STATE BOARD OF EDUCATION

[Filed September 4, 2020, 11:11 a.m.]

Preproposal statement of inquiry was filed as WSR 20-15-150.

Title of Rule and Other Identifying Information: The state board of education (SBE) has proposed amendments to chapter 180-16 WAC regarding state support of public schools. SBE is responding to emergent COVID-19 issues in the education system with this rule making on instructional hours, the school day, and basic education compliance reporting. The purpose of this rule making on chapter 180-16 WAC is to enable local education agencies to deliver instructional hours and school days during state and local public health response that could limit the ability to hold in-person instruction during the 2020-21 school year and other rule changes as necessary. The subject of rule making is to allow modalities other than in-person delivery of instruction to count as instructional hours for the 2020-21 school year.

Hearing Location(s): On October 28, 2020, at 1:00 p.m. Online using Zoom at https://zoom.us/j/92436066608. Members of the public are encouraged to participate online due to COVID-19 health precautions by connecting to Zoom at https://zoom.us/j/92436066608; and at the Brouillet Room, Fourth Floor, Old Capitol, 600 Washington Street S.E., Olympia, WA 98504. This will be the site for the in-person hearing. The presiding officer of the hearing will follow applicable state, local, and building health requirements regarding COVID-19 at the time of the hearing.

Date of Intended Adoption: November 5, 2020.

Submit Written Comments to: Parker Teed, 600 Washington Street S.E., Olympia, WA 98504, email rulescoordinatorSBE@k12.wa.us, fax 360-586-2357, by October 28, 2020.

Assistance for Persons with Disabilities: Contact Parker Teed, phone 360-742-4037, fax 360-586-2357, TTY 360-664-3631, email rulescoordinatorSBE@k12.wa.us, by October 28, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: SBE is responding to emergent COVID-19 issues in the education system with clarifications on counting modalities of instruction other than in-person instruction as instructional hours during the 2020-21 school year. SBE proposes changes to chapter 180-16 WAC to align rule to current policy or practice, improve readability of the rule, or make other changes identified during the review of the WAC chapter.

These proposed permanent rules were filed as emergency rules that went into effect immediately on July 22, 2020.

The following proposed rules are applicable to the 2020-21 school year.


•	Local education agencies shall submit a copy of the reopening schools plan to SBE and superintendent of public instruction (OSPI) two weeks before school begins and no later than September 15, 2020.
•	"Instructional hours" as defined in RCW 28A.150.205 are not limited to in-person educational services. Local education agencies may count instructional hours towards the minimum district-wide annual average those hours of educational activity planned by and under the supervision of school district staff that are delivered through learning modalities that include but are not limited to distance learning, hybrid classrooms, rotating schedules, or other methods that allow for delivery of basic education services during the COVID-19 epidemic.
•	The allowance to count instructional hours through modalities other than in-person instruction does not preclude local education agencies from applicable funding allocation requirements as required by the legislature or OSPI; and
•	Days in which instructional hours are offered to all students under this allowance shall count as school days for the purpose of meeting the minimum one hundred eighty day school year requirement;
•	Local education agencies must implement a system to track student engagement, consistent with OSPI attendance rules, in instructional activities delivered through remote learning modalities; and,
•	SBE will revisit this rule no later than its regularly scheduled July 2021 board meeting.

Reasons Supporting Proposal: RCW 28A.150.220(7) states that SBE shall adopt rules to implement and ensure compliance with program requirements of basic education. Due to the dynamic nature of the COVID-19 epidemic, local education agencies need to be responsive to state and local public health measures such as social distancing, school closures, limiting capacity of buildings, and other suggested ways of limiting community spread of COVID-19. To ensure that basic education can be delivered during the emergency state and local public health response to COVID-19, SBE is proposing rule making that clarifies that districts can count modalities of delivering instruction other than in-person delivery as instructional hours for the 2020-21 school year. The proposed permanent rules are in effect as emergency rules and this proposal is to make permanent rule as necessary.

Statutory Authority for Adoption: RCW 28A.150.220(7).

Statute Being Implemented: RCW 28A.150.220(7).

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

Name of Proponent: SBE, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Randy Spaulding, 600 Washington Street S.E., Olympia, WA 98504, 360-725-6024.

A school district fiscal impact statement is not required under RCW 28A.305.135.

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

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party; and rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.

AMENDATORY SECTION(Amending WSR 18-24-090, filed 12/3/18, effective 1/3/19)

WAC 180-16-195Annual reporting and review process.

(1) Annual school district reports. A review of each school district's kindergarten through twelfth grade program shall be conducted annually for the purpose of determining compliance or noncompliance with basic education program approval requirements. On or before September 15th of each school year, each school district superintendent shall complete and return the program assurance form distributed by the state board of education. The form shall be designed to elicit data necessary to make a determination of a school district's compliance or noncompliance with basic education program approval requirements. For the 2020-21 school year, local education agencies shall submit a copy of the reopening schools plan to the state board of education and superintendent of public instruction two weeks before school begins and no later than September 15, 2020. The form shall be submitted electronically and signed by:

(a) The school board president or chairperson, and

(b) The superintendent of the school district.

(2) State board staff review.

(a) State board of education staff shall review each school district's program assurance form, may conduct on-site visits of selected school districts, as needed and subject to funding support, and shall prepare recommendations and reports for presentation to the state board of education: Provided, that, if a school district's initial program assurance form does not establish compliance with the basic education program approval requirements, the district shall be provided the opportunity to explain the deficiency or deficiencies.

(b) School districts may use the personnel and services of the educational service district to assist the district and schools in the district that are out of compliance with basic education program approval requirements.

(3) Annual certification of compliance or noncompliance—Withholding of funds for noncompliance.

(a) At the November meeting of the state board of education, or at such other meeting as the board shall designate, the board shall certify by motion each school district as being in compliance or noncompliance with the basic education program approval requirements.

(b) A certification of compliance shall be effective for the then current school year subject to any subsequent ad hoc review and determination of noncompliance as may be deemed necessary by the state board of education or advisable by the superintendent of public instruction. In addition, a certification of compliance shall be effective tentatively for the succeeding school year until such time as the state board takes its annual action certifying compliance or noncompliance with the program approval requirements.

(c) A certification of noncompliance shall be effective until program compliance is assured by the school district to the satisfaction of state board of education staff, subject to review by the state board.

(d) Upon the certification of noncompliance of a school district, state board of education staff shall notify the superintendent of public instruction and the school district of a certification of noncompliance immediately after the board meeting at which certification occurred.

(e) A withholding of basic education allocation funding from a school district shall not occur for noncompliance if the school district has remediated the noncompliance situation within sixty school business days from the time the district receives notice of the noncompliance from the state board of education. The state board of education may extend the sixty days timeline only if the district demonstrates by clear and convincing evidence to the satisfaction of the state board of education that sixty days is not reasonable to make the necessary corrections. For the purposes of this section, a school business day shall mean any calendar day, exclusive of Saturdays, Sundays, and any federal and school holidays upon which the office of the superintendent of the school district is open to the public for the conduct of business. A school business day shall be concluded or terminated upon the closure of said office for the calendar day.

(f) At the discretion of the state board of education, after notification by the state board of education to a school district regarding an existing noncompliance, may recommend withholding of funds or may enter into a compliance agreement with the school district that shall include, but not be limited to, the following criteria:

(i) A deadline for school district remediation of the noncompliance(s).

(ii) A listing of all the noncompliance areas and the necessary terms that must be satisfied in each area in order for the school district to gain compliance status. This listing also shall specify additional deadlines for the accomplishment of the stated terms if different from the final deadline as specified in subsection (1) of this section.

(iii) A closing statement specifying that a school district's failure to remediate a noncompliance by the determined deadline may result, at the state board of education's or its designee's discretion, in the recommendation to the superintendent of public instruction of withholding of the district's basic education allocation funding by the superintendent of public instruction.

(iv) The date and the signatures of the superintendent of the school district, the chair of the district's board of directors, and the chair of the state board of education, or his/her designee, to the agreement. A copy of the completed compliance agreement shall be sent to the chairperson of the school district's board of directors and the school district superintendent.

(g) In the event a school district fails to sign a compliance agreement within five school business days from the date of issuance or does not satisfy all of the terms of the signed compliance agreement within the designated amount of time, the state board of education may recommend to the superintendent of public instruction withholding state funds for the basic education allocation until program compliance is assured.

(h) Any school district may appeal to the state board of education the decision of noncompliance by the state board of education. Such appeal shall be limited to the interpretation and application of these rules by the state board of education. Such appeal shall not stay the withholding of any state funds pursuant to this section or completion of the compliance agreement.

(4) The provisions of subsection (3) (g) of this section shall not apply if the noncompliance is related to the district's fiscal condition and results in the implementation of a financial plan under RCW 28A.505.140(3).

AMENDATORY SECTION(Amending WSR 14-19-032, filed 9/8/14, effective 10/9/14)

WAC 180-16-200Total instructional hour requirement.

(1) Kindergarten total instructional hour requirement - Four hundred fifty hours annual minimum, increased to an annual minimum one thousand instructional hours according to an implementation schedule under RCW 28A.150.315.

(2) Grades 1-12 total instructional hour requirement - District-wide annual average of one thousand hours, increased beginning in the 2015-16 school year to:

(a) At least a district-wide average of one thousand eighty instructional hours for students enrolled in grades nine through twelve and a district-wide annual average of one thousand instructional hours in grades one through eight; or

(b) A district-wide annual average of one thousand twenty-seven instructional hours in grades one through twelve.

(3) For nonhigh school districts, a district-wide annual average of one thousand instructional hours in such grades as are offered by the district.

(4) For the 2020-21 school year, "instructional hours" as defined in RCW 28A.150.205 are not limited to in-person educational services. Local education agencies may count as instructional hours towards the minimum district-wide annual average those hours of educational activity planned by and under the direction of school district staff that are delivered through learning modalities which may include, but are not limited to, distance learning, hybrid classrooms, rotating schedules, or other methods that allow for delivery of basic education services during the COVID-19 epidemic. The following are applicable to the 2020-21 school year:

(a) Nothing in this section supersedes applicable statutory or office of superintendent of public instruction funding allocation requirements;

(b) Days in which instructional hours are offered shall count as school days for the purpose of meeting the minimum one hundred eighty-day school year requirement;

(d) The state board of education will revisit this rule no later than its regularly scheduled July 2021 board meeting.