PROPOSED RULES
PUBLIC INSTRUCTION
Original Notice.
Preproposal statement of inquiry was filed as WSR 02-17-112.
Title of Rule: WAC 392-140-600 through 392-140-685, state special education safety net funding.
Purpose: To reflect changes made by the 2002 legislature and to provide for application for supplemental safety net funding.
Statutory Authority for Adoption: RCW 28A.150.290.
Statute Being Implemented: Section 507(7), chapter 309, Laws of 1999.
Summary: Proposed amendments reflect the change in safety net funding from state to federal funding, the elimination of MOESR, percentage, and other factors, categories, and the provision for supplemental safety new awards.
Name of Agency Personnel Responsible for Drafting: Shelley Umpstead, Office of Superintendent of Public Instruction, (360) 725-6142; Implementation: Calvin W. Brodie, Office of Superintendent of Public Instruction, (360) 725-6301; and Enforcement: Michael L. Bigelow, Office of Superintendent of Public Instruction, (360) 725-6111.
Name of Proponent: Office of Superintendent of Public Instruction, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: Change to rules: Elimination of the funded safety net category, MOESR; and elimination of state funded safety net categories, percentage and other factors, due to the elimination of state safety net funds and the provision for supplemental safety net awards for those districts that have exhausted the high cost individual category and have remaining demonstrated financial need.
Proposal Changes the Following Existing Rules: As described above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Not applicable, no small business impact.
RCW 34.05.328 does not apply to this rule adoption.
Hearing Location: Old Capitol Building, Bryan Conference Room, 4th Floor, P.O. Box 47200, Olympia, WA 98504-7200, on December 10, 2002, at 11-12 a.m.
Assistance for Persons with Disabilities: Contact Sheila Emery by December 3, 2002, TDD (360) 664-3631 or (360) 725-6271.
Submit Written Comments to: Legal Services, Office of Superintendent of Public Instruction, P.O. Box 47200, 600 South Washington Street, Olympia, WA 98504-7200, fax (360) 753-4201, by December 3, 2002.
Date of Intended Adoption: December 11, 2002.
November 4, 2002
Dr. Terry Bergeson
Superintendent of
Public Instruction
OTS-6004.2
AMENDATORY SECTION(Amending WSR 01-04-023, filed 1/30/01,
effective 1/30/01)
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 of ((state special education moneys and))
Individuals with Disabilities Education Act (IDEA) federal
((discretionary moneys)) funds for the ((2000-01)) 2002-03
school year and thereafter.
[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.]
(1) School districts may make application for safety net
funding ((on one or more of the four application types
described below. Applications will be considered and awards
made in the order shown until the district's eligibility is
exhausted.
(a) Maintenance of effort (state revenue only) hereafter referred to as MOESR. State safety net funding may be requested when a district shows a MOESR loss calculated by the superintendent of public instruction pursuant to WAC 392-140-620.
(b) Students above the funded percentage hereafter referred to as percentage. State safety net funding may be requested if district's actual resident special education enrollment exceeds the district's funded resident special education enrollment, the district is implementing an ongoing plan of action to contain or eliminate any unnecessary, duplicative, or ineffective enrollment practices, and all available funding, including state, federal, and local if provided in the past, is insufficient to meet the expenditure level necessary for special education. State safety net funding may be requested by a school district with unfunded special education costs due to factors beyond the district's control and not attributable to district philosophy or service delivery style. The applicant district must meet the standards of WAC 392-140-613 and 392-140-625.
(c))) for high-cost individual student(s). ((A school
district may submit applications for federal safety net
funding for high-cost individual students meeting the
standards in WAC 392-140-616.
(d) Factors other than students above the funded level or high-cost individual students hereafter referred to as other factors. State safety net funding may be requested by a school district with unfunded special education costs due to factors beyond the district's control and not attributable to district philosophy or service delivery style. The applicant district must meet standards of WAC 392-140-613 and 392-140-625.
(2))) The school district making application for safety net funding 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 ((392-140-610, 392-140-613,
or)) 392-140-616;
(((b))) (c) The application provides true and complete
information to the best of the school district's knowledge;
((and
(c))) (d) The district understands that safety net
funding is not an entitlement, is subject to adjustment and
recovery, may not be available in future years, ((state safety
net funding must be expended in program 21 which impacts the
amount that must be maintained for the federal maintenance of
effort test, and federal safety net funding)) must be expended
in program 24, and federal Medicaid has been billed for all
services to eligible students;
(e) The district 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;
(f) The district's special education services are operated in a reasonably efficient manner;
(g) Indirect costs included for purposes of determining safety net allocations do not exceed the allowable percent for federal special education program plus one percent;
(h) Any available federal funding is insufficient to address the additional needs;
(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 IEP.
(((3))) (2) Worksheet((s)) A shall be included with the
application ((shall)) must demonstrate the need for safety net
funding. Worksheet A is used to determine a maximum amount of
eligibility for a school district. Award amounts may be less
than the maximum amount of 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.
(((a) MOESR applications pursuant to subsection (1)(a) of
this section do not require any worksheets. Applications for
MOESR shall include certification of standards and criteria
described in WAC 392-140-610.
(b) Percentage applications pursuant to subsection (1)(b) of this section require completion of worksheet "A" described in WAC 392-140-625, certification of standards and criteria pursuant to WAC 392-140-613 and percentage application plan.
(c))) (3) All high-cost individual student applications shall include worksheets "A" and "C" and summary published in the safety net application, and certification of standards and criteria pursuant to WAC 392-140-616.
(((d) Other factors applications pursuant to subsection
(1)(d) of this section require completion of application
narrative, worksheet "A" described in WAC 392-140-625, and
certification of standards and criteria described in WAC 392-140-613.)) (4) At the final meeting of the year, the state
oversight committee may consider supplemental safety net
funding needs of applicant districts that have exhausted their
pool of high-cost individual students. This supplemental
funding is limited to the remaining safety net funding
available pursuant to WAC 392-140-660.
Districts making application for supplemental safety net funds shall convincingly demonstrate to the committee that their request for supplemental funding is not due to district philosophy, service delivery choice, or accounting practice.
[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.]
(1) The IEPs comply with federal and state procedural requirements.
(2) The delivery of specially designed instruction identified on the IEP complies with state standards (regularly scheduled teaching or training activities provided or designed by special education qualified staff).
(3) ((Areas for)) The provision of special education
services conforms with areas of need identified in the
student's evaluation and/or reevaluation made pursuant to
chapter 392-172 WAC ((392-172-111)).
(4) The state oversight committee determines:
(a) There are no unresolved state audit examination issues related to special education which are material in nature;
(b) There are no unresolved state 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.
[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.]
(1) The IEP for the eligible special education student is appropriate, and properly and efficiently prepared and formulated.
(2) All of the following criteria apply to the high-cost individual student:
(a) Costs eligible for safety net consideration must be direct expenditures for services required in the IEP.
(b) In order to deliver appropriate special education to
the student, the district must be providing services which
incur additional costs which exceed available district annual
average per-pupil revenues, including state, federal and local
revenues, by ((seven thousand three hundred fifty-eight
dollars for the 2001-02 school year)) the published threshold.
The threshold amount shall be adjusted annually thereafter
based upon the increase in base salary and NERCs as budgeted
in the Biennial Operating Appropriations Act and published in
the safety net application. This threshold amount shall be
adjusted pro rata for students not counted or expected to be
counted for special education services on all eight enrollment
count dates (October through May). For example, for a student
served and reported for only six of the eight count dates, the
threshold amount shall be reduced to three-quarters of the
full amount. The state safety net oversight committee may set
a lower threshold for small school districts.
(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.
(d) The cost of providing special education services, as directed in the IEP, for this student would be detrimental to the school district's ability to provide necessary services to the other students being provided special education in the district.
(3) The state safety net oversight committee shall adapt the high cost individual student application as appropriate for applications prepared by the Washington state school for the blind and the Washington state school for the deaf.
[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.]
(1) Application worksheet "A" shall demonstrate a fiscal need in excess of:
(a) ((The district's maximum eligibility for MOESR;
(b))) Any previous safety net awards for the current school year; and
(((c))) (b) All other available revenue for special
education, including all carryover of federal special
education revenue.
(2) Awards shall not exceed the amount of need demonstrated on the worksheet "A."
(3) Worksheets submitted with safety net applications are to reflect the state adopted excess cost method of accounting, consistently applied for both years presented.
(4) The safety net oversight committee may revise the district's worksheet "A" submitted for errors or omissions.
(5) The school district shall provide ((additional))
clarifying information as requested by 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 for a district's award against the actual final school year enrollments, revenues, and expenditures reported by the district. 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 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.
[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.]
(2) All applications received by the state oversight committee will be reviewed for completeness by the state oversight committee manager or designee. If applications are not complete, they will be returned to the submitting school district.
(3) The state oversight committee manager will forward to the committee members copies of the applications in a timely manner.
(4) The state oversight committee manager will be responsible for presenting each application for consideration to the committee.
(5) Committee members shall question and discuss the application content for completeness, accuracy, and understanding of the reason(s) for the applicant's need for safety net funding.
(6) The committee may request that a submitting school
district provide ((additional)) clarifying information.
(7) Committee members will individually indicate their agreement or disagreement with the action of the committee pursuant to WAC 392-140-646.
(8) A majority vote by the committee members will 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 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 members 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 will be provided a copy of the decision summary.
(12) All applications received by the state oversight committee will be retained by the superintendent of public instruction for use in the evaluation of the safety net funding process and to provide the superintendent of public instruction with information with which to make future decisions regarding the safety net process.
[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.]
(1) The district shall make the request in writing to the superintendent of public instruction within thirty days of the date that the state oversight committee's written determination notice is sent to the district 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 superintendent of public instruction finds grounds for reconsideration pursuant to subsection (2) of this section, the superintendent shall request reconsideration of the action by the state oversight committee. The superintendent's request shall state the grounds for reconsideration supported by the facts considered by the superintendent.
[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.]
(1) The special education safety net allocation for an individual district shall be the smaller of:
(a) The amount requested by the school district; or
(b) The amount authorized by the state oversight committee.
(2) ((If the district requests and the oversight
committee approves the "full" allocation permitted by a state
formula, then the allocation shall be adjusted periodically
during the year and again in January after the close of the
school year to reflect the amount determined under the
formula.
(3) Special education safety net allocations of state moneys for percentage and other factors applicants under WAC 392-140-605 (1)(b) and (d) shall be prorated if total year-to-date state allocations for all safety net applications under WAC 392-140-605 (1)(a), (b), and (d) exceed the authorized appropriation for that school year.
(4))) Special education safety net allocations for
high-cost individual students under WAC 392-140-605 (1)(((c)))
shall use appropriated federal moneys. If safety net awards
to meet the extraordinary needs of one or more individual
special education students exceed the general fund -- federal
appropriation, the superintendent shall expend all available
federal discretionary funds necessary to meet this need. ((General fund -- state funds shall not be expended for this
purpose.))
[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.]
(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.
(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. This means:
(a) ((MOESR awards for the "full" amount shall be
increased, reduced, or nullified when a recalculation pursuant
to WAC 392-140-620 results in a change in the amount
previously calculated pursuant to WAC 392-140-620.
(b) Percentage awards for the full amount under WAC 392-140-605 (1)(b) shall be increased, reduced, or nullified when the district's enrollment or state funding factors change.
(c) Percentage and other factors)) High-cost awards may be reduced or nullified when the school district's actual revenues and expenditures for the school year differ significantly from the estimates on which the initial safety net award was based.
(((d))) (b) A school district's safety net award may be
adjusted by the safety net oversight committee based on the
results of the review conducted by the special education
program audit team pursuant to WAC 392-140-630.
(((3) Allocations of state moneys under WAC 392-140-605
(1)(b) and (d) shall be prorated if total state allocations
for all safety net applications under WAC 392-140-605 (1)(a),
(b), and (d) exceed the authorized appropriation for that
school year. Allocations shall be restored to full funding if
additional appropriation authority becomes available.))
[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.]
The following sections of the Washington Administrative Code are repealed:
| WAC 392-140-610 | Special education safety net -- Standards -- MOESR applications. |
| WAC 392-140-613 | Special education safety net -- Standards and criteria -- Percentage and other factors applications. |
| WAC 392-140-620 | Special education safety net -- Calculation of MOESR. |
| WAC 392-140-625 | Special education safety net -- Demonstration of percentage and other factors. |
| WAC 392-140-670 | Special education safety net -- Distribution of state moneys. |
| WAC 392-140-680 | Special education safety net -- Recovery of state allocations to school districts. |