ORDER OF THE
STATE SUPERINTENDENT OF PUBLIC INSTRUCTION
ADOPTING PERMANENT RULES
The scope statement for this rule, SS 087-19, was published in Register No. 764A3, on August 19, 2019, and approved by State Superintendent Carolyn Stanford Taylor on August 30, 2019.
The State Superintendent of Public Instruction hereby adopts an order to create subch. II of PI 30; to repeal and recreate s. PI 30.02; and to amend s. PI 30.07 (1), relating to clarifying high cost special education aid.
ANALYSIS BY THE DEPARTMENT OF PUBLIC INSTRUCTION
Statute interpreted: s. 115.881, Stats. Explanation of agency authority: The Department is required to implement and administer the payment of state aid pursuant to s. 115.881, Stats. Under s. 227.11 (2) (a) (intro.), Stats., “[e]ach agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation.” See also, Wisconsin Ass'n of State Prosecutors v. Wisconsin Employment Relations Comm'n, 2018 WI 17, ¶ 42 (“statutory mandates are also statutory authorizations, and authorization of an act also authorizes a necessary predicate act.”) (internal quotation marks omitted). As such, a rule is required to administer criteria the high cost special education aid program under s. 115.881, Stats.
Related statute or rule: N/A
Plain language analysis: The proposed rule seeks to provide clarity in determining costs for providing special education related services to a child for the purpose of receiving high cost special education aid. The areas clarified by this rule are as follows: 1) determining nonadministrative costs for providing special education and related services to a child, distinct from such costs for other children; 2) determining how equipment and other capital costs are considered in the context of “the previous school year” as given in s. 115.881 (1), Stats.; 3) clarifying what is meant by “federal medicaid,” as given in s. 115.881 (1), Stats., for the purpose of determining claims under the program; and 4) determining how the $30,000 threshold for special education costs is evaluated against the other funding sources listed in statute.
Summary of, and comparison with, existing or proposed federal regulations: N/A
Summary of any public comments and feedback on the statement of scope for the proposed rule that the agency received at a preliminary public hearing and comment period held and a description of how and to what extent the agency took those comments into account and drafting the proposed rule: The Department held a preliminary public hearing and comment period on August 23, 2019, and did not receive any comments on the statement of scope for the proposed rule.
Comparison with rules in adjacent states:
There are no comparable rules governing aid for high-cost special education students in adjacent states. However, each states’ respective formula for funding special education is as follows:
Illinois: Under 105 Ill. Comp. Stat. Ann. 5/18-8.15, the formula for funding special education in Illinois is a resource-allocation and census-based system.
Iowa: Under Iowa Code Ann. § 256B.9, the formula for funding special education in Iowa is a multiple student weights system in which three different weights are based on the type of classroom where the student is educated.
Michigan: Under Mich. Comp. Laws Ann. § 388.1652, the formula for funding special education in Michigan is a partial reimbursement system not to exceed 75% of the total approved costs of operating special education programs.
Minnesota: Under Minn. Stat. Ann. § 125A.76, the formula for funding special education in Minnesota is a hybrid system incorporating partial reimbursement plus multiple student weights based on students slotted into three categories based on learning disorder.
Summary of factual data and analytical methodologies: The high cost special education aid program provides partial reimbursement of certain special education costs for school districts, CESAs, CCDEBs, and operators of independent charter schools. Applicants are eligible for additional aid if the applicant incurred, in the previous school year, more than $30,000 of nonadministrative costs for providing special education and related services to a child, and those costs were not eligible for reimbursement under the state special education and school age parents aid program, the federal Individual with Disabilities Education Act, or “federal medicaid.”
The funding available and number of claims submitted by eligible agencies has increased since the program was originally enacted and questions have arisen about eligible costs under s. 115.881, Stats., or PI 30. As such, a rule is needed to clarify statutory provisions governing the high cost special education aid program for the purposes of eligible agencies applying for and receiving the aid. Without a rule change, the Department will be required to administer PI 30 as it currently exists in rule, and eligible agencies may be faced with further ambiguity around administration of the program.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: N/A
Anticipated costs incurred by private sector: N/A
Effect on small business: The proposed rules will have no significant economic impact on small businesses, as defined in s. 227.114 (1) (a), Stats.
Agency contact person: (including email and telephone)
Administrative Rules Coordinator
Wisconsin Department of Public Instruction
Place where comments are to be submitted and deadline for submission: Comments should be submitted to Carl Bryan, Department of Public Instruction, 125 S. Webster Street, P.O. Box 7841, Madison, WI 53707-7841 or at firstname.lastname@example.org. The Department will publish a hearing notice in the Administrative Register which will provide information on the deadline for the submission of comments.
SECTION 1. PI 30.02 is repealed and recreated to read:
PI 30.02 Definitions. In this chapter: