Title of Regulation: 8VAC20-521. Regulations Governing Reduction of State Aid When Length of School Term below 180 Teaching Days or 990 Teaching Hours (amending 8VAC20-521-40, 8VAC20-521-50).

Statutory Authority: § 22.1-98 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 16, 2016.

Effective Date: December 1, 2016.

Agency Contact: Melissa Luchau, Director for Board Relations, Department of Education, P.O. Box 2120, 101 North 14th Street, 25th Floor, Richmond, VA 23219, telephone (804) 225-2924, FAX (804) 225-2524, or email melissa.luchau@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia vests the Board of Education with the authority to promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of Title 22.1 of the Code of Virginia. Section 22.1-98 of the Code of Virginia prescribes the circumstances under which state aid to school divisions shall be reduced when the length of the school term falls below 180 teaching days or 990 teaching hours. Chapter 706 of the 2015 Acts of Assembly amended § 22.1-98 to permit the Board of Education to waive the requirement that school divisions provide additional teaching days or teaching hours to compensate for school closings resulting from severe weather conditions or other emergency situations. At present, the authority to waive the requirement only extends to school closings resulting from a declared state of emergency.

Purpose: Amendments to these regulations are necessary in order to comport with changes made by Chapter 706 of the 2015 Acts of Assembly, which expanded the circumstances under which the Board of Education is authorized to waive the requirement that school divisions provide additional teaching days or teaching hours to compensate for school closings, to include closings resulting from severe weather conditions or other emergency situations. At present, such waiver authority is only applicable to school closings resulting from a declared state of emergency. The regulations were revised to reflect amendments to the Code of Virginia, and there is no direct impact to the public health, safety, or welfare. The regulations simply address the scheduling needs of localities impacted by severe weather.

Rationale for Using Fast-Track Rulemaking Process: The fast-track rulemaking process is for regulations expected to be noncontroversial. This revision is noncontroversial because its only purpose is to address legislation that was adopted during the 2015 Session of the General Assembly.

Substance: The amendments to this regulation simply expand the circumstances under which the Board of Education is authorized to waive the requirement that school divisions provide additional teaching days or teaching hours to compensate for school closings. These amendments are necessary to comport with Chapter 706 of the 2015 Acts of Assembly. Virginia law specifies the minimum number of instructional hours or days required for local school divisions to receive basic aid funding from the state. Section 22.1-98 of the Code of Virginia requires the length of every school's term in every school division to be at least 180 teaching days or 990 teaching hours in any school year but specifies certain exceptions to the minimum days or hours. When severe weather conditions or other emergency situations have resulted in school closings, the schedule of make-up days in this section requires (i) full make up of lost days when lost instructional time has been for five or fewer days, (ii) make up of the first five days plus one day for each additional two days missed when lost time equals six days or more, (iii) instructional hours equivalent to such missed teaching days to meet the minimum 990 teaching hour requirement, or (iv) a Board of Education waiver from providing additional teaching days or teaching hours if the closings resulted from a declared state of emergency or severe weather conditions or other emergency situations.

While Chapter 706 expanded the circumstances under which the board may grant a waiver, to include closings resulting from severe weather conditions or other emergency situations, the Board of Education must still determine whether school division requests meet that standard. In addition, school divisions must still provide evidence of efforts to reschedule as many days as possible and certification by the division superintendent and chairman of the local school board that every reasonable effort for making up lost teaching days or teaching hours was exhausted before requesting a waiver. If the waiver is approved, the regulations authorize the Superintendent of Public Instruction to approve reductions in the school term without a proportionate reduction in the amount paid by the Commonwealth from the Basic School Aid Fund.

It is important to note that § 22.1-98 of the Code of Virginia, as well as the regulations currently in effect, contain the following definitions that are pertinent to this regulatory action: ""Declared state of emergency" means the declaration of an emergency before or after an event by the Governor or by officials in a locality that requires the closure of any or all schools within a school division. "Severe weather conditions or other emergency situations" means those circumstances presenting a threat to the health or safety of students that result from severe weather conditions or other emergencies, including, but not limited to, natural and man-made disasters, energy shortages or power failures."

Issues: There are no disadvantages to the public, the agency, or the Commonwealth. The amendments are required by changes in the Code of Virginia adopted by the Virginia General Assembly. The advantage to all parties is that the amended regulation will comport with the Code of Virginia by specifying that the Board of Education has the authority to waive the requirement that school divisions provide additional teaching days or teaching hours to compensate for school closings resulting from severe weather conditions or other emergency situations. When the length of the school term falls below 180 teaching days or 990 teaching hours, there is a proportionate reduction in the amount paid by the Commonwealth from the Basic School Aid Fund unless the school division is able to secure a waiver from the Board of Education.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to 2015 legislation, the Board of Education (Board) proposes to indicate in this regulation that it may waive the requirement that school divisions provide additional teaching days or teaching hours to compensate for closings resulting from severe weather conditions or other emergency situations.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Chapter 706 of the 2015 Virginia Acts of Assembly¹ expanded the circumstances under which the Board is authorized to waive the requirement that school divisions provide additional teaching days or teaching hours to compensate for school closings to include closings resulting from severe weather conditions or other emergency situations. Prior to the legislation, such waiver authority was only applicable to school closings resulting from a declared state of emergency. The proposed additional language for the regulation does not expand upon that which is explicitly stated in the Code of Virginia.² Thus the proposed addition to the regulation does not affect rules in practice, but may be beneficial in that members of the public who only read the regulation and not the statute will be better informed concerning the Board's authority to waive the requirement that school divisions provide additional teaching days or teaching hours to compensate for closings.

Businesses and Entities Affected. The proposed amendment pertains to all 132 local school divisions in the Commonwealth.

Localities Particularly Affected. The proposed amendment does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendment does not affect employment.

Effects on the Use and Value of Private Property. The proposed amendment does not affect the use and value of private property.

Real Estate Development Costs. The proposed amendment does not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment does not affect small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendment does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendment does not adversely affect businesses.

Localities. The proposed amendment does not adversely affect localities.

Other Entities. The proposed amendment does not adversely affect other entities.

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¹ See http://leg1.state.va.us/cgi-bin/legp504.exe?151+ful+CHAP0706

² See § 22.1-98.E: http://law.lis.virginia.gov/vacode/22.1-98

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis completed by the Department of Planning and Budget.

Summary:

Pursuant to Chapter 706 of the 2015 Acts of Assembly, the amendments (i) expand the board's waiver authority to include school closings resulting from severe weather conditions or other emergency situations in addition to a declared state of emergency and (ii) eliminate the proportionate reduction in the amount paid by the Commonwealth from the Basic School Aid Fund if a local school division obtains a waiver for closings resulting from severe weather conditions or other emergency situations.

8VAC20-521-40. Waivers for a declared state of emergency, severe weather conditions, or other emergency situations.

A. The Board of Education may waive the requirement that school divisions provide additional teaching days or teaching hours to compensate for closings resulting from a declared state of emergency, severe weather conditions, or other emergency situations.

B. If the local school board desires a waiver for days missed as the result of a declared state of emergency, severe weather conditions, or other emergency situations, it shall submit a request for a waiver to the Board of Education. The request shall include evidence of efforts that have been made by the school division to reschedule as many days as possible.

C. The division superintendent and the chair of the local school board shall certify that every reasonable effort for making up lost teaching days or teaching hours was exhausted before requesting a waiver of the requirement.

D. The Board of Education authorizes the Superintendent of Public Instruction to approve, in compliance with these regulations this chapter, reductions in the school term for a school or the schools in a school division.

E. If the waiver is denied, the school division shall make up the missed instructional time in accordance with 8VAC20-521-30 and § 22.1-98 of the Code of Virginia.

8VAC20-521-50. Funding.

A. There shall be no proportionate reduction in the amount paid by the Commonwealth from the Basic School Aid Fund if a local school division:

1. Completes instructional time in accordance with 8VAC20-521-30 and § 22.1-98 of the Code of Virginia; or

2. Obtains a waiver for closings resulting from a declared state of emergency, severe weather conditions, or other emergency situations in accordance with 8VAC20-521-40.

B. The local appropriations for educational purposes necessary to fund 180 teaching days or 990 teaching hours shall not be proportionally reduced by any local governing body due to a reduction in the length of the term of any school if the missed days are made up in accordance with 8VAC20-521-30 or the schools in a school division have been granted a waiver in accordance with 8VAC20-521-40.