4644862 Emergency and Second ProposedRulemaking Aligning Child Count andPupil Census Dates; Deleting CharterSchool Reporting Requirements
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OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION
NOTICE OF EMERGENCY AND SECOND PROPOSED RULEMAKING
The State Superintendent of Education, pursuant to the authority set forth in Section 3(b) of the District of Columbia State Education Office Establishment Act of 2000, effective October 21, 2000 (D.C. Law 13-176; D.C. Official Code § 38-2602(b)(11) (2012 Repl.)); Section 107(d) of the Uniform Per Student Funding Formula for Public Schools and Public Charter Schools and Tax Conformity Clarification Amendment Act of 1998, effective March 26, 1999, as amended (D.C. Law 12-207; D.C. Official Code § 38-2906 (2012 Repl.)); Section 2002 of the District of Columbia School Reform Act of 1995, approved April 26, 1996 (110 Stat. 1321; D.C. Official Code § 38-1802.02(19) (2012 Repl.)); and Section 618 of the Individuals with Disabilities Education Act, approved December 3, 2004 (118 Stat. 2738; 20 U.S.C. § 1418) (“IDEA”), and its implementing regulations (34 C.F.R. §§ 300.640 through 300.644), hereby gives notice of an emergency rulemaking adopting an amendment to Section 3002 (LEA Responsibility) of Chapter 30 (Special Education Policy) of Title 5-E (Education, Original Title 5) of the District of Columbia Municipal Regulations (“DCMR”), and adopting an amendment deleting Paragraphs 3019.3(f) and 3019.4(c) (Annual Reporting Requirements, Responsibilities of LEA Charters and Responsibilities of District Charters) in Section 3019 (Charter Schools) of Chapter 30 (Special Education Policy) of Title 5-E (Education, Original Title 5) DCMR.
The purpose of this emergency and second proposed rulemaking is to establish immediately the requirement for all local educational agencies (“LEAs”) in the District of Columbia annually to count the number of children enrolled in the LEA who receive special education and related services, in accordance with Section 618 of the IDEA, on a date as determined by the Office of the State Superintendent of Education (“OSSE”). The IDEA requires States to count and report the number of children with disabilities receiving special education and related services on any date between October 1 and December 1 of each year. This is known as the IDEA “child count,” which is required to receive federal IDEA funding made available to States.
The current regulations in Section 3019 of Title 5-E of the DCMR require District of Columbia public charter schools to perform the IDEA required “child count” on December 1 and to certify the results of that count in January of the following year.
District of Columbia law, however, also requires a “pupil count” of all students, including students with disabilities, on October 5 each year. This pupil count has already occurred this year. This prior pupil count is used to determine the level of local funding for local educational agencies. Under current law and rules, two counts potentially covering special education students are undertaken.
This emergency and second proposed rulemaking permits OSSE to align the two counts immediately, avoiding the need for charter schools to take another count by December 1, 2013, in addition to the count already taken. It will permit OSSE to align the IDEA child count with the annual pupil count immediately for a period of one hundred twenty days, pending the receipt of public comments and the hearings regarding alignment permanently. It will thus forego needless significant expenditure of public funds which could be used for the well-being and health of special education students. Also, failure without regulatory approval to conform to the legal requirements of the IDEA, including the submission of information as required by OSSE as the State Education Agency (“SEA”) under current Regulations 5-E DCMR § 3002 and 5-E DCMR § 3019, may result in adverse actions or sanctions for LEAs, while failure to eliminate the second “child count” requirement would leave the burden of requiring public charter schools and OSSE to perform an additional count of children with disabilities receiving special education and related services under the IDEA.
The second count as now imminently required by regulation, unless waived by this emergency and second rulemaking, would be superfluous and require the expenditure of funds more appropriately used to ensure the well-being and welfare of the communities involved.
An initial proposed version of this rulemaking was published for public comment on August 23, 2013, at 60 DCR 12222. This emergency and proposed second version of the rulemaking reflects consideration given to comments received during and in follow-up to the public comment period, including that specific reference be made to the annual pupil count already taken in October 2013, and to the IDEA implementing regulations. The amended rule will allow OSSE to align more precisely the annual IDEA child count to the annual enrollment pupil count required by District of Columbia law.
The emergency rulemaking was adopted on November 15, 2013, and shall remain in effect for one hundred twenty (120) days, expiring on March 17, 2014, or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
The State Superintendent also gives notice of his intent to take final rulemaking action on the second proposed rulemaking to amend Section 3002 and to delete Paragraphs 3019.3(f) and 3019.4(c) in not less than thirty (30) days from the date of publication of this notice in the D.C. Register.
This notice is being circulated through the District for a thirty (30) day period, providing a renewed opportunity to submit written comments, and to attend public hearings on the proposal scheduled on Monday, December 9, 2013, between 3:00 pm and 4:30 pm, at the Office of the State Superintendent of Education (“OSSE”), 3rd Floor Grand Hall Side B, 810 First Street, NE, Washington, D.C. 20002, and on Wednesday, December 11, 2013, between 3:00 pm and 4:30 pm, at the OSSE 8th Floor Conference Room 806A, 810 First Street, Washington, D.C. 20002.
Final rulemaking action will not be taken until thirty (30) days after the date of publication of this notice in the D.C. Register.
Section 3002 (LEA Responsibility) of Chapter 30 (Special Education Policy) of Title 5, Subtitle E (Education, Original Title 5) of the DCMR is amended to read as follows:
3002.5
(a) DCPS and all public charter schools shall count the number of children with disabilities receiving special education and related services annually on October 5 or the date set for the annual pupil count required by D.C. Official Code § 38-2906.
(b) DCPS and public charter schools that have not elected DCPS to serve as the public charter school’s LEA for special education purposes shall report the count to OSSE each year and provide the information required by the Section 618 of the Individuals with Disabilities Education Act, approved December 3, 2004 (118 Stat. 2738; 20 U.S.C. § 1418) (“IDEA”) and its implementing regulations (34 CFR §§ 300.640 through 300.644), in accordance with a timeline specified by OSSE, and shall certify to OSSE that an unduplicated and accurate count has been made.
(c) A public charter school that has elected DCPS to serve as its LEA for special education purposes shall report its count to DCPS and provide to DCPS the information required by Section 618 of the IDEA and its implementing regulations (34 C.F.R. §§ 300.640 through 300.644), in accordance with a timeline specified by OSSE, and shall certify to DCPS that an unduplicated and accurate count has been made.
Subparagraphs 3019.3(f) and 3019.4(c) (Annual Reporting Requirements, Responsibilities of LEA Charters and Responsibilities of District Charters) of Section 3019 (Charter Schools) of Chapter 30 (Special Education Policy) of Title 5-E (Education, Original Title 5) of the DCMR are deleted in their entirety, and Section 3019 (Charter Schools) is re-numbered to reflect their deletion.
Persons desiring to comment on the subject matter of this proposed rulemaking should attend the hearing scheduled at scheduled on Monday, December 9, 2013, between 3:00 pm and 4:30 pm, at the Office of the State Superintendent of Education (“OSSE”), 3rd Floor Grand Hall Side B, 810 First Street, NE, Washington, D.C. 20002, and on Wednesday, December 11, 2013, between 3:00 pm and 4:30 pm, at the OSSE 8th Floor Conference Room 806A, 810 First Street, Washington, D.C., or should file comments in writing by mail or hand delivery to the Office of the State Superintendent of Education, Attn: Jamai Deuberry re: “IDEA Child Count Regulations”, 810 First Street, NE 9th Floor, Washington, DC 20002 [(202) 727-6436] or to Jamai.Deuberry@dc.gov with subject “Attn: Jamai Deuberry, IDEA Child Count”, or both, not later than thirty (30) days after the date of publication of this notice in the D.C. Register. Additional copies of this rule are available from the above address and on the Office of the State Superintendent of Education website at www.osse.dc.gov.
