WSR 18-02-083

PERMANENT RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[Filed January 2, 2018, 1:51 p.m., effective February 2, 2018]

Effective Date of Rule: Thirty-one days after filing.

Purpose: This rule updates the office of superintendent of public instruction's (OSPI) complaint procedures for programs administered under the Elementary and Secondary Education Act (ESEA), as amended by the Every Student Succeeds Act (ESSA) in 2016. ESSA requires OSPI to make several changes to chapter 392-168 WAC, which spells out the agency's process for investigating and resolving citizen complaints regarding federally funded programs under ESEA. Among other things, the changes (1) update the terms and references in the current rule to align with ESEA as amended by ESSA, and (2) establish a new timeline for OSPI to investigate and resolve complaints regarding federally funded services provided to private school students (so-called equitable services).

Citation of Rules Affected by this Order: Amending WAC 392-168-115, 392-168-132, 392-168-145, 392-168-155, 392-168-175, 392-168-180, and 392-168-190.

Statutory Authority for Adoption: RCW 28A.300.070.

Adopted under notice filed as WSR 17-21-120 on October 18, 2017.

Changes Other than Editing from Proposed to Adopted Version: Changes (1) update the terms and references in the current rule to align with ESEA as amended by ESSA, and (2) establish a new timeline for OSPI to investigate and resolve complaints regarding federally funded services provided to private school students (known as equitable services).

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 7, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: January 2, 2018.

Chris P. S. Reykdal

State Superintendent

of Public Instruction

AMENDATORY SECTION (Amending WSR 05-19-033, filed 9/12/05, effective 10/13/05)

WAC 392-168-115 Applicability.

This chapter shall apply to federal programs authorized under the Elementary and Secondary Education Act and administered by the superintendent of public instruction, including the following:

(1) Title I, Part A: Improving Basic Programs Operated by Local Educational Agencies;

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

(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))) (4) 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))) (5) Title II, Part A: ((Teacher and Principal Training and Recruiting Fund)) Supporting Effective Instruction;

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

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

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

(((10) Title IV—21st Century Schools;

(11))) (7) Title IV, Part A((, Subpart 1: Safe and Drug Free Schools and Communities)): Student Support and Academic Enrichment Grants;

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

((Title V—Promoting Informed Parental Choice and Innovative Programs

(13))) (9) Title IV, Part C: Expanding Opportunity Through Quality Charter Schools;

(10) Title V, Part A: ((Innovative Programs)) Funding Transferability for State and Local Education Agencies;

((Title VI—Flexibility and Accountability

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

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

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

(((17))) (13) Title ((IX)) VIII—General Provisions((;

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

AMENDATORY SECTION (Amending WSR 05-19-033, filed 9/12/05, effective 10/13/05)

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, 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)) for local school districts, educational service districts, or other subgrantees, which may include webinars and screencasts.

AMENDATORY SECTION (Amending WSR 05-19-033, filed 9/12/05, effective 10/13/05)

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 the superintendent of public instruction.

(2) 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 392-168-180.

(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.

(4) Receipt of complaints concerning violations of 20 U.S.C. Sec. 7881, Participation by private school children and teachers, shall activate a time limit not to exceed forty-five calendar days.

AMENDATORY SECTION (Amending WSR 05-19-033, filed 9/12/05, effective 10/13/05)

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 superintendent of public instruction shall send a copy of the complaint to the educational entity, for investigation of the alleged violations.

(2) 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 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) Propose reasonable corrective action(s) deemed necessary to correct the violation.

(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)) the Every Student Succeeds Act or this chapter.

(7) The superintendent of public instruction shall issue a written decision to the complainant and public agency that addresses each allegation in the complaint including findings of fact, conclusions, and the reasonable corrective measures deemed necessary to correct any violation. ((OSPI)) The superintendent may provide technical assistance activities or 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) The written decision by the superintendent of public instruction is the final decision in the matter. A complaint is considered resolved when the superintendent has issued a written decision and corrective measures, if warranted, have been completed.

(9) 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 may initiate fund withholding, fund recovery, or any other sanction(s) deemed appropriate.

(((10) For complaints arising under 20 U.S.C. § 7883 (participation by private school children), a complainant may appeal the superintendent's resolution to the Secretary of Education (U.S. Department of Education) within thirty days of receiving the written decision from the superintendent of public instruction.))

AMENDATORY SECTION (Amending WSR 89-23-001, filed 11/2/89, effective 12/3/89)

WAC 392-168-175 Complaints against the superintendent of public instruction—Designation of responsible employee(s).

(1) A complaint alleging a violation by the superintendent of public instruction shall be filed directly with the superintendent of public instruction in the form specified in WAC 392-168-140.

(2) The superintendent of public instruction shall designate at least one office of the agency to monitor and coordinate the agency's compliance with this chapter, which shall include ensuring that investigation of any complaint is conducted expeditiously and thoroughly. Complaints concerning violations of 20 U.S.C. Sec. 7881, Participation by private school children and teachers, shall be coordinated by the staff assigned to fulfill the duties of the ombudsman for equitable services as provided in 20 U.S.C. Secs. 6320 and 7881.

AMENDATORY SECTION (Amending WSR 05-19-033, filed 9/12/05, effective 10/13/05)

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. For complaints concerning violations of 20 U.S.C. Sec. 7881, Participation by private school children and teachers, investigating staff shall provide the written report to the superintendent no later than thirty-five calendar days after receipt of the complaint.

(4) The superintendent of public instruction shall respond in writing to the complainant as expeditiously as possible but in no event later than ten calendar days after the date of receipt of the written report described in subsection (3) of this section.

(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.

AMENDATORY SECTION (Amending WSR 89-23-001, filed 11/2/89, effective 12/3/89)

WAC 392-168-190 Appeal to the secretary of education in complaints against the superintendent of public instruction.

(1) In the event that a complainant remains aggrieved with the response of the superintendent of public instruction, the complainant may file an appeal directly with the secretary, department of education.

(2)(a) For complaints concerning violations of 20 U.S.C. Sec. 7881, Participation by private school children and teachers, the superintendent's response may be appealed to the secretary not later than thirty days after the superintendent responds to the complaint.

(b) If the superintendent fails to resolve a complaint concerning violations of 20 U.S.C. Sec. 7881, Participation by private school children and teachers, within the forty-five-day limit, the complainant may appeal directly to the secretary no later than thirty days after the expiration of the forty-five-day limit.