to view the OLLS associated memo

Committee on Legal Services
Rep. Anne McGihon, Chair
Sen. Jennifer Veiga, Vice Chair
Rep. Bob Gardner
Rep. Jeanne Labuda
Rep. Claire Levy
Rep. Ellen Roberts
Sen. Greg Brophy
Sen. Shawn Mitchell
Sen. Gail Schwartz
Sen. Brandon Shaffer
Director
Charles W. Pike
Deputy Directors
Dan L. Cartin
Sharon L. Eubanks
Revisor of
Statutes
Jennifer G. Gilroy
Senior Attorneys
Gregg W. Fraser
Deborah F. Haskins
Bart W. Miller
Julie A. Pelegrin
Senior Staff
Attorneys
Jeremiah B. Barry
Christine B. Chase
Edward A. DeCecco
Michael J. Dohr
Kristen J. Forrestal
Duane H. Gall
Jason Gelender
Robert S. Lackner
Thomas Morris
Nicole S. Myers
Jery Payne
Senior Staff
Attorney for
Rule Review
Charles Brackney
Senior Staff
Attorney for
Annotations
Michele D. Brown
Staff Attorneys
Nancy Dalien
Brita Darling
Kate Meyer
Jane M. Ritter
Richard Sweetman
Esther van Mourik
Publications
Coordinator
Kathy Zambrano
OFFICE OF LEGISLATIVE LEGAL SERVICES
COLORADO GENERAL ASSEMBLY
State Capitol Building, Room 091
200 East Colfax Avenue
Denver, Colorado 80203-1782
December 10, 2008
MEMORANDUM
TO: Committee on Legal Services
FROM: Julie Pelegrin, Office of Legislative Legal Services
RE: Rules of the State Board of Education, Department of
Education, concerning Rules for the Administration of the
Public School Finance Act of 1994, 1 CCR 301-39 (LLS Docket
No. 080488; SOS Tracking No. 2008-00945).
STATUTORY REVIEW:
Pursuant to the provisions of section 24-4-103, C.R.S., the Office of
Legislative Legal Services has examined the above-referenced rules to
determine whether they are within the rule-making authority of the State Board
of Education (hereinafter referred to as the "State Board"). Under the
provisions of section 24-4-103 (8) (c) (I), C.R.S., these rules are scheduled to
expire on May 15, 2009, unless the General Assembly acts by bill to postpone
such expiration.
RULES EXAMINED:
The rules examined by this office are rules of the State Board concerning
Administration of the "Public School Finance Act of 1994", article 54 of title
22, C.R.S.
The rules were adopted by the State Board on October 1, 2008. The Attorney
General issued an opinion on the rules on October 14, 2008, and the rules were
submitted to the Office of Legislative Legal Services on October 14, 2008.
Telephone: 303-866-2045
Facsimile: 303-866-4157
E-mail: olls.ga@state.co.us

CONCLUSIONS:
Rule 2254-R-14.01 in its entirety, Rule 2254-R-16.02 (1), and Rule
2254-R-20.00 in its entirety refer to the State Board's authority to determine
whether a facility school is eligible to receive reimbursement for educational
services. These rules conflict with section 22-2-407, C.R.S., which delegates
the authority to determine the reimbursement eligibility of facility schools to
the Facility Schools Board.
Rules 2254-R-14.03, 2254-R-14.04, 2254-R-14.06, 2254-R-17.02, and
2254-R-19.01 (2) refer to providing reimbursement for educational services
provided by state-operated programs. These rules conflict with section
22-54-129 (1) (c), C.R.S., which defines the term "facility" and does not
include state-operated programs. Because section 22-54-129, C.R.S.,
authorizes reimbursement for educational services only to facilities, there is no
statutory authority to provide reimbursement to state-operated programs.
Rules 2254-R-14.07 (3), which defines "other appropriately licensed or
approved group home" and 2254-R-14.07 (5), which defines "specialized
group facility for children with disabilities", include facilities that are licensed
by a county department of social services or the department of public health
and environment. These rules conflict with section 22-54-129 (1) (c), C.R.S.,
which includes these facilities only if they are licensed by the department of
human services.
Rule 2254-R-14.08 defines the terms "pupil in public placement" and "publicly
placed" to include only placements made by a public agency in Colorado. This
rule conflicts with section 22-2-402 (2), C.R.S., which defines "placed in a
facility" to include a student who is homeless and places himself or herself in
a facility.
Rule 2254-R-16.01 (1) in its entirety allows an eligible facility to receive
reimbursement for educational services provided to a non-resident pupil if
parental rights for the pupil have been terminated. This rule conflicts with
sections 22-2-402 (1) and (4) and 22-2-408, C.R.S., which, read together,
allow an approved facility school to receive reimbursement for educational
services provided to a student only if the student is placed by a public agency
in Colorado or is homeless and self-placed.
Rule 2254-R-16.02, which requires an eligible facility, by October 5, to report
specified information concerning the students enrolled in the facility, conflicts
with section 22-54-129 (3), C.R.S., which requires an approved facility school
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to report its pupil enrollment on November 10.
We therefore recommend that Rule 2254-R-14.01 in its entirety, Rule
2254-R-16.02 (1), Rule 2254-R-20.00 in its entirety, Rules 2254-R-14.03,
2254-R-14.04, 2254-R-14.06, 2254-R-17.02, 2254-R-19.01 (2), 2254-R-14.07
(3), 2254-R-14.07 (5), and 2254-R-14.08, Rule 2254-R-16.01 (1) in its
entirety, and Rule 2254-R-16.02 of the rules of the State Board concerning
administration of the "Public School Finance Act of 1994" not be
extended.
ANALYSIS:
I. Background
Section 2 of article IX of the Colorado constitution requires the state to
provide a free public education to all state residents between the ages of six
and twenty-one years. Some students, however, are placed by a court or other
public agency in a facility and are therefore unable to attend a regular public
school. These facilities include a licensed day treatment center, a licensed
residential child care facility, and other types of licensed facilities that provide
care or treatment to children. The state meets its constitutional obligation with
regard to these students by reimbursing the facilities in which these students
are placed for the educational services the facilities provide. The facilities that
receive reimbursement are currently referred to in statute as "approved facility
schools".
In the 2008 regular session, the General Assembly passed H.B. 08-1204,
concerning the provision of preschool through twelfth-grade educational
services to students who receive educational services in facilities, and making
an appropriation in connection therewith. In part, this bill created within the
Department of Education (hereinafter referred to as the "Department") the
Facility Schools Unit and the Facility Schools Board to provide greater
oversight of the educational services provided by approved facility schools.
The Facility Schools Board was created as a type 1 agency with rule-making
authority for, among other things, the creation and maintenance of the list of
facility schools that are approved to receive reimbursement for educational
services provided to students who are placed at the facilities. The Facility
Schools Board also has specific authority to adopt the criteria a facility school
must meet in order for the Department to place the facility school on the
approved list.
In addition to increasing the oversight of approved facility schools, during the
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2008 regular session the General Assembly also enacted new statutory
provisions within the "Public School Finance Act of 1994", article 54 of title
22, C.R.S., for reimbursing approved facility schools. The State Board
retained authority to enact rules to specify the procedures for reimbursing
approved facility schools, even though the Facility Schools Board has authority
to enact rules specifying which facility schools are approved for
reimbursement. Although enacted in separate bills, the statutory provisions
pertaining to approving facility schools for reimbursement, found in part 4 of
article 2 of title 22, C.R.S., and those pertaining to reimbursing approved
facility schools, found in section 22-54-129, C.R.S., clearly refer to the same
facility schools and the same population of students and should be read and
interpreted together. 1
The State Board amended the rules discussed in this memo specifically to
reflect the changes made during the 2008 regular session with regard to
reimbursing approved facility schools for the educational services they provide
to students who are placed in the facilities.
II. Authority to approve facility schools for reimbursement
Section 22-2-407, C.R.S., generally directs the Facility Schools Board to adopt
rules for "the creation and maintenance...of a list of facility schools that are
approved to receive reimbursement for providing educational services to
students placed in the facility." Subparagraph (V) of paragraph (a) of
subsection (2) of that section specifically directs the Facility Schools Board,
by rule, to specify "[t]he criteria that a facility school shall meet to be placed
on the list of approved facility schools."
Rule 2254-R-14.01 provides:
14.01 "Approved Facility School" means an educational program
meeting the requirements and standards outlined in Rule
2254-R-20.00 and approved by the State Board.
14.01(1) If an approved facility school's authorization,
license, certification, or other privilege to operate
as required by applicable federal or state statute,
rule, or regulation is suspended, terminated, or
otherwise restricted, such facility no longer shall
be deemed an approved Facility School.
(emphasis added).
1
Section 22-2-408 (1), C.R.S., specifically states that approved facility schools shall receive funding
in accordance with section 22-54-129, C.R.S.
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Rule 2254-R-16.02(1) provides:
16.02(1) If an eligible facility fails to meet the October 5
notification deadline, the State Board may revoke its
approval of such eligible facility's on-grounds school.
(emphasis added).
These rules refer to the State Board's authority to determine which facility
schools are included on the list of approved facility schools and which facility
schools are removed from the list. In addition, Rule 2254-R-20.00, titled
"Pupils Publicly Placed Outside the District of Residence - State Board
Approval for On-Grounds Schools", states the requirements that a facility
school must meet for the State Board to approve the facility school for
placement on the list of approved facility schools and allows a facility school
to appeal the State Board's denial of approved status. See Addendum A.
Section 22-2-407, C.R.S., clearly grants the Facility Schools Board
rule-making authority for the creation and maintenance of the list of approved
facility schools, including establishing the criteria for placement on the list.
Rule 2254-R-14.01 in its entirety, Rule 2254-R-16.02(1), and Rule
2254-R-20.00 in its entirety conflict with section 22-2-407, C.R.S., and we
therefore recommend that the rules not be extended.
III. Authority to reimburse state-operated facilities
Several of the State Board's rules refer specifically to state operated programs
and either state or imply that state operated programs are eligible for
reimbursement for educational services provided to students placed in the
programs. Rule 2254-R-14.03 defines a state operated program as follows:
14.03 "State Operated Program" means a regional center, Colorado
School for the Deaf and the Blind, Colorado Mental Health
Institute at Fort Logan, and the Colorado Mental Health Institute
at Pueblo.
Rule 2254-R-14.04 includes state operated programs in the definition of
eligible facility:
14.04 "Eligible Facility" means an approved facility school or a state
operated program (state operated program included in definition
only for the purpose of funding eligibility). (emphasis added).
Rule 2254-R-14.06, defines an "eligible pupil" as follows:
14.06 "Eligible Pupil" means a pupil in public placement who is enrolled
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Rule 2254-R-17.02 states:
in and attending a district or who is receiving his/her education
from the staff of state operated program or an approved facility
school. (emphasis added).
17.02 A state operated program shall report a maximum of one
full-time equivalent membership for each eligible pupil in a school
year. (emphasis added).
Finally, Rule 2254-R- 19.01(2) states:
19.01(2) A state operated program which operates an educational
program shall receive a daily rate based on the state
average per pupil revenue for each full-time equivalent
membership reported. The number of instructional days
may range from 176 days to 235 days per year, depending
on whether the eligible facility provides a nine, ten, eleven
or twelve month educational program. State operated
programs are provided other state appropriations to assist
with their educational programs. (emphasis added).
Section 22-54-129 (2), C.R.S., authorizes only an approved facility school to
receive facility school funding and does not refer to any state operated
programs. Section 22-54-129 (1) (c), C.R.S., defines a facility as follows:
22-54-129. Facility school funding - definitions - legislative
declaration. (1) As used in this section, unless the context otherwise
requires:
(c) "Facility" means a day treatment center, residential child care
facility, or other facility licensed by the department of human services
pursuant to section 26-6-104, C.R.S., or a hospital licensed by the
department of public health and environment pursuant to section
25-1.5-103, C.R.S.
This definition does not include a facility or educational program operated by
a state agency such as the Colorado School for the Deaf and the Blind or a
state mental health facility.
Section 22-54-129, C.R.S., does not authorize reimbursements for state
operated programs nor does any other provision of the "Public School Finance
Act of 1994", article 54 of title 22, C.R.S. Rules 2254-R-14.03, 2254-R-14.04,
2254-R-14.06, 2254-R-17.02, and 2254-R-19.01(2) appear to be without
statutory authority, therefore we recommend that they not be extended.
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IV. Definitions for other types of facilities
As stated above, the statutory definition for "facility" in section 22-54-129 (1)
(c), C.R.S., includes only treatment facilities licensed by the department of
human services and hospitals licensed by the department of public health and
environment.
Rule 2254-R-14.07 generally defines the term "group care facility or home" 2
to include several specific types of group homes, one of which is a "specialized
group facility for children with disabilities". This type of group home is
specifically defined in Rule 2254-R-14.07(5) as follows:
14.07(5) "Specialized Group Facility for Children with Disabilities"
means a group home or a group center established,
supervised, and appropriately licensed or certified by a
county department of social services, by the Colorado
Department of Human Services or by the Colorado
Department of Public Health and Environment for the
purpose of providing 24-hour care for 5 to 12 children
whose special needs can best be met in a small group.
(emphasis added).
The general definition for "group care facility or home" also includes the
general catch-all phrase "other appropriately licensed or approved group
home", which is defined in Rule 2254-R-14.07(3) as follows:
14.07(3) "Other Appropriately Licensed or Approved Group Home"
means a group facility for five or more children approved
or licensed by a county department of social services or
by the Colorado Department of Human Services or an
approved child placement agency for children without
disabilities, not including foster homes. (emphasis
added).
Thus, Rules 2254-R-14.07(3) and 2254-R-14.07(5) would appear to allow
reimbursements for facilities that are licensed by a county department of social
services and for non-hospital facilities that are licensed by the department of
public health and environment. These rules conflict with section 22-54-129
(1) (c), C.R.S., and we therefore recommend that they not be extended.
V. Definition of public placement
2
We note that the rules regarding reimbursements for approved facility schools do not use the term
"group care facility or home", other than to define it, and in fact do not specifically define "facility" at all.
However the rules imply that each type of facility identified in the rules may be eligible for
reimbursement, therefore we raise this issue regarding conflicts between the statutory and rule definitions.
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Section 22-2-408 (1), C.R.S., states that each approved facility school shall
submit its pupil enrollment to the Department and receive funding in
accordance with section 22-54-129, C.R.S. Section 22-2-402 (1), C.R.S.,
defines an approved facility school as follows:
22-2-402. Definitions. As used in this part 4, unless the context
otherwise requires:
(1) "Approved facility school" means an educational program that
is operated by a facility to provide educational services to students placed
in the facility and that, pursuant to section 22-2-407 (2), has been placed on
the list of facility schools that are approved to receive reimbursement for
providing educational services to students placed in a facility.
Section 22-2-402 (4), C.R.S., defines the term "placed in a facility" as follows:
22-2-402. Definitions. As used in this part 4, unless the context
otherwise requires:
(4) "Placed in a facility" means a student is in a facility due to:
(a) A court order or other action by a public entity in Colorado; or
(b) The student's determination, if the student is a homeless child
as defined in section 22-1-102.5.
The definition for "approved facility school" in section 22-54-129, C.R.S., is
identical to the definition in section 22-2-402 (1), C.R.S., and, although the
term "placed in a facility" is not specifically defined in section 22-54-129,
C.R.S., it is reasonable to conclude that the definition in section 22-2-402 (4),
C.R.S., would apply to section 22-54-129, C.R.S., as well. Thus, an approved
facility school may receive reimbursement pursuant to section 22-54-129,
C.R.S., only for those students who are placed in the facility due to action by
a public entity in Colorado or who are homeless and place themselves in the
facility.
Rule 2254-R-14.08 defines "pupil in public placement or pupil publicly
placed" as follows:
14.08 "Pupil in Public Placement or Pupil Publicly Placed" means a pupil
placed in an eligible facility by the official action of a court, a
county department of social services, the Colorado department
of Human Services (which may include division of youth
corrections), any other authorized agency, or a district within
Colorado. Placements made by entities or organizations outside
the State of Colorado are not allowed to be included in billings
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from facilities. (emphasis added).
The rule, therefore, would allow reimbursement for pupils who are placed by
a public entity in Colorado, but would not allow reimbursement for a pupil
who is homeless and places himself or herself in an approved facility school.
Rule 2254-R-14.08 therefore conflicts with section 22-2-402 (4), C.R.S., and
we recommend that the rule not be extended.
VI. Reimbursement for pupils who are not Colorado residents
As stated above, under the statutes, an approved facility school may receive
reimbursement for educational services provided to a student who is placed
with the facility by a public entity in Colorado or who is homeless and places
himself or herself with the facility. The statute does not specifically address
the student's residency.
Rules 2254-R-16.01(1) states the limited circumstances under which an
approved facility may seek reimbursement for educational services provided
to a student who was not a Colorado resident prior to being placed in the
facility:
16.01(1) An eligible facility may include in its pupil membership a
non-Colorado resident pupil only if parental rights have
been terminated, if the pupil is defined as abandoned or
homeless pursuant to Section 22-1-102, C.R.S., or Section
22-1-102.5, C.R.S., or if an in-state public agency has
publicly placed the pupil in the eligible facility. (emphasis
added).
16.01(1.01) A non-Colorado resident pupil included in an
eligible facility’s pupil membership shall be
considered a resident of the district in which the
eligible facility is located.
16.01(1.02) A pupil who is defined as abandoned or homeless
pursuant to section 22-1-102, C.R.S. or section
22-1-102-.5, C.R.S., or with parental rights
terminated shall be considered a resident of the
district in which the eligible facility is located.
(emphasis added).
Under Rule 2254-R-16.01(1), an approved facility school could receive
reimbursement for a student for whom parental rights had been terminated,
even if the student had not been placed with the facility by a public entity and
was not homeless. The rule therefore conflicts with section 22-2-402 (4),
C.R.S., and we recommend that the rule not be extended.
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VII. Time for reporting student information
Section 22-54-129 (3), C.R.S., states:
22-54-129. Facility school funding - definitions - legislative
declaration. (3) To receive facility school funding pursuant to this
section, an approved facility school shall submit its pupil enrollment for the
applicable budget year to the department on or before November 10, 2008,
and on or before November 10 of each budget year thereafter. (emphasis
added).
Rule 2254-R-16.02 states:
16.02 No later than October 5, an eligible facility shall report to the
Department the full name (first, middle, last), gender, date of birth,
parent/guardian resident address, district of residence, state
assigned student identification number (SASID), and whether the
student was publicly placed for each pupil included in its pupil
membership. (emphasis added).
Rule 2254-R-16.02 requires an approved facility school to report the
information concerning its pupils by October 5. Under section 22-54-129 (3),
C.R.S., however, the approved facility school has until November 10 to report
its pupil enrollment. The rule therefore conflicts with the statute, and we
recommend that the rule not be extended.
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ADDENDUM A
2254-R-20.00 Pupils Publicly Placed Outside the District of
Residence-State Board Approval for On-Grounds Schools [Eff.
11/30/2008]
20.01 To receive State Board approval for an on-grounds school, an eligible
facility shall at a minimum:
20.01(1) Ensure that each eligible pupil with a disability under the
Elementary and Secondary Education Act or the Individuals with
Disabilities Education Act shall have an Individual Education Plan
(IEP) that is developed by the pupil’s district of residence in
cooperation with the eligible facility and that the eligible facility shall
deliver the services in accordance with the IEP and that the eligible
facility shall assist in IEP reviews, if requested;
20.01(2) Ensure that an eligible pupil who is not determined to have a
disability under the Elementary and Secondary Education Act or the
Individuals with Disabilities Education Act shall have a statement of
educational objectives to be accomplished and that such statement shall
be prepared by the eligible facility and reviewed at least annually and
that in preparing these objectives the eligible facility shall seek input
from the pupil’s district of residence regarding the pupil's educational
history and that the eligible facility shall mail a copy of the statement
to the district of residence and that the eligible facility shall notify the
district of resident of the status of such objectives upon the pupil’s
departure from the eligible facility;
20.01(3) Demonstrate that it can provide services to meet the
requirements of the Individual Education Plan (IEP) or statement of
objectives and that such services shall be provided by individuals
meeting applicable certification or licensing standards of appropriate
state agencies and shall be accompanied by adequate and appropriate
educational materials and equipment;
20.01(4) Meet all applicable state and federal education laws and
regulations;
20.01(5) Provide each eligible pupil with the opportunity for
enrollment and attendance in instructional services commensurate with
that provided by public school districts in a school year program plan
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(1080 hours for secondary, 990 hours for elementary), except as
otherwise approved by the Department when reviewing the intent of all
federal and state requirements upon the eligible facility when
interpreted as a whole. In no case shall a program be eligible for
approval if it provides less than 720 hours of instructional service in a
school year.
20.01(6) Provide for the evaluation of individual pupil progress;
20.01(7) Agree to cooperate with Department on-site review teams;
20.01(8) Provide for the maintenance and retention of pupil records;
20.01(9) Adhere to requirements as delineated in the Rules for the
Administration of the Exceptional Children's Educational Act (Article
20 of Title 22, C.R.S.).
20.02 An eligible facility may appeal a denial of its on-grounds school
approval pursuant to procedures provided in the Rules for the Administration
of the Exceptional Children's Educational Act.
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