STATE BOARD OF EDUCATION – ADMINISTRATIVE RULE SUMMARY
Title/OAR #: Long-Term Care and Treatment Programs/581-015-2570-2574 Date: December 4th, 2009
Staff/Office: Steven W Smith / OSL&P
New Rule Amend Existing Rule Repeal Rule
Hearing Date: 10/21/09 Hearings Officer Report Attached
Action Requested:
First Reading/Second Reading Adoption Adoption/Consent Agenda
WHAT THE PROPOSED/AMENDED RULE DOES:
· Aligns Long-Term Care and Treatment (LTCT) contract funding formula with statutory changes to ORS 343.243 by the 2009 Legislature (SB 70) and clarifies language.
· Separates and organizes one lengthy rule for LTCT programs into five distinct rules.
ISSUES RAISED:
· The state funding per ADM for the 2007-08 school year was $22,093.04 ($17,081,452/773.16). The state funding per slot for the 2007-08 school year was $14,325.75 ($17,081,452/1,192.36). 2007-2008 Final ADM is the most current data available.
· Lack of alignment of rule with SB 70 (2009) language. (The proposed rule amendments address this issue.)
· Misleading current rule title, in that it is not applicable to all sections of the current rule, and is not transparent. (The proposed rule amendments address this issue.)
· Whether the current rule is too lengthy and broad. (The proposed rule amendments address this issue.)
· Whether there should be a definition of “long-term” in the rule.(DOJ suggested removal of definition, as ODE’s obligation to students in LTCT programs is not based on length of stay.)
· Whether the rule should be expanded to include additional types of treatment programs (e.g., other than psychiatric day and residential treament) and categories of students (e.g., privately placed students) eligible for funding under this rule? (No--the legislature did not fund the LTCT program for an expansion and ODE does not have the statutory authority to include students who are not placed into treatment facilities by a state agency in the LTCT program.
BACKGROUND: The Oregon Dept. of Education is charged with overseeing educational services for children who need psychiatric care and who are placed by the Department of Human Services or the Oregon Youth Authority in either day or residential facilities. The ODE contracts with school districts and ESDs to provide approved education programs to these students.
As of September 2009, there were 47 separate LTCT education programs operated under contract with ODE by 28 school districts or ESDs. Examples of LTCT education providers include Portland Public Schools, Multnomah ESD, Northwest Regional ESD, Ashland SD, and Springfield SD. Approximately 4000 students a year receive their education through day or residential treatment facilities. The average length of stay by program during the 2007-08 school year ranged from 21 to 365 days. Programs range in size from six to 65 students. Funding for long-term care and treatment comes from two sources: a General Fund allocation by the Legislature and an annual transfer of State School Funds based on a statutory formula (ORS 343.243). Last biennium, the approximate total state funding for LTCT contracts was $34,000,000.
Prior to changes made in SB 70, there was a deficit in funding these programs; funding was based on Average Daily Membership (ADM) rather than the number of “slots” needed. Unlike the relatively stable ADM, LTCT needs flucuate wildly due to the highly transient student population and the unpredictability of placements. Understanding this, the 2009 Legislature modified the funding language for these programs (SB 70) to allow ODE to budget based on expected “slots” needed. The language changes made in these rules will align contract funding formula language with revised language in ORS 343.243 (effective 7/1/09).
While staff was updating the rule to conform with the language of SB 70, staff decided to clarify the content of the lengthy (and misleadingly titled) rule by breaking it out into five separate rules.
Board History: The board last saw the content of OAR 581-021-2570 in December 2007.
Fiscal Impact: None. The ODE had been funding LTCT based on slots prior to the law change (in error). The change in law conforms to current ODE funding procedure.
STAFF RECOMMENDATION: Adoption at the December State Board of Education meeting.
Draft
Created by CH on 9/11/09 & Edited by SS on 11/5/09
Long Term Care and Treatment Programs
581-015-2570
Criteria for Funding of Educational Programs for Children Placed by State Agencies for Psychiatric Day and Residential Treatment Definitions and Purposes of Long-Term Care and Treatment (LTCT) Programs
(1) Definitions in this rule apply to OARs 581-015-2570 throughto 581-015-2574:
(a) "Contracting school district" means the school district, the education service district, or a program operated under the auspices of the State Board of Higher Education, or a program operated under the auspices of the Oregon Health and Science University Board of Directors that contracts with which the Department of Education contracts for the provision of educational services.
(b) "Education program" means those activities provided under contract between a school district or education service district contracting school district and the Department of Education, which provide a public education to preschool or school-aged children placed by in a state agency in a Psychiatric in aDay treatment Treatment program or a Psychiatric Residential Treatment Facility;
(c) “Intermediate care facility” is defined in ORS 442.015 (21);
(d) "Psychiatric day Day treatment Treatment Programs" are defined in OAR 309-032-1110(68);
(de) "Psychiatric residential Residential treatment Treatment facilityFacility" is defined in OAR 309-032-1110(69).
(ef) "Resident district" means the resident district of a student as defined under ORS 339.133 and 339.134.
(fg) "State agency" means the Oregon Department of Human Services (DHS), or the Oregon Youth Authority (OYA), or their designee.
(gh) "Treatment program" means the long-term day or residential treatment services provided by a private nonprofit or public agency and provided under contract with a state agency or designee of the state agency. Intermediate care facilities are excluded from this definition;.
(2) The purposes of the education program under this ruleOARs 581-015-2570 throughto 581-015-2574 are as follows:
(a) To serve children placed by a state agency for needs other than educational;
(b) To serve children placed by a state agency who require schooling in a protected environment in order to protect the health and safety of themselves and/or others; and
(c) To extend the treatment process into the school day to fully implement the treatment plans of children placed by a state agency.
Stat. Auth. ORS 326.051 and 343.961
Stats. Implemented: ORS 343.961
581-015-2571
Long-Term Care and Treatment (LTCT) Education Program Eligibility and Approval
(31) Eligibility criteria for funding:The Department of Education shall base education program eligibility on the following:
(a) An agency may offer several different treatment programs serving different populations. For the purposes of determining eligibility for funding and funding levels for education programs, each program will be considered separately. Temporary shelter programs, which would not otherwise meet the definition of long-termeligibility criteria provided in this ruleOAR 581-015-2571(1)(b), are eligible for funding only when attached to an eligible treatment program and the children served are primarily awaiting placement in such programs;
(b) To be eligible for an education program, a treatment program must submit an application to the ODE Department’s Long-Term Care and Treatment Program demonstrating that the program meets all of the following criteria:
(A) Either:
(i) A letter of approval from the Office of Mental Health and Addiction ServicesAddictions and Mental Health Division certifying that the psychiatric day treatment program or psychiatric residential treatment facility meets standards applicable for intensive children's mental health services under OAR 309-032-1120; or
(ii) Documentation that the program provides long-term residential treatment of children placed by a state agency or designee of the state agency;
(B) Meet state licensing requirements for a private child-caring agency;
(C) Be operated by a nonprofit corporation or a political subdivision of the state;
(D) Demonstrate through client admissions, staff hiring practices, and client access to services that it meets requirements for ORS 659.850 relating to the prevention of discrimination; and
(E) Demonstrate through curriculum content, teaching practices, and facilities management that the constitutional requirements regarding no religious entanglement are met.
(42) The Department of Education (ODE)
shall base education program approval on the followingApproval:
(a) The State Superintendent of Public Instruction Department is responsible for approving the educational program under this rule and shall base approval on the following.:
(A) The State Superintendent of Public Instruction Department must ensure that the contracting school district meets the requirements in subsection (42)(ba)subparagraph (B) of this paragraph.
(Ba) The contracting school district must ensure that the education program is operated in compliance with a written agreement with the Department that specifies, at a minimum, the following services to be provided:
(iA) Each child who is not a child with a disability under OAR 581-015-2130 through 581-015-2180: has a personalized educational plan that includes assessment, goals, services, and timelines;
(iiB) Information pertaining to students and educational programs is provided to the Department in an accurate and timely manner;
(iiiC) Children have opportunities to be educated in the least restrictive environment; and
(ivD) The education program is developed and implemented in conjunction with the treatment program; and
(vE) Other requirements as identified by the Department.
(b) The Department must ensure that the education program is operated in compliance with a written agreement with the contracting school district.
(c) Final determinations concerning the eligibility of treatment programs for education funding are at the discretion of the State Superintendent of Public Instruction.
(3) Funding Procedures: Upon receipt of an application for funding for a program under this rule, the Department of Education will:
(a) Within a reasonable time dDetermine if the treatment program meets the eligibility criteria in this rule within 45 business days;
(b) If necessary, request additional funding or a limitation for funding from the State Legislature; and
(c) Fund the program according to the formula in OAR 581-015-2572 only when sufficient funds are forthcomingavailable for the program under ORS 342.243 and an appropriation from the General Fund as determined by the Department.
Stat. Auth. ORS 326.051 and 343.961
Stats. Implemented: ORS 343.243 and 343.961
581-015-2572
Long-Term Care and Treatment (LTCT) Education Program Funding Formula
(15) Funding Guidelines:The Department of Education shall provide funding to education programs based on the following:
(a) For the purpose of allocation of state school funds under this rule, the following definitions apply:
(A) "Average daily membershipState agency slots" means the membership of a school as defined in ORS 327.006(3)number of slots available for students in LTCT programs under ORS 343.961, as reported to the ODE by a state agency for the school year;
(B)(A) "Net operating expenditures (NOE)" means the sum of expenditures as defined in ORS 327.006(6), divided by the average daily membership of the school district, or in the case of an ESD, its districts, which contracts for education services offered in the program;
(C)(B) "Service sService level factors" means:
(i) 1.75 for students in Psychiatric Day Treatment Programs; or
(ii) 2.00 for students in Psychiatric rResidential Treatment facilitiesFacilities.
(C) “State agency slots" means the number of slots available for students in education programs under ORS 343.961, as reported to the Department by a state agency for the school year;
(b) A formula will be employed to reflect the needs of the population served and will identify state school funds available needed for the development of an approved contract.
(A)(b) The Department shall use the following formula isfor distribution of funding: (Service level factors) x [(the contracting district's average net operating expenditureNOE in year one) x (average daily membership as specified in the contract with the Department of Human Services or Oregon Youth Authoritystate agency slots for year one) + (the contracting district’s NOE in year two) x (state agency slots for year two)] = ODE contracted amounttotal state funding contract amount;
(B)(c) The factor represents an equitable division of funds available to the Department for programs eligible under these criteria. If the total state funding available for all LTCT programs is less than the total state funding needed to fully fund each LTCT contract, the amount of state funding in each contract determined under paragraph (b) of this subsection will be prorated.
(c)(d) A special needs fund is established at the Oregon Department of Education which will be up to five percent of the total state monies made available for thisthe LTCT program during a biennium:
(A) Individual applications may be made to the Department for this fund to cover unexpected, emergency expenses;
(B) Funds not utilized under this subsectionparagraph for the first year of the biennium will be carried forward by the Department to the next fiscal year.
Stat. Auth. ORS 326.051 and 343.961
Stats. Implemented: ORS 343.243 and 343.961
581-015-2573
Due Process Hearings for Long-Term Care and Treatment (LTCT) Education Programs
(1) The following shall apply to Due Process Hearings involving students attending education programs:
(a) The contracting school district is the “school district” for the purposes of carrying out the procedures required by OAR 581-015-2340 through 581-015-2385;
(b) The issues of the hearing do not include the placement by the state agency or its designee for long-term treatment;
(c) Costs under OAR 581-015-2385(1)(a) that are in excess of the contracted educational program budget will be paid by the Oregon Department of Education;
(d) The Oregon Department of Education and the Department of Human Services or Oregon Youth Authority, respectively, will beis a partiesy to such proceedings and will beis responsible to provide additional educational services ordered by an administrative law judge that are beyond the funding provided to the contracting school district under this rulescope of the written agreement between ODE the Department and the contracting school district under OARs 581-015-2570 through 581-015-2574.
(2) The Department is not responsible for paying for transportation, care, treatment or medical expenses.
(6) Funding Procedures: Upon receipt of an application for funding under this rule, the Department will:
(a) Within a reasonable time determine if the treatment program meets the criteria for funding in this rule;
(b) If necessary, request additional funding or a limitation for funding from the State Legislature; and