DEPARTMENT OF EDUCATION
Office of the Secretary
REGULATORY IMPLEMENTING ORDER
701 Unit Count
I. SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED
The Secretary of Education intends to amend 14 DE Admin. Code 701 Unit Count. The Department of Education reviewed this and other regulations which were four years or older as part of the 2016 Regulation Review as required by 29 Del.C. §10407. Public comment was received for this regulation in which the Department of Education was asked to include language that provides more control over how local education agencies use the units they receive. The Department cannot mandate the requested change. Therefore, the regulation is being readopted in its original form.
Notice of the proposed regulation was published in the News Journal and the Delaware State News on February 1, 2017, in the form hereto attached as Exhibit "A". Comments were received from Governor's Advisory Council for Exceptional Citizens and the State Council for Persons with Disabilities regarding: (1) the Department's reference to a public comment period. The Department was referencing the initial public comment period required by 29 Del.C. §10407, not the regulatory process public comment period; (2) not using "instructional level" as a means of identifying students for the unit count. The Department kept the existing language which includes reporting students by age and "instructional level" as there are instances where it does not always include students with disabilities, and where flexibility is needed in reporting an instructional level; (3) elimination of a reference to Section 7.1, as this section does not exist in the regulation. The Department agrees with this comment and the reference has been changed to 7.0; (4) including 18-21 year old students in the Department of Corrections pre-trail settings in the unit count. The Department clarified the regulation to include those students who are eligible for the unit count; (5) the regulation not addressing the adult prison population. The Department notes that this population is reported in a separate agency report, as they are funded through the Budget Bill/Adult Prison Education and thus not included in the K-12 unit count or this regulation; (6) Additionally, the Department made minor grammatical corrections for clarity.
II. FINDINGS OF FACTS
The Secretary finds that it is appropriate to reauthorize 14 DE Admin. Code 701 Unit Count in its original form with only minor changes for clarification purposes.
III. DECISION TO AMEND THE REGULATION
For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 701 Unit Count. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 701 Unit Count attached hereto as Exhibit "B" is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 701 Unit Count hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below.
IV. TEXT AND CITATION
The text of 14 DE Admin. Code 701 Unit Count amended hereby shall be in the form attached hereto as Exhibit "B", and said regulation shall be cited as 14 DE Admin. Code 701 Unit Count in the Administrative Code of Regulations for the Department of Education.
V. EFFECTIVE DATE OF ORDER
The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on March 23, 2017. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations.
IT IS SO ORDERED the 23rd day of March 2017.
Department of Education
Susan S. Bunting, Ed.D., Secretary of Education
Approved this 23rd day of March 2017
701 Unit Count
1.1 All information submitted through the unit count process shall be on the forms provided by the Department of Education or in such other format as may be acceptable to the Department.
1.2 Each school shall maintain September enrollment records in a manner which will allow for efficient enrollment audits by the Department of Education and the State Auditor of Accounts. At the end of September, each school shall assemble a comprehensive enrollment file that contains all necessary support materials to substantiate the enrollments reported. This file shall be retained in the school for at least three years.
1.3 Records to substantiate students with disabilities included in the enrollment count shall contain a student Individual Education Program (IEP) in effect during the last week of school in September and eligibility documentation. However, individual student files may be reviewed by the Department of Education or State Auditor of Accounts to ascertain that the students reported are identified as special education students as per 14 DE Admin. Code 925.
2.1 All exceptions and extenuating circumstances relating to the enrollment count are addressed to the Secretary of Education and shall be received by the Secretary for consideration prior to September 30.
2.2 Students with disabilities included in the special education unit count under the placement provisions of Transfer Students or Change of Placement shall meet the evaluation and placement requirements found in 14 DE Admin. Code 925.
2.3 Students not assigned to a specific grade shall be reported in a grade appropriate for their age or their instructional level for purposes of the unit count.
3.1 For students not in attendance at school during the last 10 school days of September during which students are required to be in attendance, the following information shall be on file to substantiate their inclusion in the enrollment count:
3.1.1 Reason for absence, usually medical, and date of last direct contact with student or parent.
3.1.2 Reason to believe that student will be returning to school prior to November 1st.
3.1.3 Districts and Charter Schools enrolling an intra-state transfer student during the last 10 school days of September during which students are required to be in attendance shall first determine if the student is currently obligated under a choice agreement or first year charter agreement before enrolling the student. If said obligation exists, “good cause” pursuant to 14 Del.C. §402 and §506(d) respectively must be determined before the receiving district/charter school can enroll the student. Districts and charter schools enrolling an in state transfer student during the last 10 school days of September shall notify the student's previous district or charter school of such enrollment no later than the last student attendance day of September. The notification shall be by fax with a follow up letter to the previous district/charter school’s unit count coordinator’s office. The notification shall be clearly labeled Unit Count Transfer Students and include the student's name, grade, and previous school of attendance. A student enrolling with a formal notice of withdrawal from the previous district or charter school is exempted from this notification requirement. Failure to follow the notification procedure may result in including the same student in two different district or charter school enrollments and hence unit counts. If that occurs, the student will be disallowed from the receiving district or charter school’s enrollment and unit count. Copies of the fax transmittals and follow up letters shall be on file to substantiate the student's inclusion in the receiving district or charter school’s enrollment and unit count.
4.1 Students in the following programs, situations and program types shall qualify for inclusion in the enrollment count:
4.1.1 Delaware Adolescent Program, Inc. (DAPI):
22.214.171.124 Students enrolled in DAPI shall be counted in the enrollment of the sending school.
126.96.36.199 Students shall receive the level of special education service as defined by the current IEP.
188.8.131.52 If a student was enrolled the previous year in a Career Technical Program in the reporting school, the students shall be reported as enrolled in the next career technical course in the program series.
4.1.2 Repeating seniors who are enrolled in school for a minimum number of instructional hours defined as three traditional courses or an equivalent time in a block schedule, shall be included in the unit count provided they meet the age and residency requirements. Students in the James H. Groves In school Credit Program (14 DE Admin. Code 915.2.4) and students in the Advanced Placement Program shall be enrolled and attend at least one full credit course in their high school to be included in the unit count provided they also meet the age and residency requirements.
4.1.3 Temporary problem, usually medical, which precludes school attendance prior to November 1st.
4.1.4 Supportive Instruction (Homebound): Students receiving supportive instruction (homebound) pursuant to 14 DE Admin. Code 930 qualify for inclusion in the unit count.
184.108.40.206 A child with a disability receiving supportive instruction (homebound) shall be included in the unit count as a special education student if, in the child's placement immediately preceding the homebound placement, the child had an IEP in effect during the last week of school in September.
4.1.5 [Stevenson House or New Castle County Detention Center Department of Services for Children, Youth and Their Families or Department of Correction Facilities]: Students on a temporary basis pending disposition of case who are expected to return to school prior to November 1st.
4.1.6 Consortium Discipline Alternative Program:
220.127.116.11 Students enrolled at a Consortium Discipline Alternative Programs site shall be counted in the enrollment of the sending school pursuant to 14 DE Admin. Code 611.
18.104.22.168 Students shall receive the level of special education service as defined by the current IEP.
22.214.171.124 If a student was enrolled in the previous year in a Career Technical Program in the reporting school, the students shall be reported as enrolled in the next career technical course in the program series.
4.1.7 Except as provided in section 5.0 and [7.1 7.0], all pre kindergarten children with disabilities shall be counted in the Preschool Pre K-12 Intensive Special Education (Intensive), or Pre K-12 Complex Special Education (complex) units.
4.1.8 Students enrolled in residential facilities as of the last day of September. These students are included in the enrollment count of the district operating the instructional program in that facility. The facilities that are eligible shall be identified each year by the Department of Education.
4.1.9 [Regular Programs,] Regular programs include students who are enrolled in the regular elementary or secondary curriculum of the school, i.e., the core of the school subjects, which most students take.
4.1.10 [Special Education Services, sS]pecial education services include students who have been properly identified and have an IEP in effect during the last week of school in September. Students with disabilities must have appropriate supporting documentation on file as required by the Identification, Evaluation and Placement Process in 14 DE Admin. Code 925.
4.1.11 [Career and Technical Education (CTE) Programs,] A maximum of 900 minutes of career and technical education time per week per student shall be credited toward the career and technical education unit determination. However, units shall be counted on the basis of 1 unit for each 30 students for students enrolled in the New Castle County Votech School District, the POLYTECH School District and the Sussex Technical School District.
5.1 Students in the following programs and situations do not qualify for inclusion in the enrollment count:
5.1.1 Students who have not attended school during the last 10 days of September
5.1.2 Students who are enrolled in General Education Development (GED) programs
5.1.3 Students who are enrolled in other than Department of Education approved programs
5.1.4 Students who are transferred to a state residential facility during September shall not be included in the enrollment count of the District/Charter School unless that District/Charter School operates the facility's instructional program; otherwise the student must be treated as a withdrawal
5.1.5 Students enrolled in a Homeschool as defined in 14 Del.C. §2703A.
6.1 For unit count purposes if a career technical student in a school utilizing nontraditional schedules receives, during the course of the year, the same amount of instruction the student would have received under a traditional class schedule, the district shall average the time and calculate instructional time on a weekly basis; providing however, that a career technical student receives a minimum of 300 minutes of instruction per week.
6.1.1 The following exemplifies a situation with the required minimum minutes and hours for a full time career technical student and shows that the heavy concentration of minutes or hours could occur either in the fall or the spring of the year.
Fall and Spring Career Technical = 300 minutes per week
Spring and Fall Career Technical = 1500 minutes per week
1800 /2 = 900 minutes per week
6.2 For unit count purposes a district shall meet the following criteria to include selected students participating in a district’s Distance Education/Twilight Program in the September 30th unit count. For purposes of this section, a Distance Education/Twilight Program shall mean a district approved credit bearing program as follows:
6.2.1 Students must be currently suspended indefinitely or expelled by the district and enrolled in the district’s alternative placement program;
6.2.2 Students with disabilities enrolled in the district’s Distance Education/Twilight Program for credit recovery only must be receiving services as decided upon by the IEP team and reflected in the IEP on-site;
6.2.3 The inclusion of students with non-behavior issues and not special education in the unit count can only be included if there is not a break in educational service and they meet the entry criteria of the program and the additional criteria outlined in 6.2.4 through 6.2.11;
6.2.4 Students and their parent(s)/guardian(s) must attend a mandatory program orientation session provided by the district staff. A sign in sheet and signed agreement will be kept on file and serve as sufficient evidence to meet this requirement.
6.2.5 Students must be enrolled for a minimum of three courses.
6.2.6 Students must be required to complete a minimum number of hours of active engagement each week that they are enrolled in the program. The minimum number of hours should not be less than three hours per week.
6.2.7 Students must be enrolled in eSchoolPLUS, the statewide pupil accounting system.
6.2.8 The district must keep records on file for the school year of the unit count on work completed and time spent working on the educational program for each enrolled student. The district must submit a sample to the Department of Education that may serve as sufficient evidence to meet this requirement.
6.2.9 The district must provide evidence of staff monitoring the progress of each student and providing feedback to participating students and their parents/guardians.
6.2.10 The district must show evidence on how progress of students enrolled in the program is incorporated into their academic record for meeting the district’s graduation requirements.
6.2.11 An audit file containing information listed in 6.2 and its subsections must be maintained on all students participating in the program and must be presented upon request to the Department of Education and/or the State Auditor’s Office.
Funding for charter schools is limited to students lawfully enrolled in such grades K through 12 as the charter school may be approved to operate. Charter schools shall not include any Pre K students in their enrollment for unit count purposes. This section shall not be interpreted to authorize any charter school to enroll Pre K students.
If, after the units are certified by the Secretary of Education, a student is disqualified through the auditing process from the unit count, the units will be recalculated without that student. Another eligible student shall not be substituted for the disqualified student. A special education student who has been identified and is receiving special education services and is disqualified from the unit count due to irregularities contained within supporting documentation, may then be included in the appropriate regular enrollment category provided the student meets eligibility requirements. Only a student disqualified by the audit process may be reassigned to another unit category. In no event can this adjustment result in a net increase in units for a district.