Comments & Responses

Chapter 140: Public Charter Schools

A hearing on the proposed rule was held on Tuesday, Nov. 22, 2011 from 9 a.m. to noon in Room 103 of the Burton Cross State Office Building.? The following people spoke at the public hearing:

1. Judith Jones, Maine Association for Charter Schools (MACS);
2. John Jacques, Baxter Academy for Technology and Science (BATS);
3. Glenn Cummings, Good Will-Hinckley (GWH); (written testimony provided)
4. Sandra MacArthur, Maine School Management Association (MSMA) speaking for the Maine School Boards Association, Maine School Superintendents Association, Maine Principals’ Association and Maine Administrators of Services for Children with Disabilities;? (written testimony provided)
5. Justin Belanger, Friends of Cornville Regional Charter School; (written testimony provided) and
6. Bill Ferdinand, representing? K12, Inc.

The public comment deadline was Friday, Dec. 2, 2011. Written comments were received from the following:

7. Judith Jones and Roger Brainerd, MACS;
8. John Jacques, BATS;
9. Toby McGrath on behalf of GWH;
10. Sandra MacArthur on behalf of Maine School Boards Association and the Maine School Superintendents Association; ?
11. Jill Adams, Maine Administrators of Services for Children with Disabilities (MADSEC)
12. Cheryl Clukey, Augusta
13. Jonathan Farley, School of Computing and Information Science, University of Maine
14. Jonathan Amory
15. Daniel Amory, Portland
16. Jessica Rollerson, parent
17. Buckley Hugo, parent and special education advocate
18. Katherine Merseth, Harvard Graduate School of Education
19. Kenneth Capron, Maine Policy Institute, Portland
20. Ruth Frydman, parent
21. Barrie Drum, Connections Academy
22. Bill Ferdinand, K 12, Inc.

SECTION 2 (1) Practices and Procedures

COMMENT:? Commenter #4 expressed concern that the Department proposes to use a publication created by the National Association of Charter School Authorizers (NACSA) as the basis for determining whether authorizers’ policies and procedures conform to nationally-recognized principles and standards. She believes that this publication was written by “the national charter school industry,” and that use of the document indicates that the Department’s rules are designed to promote charter schools rather than regulate them or provide critical oversight.

RESPONSE: The charter school law requires the Department to “establish policies and practices consistent with nationally recognized principles and professional standards for authorizers of public charter schools.” ?20-A MRSA ?2403(4).? The Department has reviewed the principles and standards set forth in the NACSA publication and believes that they are clear and strong standards, developed after years of experience in charter school authorizing, and that they provide the appropriate balance between charter school autonomy and accountability.? Commenter has not suggested other standards that should be adopted by the Department, or pointed out any specific problems with the proposed standards.

?No change to the proposed rule.

SECTION 2 (2) Maintaining list of interested parties

COMMENT:? Commenter #7 believes that this section is unnecessarily detailed, especially the requirement to send notice by regular mail.? Commenter says that these details could be suggestions, rather than mandates.

RESPONSE:? The Department believes that public notice of authorizer activity is a critical element of public accountability and of access for persons interested in applying to open a charter school.? The Department believes that the requirements are appropriate and are not overly burdensome to authorizers.

No change to the proposed rule.

COMMENT:? Commenter #10 believes that authorizers should proactively provide notice of their activities to all school administrative units and to statewide education associations, rather than relying on an interested parties list.

RESPONSE:? The Department believes that the rule provides sufficient opportunity for interested parties to learn of authorizer activities.

No change to the proposed rule.?

SECTION 2 (3) Solicitation of Charter School Applications

COMMENT:? Commenter #6 would like the rule to require that RFP solicitations be issued annually.

RESPONSE:? There is no statutory requirement that authorizers issue RFPs on any particular timeline.? The Department believes that the timing of RFP issuance is a matter of authorizer discretion.

No change to the proposed rule.

COMMENT:? Commenter #11 believes that the RFP should require the charter school applicant to explain how it will meet special education requirements.

RESPONSE:? The Department agrees that a charter school applicant should be required to provide, in its application, information about how the special education needs of its students will be met.? However, we believe this should be added to the statutory list of application requirements.? The Department agrees with the commenter that special education obligations need to be spelled out more clearly for charter school operators, and will seek advice from interested parties as to the best method of providing the guidance.

No change to the proposed rule.

SECTION 2 (4) Oversight of Charter Schools

COMMENT:? Commenter #10 believes that the rule should delineate specifically what the authorizer is required to monitor with regard to the charter schools it authorizes.? She believes that the rule should reference major compliance issues, or cross-reference them to the statute.

RESPONSE:? The law sets forth the general monitoring requirements. The Department expects to provide additional non-regulatory guidance to authorizers and charter school operators in the upcoming months.

No change to the proposed rule.

COMMENT:? Commenter #11 questions who is responsible for monitoring provision of special education in charter schools -- the authorizer, the Department, or both? Commenter notes that, if authorizers are required to monitor for special education compliance, they will need technical assistance to understand the applicable laws and rules.

RESPONSE:? The Department of Education is responsible for ensuring that all eligible Maine students receive a free appropriate public education.? However, authorizers also have responsibility to monitor a charter school’s compliance with law and the terms of the charter school contract, to notify the school of compliance problems, and to enforce compliance with the terms of the charter contract.? This includes compliance with special education obligations. The Department is aware of the need to educate authorizers and charter school founders of their special education obligations and expects to provide some level of technical assistance.

No change to the proposed rule.

SECTION 2 (5) Reporting to the Department

COMMENT:? Commenter #6 suggests that the rule be amended to state that annual reports are due 60 days after the end of the school fiscal year, rather than “within 60 days of the end of each school fiscal year.”

RESPONSE:? The Department agrees that the deadline should be 60 days after the end of the year.? The Department notes the same issue with regard to the deadline for reporting on revocation of charters and other matters.? These deadlines are set forth in statute, and should be changed there as well as in the rule, for clarity.? The Department proposes to change the rule to require that the reports be provided not later than 60 days after the end of the fiscal year (or 10 days after the other triggering actions).? This is not inconsistent with the current statutory language, so the change is not dependent upon changing the law.

The rule has been amended to specify that the deadline for each action in Section 2(5)(A) and (B) is the stated ?number of days after the triggering event.?

COMMENT:? Commenter #7 asks that the deadline for authorizers to report action on charter school applications, renewal decisions and charter revocations to the Department be 10 business days after the triggering event.

RESPONSE:? The term “day” in Title 20-A is generally interpreted to mean “calendar day,” unless otherwise stated in the law.? If the rule were to specify that the 10-day period means 10 business days, the Department believes that the language would be inconsistent with the statute.? The Department does not believe that the current language imposes an excessive burden on authorizers.

No change to the proposed rule.

SECTION 2 (6) Department oversight and sanction of authorizers

COMMENT:? Commenter #6 states that the rule should require the Department to provide due process before sanctioning authorizers.

RESPONSE:? The Department agrees that authorizers should be provided with due process before any sanctions are imposed.? The Department will propose that the statute be amended to require notice and an opportunity for authorizers to be heard before sanctions are imposed.

No change to the proposed rule.

COMMENT:? Commenter #11 is concerned about the Department’s capacity to monitor authorizer activity. She believes that the Department has limited ability to provide oversight of special education, and any additional oversight responsibilities would be met at the expense of, or to the detriment of current oversight required for each school district.

RESPONSE: The Department will make every effort to carry out its monitoring duties, and is exploring ways to increase its capacity to oversee and provide technical assistance on special education matters.

No change to proposed rule.?

SECTION 2 (7) Collaborating authorizers

COMMENT:? Commenter #7 suggests that one of the school boards within a collaborative be designated as “the authorizer.” ??Commenter #11 believes that the collaborative needs to state clearly who is responsible for special education.

RESPONSE:? The Department believes that the form of the collaborative is left to the discretion of the collaborating parties.? However, the Department agrees that responsibility for special education needs to be clear when a charter school is authorized by a collaborative.? This should be an element of the agreement among the collaborating parties.

The rule has been amended to require the legal structure of a collaborative to specify who is responsible for special education.

COMMENT:? Commenter #4 asks that the rule be amended to include within the 10-year, 10-school limit any school authorized by a collaborative that involves the State Charter School Commission.? Otherwise, she states, the Commission would be able to exceed the 10-school limit.

RESPONSE:? The Department believes that the 10-school limit was intended to limit placement of charter schools within an SAU without the SAU’s involvement.? If the SAU is collaborating with the Commission, it does not seem necessary to include that school within the limit.? However, since this type of collaborative raises a number of questions and seems unlikely at this point in the charter school program, the Department is proposing to delete the language allowing the Commission to collaborate with local school boards.? If the statute is changed, this concern will be alleviated.? In the meantime, the Department will reword the first sentence of subsection 7 so that it will refer to whatever collaboratives can be created.? The rule will not be changed to include Commission/school board collaboratives in the 10-school limit.

The rule is changed to accommodate a potential repeal of language allowing the State Charter School Commission to collaborate with local school boards.

COMMENT:? Commenters #3 and #9 ask the Department to allow a charter school to be located outside the boundaries of collaborating SAUs, if the school provides housing for its students.

RESPONSE:? The Department is unclear about the rationale for allowing a residential charter school to be located outside the boundaries of an authorizing school board.? The statute provides for 2 types of authorizers ? the Commission, which can charter a school anywhere in the state, and local school boards, which can charter a school within their boundaries.? Although the law doesn’t specifically state that the standards for a group of SAUs are the same as for a local school board, that seems to be the most reasonable conclusion.? Therefore, the Department believes that changing the rule to reflect this comment would be inconsistent with the statute.

No change to the proposed rule.?

SECTION 2 (8) Education service providers

COMMENT:? Commenters #6 and #7 ask that the rule make clear that, by statute, virtual public charter schools are not prohibited from entering into a contract with an education service provider for education design, implementation or comprehensive management of the program.?

RESPONSE:? Department agrees with the suggestion to refer to the statutory language regarding virtual public charter schools.

The rule is amended to reflect the statutory provision that virtual charter schools are not prohibited from contracting with an education service provider for education design, implementation or comprehensive management.

COMMENT:? Commenter #10 asks the Department to make this provision stronger by prohibiting charter school governing boards, leaders and managers from contracting with an education service provider if certain relationships exist.

RESPONSE: The Department’s proposed legislation would require charter school governing boards to comply with the same laws against conflict of interest as local school boards.? This should alleviate concerns about potential conflicts.

No change to the proposed rule.

COMMENT:? Commenter #6 believes that it’s too intrusive for an authorizer to inquire into the reasonableness of the fee paid by the charter school to the education service provider.

RESPONSE: The language in the rule is derived from federal guidance under the charter school grant program.? The regulations for that program require that education service providers and charter school boards be operationally and legally independent; federal guidance lists some of the criteria to be considered in making that determination, including a review of the reasonableness of the fee.? The Department believes that it is not overly intrusive.

No change to the proposed rule.

COMMENT:? Commenter #21 asks who determines whether a contract with an education service provider meets the standards in the law and rule, and how those determinations will be made.? The determinations include whether a contract (a) is limited in scope; (b) imposes reasonable fees; and (c) has reasonable terms.

RESPONSE: The rule requires the authorizer to determine whether an education service provider is legally and operationally independent from the charter school’s governing board, leaders and managers. The limit on scope is that the charter school is prohibited from ceding control and responsibility over essential programmatic elements of the school.? Reasonableness is determined by the authorizer, and is likely to include comparisons with the fees and terms of other similar contracts.

No change to the proposed rule.

SECTION 3 (1) Notice of charter school openings

COMMENT:? Commenter #10 believes that 30 days is not sufficient notice of enrollment openings. Parents need more time to decide whether to enroll their children in a charter school.

RESPONSE: ?The rule requires that reasonable notice of AT LEAST 30 days be given by charter schools.? The rule and the statute also contain numerous opportunities for parents to learn about charter school development even before enrollment period opens, so parents should have more than 30 days in reality to review the school.

No change to the proposed rule.?

SECTION 3 (2) Enrollment

COMMENT: Commenters #2, 3, 5, 8, 9, 15, 16, 18, 19 and 20 are concerned that the proposed deadline for “declarations of intent” to enroll will make it impossible for a charter school to open in September 2012, which commenter #8 believes is the intent of the Legislature.? The January deadline will be impossible to meet in 2012 because no charters will be issued before that date, and it doesn’t make sense to require students to file an “intent to enroll” form before the school is even authorized. ?Commenter #15 suggests that the deadline in 2012 be 120 days after final charter approval.? Commenter #20 is concerned that her son will miss the opportunity to enroll in a Portland charter school if it does not open in 2012.

?RESPONSE:? The Department agrees that any enrollment deadline in rule should ?accommodate potential charter school openings in 2012.?

The Department amended the rule to allow authorizers to set an enrollment deadline other than the standard deadline, if there is compelling reason to do so, including the need for a different deadline in 2012.

COMMENT: Commenters #1-3, 5-9, 12-16 and 18-22 state that the proposed window for filing a “declaration of intent” to enroll in a charter school is unreasonably short, and too early in the year.? ?Commenters state that the January deadline is too early for parents to decide.? They propose that there should be no specific deadline, or that it should be later in the year.? One commenter seeks rolling admissions.? Two commenters suggest that enrollment timing decisions be left to charter school operators, since some may want to have rolling admissions, have a year-round calendar or begin school in January. Commenters state that SAUs do not need to know this early in the year that students will be enrolling in charter schools because it’s no different than students moving out of town. Commenter #18 says that she is not aware of any other state that has such a limitation on enrollment.? Commenter #3 cautions that an early deadline may have an unintended consequence ? forcing parents to apply to schools before they are certain that the student really wants to attend, possibly displacing another student who really does want to attend.

RESPONSE:? With regard to the 3-week window for filing declarations of intent, the Department would not expect that parents, students and charter schools would limit their exploration of options to that 3-week period.? Those activities would most likely be occurring well before that time.? The rationale for setting an end-date for the filings is set forth in below.? The rationale for having a starting date for the period was to alleviate concerns that charter schools might set such an early date that only students that have been individually recruited would be able to submit declarations of intent.?

The rationale for the late January deadline for filing declarations of intent to enroll and for the early February lottery was to enable SAUs to take into account the financial impact of student transfers when they prepare budgets in the spring. ??One commenter states that “The enrollment rules you have proposed meet the needs of existing school districts, clearly not the needs of kids and families.”? The Department believes that this comment fails to recognize that “kids and families” who rely on the noncharter public school for their education can be negatively impacted by last-minute budget cuts that could be required because of unanticipated costs for payments to a charter school.?

One commenter expresses the belief that students transferring to a charter school have no different impact on a school than a student who moves out of the school district over the summer.? The Department would like to explain why the budget impact of a student transferring to a charter school is different from the budget impact of a student moving out of the SAU.? An SAU will receive an “invoice” from the charter school for each student who attends the charter school;? the invoice must be paid in the year in which the student transfers.? If a student moves over the summer, the SAU’s budget does not change in the year in which the student leaves ? enrollment increases and decreases are reflected in the years after the student leaves. ?SAUs have time to adjust to enrollment changes before losing state dollars, and in larger schools, transfers in and out of schools may offset each other, resulting in no real change in budgets.

Given the way charter school students are funded, the Department believes that it’s appropriate to make efforts to notify SAUs of potential invoices for the upcoming school year of $8,000 to $10,000 or more per transferring student. However, in recognition that January is very early in the year for student decisions, and in recognition that circumstances may occur that make a rigid deadline inappropriate, the Department is amending the rule to call for lotteries to be held by April 1st, and to allow authorizers to set different dates for compelling reasons.

To accommodate concerns about the January filing date, the Department has amended the rule to move the date forward, to require the lottery to be held by April 1st, rather than early February, and to allow authorizers to set a different date, for compelling reasons. The Department also changed the rule to remove the specific starting date for the enrollment period and proposes to ask the authorizers to ensure that enrollment periods are appropriate.

COMMENT:? Commenter #4 expressed concern that charter schools might use the application process and meetings with students and parents to discourage certain students from enrolling in the school.? The rule only states that the application cannot be used to prevent a student from enrolling.? Commenter suggests adding a prohibition against using meetings to discourage students from attending.? Commenter #7 suggests removing the language allowing an application form to collect information about the student and his or her interests and experience, to alleviate concerns about “counseling out” students based on this information.

RESPONSE:? The Department agrees that information collected on an application prior to a student’s commitment to enroll should not be used to discourage or prevent a student from enrolling in the charter school.? After considering these concerns, the Department has determined that a charter school only needs a limited amount of information about a student prior to the student’s commitment to enroll.? The Department will therefore limit the information that may be collected prior to a student’s commitment to enroll to the information needed to comply with the 5% and 10% enrollment caps in the first 3 years of a charter school existence, and the information needed to notify the resident SAU of the student’s decision to make a commitment to enroll in the charter school. That information is the student’s name, age, grade and resident SAU.? A charter school may meet with parents and students at any time, at the request of the parent or student, to discuss the student’s interest.? The charter school may collect information about student interests, academic history and other information after the student makes a commitment to enroll.?

The Department has amended the rule to limit collection of information about a student prior to the student’s commitment to enroll

COMMENT:? Commenter #10 asks whether homeless students, and state agency clients and state wards are eligible to attend charter schools, since they are not specifically mentioned.

RESPONSE:? There is nothing in the rule or the law that prevents any of the students described above from attending charter schools.? The question may be which SAU is considered the resident SAU for purposes of transferring funds to the charter school for that student. With regard to state wards and students placed by the Department of Health and Human Services, Title 20-A section 5205 specifies which SAU is the resident SAU.? A state agency client, who is a student placed in a residential placement, would not by definition be attending a charter school. The resident SAU of a homeless student may be more difficult to determine in this situation.? The Department will research whether federal law provides guidance on this issue; if it does not, the Department will likely consider the last SAU in which student was a resident to be the resident SAU for purposes of funding the student’s attendance at the charter school.? When the student is no longer homeless, the student’s resident SAU will provide the funding.

No change to the proposed rule.

COMMENT:? Commenter #10 points out that the rule uses the terms “enrollment priority or preference,” while the statute only refers to preferences.? She asks what impact the use of the term “priority” has on the rule.

RESPONSE:? The Department did not intend to create a new category of “priorities.”

?The rule is amended to remove the reference to “priorities.”

COMMENT:? Commenter #9 asks that the rule be amended to allow legal guardians to sign declarations of student intent (and commitments to enroll). The rule currently refers only to parents.

RESPONSE:? Title 20-A, section 1, subsection 20 defines “parent” as “parent, guardian or legal guardian.”? It’s appropriate to use the general Title 20-A definition in this rule.?

The rule is amended to add “guardian or legal guardian” to the list of persons who may sign a declaration of intent to enroll or a commitment to enroll form.

COMMENT:? Commenters #4 and #11 expressed concern with the extended deadline for commitment to enroll for students who have Individualized Education Plan (IEP), if needed to allow time for the student’s IEP Team to meet to discuss enrollment in the charter school.? Commenter #4 was concerned that the additional time might lead to parents being counseled out of attending the charter school.? Commenter #11 asks that the language be removed, and that no reference be made to the need for an IEP Team meeting.? She states that the transfer should be treated like a voluntary student transfer from one SAU to another, similar to moving from one SAU to another, which does not require an IEP Team meeting

RESPONSE:? The Department suggested the additional time in order to accommodate a possible IEP Team meeting, during which a student and his or her parents may obtain useful information.? Since the MADSEC commentator does not believe that the IEP Team meeting is needed, and the MSMA commentator expressed concern about the meeting be used to “counsel out” special education students, the Department believes it is appropriate to remove the provision.

The rule is amended to remove the deadline extension for students with IEPs.

COMMENT:? Commenter #7 believes that it is burdensome and unnecessary to require charter schools to notify a resident SAU within 5 school days of a student who has committed to enroll in the charter school.? They say that “it is the responsibility of the parent to inform the SAU to avoid truancy, not the charter school.”

RESPONSE:? The Department does not believe that it is overly burdensome for a charter school to notify a resident SAU of a student’s intent to enroll in the charter school.? The charter school should be aware of each student’s resident SAU, especially in the first 3 years of operation, since it must have that information in order to comply with the 5% or 10% enrollment limits in those years.? Notification to the resident SAU will enable the charter school to obtain the student’s unique identifier number in the state student information system, which allows the charter school to access the information needed to calculate the amounts due from the resident SAU in a timely manner. It also allows the resident SAU to plan for the budget impact of the invoice that it will receive as a result of the student’s enrollment in the charter school.

No change to the proposed rule.

SECTION 3 (3)? State and local funding

COMMENT:? Commenter #7 states that charter schools should be able to receive amounts spent by SAUs that are above EPS amounts.

RESPONSE:? The funding methodology set forth in the charter school law uses the EPS amounts to calculate the amount payable to a charter school, rather than actual SAU expenditures.? Actual SAU expenditures may be above or below EPS, so using actual expenditures would not in all cases benefit a charter school.? EPS is the Department’s estimation of the cost of essential program and services in a school, and the Department believes that it is the appropriate method for calculating funds transfers to a charter school.? The Department is proposing in legislation to clarify the statutory language regarding funding to remove any confusion caused by the general phrase in the law that “ALL state and local operating funds” go to a charter school.? The law and the rule together provide specific amounts.?

No change in proposed rule.

COMMENT:? Commenter #10 states that the rule does not adequately address the funding issues relating to a student who is expected to enroll in the charter school but doesn’t, or a student who leaves the charter school in the middle of the year.? The statute only provides for a 50% adjustment, and may deny the SAU that is educating the child of its legal right to get aid for that child.

RESPONSE: The charter school law requires an SAU to make payments beginning in September on the basis of anticipated enrollment.? The final quarterly payment in June is adjusted to reflect changes in enrollment after the initial calculations are made.? The adjustment provided in the law is 50% of the allocation amount.? Any change in this process would require a statutory change. The Department is willing to discuss possible changes with charter school and noncharter public school representatives, to create a process to ensure that amounts transferred accurately reflect student attendance.

No change in the proposed rule.

COMMENT:? Commenter #7 questions why parentheses appear around the words (Transportation ? EPS allocation) and (Average Calendar Year Pupils) in the calculating of transportation fund transfers.?

RESPONSE:? (Transportation?EPS allocation) and (Average Calendar Year Pupils) are data elements that appear on a SAU’s Form ED-279.? The first is found on line 35 of form ED-279; the second is the data element on line 11 of the ED-279.?

The rule is amended to correct the pupil count language to be closer to the ED-279 form wording, which is “(Average Attending Pupils, calendar year xxx)”

COMMENT:? Commenter #7 questions whether charter schools should be required to have approved plans in order to receive targeted funds for technology, standards-based education and PreK-2 programs. They ask whether SAUs are required to have DOE-approved plans and how long it takes to get approved.? They believe that SAUs get funds automatically for PreK-2 programs, based on enrollment. They believe that charter schools should have flexibility in operations.

RESPONSE:? SAUs are required to have DOE-approved plans to receive targeted funds for technology, standards-based education and PreK-2 programs.? Charter school plan requirements will be no more onerous than they are for SAUs.?

No change in the proposed rule.

COMMENT:? Commenters #10 and #11 ask that the rule be amended to clarify that an SAU does not have to provide funding for a PreK-2 program to a charter school if the? SAU does not provide a pre-K-2 program

RESPONSE:? The Department has proposed legislation to clarify this.

No change in the proposed rule.

COMMENT:? Commenters #1 and #7 state that charter schools should not be required to report their expenditures for gifted and talented programming, and that they should receive G&T funding without having to have an approved program.

RESPONSE:? State funding of gifted and talented programs is based on expenditures.? If the charter school’s expenditures for gifted and talented programming are not reported to the resident SAU for inclusion in its expenditure report, the SAU will not receive an allocation for those expenditures and will therefore not have funds to transfer to the charter school.? Only approved gifted and talented programs are funded in SAUs, so the Department does not believe that charter school programs should be funded unless they are approved.

No change to the proposed rule.

COMMENT:? Commenter #10 states that it’s not clear what constitutes a Gifted and Talented Program, so charter schools should not be eligible for funding from the sending school unless the rule provides clear guidelines on what programs qualify as Gifted & Talented programs.

RESPONSE:? Department of Education Rule Chapter 104 governs Gifted and Talented Program approval.?

No change to the proposed rule.

COMMENT:? Commenter #7 questions why charter schools do not receive career and technical education (CTE) funding.? Having the SAU pay for CTE for a student is a disincentive for the SAU to make CTE programming available to the charter school students.? If a charter school has a CTE component, why wouldn’t it get CTE funding?

RESPONSE:? The CTE funding provision in the rule relates to reimbursement for the cost of a student’s attendance at a CTE program, not reimbursement for the cost of operating a CTE program. A student’s right to attend a CTE program is based on the student’s residence.? This rule proposes to keep that standard in place for charter school students.? The SAU of residence will fund the student in the same way as it funds attendance for other resident students.

No change to the proposed rule.

COMMENT:? Commenters #4 and #10 state that funding for CTE needs to be clarified.? What is the per-pupil amount that follows the child (to the charter school) and does the portion the sending school spends on CTE get subtracted from that amount?

RESPONSE:? No CTE funding follows the student from the resident SAU to the charter school.? Generally, the resident SAU pays the cost of CTE program access to the CTE Center or region and then reports that payment to the State as a CTE expenditure. This expenditure results in an allocation for the resident SAU under EPS that is recognized separately from other EPS per-pupil costs.? The amount that the resident SAU pays for CTE is not subtracted from the per-pupil allocation for the charter school student because that CTE cost is not reflected in the EPS per-pupil allocation.? It is a separate allocation.?

No change to the proposed rule.

COMMENT:? Commenter #11 states that, with respect to a charter school authorized by a local school board, federal special education funds should go to the school board, not the charter school.? When a local school board is the authorizer, the local school board is responsible for special education services to students in the charter school.

RESPONSE:? The Department agrees with the commenter, but the change she proposes requires a statutory amendment.? The Department is proposing legislation to require that the local school board that authorizes a charter school is entitled to the special education funding ? state and federal ? to serve the students in the charter school it authorizes.?

No change to the proposed rule.

COMMENT:? Commenter #11asks whether special education personnel will be required to comply with Department Rule Chapter 101, Maine Unified Special Education Regulations.

RESPONSE:? The Department believes that charter schools should be required to comply with the same federal and state special education laws and regulations as noncharter public schools, including Rule Chapter 101.? The Department is proposing legislation to clarify this.?

No change proposed to the rule.

COMMENT:? Commenter #7 states that the last sentence of the staff section is unclear.? That sentence reads:? “A teacher of a core academic subject must also meet any criteria set forth in federal law.” Commenter states that “The law is specifically written to allow flexibility in teacher qualifications and certification beyond the federal requirements.? And Maine’s application for a waiver to the federal rules addresses this issue as well.”

RESPONSE:? The federal No Child Left Behind Act requires teachers in core subject areas to be “highly qualified.”? The requirements to be highly qualified are currently that the teacher must be certified, hold a bachelor’s degree and have demonstrated subject matter competency in each academic subject the teacher teaches, in a manner determined by the State. (NCLB Non-regulatory guidance, July 2004, USDE).? If a state’s charter school law does not require teachers to be licensed or certified, the teacher does not need to be certified to be considered “highly qualified,” but the teacher must meet the other 2 requirements ? i.e., hold a bachelor’s degree and have demonstrated subject matter competency.?

The commenter’s reference to a waiver of federal rules is not entirely clear to the Department. The commenter may be referring to a potential ESEA Flexibility waiver that the Department anticipates filing in February.? This waiver could result in a change in the requirements for teacher qualifications, but is likely to impose other requirements as a substitute.?

The Department felt it was important to put charter schools on notice that staff may be subject to requirements other than state teacher certification laws, e.g., possible ESEA requirements or special education teacher requirements.? Since the wording of the rule was confusing, and since the issue of teacher qualifications may change depending on changes in federal law, regulations or waivers, the Department will remove the staff section from the rule and provide guidance through other means to explain applicable requirements.?

The rule has been amended to remove the section relating to staff qualifications. Further guidance will be provided.

SECTION 3 (6) Data and reporting

COMMENT:? Commenter #10 asks whether charter schools will be required to be part of MEDMS (the Maine Educational Data Management System).?

RESPONSE:? Yes.? Charter schools will be required to participate in MEDMS.

The rule is amended to clarify the required participation in staff, student and financial data collection programs.

SECTION 4 (1) SAU as authorizer

COMMENT:? Commenters #1 and #7 ask why SAUs should be required to notify the Department of their intent to issue an RFP as soon as they have an intent to develop an RFP. They believe that regulating intention is difficult, and that there are other requirements for public notice of authorizer activities.?? They are concerned that requiring advance notice could have the unintended consequence of allowing people to contest the SAU’s intent.

RESPONSE:? The rationale for asking for notice of SAU intent is that it will be difficult for a person seeking a charter to know which, if any, local school boards are considering entering into the authorizing arena.? With respect to the State Charter School Commission, a person can easily follow activity by looking at the Department’s Website or the Commission website.? There is no way for a person to know which local school board may be considering issuing an RFP without checking with every SAU.? The Department is not trying to regulate intention, and believes that this is an appropriate request for information from an SAU, which will allow the Department to be a central location for information about opportunities for potential charter school founders.

No change to the proposed rule.?

SECTION 4 (2) Transfer of records to charter school

COMMENT:? Commenters #10 and #11 believe that charter schools should be required to transfer records to a noncharter school in a timely fashion, as well as requiring noncharter schools to transfer to the charter school in a timely manner.?

RESPONSE:? The Department agrees that the obligation for timely transfer of records applies to all public schools.? In its report to the Education Committee, the Department proposes that Title 20-A Section 6001-B apply to charter schools.?

No change proposed to the rule.? ?

SECTION 4(3) Transfer of Funds to Charter School

COMMENT:? Commenter #10 asks what sanction will apply to a charter school that fails to transfer funds to a SAU.

RESPONSE: ?The Department is amending the rule, in SECTION 3(5) to allow a resident SAU to subtract amounts from future payments to the charter school if the Department determines that the resident SAU overpaid the charter school and the charter school fails to refund the overpayments within 30 days of being notified to do so.

Changes in SECTION 3(5) of the rule address the concern raised by this comment.?

Section 4(4)? Dispute over Funds

COMMENT: Commenters #1, #3 and #9 express concern about potential disputes between an SAU and a charter school over funding to be transferred to the charter school.?? According to one commenter, a SAU can simply declare funds to be “in dispute” and withhold funds from the charter school, causing financial problems for the charter school.? One commenter asks that the Department be required to resolve a dispute within 10 days of being asked by either party to address a dispute.?

RESPONSE: The Department understands the importance of timely payment of funds to a charter school, and timely resolution of disputes over amounts due.?? SECTION 3 of the rule has been amended to require disputes over amounts due to be brought to the Department at least 15 days before the due date, and to require the Department to determine the amount due by the due date.? If the resident SAU does not notify the Department of its disagreement at least 15 days before the due date, the resident SAU must pay the amount due and the Department will resolve the dispute within 15 days after notice of dispute is filed.

SECTION 3 of the rule is amended to add a detailed procedure for a charter school to notify the resident SAU of amounts due, for SAUs to dispute the amount in a timely manner, and the Department to resolve disputes within 15 days.

SECTION 5 (1) Petition for conversion of a noncharter public school

COMMENT:? Commenter #7 states that the time frame within which signatures on a conversion petition can be collected is too short to allow time for parents, teachers and others interested in converting a school to discuss proposals.? Authorizers are only required to give 60 days’ notice before a deadline for filing applications, which may not give interested parties sufficient time to collect signatures. She states, accurately, that the number of signatures required is determined as of 45 days before the application deadline.

RESPONSE:? It’s not clear to the Department whether the commenter is concerned about the 45-day point for determining the number of signatures required, or whether she is stating a general concern about insufficient time to do the work required to complete an application and get signatures on a petition.? As with other potential proposals, it seems unlikely that a group of people interested in converting a noncharter public school to a public charter school would wait until the issuance of the RFP to begin thinking about their plans.

No change in the proposed rule.

COMMENT:? Commenter #11 questions how resident students are provided with school choice if the only school in the SAU is converted to a charter school.? She states that charter schools are supposed to be schools of choice, and wonders how that will apply if the student has no other options for attending school.

RESPONSE:? The charter school law allows conversion of noncharter public schools to public charter schools.? If the school to be converted is the only school in the SAU for those resident students, the conversion must be approved by a local referendum, which provides a level of local approval for the change.? Requiring other options would be a matter of policy for the Legislature to consider.

?No change to the proposed rule.

Issues not addressed in the current proposed rule

TRANSPORTATION

COMMENT:? Commenter #10 states that the charter school’s obligation to provide transportation should be clarified.? Charter schools should be required to transport all students.

RESPONSE:? The charter school law requires that applications contain a plan to meet the transportation needs of its students.

No change in the proposed rule.

COMMENT: Commenter #7 questions whether there can be some limit on a charter school’s transportation obligation, especially if the charter school can’t define its “catchment” area.?

RESPONSE:? The Department has asked the Legislature to consider whether charter schools can limit the geographic scope of enrollment;? transportation obligations are likely to be part of that discussion.

No change to the proposed rule.

SPECIAL EDUCATION

COMMENT:? Commenter #17 asks that the rule make clear that charter schools must comply with Maine special education rules (Chapter 101, Maine Unified Special Education Regulations MUSER)) as well as complying with federal laws ADA, Civil Rights, Title IX, Section 504 of Rehab Act, and Part B of IDEA.

RESPONSE:? The Department is proposing legislation to clarify that MUSER applies to charter schools.? The Department believes that the law is clear that all federal laws, including the laws referenced by the commenter, apply to charter schools.? The Department expects to provide non-regulatory guidance for charter school authorizers and operators to ensure that they are aware of their obligations.? As will be explained in response to comments below, the Department is aware that authorizers and operators are likely to need education and technical assistance on special education and civil rights matters and will endeavor to provide such education and assistance within our available resources.?

No change to the proposed rule.

COMMENT:? Commenters #7 and #11 ask for greater clarification of special education funding.?

RESPONSE:? The Department is proposing to amend the charter school law to clarify some issues related to special education, including some funding issues.? Other issues will be dealt with in non-regulatory guidance.

No change in the proposed rule.?

COMMENT:? Commenter asks the Department to clarify the applicability of state special education laws and rules, and the applicability of rules such as Chapter 33 (Restraint and Seclusion) and Chapter 14 (Homeless Students).

RESPONSE:? The Department is proposing legislation to clarify applicability of state special education law and rules. The proposed revisions to DOE Rule Chapter 33 make the rule apply specifically to public charter schools. ?The Department will continue to review applicability of other laws and rules with the Legislature, if issues arise about applicability.?

No change to the proposed rule.?

COMMENT:? Commenters #7 and? #11 ask the Department to answer numerous questions about charter schools and special education, e.g., who is responsible for developing an IEP for a charter school student, and who attends IEP meetings.?

RESPONSE:? The Department agrees that there are many questions that need to be answered with regard to special education and charter schools.? The Department expects to develop non-regulatory guidance documents on special education obligations to answer the questions posed by commenters.

No change to the proposed rule.