WSR 05-06-066

PROPOSED RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[ Filed March 1, 2005, 2:11 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-01-175 on December 21, 2004.

     Title of Rule and Other Identifying Information: Chapter 392-168 WAC, Special service programs -- Citizen complaint procedure for certain categorical federal programs.

     Hearing Location(s): Office of Superintendent of Public Instruction, 600 South Washington, Olympia, WA, on April 5, 2005, at 9:00 a.m.

     Date of Intended Adoption: April 6, 2005.

     Submit Written Comments to: Gayle Pauley, P.O. Box 47200, Olympia, WA 98504-7200, e-mail gpauley@ospi.wednet.edu, fax (360) 586-3305, by April 1, 2005.

     Assistance for Persons with Disabilities: Contact Joie Erickson by April 2, 2005, TTY (360) 664-3631 or (360) 725-6142.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposal is to bring the state into compliance with federal ESEA/NCLB requirements. This proposal describes the complaint procedure process and provides a timeline for when complaints are to be resolved. The edited complaint procedure process reflects the federal legal requirements that must be addressed. Outdated requirements have been removed.

     Reasons Supporting Proposal: The state is required under federal rules and regulations to implement a complaint resolution procedure as defined in 34 C.F.R. 76.770 and 76.783. The additions and deletions in chapter 392-168 WAC reflect these requirements.

     Statutory Authority for Adoption: RCW 28A.300.070.

     Rule is necessary because of federal law, 34 C.F.R. 76.770 and 76.783.

     Name of Proponent: Gayle Pauley, governmental.

     Name of Agency Personnel Responsible for Drafting: Gayle Pauley, Office of Superintendent of Public Instruction, (360) 725-6100; Implementation: Bob Harmony, Office of Superintendent of Public Instruction, (360) 725-6170; and Enforcement: Mary Alice Heuschel, Office of Superintendent of Public Instruction, (360) 725-6115.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. No small business impact.

     A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(a), the Office of Superintendent of Public Instruction is not required to provide a cost benefit analysis.

March 1, 2005

Terry Bergeson

Superintendent

OTS-7644.1


AMENDATORY SECTION(Amending Order 93-15, filed 9/13/93, effective 10/14/93)

WAC 392-168-110   Purpose.   The purpose of this chapter is to ensure compliance by the state of Washington with 34 CFR ((76.780 through 782)) 76.770 and 76.783, Department of Education regulations governing state-administered federal grant programs, ((34 CFR 300.660 through 662, Individuals with Disabilities Education Act,)) and with the Hatch Amendment.

[Statutory Authority: Chapter 28A.155 RCW. 93-19-065 (Order 93-15), § 392-168-110, filed 9/13/93, effective 10/14/93. Statutory Authority: RCW 34.05.220 [(1)](a). 89-23-001 (Order 15), § 392-168-110, filed 11/2/89, effective 12/3/89. Statutory Authority: RCW 28A.02.100. 88-09-042 (Order 88-13), § 392-168-110, filed 4/18/88.]


AMENDATORY SECTION(Amending Order 93-15, filed 9/13/93, effective 10/14/93)

WAC 392-168-115   Applicability.   This chapter shall apply to federal programs administered by the superintendent of public instruction and listed in 34 CFR 76.1(((b))):

     (1) ((Title III-A of the National Defense Education Act of 1958, Strengthening Instruction in Academic Subjects in Public Schools;

     (2) Title IV of Public Law 96-511, Emergency Immigrant Education Program;

     (3) Title II, Sections 201-206, 208-211, and 213 of the Education for Economic Security Act, State Grants for Strengthening the Skills of Teachers and Instruction in Mathematics, Science, Foreign Languages, and Computer Learning;

     (4) Part B of the Individuals with Disabilities Education Act, Assistance to States for Education of Students with Disabilities;

     (5) Section 619 of the Individuals with Disabilities Education Act, Incentive Grants;

     (6) Part A of Title I of the Vocational Education Act, State Vocational Education Program;

     (7) Career Education Incentive Act (except Sections 10, 11, and 12) Career Education -- State Allotment Program; and

     (8) Adult Education Act (except Sections 309, 314, 317, and 318), State Adult Education Program:

     (9) Provided, That pursuant to 34 CFR 76.1(c), this chapter shall not apply to programs authorized under Chapter 1 and Chapter 2 of the Education Consolidation and Improvement Act of 1981:

     (a) Chapter 1 -- Financial Assistance to Local Educational Agencies to Meet the Special Educational Needs of Educationally Deprived Children, Grants to State Educational Agencies for Program to Meet the Special Educational Needs of Migratory Children, Grants to State Agencies for Programs to Meet the Special Education Needs of Children in Institutions for Neglected or Delinquent Children, State-operated Programs for Handicapped Children; and

     (b) Chapter 2 -- Consolidation of Federal Programs for Elementary and Secondary Education:

     (10) Provided further, That any additional complaint procedure requirements of particular programs shall be applicable to those programs in addition to the basic citizen complaint procedure described in this chapter.)) Title I, Part A: Improving Basic Programs Operated by Local Educational Agencies;

     (2) Title I, Part B, Subpart 1: Reading First;

     (3) Title I, Part B, Subpart 3: William F. Goodling Even Start Family Literacy Program;

     (4) Title I, Part C: Education of Migratory Children;

     (5) Title I, Part D: Prevention and Intervention Programs for Children and Youth Who Are Neglected, Delinquent, or At-Risk;

     (6) Title I, Part F: Comprehensive School Reform;

     (7) Title II, Part A: Teacher and Principal Training and Recruiting Fund;

     (8) Title II, Part D: Enhancing Education Through Technology;

     Title III -- Language Instruction for Limited English Proficient and Immigrant Students

     (9) Title III, Part A: English Language Acquisition, Language Enhancement, and Academic Achievement;

     (10) Title IV -- 21st Century Schools;

     (11) Title IV, Part A, Subpart 1: Safe and Drug Free Schools and Communities;

     (12) Title IV, Part B: 21st Century Community Learning Centers;

     Title V -- Promoting Informed Parental Choice and Innovative Programs

     (13) Title V, Part A: Innovative Programs;

     Title VI -- Flexibility and Accountability

     (14) Title VI, Part A, Subpart 1: Improving Academic Achievement, Accountability, Grants for State Assessments and Enhanced Assessments;

     (15) Title VI, Part B, Subpart 1: Small, Rural School Achievement Program;

     (16) Title VI, Part B, Subpart 2: Rural and Low-Income Schools;

     (17) Title IX -- General Provisions;

     (18) Title IX, Part E (Section 9532): Unsafe School Choice Option;

     (19) Title X, Repeals, Redesignations, and Amendments to Other Statutes;

     (20) Title X, Part C: McKinney-Vento Homeless Education Assistance Improvements.

[Statutory Authority: Chapter 28A.155 RCW. 93-19-065 (Order 93-15), § 392-168-115, filed 9/13/93, effective 10/14/93. Statutory Authority: RCW 34.05.220 [(1)](a). 89-23-001 (Order 15), § 392-168-115, filed 11/2/89, effective 12/3/89. Statutory Authority: RCW 28A.02.100. 88-09-042 (Order 88-13), § 392-168-115, filed 4/18/88.]


AMENDATORY SECTION(Amending Order 43, filed 11/20/90, effective 12/21/90)

WAC 392-168-125   Definition -- Complaint.   As used in this chapter, the term "complaint" means an allegation, by the complainant, that the state, a local school district, an educational service district, or other subgrantee receiving federal funds has violated a federal statute or regulation or a related state regulation that applies to a federal program covered under this chapter.

[Statutory Authority: RCW 28A.02.100. 90-23-062 (Order 43), § 392-168-125, filed 11/20/90, effective 12/21/90; 90-11-029 (Order 90-09), § 392-168-125, filed 5/9/90, effective 6/9/90. Statutory Authority: RCW 34.05.220 [(1)](a). 89-23-001 (Order 15), § 392-168-125, filed 11/2/89, effective 12/3/89. Statutory Authority: RCW 28A.02.100. 88-09-042 (Order 88-13), § 392-168-125, filed 4/18/88.]


AMENDATORY SECTION(Amending Order 93-15, filed 9/13/93, effective 10/14/93)

WAC 392-168-132   Informing citizens about complaint procedures.   The superintendent of public instruction shall inform parents and other interested individuals about the citizen complaint procedures in this chapter. Specific actions to be taken by the superintendent of public instruction include:

     (1) Disseminating copies of the state's procedures to parents, advocacy agencies, ((and)) professional organizations and other appropriate entities;

     (2) Conducting inservice training sessions on the complaint process through educational service districts; and

     (3) Including information about the system in statewide conferences.

[Statutory Authority: Chapter 28A.155 RCW. 93-19-065 (Order 93-15), § 392-168-132, filed 9/13/93, effective 10/14/93.]


AMENDATORY SECTION(Amending Order 90-09, filed 5/9/90, effective 6/9/90)

WAC 392-168-135   Right to register a complaint.   Any individual((, entity,)) or organization may register a signed written complaint((: Provided, That a complaint filed pursuant to the Hatch Amendment may be filed only by a student or parent or guardian of a student directly affected by the alleged violation: Provided further, That if a parent or adult student has also filed a request for a due process special education hearing pursuant to WAC 392-171-531, regarding the same issues, a citizen complaint by such person regarding noncompliance shall be held in abeyance until the hearing has been concluded)).

[Statutory Authority: RCW 28A.02.100. 90-11-029 (Order 90-09), § 392-168-135, filed 5/9/90, effective 6/9/90. Statutory Authority: RCW 34.05.220 [(1)](a). 89-23-001 (Order 15), § 392-168-135, filed 11/2/89, effective 12/3/89. Statutory Authority: RCW 28A.02.100. 88-09-042 (Order 88-13), § 392-168-135, filed 4/18/88.]


AMENDATORY SECTION(Amending Order 90-09, filed 5/9/90, effective 6/9/90)

WAC 392-168-140   Contents of complaint.   A written complaint filed under this chapter shall include:

     (1) A statement that the state, a local school district, an educational service district, or other subgrantee has violated one or more requirements of federal statutes or regulations or state regulations that apply to a federal program covered under this chapter;

     (2) The specific requirement alleged to have been violated;

     (3) The facts on which the ((statement)) complaint is based;

     (((3))) (4) The name and address of the complainant; ((and

     (4))) (5) The expected resolution of the alleged violation; and

     (6) In the case of a complaint alleging a violation by an entity other than the state and filed directly with the superintendent of public instruction, the name and address of the allegedly offending entity.

[Statutory Authority: RCW 28A.02.100. 90-11-029 (Order 90-09), § 392-168-140, filed 5/9/90, effective 6/9/90. Statutory Authority: RCW 34.05.220 [(1)](a). 89-23-001 (Order 15), § 392-168-140, filed 11/2/89, effective 12/3/89. Statutory Authority: RCW 28A.02.100. 88-09-042 (Order 88-13), § 392-168-140, filed 4/18/88.]


AMENDATORY SECTION(Amending Order 15, filed 11/2/89, effective 12/3/89)

WAC 392-168-145   Procedure for filing a complaint.   The procedure for filing a complaint shall be as follows:

     (1) A complaint alleging a violation by a local school district, an educational service district, or other subgrantee shall be filed directly with a ((responsible official of the local)) school district, an educational service district, or other subgrantee((: Provided, That a complaint alleging a violation by an entity other than the state may)) shall be filed directly with the superintendent of public instruction ((at the complainant's discretion)).

     (2) ((A complaint against a local school district, an educational service district, or other subgrantee filed directly with the superintendent of public instruction shall be referred back to the allegedly offending entity for action pursuant to this chapter.)) The superintendent of public instruction, upon receipt of a signed, written complaint against a local school district or other public agency, an educational service district, or other subgrantee, shall refer the complaint to the educational entity for action pursuant to this chapter. A complaint against the state shall be investigated pursuant to WAC 392-168-....

     (3) Receipt of a complaint by the superintendent of public instruction activates a time limit not to exceed sixty calendar days unless an extension of the time limit is approved by the superintendent of public instruction on the basis of exceptional circumstances with respect to a particular complaint.

[Statutory Authority: RCW 34.05.220 [(1)](a). 89-23-001 (Order 15), § 392-168-145, filed 11/2/89, effective 12/3/89. Statutory Authority: RCW 28A.02.100. 88-09-042 (Order 88-13), § 392-168-145, filed 4/18/88.]


AMENDATORY SECTION(Amending Order 15, filed 11/2/89, effective 12/3/89)

WAC 392-168-155   Investigation of and response to complaints against a school district or other public agency, educational service district, or other subgrantee.   Investigation of and response to a complaint shall be as follows:

     (1) Upon receipt of a properly filed complaint, the ((employee(s) designated pursuant to WAC 392-168-150 shall investigate)) superintendent of public instruction shall send a copy of the complaint to the educational entity, for their investigation of the alleged violations.

     (2) ((Upon completion of the investigation, the designated employee(s) shall provide the responsible official of the entity with a written report of the results of the investigation. Said officials shall respond in writing to the complainant)) The educational entity shall investigate the complaint. The responsible official of the educational entity shall respond in writing to the superintendent of public instruction, and include documentation of the investigation, no later than twenty calendar days after the date of receipt by the entity of such complaint.

     (3) The response to the ((complainant)) superintendent of public instruction shall clearly state either:

     (a) That the educational entity denies the allegations contained in the complaint and the basis for such denial; or

     (b) ((The)) Proposes reasonable corrective action(s) deemed necessary to correct the violation((: Provided, That any such corrective measures shall be instituted as expeditiously as possible but in no event later than thirty calendar days following the date of the response to the complainant)).

     (4) The superintendent of public instruction shall provide the complainant a copy of the entity's response to the complaint.

     (5) The superintendent of public instruction will provide the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint.

     (6) Upon review of all relevant information including, if necessary, information obtained through an independent on-site investigation by the superintendent of public instruction, the superintendent of public instruction will make an independent determination as to whether the public agency is in violation of any federal program requirement as authorized under the Elementary and Secondary Education Act as amended by No Child Left Behind Act or this chapter.

     (7) The superintendent of public instruction shall issue a written decision to the complainant that addresses each allegation in the complaint including findings of fact, conclusions, and the reasonable corrective measures deemed necessary to correct any violation. The state may provide technical assistance activities; negotiations; and corrective measures necessary to resolve a complaint. All actions shall be instituted, as soon as possible but in no event later than thirty calendar days following the date of the decision, unless otherwise agreed to, or for good cause.

     (8) If compliance by a local district or other public agency, educational service district, or other subgrantee is not achieved pursuant to subsection (7) of this section, the superintendent of public instruction shall initiate fund withholding, fund recovery, or any other sanction(s) deemed appropriate.

[Statutory Authority: RCW 34.05.220 [(1)](a). 89-23-001 (Order 15), § 392-168-155, filed 11/2/89, effective 12/3/89. Statutory Authority: RCW 28A.02.100. 88-09-042 (Order 88-13), § 392-168-155, filed 4/18/88.]


AMENDATORY SECTION(Amending Order 15, filed 11/2/89, effective 12/3/89)

WAC 392-168-180   Complaints against the superintendent of public instruction -- Investigation of and response to complaints.   (1) The staff responsible for investigating the alleged violation shall commence investigation within ten days of receipt of the complaint by the superintendent of public instruction.

     (2) Investigation by the superintendent of public instruction may include on-site investigations as appropriate.

     (3) Upon completion of the investigation, investigating staff shall provide the superintendent of public instruction with a written report on the results of the investigation, no later than sixty calendar days after the receipt of such complaint.

     (4) ((The superintendent of public instruction shall respond in writing to the complainant as expeditiously as possible but in no event later than sixty calendar days after the date of receipt of such complaint by the superintendent of public instruction.

     (5))) The response shall clearly state either:

     (a) That the complaint is without merit, the allegations are denied, and the basis for such denial; or

     (b) The reasonable corrective measures deemed necessary to correct any violation: Provided, That any such corrective measures deemed necessary shall be instituted as expeditiously as possible but in no event later than thirty calendar days following the date of the response to the complainant.

[Statutory Authority: RCW 34.05.220 [(1)](a). 89-23-001 (Order 15), § 392-168-180, filed 11/2/89, effective 12/3/89. Statutory Authority: RCW 28A.02.100. 88-09-042 (Order 88-13), § 392-168-180, filed 4/18/88.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 392-168-120 Definition -- Hatch amendment.
WAC 392-168-160 Appeal to the superintendent of public instruction of a local school district, educational service district, or other subgrantee decision.
WAC 392-168-165 Content of appeal notice.
WAC 392-168-167 General responsibilities of superintendent of public instruction.
WAC 392-168-170 Actions by superintendent of public instruction in response to notices of appeal and notices registering complaints.

© Washington State Code Reviser's Office