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Open Enrollment List Waivers

Background

The Open Enrollment Act, SBX5 4 (Romero), was signed into law on January 7, 2010, and became effective on April 14, 2010. The Open Enrollment Act provides students enrolled in one of the 1,000 “low-achieving” schools, referred to as “Open Enrollment” schools, the option to enroll in a different school with a higher Academic Performance Index (API) than the pupil's school of residence.

Due to the formula that drives the list creation, many high achieving schools are on the list. Open Enrollment list 2012-13) is now available on the Open Enrollment Web Page

Authority

The provisions of this statute, California Education Code (EC) sections 48350 et seq. and California Code of Regulations Title 5 Section 4701 are not excluded from the waiver provisions of the General Waiver Authority, EC sections 33050 et seq., therefore they can be waived.

Instructions

• Use a General Waiver Request Form
• Send a separate waiver request for each school
• Period of Request write July 1, 2012 to June 30, 2013
• Include information on the school's growth API, AYP, and PI status.
• Place the following in Item 6, "EC to be Waived"

  Education Code 48352.  For purposes of this article, the following definitions apply:

  (a) "Low-achieving school" means any school identified by theSuperintendent pursuant to the following:

     (1) Excluding the schools, and taking into account the impact ofthe criteria in paragraph (2), the Superintendent annually shallcreate a list of 1,000 schools ranked by increasing API with the sameratio of elementary, middle, and high schools as existed in decile 1in the 2008-09 school year.

     (2) In constructing the list of 1,000 schools each year, the Superintendent shall ensure each of the following:

     (A) A local educational agency shall not have more than 10 percent of its schools on the list. However, if the number of schools in a local educational agency is not evenly divisible by 10, the Superintendent shall round up to the next whole number of schools.    (B) Court, community, or community day schools shall not be included on the list.
     (C) Charter schools shall not be included on the list.
     (b) "Parent" means the natural or adoptive parent or guardian of adependent child.
     (c) "School district of enrollment" means a school district other than the school district in which the parent of a pupil resides, but in which the parent of the pupil nevertheless intends to enroll the pupil pursuant to this article.
     (d) "School district of residence" means a school district in which the parent of a pupil resides and in which the pupil would otherwise be required to enroll pursuant to Section 48200.

  Title 5 CCR 4701. Identification of Open Enrollment Schools.

  a) The State Superintendent of Public Instruction (SSPI) shall annually construct a list of 1,000 schools for the Open Enrollment Act that maintains the same ratio of elementary, middle, and high schools as existed in decile 1 of the 2009 Base Academic Performance Index (API) file and retains only “10 percent” of a local educational agency's (LEA's) schools pursuant to the following methodology:

  (1) the list of 1,000 schools shall include 687 elementary schools, 165 middle schools, and 148 high schools;
  (2) the list of 1,000 schools shall exclude the following:
  (A) schools that are court, community, or community day schools;
  (B) schools that are charter schools;
  (C) schools that are closed; and
  (D) schools that have fewer than 100 valid test scores.

  3) an LEA shall have on the list no more than 10 percent of its total number of schools that are not closed. However, when that total number of schools is not evenly divisible by 10, the 10 percent number of the LEA's schools shall be rounded up to the next whole number; and

  (4) to produce the final list of 1,000 schools, the SSPI shall apply the following process: (A) create a pool of schools: 1. for the purpose of constructing the Open Enrollment Schools List for transfer during the 2010-2011 school year, this pool shall be created by selecting all schools from the 2009 Base API file.

Waiver of Class Size Penalties

Education Code Sections (E.C.) 41376 and 41378 relate to maximum class sizes that were set in 1964.

E.C. 41376 and 41378 place the following restrictions on maximum class sizes:

1. Grades 4-8—current fiscal year average number of pupils per teacher not to exceed the greater of the statewide average number of pupils per teacher in 1964 (29.9) or the district's average number of pupils per teacher in 1964
2. Kindergarten—average class size not to exceed 31 students; no classes larger than 33 students
3. Grades 1-3—average class size not to exceed 30 students; no classes larger than 32 students

If these limits are exceeded, E.C. 41376(c) et al. and 41378(e) require the Superintendent of Public Instruction to reduce the district's revenue limit apportionment for each student over the limit. In short, this means that the penalty for exceeding the limit is a loss in all revenue limit funding for each student over the limit.

1. To Waive the Class Size Penalty (Grades 4-8) (Do a separate waiver for these grades)

The State Board of Education can granted waivers of E.C. 41376 ( b) and (e) . You must use a General Waiver form for Grades 4-8   In your request, be sure to note what class size is in the current collective bargaining agreement your district has with the teachers in any of the grade levels you wish the SBE to waive.

This is the language that should be cited in Item 6 “EC to be waived”.

41376(b) and (e) The Superintendent of Public Instruction, in computing apportionments and allowances from the State School Fund for the second principal apportionment, shall determine the following for the regular day classes of the elementary schools maintained by each school district: (a) For grades 1 to 3, inclusive, he shall determine the number of classes, the number of pupils enrolled in each class, the total enrollment in all such classes, the average number of pupils enrolled per class, and the total of the numbers of pupils which are in excess of thirty (30) in each class. For those districts which do not have any classes with an enrollment in excess of 32 and whose average size for all the classes is 30.0 or less, there shall be no excess declared. For those districts which have one or more classes in excess of an enrollment of 32 or whose average size for all the classes is more than 30, the excess shall be the total of the number of pupils which are in excess of 30 in each class having an enrollment of more than 30.(b) For grades 4 to 8, inclusive, he shall determine the total number of pupils enrolled, the number of full-time equivalent classroom teachers, and the average number of pupils per each full-time equivalent classroom teacher. He shall also determine the excess if any, of pupils enrolled in such grades in the following manner: (1) Determine the number of pupils by which the average number of pupils per each full-time equivalent classroom teacher for the current fiscal year exceeds the greater of the average number of pupils per each full-time equivalent classroom teacher in all the appropriate districts of the state, as determined by the Superintendent of Public Instruction, for October 30, 1964, or the average number of pupils per each full-time equivalent classroom teacher which existed in the district on either October 30, 1964 or March 30, 1964, as selected by the governing board. (2) Multiply the number determined in (1) above by the number of full-time equivalent classroom teachers of the current fiscal year. (3) Reduce the number determined in (2) above by the remainder which results from dividing such number by the average number of pupils per each full-time equivalent teacher for October 30, 1964, as determined by the Superintendent of Public Instruction in (1) above. (c) He shall compute the product obtained by multiplying the excess number of pupils, if any, under the provisions of subdivision (a) of this section by ninety-seven hundredths (0.97), and shall multiply the product so obtained by the ratio of statewide change in average daily attendance to district change in average daily attendance. Change in average daily attendance shall be determined by dividing average daily attendance in grades 1, 2 and 3 reported for purposes of the first principal apportionment of the current year by that reported for purposes of the first principal apportionment of the preceding year. (d) If the school district reports that it has maintained, during the current fiscal year, any classes in which there were enrolled pupils in excess of thirty (30) per class pursuant to subdivision (a) of this section, and there is no excess number of pupils computed pursuant to subdivision (b) of this section, he shall decrease the average daily attendance reported under the provisions of Section 41601 by the product determined under subdivision (c) of this section. (e) If the school district reports that it has maintained, during the current fiscal year, no classes in which there were enrolled pupils in excess of thirty (30) per class determined pursuant to subdivision (a) of this section, and there is an excess number of pupils computed pursuant to subdivision (b) of this section, he shall make the following computation: He shall compute the product obtained by multiplying the excess number of pupils computed pursuant to subdivision (b) of this section by ninety-seven hundredths (0.97) and shall multiply the product so obtained by the ratio of statewide change in average daily attendance to the district change in average daily attendance. He shall decrease the average daily attendance reported under the provisions of Section 41601 by the resulting product.

2. To Waive the Class Size Penalty (Kindergarten) (May be combined with a waiver of Grades1- 3)

To waive the section for Kindergarten (below) you must use a Specific Waiver Form. The “authority” for the waiver is EC 41382.

Please follow the instructions in that authority (below) as to how to process the waiver request at the local level. Be sure that you include in your narrative on the waiver form (Item 7) language that will support the State Board of Education in making the required “finding” shown in the highlighted section

At the August 2010, State Board of Education meeting the Members made the following “finding”:

Given the extremely challenging fiscal environment presently facing all California schools and the specific financial circumstances described by the district in its waiver application, the Board finds that the district's continued ability to maintain the delivery of instruction and required program offerings in all core subjects, including reading and mathematics, will be seriously compromised by the financial penalties the district would otherwise incur without the requested waiver. In these circumstances, the Board finds specifically that the class size penalty provisions of Education Code section 41376 and 41378 will, if not waived, prevent the district from developing more effective educational programs to improve instruction in reading and mathematics in the classes specified in the district's application.

This is the language that should be cited in Item 6 “EC to be waived” for Kindergarten penalties.

EC 41378. The Superintendent of Public Instruction, in computing apportionments and allowances from the State School Fund for the second principal apportionment, shall determine the following for the kindergarten classes maintained by each school district maintaining kindergarten classes. (a) The number of pupils enrolled in each kindergarten class, the total enrollment in all such classes, and the average number of pupils enrolled per class. (b) The total number of pupils which are in excess of thirty-three (33) in each class having an enrollment of more than thirty-three (33). (c) The total number of pupils by which the average class size in the district exceeds 31. (d) The greater number of pupils as determined in (b) or (c) above. (e) He shall compute the product obtained by multiplying the excess number of pupils computed pursuant to subdivision (d) of this section by ninety-seven hundredths (0.97). He shall decrease the average daily attendance reported under the provisions of Section 41601 by the resulting product.

3. To Waive the Class Size Penalty (Grades 1-3) ) (May be combined with a waiver of Kindergarten)

To waive the section for Grades 1 through 3 (below) you must use a Specific Waiver Form.  The “authority” for the waiver is EC 41382.

Please follow the instructions in that authority (below) as to how to process the waiver request at the local level. Be sure that you include in your narrative on the waiver form (Item 7) language that will support the State Board of Education in making the required “finding” shown in the highlighted section

At the August 2010, State Board of Education meeting the Members made the following finding:

Given the extremely challenging fiscal environment presently facing all California schools and the specific financial circumstances described by the district in its waiver application, the Board finds that the district's continued ability to maintain the delivery of instruction and required program offerings in all core subjects, including reading and mathematics, will be seriously compromised by the financial penalties the district would otherwise incur without the requested waiver. In these circumstances, the Board finds specifically that the class size penalty provisions of Education Code section 41376 and 41378 will, if not waived, prevent the district from developing more effective educational programs to improve instruction in reading and mathematics in the classes specified in the district's application.

This is the language that should be cited in Item 6 “EC to be waived” for Kindergarten penalties.

EC 41376 (a)(c) and (d) The Superintendent of Public Instruction, in computing apportionments and allowances from the State School Fund for the second principal apportionment, shall determine the following for the regular day classes of the elementary schools maintained by each school district: (a) For grades 1 to 3, inclusive, he shall determine the number of classes, the number of pupils enrolled in each class, the total enrollment in all such classes, the average number of pupils enrolled per class, and the total of the numbers of pupils which are in excess of thirty (30) in each class. For those districts which do not have any classes with an enrollment in excess of 32 and whose average size for all the classes is 30.0 or less, there shall be no excess declared. For those districts which have one or more classes in excess of an enrollment of 32 or whose average size for all the classes is more than 30, the excess shall be the total of the number of pupils which are in excess of 30 in each class having an enrollment of more than 30. (b) For grades 4 to 8, inclusive, he shall determine the total number of pupils enrolled, the number of full-time equivalent classroom teachers, and the average number of pupils per each full-time equivalent classroom teacher. He shall also determine the excess if any, of pupils enrolled in such grades in the following manner: (1) Determine the number of pupils by which the average number of pupils per each full-time equivalent classroom teacher for the current fiscal year exceeds the greater of the average number of pupils per each full-time equivalent classroom teacher in all the appropriate districts of the state, as determined by the Superintendent of Public Instruction, for October 30, 1964, or the average number of pupils per each full-time equivalent classroom teacher which existed in the district on either October 30, 1964 or March 30, 1964, as selected by the governing board. (2) Multiply the number determined in (1) above by the number of full-time equivalent classroom teachers of the current fiscal year. (3) Reduce the number determined in (2) above by the remainder which results from dividing such number by the average number of pupils per each full-time equivalent teacher for October 30, 1964, as determined by the Superintendent of Public Instruction in (1) above. (c) He shall compute the product obtained by multiplying the excess number of pupils, if any, under the provisions of subdivision (a) of this section by ninety-seven hundredths (0.97), and shall multiply the product so obtained by the ratio of statewide change in average daily attendance to district change in average daily attendance. Change in average daily attendance shall be determined by dividing average daily attendance in grades 1, 2 and 3 reported for purposes of the first principal apportionment of the current year by that reported for purposes of the first principal apportionment of the preceding year. (d) If the school district reports that it has maintained, during the current fiscal year, any classes in which there were enrolled pupils in excess of thirty (30) per class pursuant to subdivision (a) of this section, and there is no excess number of pupils computed pursuant to subdivision (b) of this section, he shall decrease the average daily attendance reported under the provisions of Section 41601 by the product determined under subdivision (c) of this section.

Educational Interpreter Regulations Waivers (for staff working with deaf and hard of hearing students)

Local educational agencies (LEAs) are required by current state regulations, 5 CCR 3051.16 (b)(3), to only hire educational interpreters for deaf and hard of hearing students who meet the qualification standards below. LEAs have had since 2002 to come into compliance with this regulation.

5CCR 3051.16. Specialized Services for Low-Incidence Disabilities.
(a) Specialized Services for low-incidence disabilities may include:
(1) Specially designed instruction related to the unique needs of pupils with low-incidence disabilities provided by teachers credentialed pursuant to Education Code section 44265.
(2) Specialized services related to the unique needs of pupils with low-incidence disabilities provided by qualified individuals such as interpreters, note takers, readers, transcribers, and other individuals who provide specialized materials and equipment.
(b) Certification requirements for educational interpreters for deaf and hard of hearing pupils.
(3) By July 1, 2009, and thereafter, an educational interpreter shall be certified by the national RID, or equivalent; in lieu of RID certification or equivalent, an educational interpreter must have achieved a score of 4.0 or above on the EIPA, the ESSE-I/R, or the NAD/ACCI assessment. If providing Cued Language transliteration, a transliterator shall possess TECUnit certification, or have achieved a score of 4.0 or above on the EIPA - Cued Speech.
(c) An "educational interpreter" provides communication facilitation between students who are deaf or hard of hearing, and others, in the general education classroom and for other school related activities, including extracurricular activities, as designated in a student's Individualized Educational Program (IEP).

There is a general waiver process which allows the governing board of an LEA to request a waiver of state regulations from the State Board of Education (SBE). However, this is not a blanket waiver, Interpreters will have to meet conditions and show proof of recent assessment scores – and show growth in those scores.

An approved waiver is effective for one school year. Waivers may be renewed, provided the LEA and the interpreter satisfy any conditions placed on the waiver. Use this form Education Interpreter (Revised 29-Nov-2010; DOC; 61KB; 2pp.) to apply for the waiver.

Interpreters should be tested before hiring, and the Board has had a past practice of denying all waivers where the interpreter scores less than a 3.0 on the above named tests.

Your LEA should complete one General Waiver Form – Educational Interpreter for each employee, (although they could all be approved by your board at the same public hearing and a single board vote), and taken in groups to committees and bargaining units as needed. The waiver should include (or attach) the following information:

Each LEA (district or county office of education) request must include a copy of district's current educational interpreter job description, which reflects the qualification standards of 5 CCR 3051.16, and which has gone through the local process of approval for job descriptions.

For each interpreter, please attach the following:

• Name, date and score of most recent (within 12 months)* interpreter assessment (EIPA, ESSE, or NAD/ACCI)
• Copy of the latest Test Certification page.
• Name, dates and scores of previous assessments
• Date of hire

A Remediation Plan, specific to that interpreter, including the LEA’s plans help the interpreter to achieve certification in the next year, including training/mentoring by a RID certified interpreter. The plan must include a statement that the interpreter understands (s)he might not be able to stay in their job is certification is not met, or a waiver granted. This document must be signed by the interpreter and the union representative as well as someone from administration. The above documents (signed where required) must be mailed to the Waiver Office, and an electronic copy (in WORD) of the Waiver Form and the Remediation Plan (both unsigned) must be sent electronically to waiver@cde.ca.gov.

When received in the Waiver Office, waivers will be sent to the appropriate special education office in the California Department of Education for review, analysis and recommendation to the State Board of Education. Notice will be sent to the LEA when the waivers are scheduled to be heard by the board. You will also be notified of the department’s recommendation.

If you have further questions about what exactly this means in terms of assessment scores, please call Nancy Sager at 916-327-3868.

The waiver will not be accepted without a current score (within 12 months). For your information, if an interpreter has taken the assessment, but has not yet received the results, you can get a pre-hire screen from Boys Town for use in seeing if your interpreter qualifies for a waiver.

The pre-hire screen does not replace a full assessment and does not ensure that an interpreter meets the state qualification standard. But it will give you an idea of whether or not an interpreter has enough skills to be working in a classroom. Once you get the pre-hire screen materials from Boys Town and send your materials back, they will give you results within 72 hours. You can contact Chris Grassmeyer at:

Chris Grassmeyer
EIPA Diagnostic Center
Boys Town National Research Hospital
402-452-5039

Information on the Special Education Algebra I Graduation Requirement Waiver:

Commencing with the 2003-04 school year, all pupils are required to complete a course in Algebra I (or its equivalent) prior to receiving a diploma of graduation from high school per Education Code (EC) 51224.5. Pursuant to EC 56101, local educational agencies (LEAs) may request a waiver of the requirement for the successful completion of Algebra I (or its equivalent) for special education pupils with an individualized education program (IEP).

When requesting a waiver for multiple students, include all students on the same form. A new waiver form – Waiver of Algebra I Graduation Requirements for Pupils with Disabilities has been created for this purpose. Attach a list of pupils to be included. or each pupil, blank out any names on all required documents for confidentiality and use the same identifier on all documents (IEPs, transcripts, and testing dates) for the same pupil so they can be reviewed together. Be aware of all current statutes for all other graduation requirements for students with disabilities.

Information and forms to assist in preparing such waiver requests:

• Specific Waiver Form - Waiver of Algebra I Graduation Requirement (Revised 2-Oct-09; DOC; 46KB; 1p.)
• Required Documentation for a Special Education Algebra Waiver
• Specific Waiver Authority under EC 56101

This waiver of the Algebra l graduation requirement for special education students only (EC 56101) will continue to be available although the criteria under which the waivers are reviewed may change.

Information on EC 60119 Waiver Requests after the Williams Case Lawsuit Settlement:

District Information Regarding Education Code (EC) 60119 Findings:

Effective September 29, 2004, Senate Bill (SB) 550 (Chapter 9, Statutes of 2004), added EC 41344.4 as a part of the Williams Case lawsuit settlement. The new text is as follows:

EC 41344.4. Notwithstanding any other provision of law, a local educational agency is not required to repay an apportionment based on a significant audit exception related to the requirements specified in paragraphs (1), (2), and (3) of subdivision (b) of Section 14501 if the county superintendent of schools certifies to the Superintendent of Public Instruction and the Controller that the audit exception was corrected by the local educational agency or that an acceptable plan of correction was submitted to the county superintendent of schools pursuant to subdivision (k) of Section 41020. With respect to textbooks and instructional materials, the plan shall be consistent with the requirements of subparagraph (A) of paragraph (2) of subdivision (a) of Section 60119.

Above in the new statute also note reference to EC 14501(b), which SB 550 also changed as follows:

EC 14501(a). As used in this chapter, "financial and compliance audit" shall be consistent with the definition provided in the "Standards for Audits of Governmental Organizations, Programs, Activities, and Functions" promulgated by the Comptroller General of the United States. Financial and compliance audits conducted under this chapter shall fulfill federal single audit requirements. (b) As used in this chapter, "compliance audit" means an audit that ascertains and verifies whether or not funds provided through apportionment, contract, or grant, either federal or state, have been properly disbursed and expended as required by law or regulation or both and includes the verification of each of the following: (1) The reporting requirements for the sufficiency of textbooks or instructional materials, or both, as defined in Section 60119. (2) Teacher misassignments pursuant to Section 44258.9. (3) The accuracy of information reported on the School Accountability Report Card required by Section 33126. The requirements set forth in paragraphs (1) and (2) and this paragraph shall be added to the audit guide requirements pursuant to subdivision (b) of Section 14502.1.

This means that the compliance testing of local educational agencies (LEAs) audits now include the verification of: 1) the reporting requirements for the sufficiency of textbooks of instructional materials as defined by EC 60119, 2) teacher misassignments, and 3) the accuracy of the information reported on the School Accountability Report Card. Therefore LEAs should be aware of potential audit findings that may result from this additional testing.

Resolution of district findings:

• Call your county office of education regarding their ability to certify correction of the audit finding.
• If necessary, districts are advised to file an audit appeal with the Education Audit Appeals Panel (Outside Source). Visit their Web site for more information and timelines.
• Do not send the CDE Waiver Office any documentation directly.

County Office of Education Information for EC 60119 Findings:

Education Code Section 41344.3 continues to allow county offices of education to seek a waiver from the State Board of Education for minor and inadvertent audit findings of EC Section 60119.

Notwithstanding subdivision (c) of Section 41344 or any other provision of law, the State Board of Education may, upon a finding that violations were minor or inadvertent and the intent of Section 60119 was substantially met, consider and act upon requests to waive Section 60119 to the extent that a failure to comply with that section would otherwise subject the school district to a repayment due to an apportionment significant audit.  The board may act on requests to waive Section 60119 regardless of whether the request was received before or after the effective date of this section.

If a county office of education has audit findings that are not minor and inadvertent, they are advised to file an audit appeal with the Education Audit Appeals Panel (Outside Source). See information and timelines at their Web site.

Below are forms for county offices of education to use for minor and inadvertent audit findings of EC Section 60119 to be filed with the CDE Waiver Office:

• Specific Waiver Request Form for EC 60119 by County Offices of Education (Revised 2-Oct-09; DOC; 68.5KB; 2pp.)
• List of Instructional Materials Being Used Form (Revised 2-Oct-09; DOC; 46KB; 1p.)

New Flexibility in Instructional Time (both days and minutes)

One of the many budget bills and trailers chaptered in July of 2009, Assembly Bill A.B. No. 2 (4th Ex. Sess.) (ABX 4 2) provided flexibility in instructional time requirements for county offices of education (COE), districts and charter schools for the 2009-10 through the 2112-13 school years.

SEC. 21. Section 46201.2 is added to the Education Code, to read: 46201.2. (a) Commencing with the 2009–10 school year and continuing through the 2012–13 school year, a school district, county office of education, or charter school may reduce the equivalent of up to five days of instruction or the equivalent number of instructional minutes without incurring the penalties set forth in Sections 41420, 46200, 46200.5, 46201, 46201.5, 46202, and 47612.5. A school district, county office of education, or charter school shall receive revenue limit funding based on the adjustments prescribed pursuant to Section 42238.146 whether or not it reduces the number of schooldays or instructional minutes.(b) This section shall become inoperative on July 1, 2013, and, as of January 1, 2014, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2014, deletes or extends the dates on which it becomes inoperative and is repealed.

Basically, this means that any district, county office of education, or charter school can reduce their days by five days or the equivalent number of minutes.

Calculating Instructional Time

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