Passed by the Senate April 21, 2023 Yeas 48 Nays 1 DENNY HECK President of the Senate Passed by the House April 20, 2023 Yeas 96 Nays 0 LAURIE JINKINS Speaker of the House of Representatives	CERTIFICATE I, Sarah Bannister, Secretary of the Senate of the State of Washington, do hereby certify that the attached is ENGROSSED SECOND SUBSTITUTE SENATE BILL 5315 as passed by the Senate and the House of Representatives on the dates hereon set forth. SARAH BANNISTER Secretary Secretary
Approved May 11, 2023 10:04 AM	FILED May 11, 2023
JAY INSLEE Governor of the State of Washington	Secretary of State State of Washington

BySenate Ways & Means (originally sponsored by Senators C. Wilson, Billig, Hasegawa, Keiser, Kuderer, Nguyen, Nobles, Pedersen, and Valdez; by request of Superintendent of Public Instruction)

AN ACT Relating to nonpublic agencies operating special education programs for students with disabilities; amending RCW 28A.155.090, 28A.155.060, and 28A.155.210; adding a new section to chapter 28A.300 RCW; adding new sections to chapter 28A.155 RCW; creating new sections; and providing an expiration date.

NEW SECTION. Sec. 1. (1)(a)(i) The legislature finds that the federal individuals with disabilities education act, Title 20 U.S.C. Sec. 1400 et seq., establishes duties for the state education agency, which is the office of the superintendent of public instruction in Washington, with respect to students with disabilities who are placed in a private school or facility by a school district or other public agency as a means of providing special education and related services.

(ii) Since 2006, the federal implementing regulations of the federal individuals with disabilities education act have required that the office of the superintendent of public instruction ensure that a student with a disability who is placed in a private school or facility by a school district or other public agency:

(A) Is provided special education and related services in conformance with an individualized education program that meets the requirements of federal law and at no cost to the student's parents;

(iii) Since 2006, the federal implementing regulations of the federal individuals with disabilities education act have required that the office of the superintendent of public instruction, in implementing the requirements described in (a)(ii) of this subsection:

(B) Disseminate copies of applicable standards to each private school and facility to which a school district or other public agency has placed a student with a disability; and

(iv) The federal implementing regulations of the federal individuals with disabilities education act require the state to monitor implementation of the individuals with disabilities education act to improve educational results and functional outcomes for all students with disabilities. The state must use indicators to measure school district performance, identify areas of noncompliance, and use appropriate enforcement mechanisms, such as technical assistance, corrective action, or withholding funds.

(b) The legislature acknowledges that it has not codified the federal requirements. Therefore, the legislature intends to codify the duty and authority of the superintendent of public instruction to establish standards for authorizing, monitoring, and investigating private schools approved by the state board of education under RCW 28A.305.130, other private in-state entities, and any out-of-state entities, that contract with school districts to provide special education and related services to students with disabilities. The legislature also intends to codify the requirement that these standards must ensure that any students with disabilities placed in the authorized entities by school districts have the same rights, protections, and access to special education and related services that they would have if served by school districts.

(2)(a)(i) The federal implementing regulations of the federal individuals with disabilities education act specify that, when a school district or other public agency has placed a student with disabilities in a private school or facility, responsibility for compliance with the federal individuals with disabilities education act remains with the school district or other public agency and with the office of the superintendent of public instruction.

(ii) State statute permits school districts to contract with entities authorized by the office of the superintendent of public instruction to operate special education programs for students with disabilities and specifies that the approval standards must conform substantially to those of special education programs in the school districts.

(iii) Rules of the office of the superintendent of public instruction specify the minimum elements of the written contract that must be made between a school district and an authorized entity. In addition, these rules specify that the school district remains responsible for ensuring that any student placed in an authorized entity is provided a free appropriate public education in conformance with the individualized education program developed by the school district.

(b) The legislature intends to codify the responsibilities of school districts placing students with disabilities in authorized entities, including specifying minimum contract and parent notification requirements.

(3) In addition, the legislature intends to ensure accountability is properly exercised and shared by directing the state auditor to conduct a performance audit of the system for overseeing the authorized entities that provide special education services to students with disabilities, as well as requiring school districts contracting with these authorized entities to report concerns about education overbilling to the office of the superintendent of public instruction and the office of the state auditor.

The superintendent of public instruction shall have the duty and authority, through the administrative section or unit for the education of children with ((disabling conditions))disabilities, to:

(3) Provide, upon request, to parents or guardians of children with disabilities, information as to the special education programs for students with disabilities offered within the state;

(4) Assist, upon request, the parent or guardian of any child with disabilities in the placement of any child with disabilities who is eligible for but not receiving special educational services for children with disabilities;

(6) Establish standards for authorizing, monitoring, and investigating private schools approved by the state board of education under RCW 28A.305.130, other private in-state entities, and any out-of-state entities, that contract with school districts under RCW 28A.155.060 to provide special education and related services to children with disabilities. The standards must ensure that any children with disabilities placed in authorized entities by school districts have the same rights, protections, and access to special education and related services that they would have if served by a school district;

(7) Consistent with the provisions of RCW 28A.150.390, 28A.160.030, and 28A.155.010 through 28A.155.160, and part B of the federal individuals with disabilities education improvement act, administer administrative hearings and other procedures to ensure procedural safeguards of children with disabilities; and

(((7)))(8) Promulgate such rules as are necessary to implement part B of the federal individuals with disabilities education improvement act or other federal law providing for special education services for children with disabilities and the several provisions of RCW 28A.150.390, 28A.160.030, and 28A.155.010 through 28A.155.160 and to ensure appropriate access to and participation in the general education curriculum and participation in statewide assessments for all students with disabilities.

(1) The office of the superintendent of public instruction may authorize private schools approved by the state board of education under RCW 28A.305.130, other private in-state entities, and any out-of-state entities to contract with school districts under RCW 28A.155.060 to provide special education and related services to students with disabilities. For authorized entities with multiple locations, the office of the superintendent of public instruction must approve each location independently.

(2) The office of the superintendent of public instruction shall establish a process for private schools approved by the state board of education under RCW 28A.305.130 to apply for authorization or reauthorization for a period of up to five years and for other entities to apply for authorization or reauthorization for a period of up to three years.

(i) Opportunities for students to meet the goals of RCW 28A.150.210, in accordance with an individual assessment of student strengths and needs as determined by the placing school districts, and any other requirements established by contract; and

(ii) Opportunities for students in grades nine through 12 to either meet high school graduation requirements under RCW 28A.230.090 or to earn a high school equivalency certificate under RCW 28B.50.536 or laws of the state in which the applicant is located;

(f) Demonstrate through audits that the applicant is financially stable and has accounting systems that allow for separation of school district funds, including financial safeguards in place to track revenues and expenditures associated with contracted placements to ensure that funds are used to provide education and related services to students placed in the authorized entity by the school district;

(g) Demonstrate that the applicant has procedures in place that address staff employment and contracting, including checking personal and professional references, conducting state and federal criminal background checks, and conducting regular staff evaluations that address staff competencies;

(i) Pass an on-site inspection conducted by the office of the superintendent of public instruction that confirms that the health and safety of the facilities, the staffing qualifications and levels, and the procedural safeguards are sufficient to provide a safe and appropriate learning environment for students.

(4) The office of the superintendent of public instruction must prohibit authorized entities from charging tuition or fees to students placed in the authorized entity by a school district.

(5) As used in this section, the term "authorized entity" means a private school approved by the state board of education under RCW 28A.305.130, another private in-state entity, or any out-of-state entity, that has been authorized by the office of the superintendent of public instruction to contract with a school district to provide a program of special education for students with disabilities.

(1) On its webpage related to special education, the office of the superintendent of public instruction must develop and publish a complaint process for individuals to report noncompliance with local, state, or federal laws or violation of students rights by authorized entities. The webpage may include additional instructions for submitting complaints to the resident school district and for using the special education community complaint processes, when applicable.

(2) When an authorized entity notifies the office of the superintendent of public instruction about major program changes, the office shall review the changes with affected school districts to determine whether the entity remains authorized to provide contracted services.

(3) The office of the superintendent of public instruction must monitor and investigate authorized entities and contracting school districts to ensure compliance with the requirements of RCW 28A.155.060 and section 3 of this act. In completing this duty, the office of the superintendent of public instruction must use information and data gathered during on-site visits, submitted through the complaint processes, and provided by authorized entities and school districts. The office of the superintendent of public instruction must use this process to identify and address patterns of misconduct, including issuing corrective action or revoking an entity's authorization under section 3 of this act to contract with school districts.

(4) The office of the superintendent of public instruction may suspend, revoke, or refuse to renew the authorization of an entity under section 3 of this act if the entity:

(1) The office of the superintendent of public instruction shall notify the state board of education if any private school authorized by the office of the superintendent of public instruction under section 3 of this act that is also approved by the state board of education under chapter 28A.195 RCW is investigated for noncompliance, is directed to complete corrective action, or fails to maintain authorization.

(2) The state board of education shall notify the office of the superintendent of public instruction of any unresolved concerns, deficiencies, or deviations related to a private school authorized by the office of the superintendent of public instruction under section 3 of this act that is also approved by the state board of education under chapter 28A.195 RCW.

(1) For the purpose of carrying out the provisions of RCW 28A.155.020 through 28A.155.050, the board of directors of every school district shall be authorized to contract with ((agencies approved by the superintendent of public instruction for operating special education programs for students with disabilities. Approval standards for such agencies shall conform substantially with those of special education programs in the common schools))private schools approved by the state board of education under RCW 28A.305.130, other private in-state entities, and any out-of-state entities authorized by the office of the superintendent of public instruction under section 3 of this act to provide special education and related services to students with disabilities placed in the authorized entities by school districts.

(2) A school district that chooses to contract with an authorized entity must enter into a written contract to establish the responsibilities of the school district and the authorized entity, and set forth the rights of students with disabilities placed in the authorized entity by the school district as a means of providing special education and related services. The contract must include, at a minimum, the following elements:

(c)(i) A description of the opportunities for the student to meet a program of basic education that meets the goals of RCW 28A.150.210, in accordance with an individual assessment of student strengths and needs initially performed by the placing school districts and updated by the authorized entity; and

(ii) When applicable, a description of the opportunities for the student to either meet high school graduation requirements under RCW 28A.230.090 or to earn a high school equivalency certificate under RCW 28B.50.536 or laws of the state in which the authorized entity is located;

(d) A schedule, of at least once per academic term, for the authorized entity to provide to the school district student progress reports. The progress reports must describe how the student is meeting personalized learning outcomes;

(f) Acknowledgment that the authorized entity is responsible for full reimbursement to the school district of any overpayments determined to have been made by the school district;

(g) Acknowledgment that the authorized entity has a list of staff members providing the education and related services and a copy of the license that qualifies each staff member to provide the services;

(iv) Cultural competency, diversity, equity, and inclusion, including best practices for interacting with students from particular backgrounds, including English learner, LGBTQ, immigrant, female, and nonbinary students. For the purposes of this subsection, "cultural competency," "diversity," "equity," and "inclusion" have the same meanings as in RCW 28A.415.443;

(vi) The federal family educational rights and privacy act (Title 20 U.S.C. Sec. 1232g) requirements including limits on access to and dissemination of student records for noneducational purposes;

(viii) Educational rights of students with disabilities, the relationship of disability to behavior, and best practices for interacting with students with disabilities;

(j) Acknowledgment that the school district and the authorized entity have clearly established their respective responsibilities and processes for student data collection and reporting;

(i) The office of the superintendent of public instruction and every school district with which it contracts of any major program changes that occur during the authorization period, including adding or eliminating services or changing the type of programs available to students;

(ii) The office of the superintendent of public instruction, every school district with which it contracts, and every parent or guardian of an affected student of any conditions that would affect the authorized entity's ability to continue to provide the contracted services; and

(iii) The office of the superintendent of public instruction and every school district with which it contracts of any complaints it receives regarding services to students, as well as any law enforcement incident reports involving the authorized entity and its enrolled students;

(p) Acknowledgment that the school district must provide the office of the superintendent of public instruction with the opportunity to review the contract and related documentation upon request.

(3)(a) A school district that contracts with an authorized entity under this section shall conduct an annual on-site visit to confirm that the health and safety of the facilities, the staffing qualifications and levels, and the procedural safeguards are sufficient to provide a safe and appropriate learning environment for students.

(b) A contracting school district may arrange for another school district to complete the annual on-site visit on its behalf, so long as the school district conducting the on-site visit provides a written report to the contracting school district that documents the results of the on-site visit and any concerns about the learning environment.

(4) Each school district contracting with an authorized entity under this section shall provide the following documents to the parents or guardians of each student placed in the authorized entity by the school district:

(a) A summary of the school district's and the authorized entity's responsibilities and processes for reporting incidents of student isolation and restraint under RCW 28A.600.485; and

(5) Each school district contracting with an authorized entity under this section shall report to the office of the superintendent of public instruction and the office of the Washington state auditor any concerns the school district has about overbilling by the authorized entity.

(6) Each school district contracting with an authorized entity under this section shall remain responsible for ensuring that the students with disabilities placed in the authorized entity are:

(a) Provided a free appropriate public education in accordance with the federal individuals with disabilities education act, Title 20 U.S.C. Sec. 1400 et seq. and this chapter;

(b) Provided with special education and related services at no cost to the student's parents and in conformance with an individualized education program as required by law, including evaluations and individualized education program team meetings that meet all applicable requirements; and

A ((school that is required to develop an))student's individualized education program ((as required by federal law)) must include ((within the plan)) procedures for notification of a parent or guardian regarding the use of restraint or isolation under RCW 28A.600.485. If a student is placed in an authorized entity under RCW 28A.155.060, the student's individualized education program must also specify any additional procedures required to ensure the authorized entity fully complies with RCW 28A.600.485.

(1) Beginning December 1, 2023, and in compliance with RCW 43.01.036, the office of the superintendent of public instruction shall annually submit a report to the education committees of the legislature regarding placements of students with disabilities at authorized entities under RCW 28A.155.060. A summary of the report, including a link to the full report content, must also be posted on the office of the superintendent of public instruction's website. The report must include:

(2) The data published under subsection (1) of this section must be disaggregated by each authorized entity when it is possible to do so without disclosing, directly or indirectly, a student's personally identifiable information as protected under the federal family educational rights and privacy act (Title 20 U.S.C. Sec. 1232g).

NEW SECTION. Sec. 9. (1) The state auditor shall conduct a performance audit of the authorization, monitoring, and investigation of authorized entities and the school districts that contract with authorized entities under RCW 28A.155.060 to provide special education and related services to students with disabilities. As appropriate, the state auditor shall make recommendations for improving the system for overseeing authorized entities. The state auditor may conduct the performance audit at a sample of school districts and authorized nonpublic entities as needed.

(2) By November 30, 2026, and in compliance with RCW 43.01.036, the state auditor shall report the performance audit's findings and recommendations to the governor and the education committees of the legislature.