No. 39080 (Emergency Rule): Section R277-419-9. Provisions for Maintaining Student Membership and Enrollment Documentation and Documentation of Student Education Services Provided by Third Party Vendors

DAR File No.: 39080
Filed: 01/15/2015 07:38:44 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Following approval by the Utah State Board of Education (Board), Section R277-419-9 was published in the November 1, 2014, issue of the Utah State Bulletin, subject to a 30-day comment period. Within the 30-day comment period, on 11/14/2014, a request was sent to the Utah State Office of Education from ten interested persons requesting a public hearing concerning Section R277-419-9. A Board hearing to receive public input was held on 12/04/2014. At the Board's January 2015 meeting, a summary of comments and recommendations was presented to the Board for discussion and possible action. This emergency filing is a result of the discussion.

Summary of the rule or change:

New language in Section R277-419-9 allows for local education agencies (LEAs) to provide written authorization to third party vendors to receive public school enrollment verification records, consistent with the federal Family Educational Rights and Privacy Act (FERPA), 34 CFR 99.31(a)(1)(i)(B). New language also allows an LEA to provide internet reimbursement for K-6 students, consistent with a Free and Appropriate Public Education and Rule R277-407, School Fees. Additionally, new language addresses grades 7-12 students to receive internet reimbursement, consistent with Rule R277-407.

Emergency rule reason and justification:

Regular rulemaking procedures would cause an imminent peril to the public health, safety, or welfare; and place the agency in violation of federal or state law.

Justification: Without the new language allowing for internet reimbursement to K-6 students, LEAs may be in violation of state law to provide a Free and Appropriate Public Education to K-6 students. Without new language allowing LEAs to provide written authorization to third party vendors to collect and have access to public school enrollment verification records, LEAs may be in violation of the federal Family Educational Rights and Privacy Act. Some students in grades 7-12, enrolled in online or distance learning programs through third party vendors, may suffer economic hardship if internet reimbursement is not provided.

State statutory or constitutional authorization for this rule:

• Subsection 53A-1-401(3)
• Subsection 53A-1-402(1)(e)

Anticipated cost or savings to:

the state budget:

The changes to Section R277-419-9 provide for third party vendors to have access to public school enrollment verification records, consistent with federal FERPA, and for LEAs to provide internet reimbursement to K-6 and eligible grades 7-12 students, consistent with federal and state laws and rules, and will likely not result in a cost or savings to the state budget.

local governments:

There will be additional costs to LEAs to provide internet reimbursement to K-6 and eligible grades 7-12 students. Without knowing the number of K-6 and eligible grades 7-12 students participating in online and distance learning programs and eligible for reimbursement, costs would be speculative at this time.

small businesses:

Third party vendors that are also small businesses will be able to collect and have access to public school enrollment verification records which likely will not result in a cost or savings to small businesses.

persons other than small businesses, businesses, or local governmental entities:

The changes to Section R277-419-9 provide for third party vendors to have access to public school enrollment verification records, consistent with federal FERPA, and for LEAs to provide internet reimbursement to K-6 and eligible grades 7-12 students, consistent with federal and state laws and rules, will likely not result in a cost or savings to persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

Third party vendors having access to public school enrollment verification records and LEAs providing internet reimbursement to K-6 and eligible grades 7-12 students, consistent with federal and state laws and rules, will likely not result in any compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

I have reviewed this rule and I believe that there is likely no fiscal impact on businesses.

Brad C. Smith, State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Brad Smith at the above address, by phone at 801-538-7510, by FAX at 801-538-7768, or by Internet E-mail at [e-mail]

This rule is effective on:

01/15/2015

Authorized by:

Brad Smith, State Superintendent of Public Instruction

RULE TEXT

R277. Education, Administration.

R277-419. Pupil Accounting.

R277-419-9. Provisions for Maintaining Student Membership and Enrollment Documentation and Documentation of Student Education Services Provided by Third Party Vendors.

A. R277-419-1 through 8 provide direction for student membership and enrollment and eligibility criteria for both traditional and nontraditional schools and programs.

B. A traditional program is a public school program that consists of eligible enrolled public education students who physically attend school in classrooms.

C. A nontraditional program is a public school program that consists of eligible, enrolled public education students where students primarily receive instruction either online or through a distance learning program.

D. LEAs may enroll students in both traditional and nontraditional programs.

E. Home school courses do not qualify for public education funding for both traditional and non-traditional programs. Home school courses are those where the curriculum and instructional methods, reporting, or evaluation of student progress or mastery is provided or administered by the parent, guardian, custodian, or other group of individuals, not directly supervised by an LEA.

F. LEA and Third Party Vendor Use of Public Funds for Incentives and Reimbursements

(1) LEAs or their third party vendors shall not use public funds, as defined under Section 51-7-3(26), to provide monetary or other incentives for enrollment or referral bonuses to individuals or groups of individuals.

(2) LEAs or their third party vendors shall not use public funds to provide educational, curriculum, instruction, private lessons, or technology reimbursements to individuals, groups of individuals or third party vendors that are not available to all students enrolled in the LEA or required by an IEP or 504 plan that is approved by the LEA. This section shall not prohibit an LEA from providing internet reimbursements for students on the K-6 grade level. Furthermore, such internet reimbursement may be provided to students in grades 7-12 if failure to provide such reimbursement will cause economic hardship. This determination should be made in accordance with the fee waiver policy language set forth in R277-407-6.

(3) LEAs or their third party vendors that purchase items or technology devices and provide them to students shall ensure that these items are the property of the LEAs and are subject to the LEAs asset policies.

(4) LEAs shall establish provisions identified in R277-419-9F(1) through (3) in their contracts with third party vendors and shall monitor compliance with these provisions.

G. LEAs shall ensure school enrollment verification records are collected consistent with sound data collection and storage procedures, established by the LEA, and that these records are transmitted securely. It is the LEAs' responsib il ity to verify the accuracy and validity of student enrollment records, prior to enrolling students in an LEA, and provide students and their parents with notification of enrollment in a public school. An LEA is [the only entity authorized]required by the Board to collect and store public school enrollment verification records including:

(1) birth certificates or other verification of age and identity;

(2) verification of immunization or exemption form;

(3) proof of Utah public school residency;

(4) family income verification; or

(5) special education records, including:

(a) individualized education program;

(b) 504 plan; or

(c) English learner plan.

LEAs may provide written authorization to third party vendors who meet the definition of school official under 34 CFR 99.31(a)(1)(i)(B) to collect and have access to public school enrollment verification records. In the event that such authorization is provided, parents or guardians of the affected students shall be notified in writing.

H. All LEAs that enroll public school students shall maintain documentation of the following:

(1) that the LEA complied with all provisions of R277-419-1 through 8;

(2) that the LEA complied with all educator licensure requirements of R277-502;

(3) that the LEA complied with all fingerprint and background check requirements for educators, employees and volunteers consistent with Section 53A-3-410, 53A-1a-512.5, R277-516, and R277-520;

(4) that the LEA established a school schedule consistent with R277-419-4A(1);

(5) that the LEA only enrolled students who met the eligibility requirements of R277-419-5A(1) (a-e);

(6) that the LEA directed the instruction of the core curriculum consistent with Section 53A-1-402(1)(a) and R277-700; and

(7) that the LEA scheduled and administered all statewide assessments, as required under Sections 53A-1-606.6 through 53A-1-611 and R277-404.

I. In addition to R277-419-9D, LEAs that enroll students in traditional programs shall also satisfy the requirements of R277-419-5A(1)(f).

J. In addition to R277-419-9D, LEAs that enroll students in nontraditional programs shall also maintain documentation that the LEA satisfied the following:

(1) adopted a written policy that designates a continuing enrollment measurement to document the continuing membership or enrollment status for individual students consistent with R277-419-5A(1)(c);

(2) measured and documented each student's continued enrollment using the adopted continuing enrollment measurement at least every ten consecutive school days;

(3) documented that LEA employees confirmed students' continued enrollment consistent with R277-419-9J(2) and updated student membership records in the student information system; and

(4) documented that the LEA adjusted the student membership information for students that did not meet the continuing enrollment measurement, consistent with R277-419-5A(1)(c).

K. The continuing enrollment measurement may include some or all of the following components, in addition to other components, as determined by the LEA:

(1) a minimum student login or teacher contact requirement;

(2) required periodic contact with a licensed educator;

(3) a minimum hourly requirement, per day or week, when students are engaged in course work; or

(4) required timelines for a student to provide or demonstrate completed assignments, coursework or progress toward academic goals.

L. LEA Nontraditional Program and Third Party Vendor Compliance

(1) An LEA offering a nontraditional program that contracts for curricular and instructional services which are administered by third party vendors shall submit documentation of compliance with law and Board rules (as prescribed by the Board) to the Superintendent's office for review prior to the initiation of the program.

(2) An LEA offering a nontraditional program that contracts for curricular and instructional services from a third party vendor and does not resolve a corrective action item, may not qualify for some or all Minimum School Program funds.

M. An LEA that contracts with a third party vendor to provide curricular and instructional services to students for nontraditional programs shall monitor and supervise the vendor throughout the administration of the services and ensure compliance, at a minimum, with the following:

(1) all student eligibility and membership/enrollment requirements of R277-419 are met;

(2) all educator licensure requirements of R277-502 are satisfied;

(3) all fingerprint and background check requirements for educators, employees and volunteers, consistent with Section 53A-3-410, 53A-1a-512.5, R277-516, and R277-520, are met;

(4) the Board-directed core standards are used in student instruction, consistent with Section 53A-1-402(1)(a) and R277-700;

(5) all required statewide assessments are administered by the LEA, as required under Sections 53A-1-606.6 through 53A-1-611 and R277-404;

(6) the LEA has a written supervision plan for the vendor administration of curricular and instructional services; and

(7) the LEA maintains documentation of supervisory activities ensuring compliance with the written supervision plan (copy of the agreement, assignment of supervising personnel by title, meeting notes, correspondence with vendor) consistent with the LEA's administrative records retention schedule.

N. Consistent with R277-114, the Superintendent may withhold funds from traditional or nontraditional public education programs for non-compliance with R277-419. An LEA may appeal the decision of the Superintendent to the Board.

 

KEY: education finance, school enrollment

Date of Enactment or Last Substantive Amendment: January 15, 2015

Notice of Continuation: September 14, 2012

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53A-1-401(3); 53A-1-402(1)(e); 53A-1-404(2); 53A-1-301(3)(d); 53A-3-404; 53A-3-410

 

---