As promised, attached as microsoft word file and as an RTF file, is my
draft of a Moretown protest of the DOE rules to be submitted to the
State Board of Education.



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\paperh15860\widowctrl\ftnbj \sectd \sbknone\linemod0\linex0\cols1\endnhere \pard\plain \ri-1440 {\f20\fs28\ul \par
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}{\b\f20\fs28\ul Proposed Rules for Allocation of Funds Regarding Act 117, Section 9}{\b\f20\fs28 : \par
}{\b\f20\fs28\ul Assistance to School Districts with Unusual Special Education Costs}{\f20\fs28\ul \par
\par
}{\f20 from the Moretown Elementary School Board\par
August, 2001}{\f20 \par
}\pard \ri-1440 {\f20 \par
\par
\par
}\pard \ri-1440 {\b\f20\fs28\ul Background}{\b\fs28 :}\par
\pard \ri-1440      {\f20 Some three years ago the Moretown board became aware that seven Down Syndrome babies were resident in the town and that in a few years all seven would simultaneously be requiring special needs services at the elementary school.
A careful study of the financial consequences revealed that this unexpected and statistically highly unlikely event would result in exceptionally high special education (special ed) costs for the Moretown taxpayer over an extended period of some 6-8 years
 and seriously erode the board's ability to adequately fund regular education over this period.  \par
}\pard \ri-1440 {\f20      The problem was clear.  The state funding formula for special ed costs is fundamentally inequitable.  Department of Education (DOE) statistical data show that per student total annual special ed costs
 supported locally (total costs less all federal and state reimbursements) are widely variable between school districts. High special ed cost districts have 10 times the financial burden on a per student basis as do low cost districts.
  This hugely variable per student special education burden means that the de facto tax rate to support regular education at a given per student cost level is }{\f20\ul not}{\f20  the same in every school district in the state as presumed
 by Act 60.  That is, the manner by which the state currently funds special education clearly subverts the intent of Act 60.\par
}\pard \ri-1440 {\f20      In February, 1999, the Moretown Board published the details of their future special ed funding difficulties and summarized DOE data to show the magnitude of
 the current inequalities in local funding of special ed as a consequence of the manner of state reimbursement, in a report titled, }{\i\f20 Special Education - The Moretown Dilemma}{\f20 .  This pub
lication was the basis for an appeal to the legislature via our then representative, Alan Weiss.  In discussions with legislators they suggested that since changing the special ed funding formula was a major undertaking, an effort sh
ould be made to find money over the short term to alleviate such egregiously high special ed burdens as being projected for Moretown.  This effort was focused for the second session of the 99-2000 biennium.\par
     In February, 2000, the Moretown Board submitted a second publication refocusing on the inequity of the current system of state reimbursement of special education costs and proposing a solution, under the title - }{\i\f20
The Moretown Proposal for an Equitable Special Education Funding Formula}{\f20 .  In this year a concerted effort was made to effect the legislation that had been suggested in the prior year.  This effort appeared to be successful. We were assured by
various legislators as well as by David Wolk, the Commissioner of Education, that the language of Section 10 of House Bill H.629 was specifically designed to help alleviate unusually high special ed burdens
 such as those projected for Moretown.  This bill was enacted into law as Act 117, with Section 9 including the language of Section 10 of the House bill.\par
}\pard \ri-1440 {\f20      Unfortunately the approach taken by the DOE to formulate rules for dispersing the funds authorized by Act 117, Section 9, have a most peculiar focus and would provide no alleviation of Moretown's critical special ed funding
problem.  The Moretown Board has therefore challenged these rules as failing to meet legislative intent.  We feel it is appropriate to this challenge that we provide an alternative set of rules which in contrast to those developed by the DOE, do
fairly meet the legislative intent of Section 9 of Act 117.\par
}\pard \ri-1440 {\f20 \par
}{\f20\ul \par
\par
\par
\par
\par
\par
}{\b\f20\fs28\ul Legislative Intent}{\b\f20 :}{\f20 \par
     Section 9 of Act 117 is reproduced as follows:\par
\par
}\pard \ri-1440 NO. 117. AN ACT TO STRENGTHEN THE CAPACITY OF VERMONT\rquote S EDUCATION SYSTEM TO MEET THE EDUCATIONAL NEEDS OF ALL VERMONT STUDENTS.\par
\pard \ri-1440 \par
\pard \ri-1440 {\f20 Sec. 9. ASSISTANCE TO SCHOOL DISTRICTS WITH UNUSUAL SPECIAL EDUCATION COSTS\par
}\pard \ri-1440 {\f20      (a)   In fiscal years 2002 through 2004, the commissioner may use up to two percent of the funds appropriated for special education expenditures
as that term is defined in subsection 2967(b) of Title 16 for the purpose of directly assisting school districts with special education expenditures
of an unusual or unexpected nature. These funds shall not be used for exceptional circumstances which are funded under section 2963a of Title16. A decision of the commissione
r as to eligibility for assistance and amount of assistance received shall be final.\par
     (b)   In order to be eligible for assistance under this subsection, during at least two of the quarters of the prior fiscal year, a school district shall
have submitted Medicaid bills for services reimbursement for at least 85 percent of its Medicaid eligible students who received medically-related
special education services. However, the commissioner may provide assistance to a school district which does not reach the 85 percent target if
the district made a reasonable attempt to reach the target but was prevented from reaching it by extraordinary circumstances. \par
}\pard \ri-1440 {\f20      (c)   The state board of education shall adopt rules necessary to establish standards and procedures for implementation of this section. \par
}\pard \ri-1440 {\f20      (d)   Annually, on or before January 15, the commissioner shall report to the general assembly on the amount and use of funds expended under this subsection.\par
\par
\par
     We submit that legislative intent is logically interpreted from the above legislative language as follows:\par
}\pard \ri-1440 {\f20      1.    "Assistance to school districts" as used in the title to Section 9 means just what it says.  It does }{\f20\ul not}{\f20  mean }{\f20\ul town}{\f20  school districts even though this artifact is used by the DOE
as a convenience in order to make normal special ed reimbursement payments directly to individual towns.  The Moretown school board is responsible solely for governance of the Moretown elementary school district and the egregiously high special ed costs
 derived therein.  In dealing with them it is inappropriate to factor in special ed costs from the Union High School District that are allocated to Moretown.  This district is separately governed and thus qualifies as a separate school district
 in the above legislative language.\par
}\pard \ri-1440 {\f20      2.   ".... with unusual special education costs" as used in the title to Section 9 is reasonably interpreted to mean unusually }{\f20\ul high}{\f20  special education costs since this is the fundamental problem created by a
special ed funding formula that does not take into consideration the serious maldistribution of special needs children within school districts which inevitably will occur from time to time when such school districts are as small as t
hose typically found in Vermont.\par
}\pard \ri-1440 {\f20      3.   " .... special education costs" as used in the title to Section 9 is reasonably and properly interpreted to mean }{\f20\ul all}{\f20  special education costs.  This means costs that accrue to preschool special ed
activity as well as to K-12, even though the former are often referred to as Triple E (Essential Early Education) costs.  In fact, since Triple E is funded by a per primary student based state grant, inequities in local funding of
Triple E are even greater than for funding K-12 special ed.  Low cost Triple E school districts might well receive a state grant in excess of actual total costs while high cost Triple E school districts can
 be reimbursed by the grant at less than 20% of actual costs.  To exclude preschool special ed would therefore exclude a potentially important  contributor to the problem of unusually high special education costs the alleviation of which
was the prime intent of this legislation.\par
}\pard \ri-1440 {\f20      4.   " .... for the purpose of directly assisting school districts with special education expenditures of an unusual or unexpected nature."  as used in sub-section (a) of Section 9 introduces an element of ambiguity
, unfortunately not uncommon to legislative language.  What is to be the interpretation of "unusual or unexpected"?   As indicated earlier, for 7 Down Syndrome children to be present in a school district of some 175 children, as is the case in Moretown,
 is highly unexpected when one considers that the frequency of occurrence in the general U.S. population is 1 in 800.  Such an unexpected occurrence will inevitably
 produce unusually high special education costs.  In fact this is the heart of the problem.  Unusually high special education costs will overwhelming be associated with the presence in a school district of
 numbers and/or severity of disabled children that is disproportionately great (and therefore statistically rare and unexpected) compared to the state-wide average.  As originally presented in House Bill.629, "unusual or unexp
ected" was written as "unusual }{\f20\ul and}{\f20  unexpected".  At the last minute, during the House-Senate reconciliation, representative Alan Weiss realized that "unexpected" might be interpreted as unforeseen and
 therefore suggested a simple word change as a remedy.  "And " was changed to "or".   As is often the case when hasty actions are taken this simple proposed remedy was poorly thought out, ultimately leaving the overall legislative meaning somewhat
ambiguous.  However, the inevitability of unforeseen expenditures in a process which predicts costs some 12 months prior to the event is accommodated in the normal proceedings by which school boards adopt budgets.
  Contingency money is always included one way or another.  Unforeseen costs, unless truly egregious, are not a problem, whether these come about as a result of the arrival of a new high needs special ed student in a school district
 after budget adoption, or because of a serious roof leak or septic tank problem.  All these reasons favor the interpretation of legislative intent as using the word "unexpected" to mean statistically unlikely rather than unforeseen.  Surely
it was not legislative intent that an unforeseen special education cost which does not produce an unusually high local special education burden should receive additional financial support.\par
}\pard \ri-1440 {\f20 \par
}\pard \ri-1440 {\b\f20\fs28\ul Moretown Proposed Rules}{\b\f20 :}{\f20 \par
}\pard \ri-1440 {\f20      Based on the legislative intent as interpreted in the above presentation, the Moretown School Board offers the following rules for dispersing the moneys made available by Section 9 of Act 117.\par
}\pard \ri-1440 {\f20 \par
}\pard \ri-1440 {\f20 1.   Any school district can make application for support under Act 117 Section 9, in respect to unusually high local special education burden within their district, whether a multi-school d
istrict or a single school district or a union high school district, should they qualify according to the following rules.\par
}\pard \ri-1440 {\f20 2.   Qualifying high local special education costs will include the total of all preschool as well as k-12 special education costs.\par
}\pard \ri-1440 {\f20 3.   The local burden in support of all special ed mandated costs will be the total audited special ed costs as defined in 2. above, less all federal and state reimbursements received, as determined for the local
school district.  This total local cost is then converted to a per student local cost by using the year-end school district student FTE number. \par
}\pard \ri-1440 {\f20 4.   Should this local special ed burden exceed a predetermined per student special ed cap established by the DOE, the school district will be eligible for a special reimbursement of 90% of the amount by which the total local ed spe
nding exceeds that defined by the DOE cap.  \par
}\pard \ri-1440 {\f20 5.   The DOE using its normal special education statistical data will determine the average and the distribution about the average of the local per student total special education cost burden as defined in 3. above, for all
town school districts in the state.  The DOE cap for per student local special ed spending will be determined by selecting the portion of the high side of the local per student special ed distribution above which 90% of the total of the above-
cap spending of all town school districts in this high local special ed burden category shall equal the amount of money set aside by the Commissioner of Education to support districts with unusually high special education costs
 as authorized by Act 117, Section 9. \par
}\pard \ri-1440 {\f20 \par
\par
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}\pard \ri-1440 {\f20\ul \par
}\pard \ri-1440 {\f20 \par
}\pard \ri-1440 {\f20      \par
\par
}\pard \ri-1440 {\f20       }\par
}