Meeting of the Board of Regents | April 2009

Tuesday, April 14, 2009 - 11:00pm

sed seal

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:
FROM:	Johanna Duncan-Poitier
SUBJECT:	Proposed Amendment of Section 174.2 of the Regulations of the Commissioner, Relating to State Aid
DATE:	April 14, 2009
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

SUMMARY

Issue for Decision

Should the Board of Regents amend section 174.2 of the Commissioner’s Regulations relating to State Aid?

Reason(s) for Consideration

To conform the Commissioner's Regulations to changes in State statutes and to correct technical deficiencies.

Proposed Handling

The proposed amendment is being presented to the EMSC Committee for approval as an emergency action at the April 2009 Regents meeting.

Procedural History

None.

Background Information

The proposed amendment is necessary to reflect the Foundation Aid provisions enacted by Chapter 57 of the Laws of 2007 and to otherwise bring the Commissioner’s Regulations into compliance with those changes to the law.

Chapter 57 of the Laws of 2007 changed the school funding system by replacing approximately 30 State Aid categories with a single Foundation Aid. Since pupil counts used to compute Operating Aid and other aids replaced by Foundation Aid are referenced in section 174.2 of the Commissioner’s Regulations, there is a need to amend this section to correct the existing statutory reference and to provide for the computation of aid on an enrollment-based pupil count rather than the previous attendance-based count. The proposed amendment will enable the Department to accurately reflect the actual cost to districts of educating nonresident pupils.

The proposed amendment is being presented for adoption as an emergency action. A Statement of the Facts and Circumstances Which Necessitate Emergency Action is attached. A Notice of Proposed Rule Making will be published in the State Register on May 6, 2009. Supporting materials are available upon request from the Secretary to the Board of Regents.

Recommendation

Staff recommend that the Regents take the following action:

VOTED: That section 174.2 of the Regulations of the Commissioner of Education be amended as submitted, effective May 1, 2009, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to immediately establish the methodology for computing allowable tuition rates for nonresident pupils for public reporting by school districts, so that affected school districts may timely prepare contracts for the reimbursement of school districts which provide instruction to nonresident pupils for the 2009-2010 school year, pursuant to statutory requirements.

Timetable for Implementation

If adopted by the Board of Regents at their April meeting, the emergency rule will become effective on May 1, 2009. It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the July 2009 Regents meeting.

Attachment

PROPOSED AMENDMENT OF SECTION 174.2 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 207, 3202 AND 3602, RELATING TO COMPUTATION OF NONRESIDENT PUPIL TUITION RATES

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ADOPTION

The proposed amendment is necessary to revise the Commissioner's Regulations to reflect the Foundation Aid provisions enacted by Chapter 57 of the Laws of 2007 and to otherwise bring the Commissioner's Regulations into compliance with other statutory changes. Chapter 57 of the Laws of 2007 changed the school funding system by replacing approximately 30 State Aid categories with a single Foundation Aid. Since pupils counts used to compute Operating Aid and other aids replaced by Foundation Aid are referenced in section 174.2 of the Commissioner’s Regulations, there is need to amend this section to correct the existing statutory reference and to provide for the computation of aid on an enrollment-based pupil count rather than the previous attendance-based count. The proposed amendment will enable the Department to accurately reflect the actual cost to districts of educating nonresident pupils.

State Administrative Procedure Act (SAPA) section 202 generally provides that a rule may not be adopted until at least 45 days after publication of a Notice of Proposed Rule Making in the State Register. Because the Board of Regents meets at fixed intervals, the earliest the proposed rule could be presented for adoption by the Board of Regents, after expiration of the 45-day public comment period prescribed by SAPA , is the July 27-28, 2009 Regents meeting. However, affected school districts need to know now the allowable tuition rates for nonresident pupils for public reporting by school districts, so that they may timely prepare their contracts for the 2009-20010 school year pursuant to statutory requirements.

Emergency action to adopt the proposed rule is necessary for the preservation of the general welfare in order to immediately establish the methodology for computing allowable tuition rates for public reporting by school districts, so that affected school districts may timely prepare contracts for the reimbursement of school districts which provide instruction to nonresident pupils for the 2009-2010 school year, pursuant to statutory requirements.

It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the July 2009 meeting of the Board of Regents, which is the first scheduled Regents meeting after expiration of the 45-day public comment period prescribed by the State Administrative Procedure Act.

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 207, 3202 and 3602

Section 174.2 of the Regulations of the Commissioner of Education is amended, effective May 1, 2009, as follows:

§ 174.2 Computation of tuition charges for nonresident pupils.

The provisions of this section shall apply to all contracts entered into after January 1, 1975, for the reimbursement of a school district which provides instruction to a nonresident pupil. The charge for the instruction of each nonresident pupil shall not exceed the actual net cost of educating such pupil. If the accounting records of the school district providing such instruction are not maintained in a manner which would indicate the net cost of educating such pupil, a board of education, board of trustees or sole trustee of each school district shall compute the tuition to be charged for the instruction of each nonresident pupil admitted to the schools of such district, or for the education of whom such district contracts with a board of cooperative educational services, in accordance with the following formulae:

(a) The tuition to be charged by a school district which provides full-day instruction for each nonresident pupil shall be computed as follows:

(1) . . .

(2) . . .

(3) The net amount of State aid received by the school district, as defined in this paragraph, shall be distributed among the categories set forth in paragraph (2) of this subdivision in the same proportion that the aidable pupil units in each of such categories bears to the [total aidable pupil units] average daily membership for the school district. Such [aidable pupil units] average daily membership shall be computed in accordance with the provisions of paragraph 1 of subdivision [8] 1 of section 3602 of the Education Law, except that for the purpose of this computation the [additional aidable pupil units for] enrollment of pupils enrolled in special schools, the enrollment of pupils attending under the provisions of paragraph c of subdivision 2 of section 4401 of the Education Law, the equivalent attendance of the school district, as computed pursuant to paragraph d of subdivision 1 of section 3602 of the Education Law and the average daily attendance included in the daily membership of the school district pursuant to subdivision 8 of section 3602-c of the Education Law shall not be included in such computation. For the purposes of this section, net State aid shall include aid received in the general fund for operating expenses, textbooks, experimental programs, educational television, county vocational boards and boards of cooperative educational services, building aid, and other forms of State aid as approved by the department for inclusion herein, but shall not include transportation aid or aid attributable to pupils attending special schools. Net State aid shall also include the sum which is withheld from the school district for payment to the teacher's retirement fund.

(4) . . .

(5) The maximum nonresident pupil tuition which may be charged shall be determined by dividing the net cost of instruction of pupils in each category by the estimated average daily [attendance] membership of pupils in each category.

(6) Refunds or additional charges shall be made at the conclusion of the school year based upon actual revenues, expenditures and average daily [attendance] membership.

(b) . . .