Administrative Rule Review Report  #AR08-064

Legislative Service Office

12-Aug-08

 

AGENCY:                                 Department of Education.

 

DATE SUBMITTED:                   August 6, 2008.

 

SUBJECT:                                 Chapter 38, Hathaway Scholarship Program.

 

NATURE OF RULES:            Legislative, procedural

 

STATUTORY AUTHORITY: W.S. 21-16-1308

 

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION

SUBMITTED BY THE AGENCY TO LSO:  Apparently complete to date.  These are new rules.  A new rule letter was sent to the members of the Joint Education Interim Committee on July 8, 2008.  No comments from legislators have been received to date.

 

SUMMARY OF RULES:  The rules being amended provide for the Hathaway Scholarship program.  The rules are amended by providing for the extension of scholarship eligibility under certain conditions.

 

The rules are amended by adding a new section 7 which provides for the reinstatement of scholarship eligibility under certain conditions.  The rules provide that semesters of scholarship ineligibility count against both the maximum number of semesters a scholarship may be received and the maximum time period to use the Hathaway scholarship.  The basis for that rule is in W.S. 21-16-1304(f).  There is some question of whether this is the correct interpretation of the statute  or whether semesters of ineligibility should count only against the maximum time period for using a scholarship.  After review of the legislative history and the rules of statutory construction, it is the LSO's opinion that the language is susceptible to the Department’s interpretation.  But since there was also legislative history supporting an interpretation that only the time period in which to use the scholarship is lost, the LSO is bringing this issue to the attention of Management Council for consideration.  Attached is a memorandum from LSO which provides a more detailed explanation of the issue.

 

The rules are also amended to establish how courses may be modified for students with an individual education plan.  The amended rules require districts to ensure that if students are placed in an out-of-state district, that district will provide transcripts and cooperate in verifying that coursework will satisfy the success curriculum.

 

The rules are amended to include physical science as a course that will satisfy the science requirement and to include American Sign Language as a course that will satisfy the foreign language instruction.

 

The rules are amended in section 16 to provide an appeals process for scholarship eligibility determinations.  The rules provide that the Department will consider all information presented and make an independent determination regarding the request.  The rules provide that notice of the decision will be provided within 45 days for receipt of materials from the appellant.  The rules are also amended by making technical corrections throughout.

 

A number of provisions in the proposed rules were changed after members of the public and LSO raised some concerns.  One significant provision changed from the proposed rules was the counting of “part-time” semesters.  The proposed rules provided that regardless of the number of hours of use, any use of the Hathaway scholarship counted against the maximum number of

semesters on a Hathaway scholarship.  The concern of LSO was that the statutes provide for a pro rata use, so that using 6 hours of eligibility should count as 6/12’s of a full-time semester’s use rather than a full semester’s use (with 12 hours being the denominator as a full time semester and 6 hours being the nominator as the hours of use.)   The adopted rules were changed to delete the objectionable language.  (Section 4 (e), page 38-9).

 

 

FINDINGS:  The rules appear to be within the scope of statutory authority and legislative intent.

 

STAFF RECOMMENDATION:  That the rules be placed on the Consent List and be approved by the Council as submitted by the Agency.

 

Given the question noted above and in the attached memo, the full rules have been included for Council’s review.  Should a Council member feel the rules do not reflect accurately statutory authority or legislative intent in regard to the issue of ineligibility discussed above, the member may wish to vote that the rules be discussed at the next Council meeting.  That option is also available for any other issue a Council member believes exists with the rules.

 

 

 

                                                            _______________________

                                                            Joshua Anderson

                                                            Staff Attorney

 

                                                            _______________________

                                                            David K. Gruver

                                                            Assistant Director

JDA/