 34 C.F.R. 203 (a) and (b), the level of expenditures required of the school district for the fiscal year subsequent to the year of the failure is the amount that would have been required under subsection (1)(a)(ii) or (iv) of this section in the absence of that failure, not the school district's reduced level of expenditures.

(4) If a school district fails to maintain its level of expenditures for the education of student's eligible for special education in accordance with subsection (1) of this section, OSPI is liable in a recovery action under 20 U.S.C. 1234a to return to the United States Department of Education, using nonfederal funds, an amount equal to the amount by which the school district failed to maintain its level of expenditures in accordance with this subsection (1) of this section in that fiscal year, or the amount of the school district's Part B subgrant, in that fiscal year, whichever is lower.

AMENDATORY SECTION (Amending WSR 07-14-078, filed 6/29/07, effective 7/30/07)

WAC 392-172A-06025 Adjustment to local fiscal efforts in certain fiscal years.

(1) Notwithstanding WAC 392-172A-06010 and 392-172A-06015 (((1)(a) and (2) and 392-172A-06020(1),)) (2) and except as provided in subsection (4) of this section, for any fiscal year for which the allocation received by a school district exceeds the amount the school district received for the previous fiscal year, the school district may reduce the level of expenditures otherwise required by WAC 392-172A-06015(1) by not more than fifty percent of the amount of that excess.

(2) If a school district exercises the authority under subsection (1) of this section, the school district must use an amount of local funds equal to the reduction in expenditures under subsection (1) of this section to carry out activities that could be supported with funds under the ESEA regardless of whether the school district is using funds under the ESEA for those activities.

(3) Notwithstanding subsection (1) of this section, if OSPI determines that a school district is unable to establish and maintain programs of FAPE that meet the requirements of this chapter and Part B of the act, the OSPI must prohibit the school district from reducing the level of expenditures under subsection (1) of this section for that fiscal year.

(4) The amount of funds expended by a school district for early intervening services under WAC 392-172A-06085 shall count toward the maximum amount of expenditures that the school district may reduce under subsection (1) of this section.

AMENDATORY SECTION (Amending WSR 13-20-034, filed 9/24/13, effective 10/25/13)

WAC 392-172A-06030 School wide programs under Title 1 of the ESEA.

(1) A school district may use funds received under Part B of the act for any fiscal year to carry out a school wide program under section 1114 of the Elementary and Secondary Education Act of 1965, except that the amount used in any school wide program may not exceed:

(a) The amount received by the school district under Part B for that fiscal year; divided by the number of students eligible for special education in the jurisdiction; multiplied by

(b) The number of students eligible for special education participating in the school wide program.

(2) The funds described in subsection (1) of this section may be used without regard to WAC 392-172A-06010 (1)(a).

(3) The funds described in subsection (1) of this section must be considered as federal Part B funds for purposes of ((calculating excess cost and supplanting WAC 392-172A-06010 (1)(b) and (c))) the calculations in WAC 392-172A-06015(2).

(4) Except as provided in subsections (2) and (3) of this section, all other requirements of Part B must be met, including ensuring that students eligible for special education in school wide program schools:

(a) Receive services in accordance with a properly developed IEP; and

(b) Are afforded all of the rights and services guaranteed to students eligible for special education under the IDEA.