These 2200-Series rules were revised and adopted by the State Board of Education in April, 2022. The rules prescribe requirements for state approval (including special education services and nondiscrimination requirements) and State Board enforcement procedures.
Rule 2200 INDEPENDENT SCHOOL PROGRAM APPROVAL
Pursuant to Act 173 of 2018, as amended, these rules take effect on July 1, 2023 except the following rules which take effect on adoption: Rule 2223 (Procedure), Rule 2224 (Reciprocity), Rule 2226 (Application) and Rule 2227 (Approval).
Section 2220 Statement of Purpose.
The purpose of independent school approval rules is to assure effective, available, and equitable educational opportunities for students enrolled in Vermont's independent schools in accordance with State and federal law and aligned with the purposes set forth in Act 173 of 2018.
Section 2221 Statutory Authority.
16 V.S.A. §§ 166, 2958(e), and 2973.
Section 2222 Definitions.
Agency: means the Vermont Agency of Education.
Approved Independent School: means an independent school that meets the requirements in Rule 2223.3 as well as the requirements in SBE Rule 2225 (tuition from public funds).
Approved Independent School Ineligible to Receive Public Funds: means an independent school that meets the requirements in SBE Rule 2226 (Application) and 2227 (Approval) but does not meet the requirements of rules concerning the delivery of special education services in SBE Rule 2229.
Board (or State Board or SBE): means the Vermont State Board of Education.
Individualized Education Program (IEP): means a written statement for a student with a disability that is developed, reviewed, and revised in accordance with SBE Rule 2363.
Therapeutic Approved Independent School (or Therapeutic Independent School or Therapeutic School): means an approved independent school that limits enrollment to students who are on an IEP or plan under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and who are enrolled pursuant to a written agreement between an LEA and the school. These schools are eligible to receive public tuition, which is inclusive of both general and special education services and is at a rate approved by the Agency of Education.
Local Education Agency (LEA): as that term is defined in 20 U.S.C. § 7801(26), means the supervisory union or supervisory district.
Recognized Independent School: means an independent school meeting the requirements in 16 V.S.A. § 166(c). A recognized independent school is not eligible to receive public tuition.
Secretary: means the Secretary of the Vermont Agency of Education.
Special Education Fees: means funds paid by a school district or supervisory union to an approved independent school for special education services beyond those covered by general education tuition, as defined in 16 V.S.A. § 2973(b)(2)(B).
Special Education Services: means specially designated instruction at no cost to the parent, to meet the unique needs of an eligible student with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions and in other settings; and instruction in physical education. Specially designed instruction means adapting, as appropriate to the needs of an eligible student, the content, methodology, or delivery of instruction to address the unique needs of the student that result from the student’s disability and to ensure access of the student to the general curriculum, so that the student can meet the educational standards within the State that apply to all children. This definition is intended to be consistent with the term “Special Education Services” as used in SBE Rule 2360.2.12.
Student: means a person age three through age twenty-one.
Student who requires additional support: means a student who meets the criteria defined in 16 V.S.A. § 2942(8).
Tuition: means funds paid by a school district to an approved independent school for general education in accordance with SBE Rule 2225.
Section 2223 Procedure.
Every person or entity desiring to operate an approved independent elementary or secondary school shall apply in writing to the Secretary. An application shall meet the requirements of SBE Rule 2226(Application).
Upon receipt of an application for initial approval or renewal of approval, the Secretary shall appoint a review committee of at least two persons.
2223.1 Visit.
The review committee shall visit the school. To the extent possible, the visit shall be coordinated by the Secretary with other agencies of state government that inspect such facilities.
2223.2 Report.
The committee shall write a report, including a written initial recommendation regarding approval to the Secretary. A copy of the recommendation shall be provided at the same time to the applicant. The applicant shall be given 30 days to respond before the Secretary makes a final recommendation regarding approval to the State Board. The report shall contain the findings of other agencies of state government that inspect such facilities.
2223.3 General Conditions for Approval.
Approval shall be recommended for an independent school offering elementary or secondary education that provides a minimum course of study pursuant to 16 V.S.A. § 906 and that substantially complies with all statutory requirements for approved independent schools and the Board’s rules for approved independent schools. Effective July 1, 2023, an independent school that intends to accept public tuition shall be recommended for approval only on the condition that the school meets the requirements of SBE Rule 2229. Effective July 1, 2023, a school meeting approval requirements in SBE Rules 2226 (Application) and 2227 (Approval) but not Rule 2229 (Approval to Receive Public Tuition, Special Education Approval) may be recommended for approval but may not receive public tuition.
2223.4 Review.
The Secretary shall designate a date for action by the Board. Officials of the school shall be notified of this date.
2223.5 Renewal.
Not less than six months prior to expiration of a School’s approval, the Secretary shall send an application packet and a letter notifying the school when the site visit will occur and that the completed application must be received from the school not later than 30 days prior to the scheduled site visit.
2223.6 Extension.
Approval of a school completing a timely application for further approval shall extend until the Board acts on further approval.
2223.7 Termination.
Approval of an independent school that fails to complete timely application for further approval shall terminate on the date specified in the most recent approval action.
2223.8 Revocation or Suspension of Approval.
Prior to recommending revocation or suspension of approval, the Secretary shall initiate a formal investigation pursuant to rule 2223.9 (Complaints; Investigations). Following the formal investigation, the Secretary shall share the findings with the Council of Independent Schools. The Council shall consider the findings from the investigation and the Secretary’s proposed resolution and issue a written opinion on the same. If, after receiving the Council's opinion, the Secretary determines that revocation or suspension of approval is warranted the Secretary shall notify the State Board of the recommendation and provide notice to the school. The State Board shall hold a hearing pursuant to 3 V.S.A. chapter 25 to consider the Secretary’s recommendation.
(a) After providing an opportunity for hearing, the Board may revoke, suspend, or impose conditions on the approval of an approved independent school for:
(1) Failure to demonstrate that the school has the resources required to meet its stated objectives;
(2) Failure to comply with statutory requirement or the Board’s rules for approved independent schools;
(3) Failure to report any of the financial events listed in (b) below; or
(4) Failure to make an annual enrollment report to the Secretary as required by 16 V.S.A. § 166(b)(4).
(b) An approved independent school shall report to the Secretary within five days after its knowledge of if any of the following events, unless the failure is de minimus
(1) The school’s failure to file its federal or State tax returns when due, taking into account permissible extensions of time;
(2) The school’s failure to meet its payroll obligations as they are due or pay federal or State payroll tax obligations when due;
(3) The school’s failure to maintain required retirement contributions;
(4) The school’s use of designated funds for nondesignated purposes;
(5) The school’s inability to fully comply with the financial terms of its secured installment debt obligations over a period of two consecutive months, including the school’s failure to make interest or principal payments as they are due or to maintain any required financial ratios;
(6) The withdrawal or conditioning of the school’s accreditation on financial grounds by a private, State or regional agency recognized by the Board for accrediting purposes; or
(7) The school’s insolvency as defined in 9 V.S.A. § 2286(a).
(c) If the State Board reasonably believes that an approved independent school lacks the financial capacity to meet its stated objectives during the period of its approved status, the Board shall so notify the school in writing and shall act in accordance with the procedure set forth in 16 V.S.A. § 166(b)(8)(B).
(d) If the State Board, after having provided the school a reasonable opportunity to respond to the Board’s notification, does not find that the school has satisfactorily responded or demonstrated its financial capacity, the Board may establish a review team that, with the consent of the school, includes a member of the Council of Independent Schools, to:
(1) Conduct a school visit to assess the school's financial capacity;
(2) Obtain from the school such financial documentation as the review team requires to perform its assessment; and
(3) Submit a report of its findings and recommendations to the State Board.
(e) If the State Board concludes that an approved independent school lacks financial capacity to meet its stated objectives during the period of its approved status, the State Board may take any action that is authorized by this section.
(f) In considering whether an independent school lacks financial capacity to meet its stated objectives during the period of its approved status and what actions the State Board should take if it makes this finding, the State Board may consult with, and draw on the analytical resources of, the Vermont Department of Financial Regulation.
(g) Information provided by an independent school under this section that is not already in the public domain is exempt from public inspection and copying under the Public Records Act and shall be kept confidential according to 16 V.S.A. § 166(b)(8).
2223.9 Complaints; Investigations.
(a) The Secretary shall conduct an initial investigation of reports or complaints related to the approval standards and laws that apply to approved independent schools. If, following an initial investigation, the Secretary finds a violation of approval standards or laws that apply to approved independent schools, the Secretary should first determine whether the matter can be resolved through informal means, such as by provision of regulatory guidance, and confirm that corrective action is taken by the school. If the Secretary determines that informal means are not appropriate to the violation or if the matter has not been resolved informally, the Secretary may place the approved independent school on probation.
(b) At any time, the Secretary may convene a review team to conduct a formal investigation without first attempting an informal resolution or imposing probation.
(c) An approved independent school may appeal the imposition of probation to the State Board by requesting a hearing as provided above.
(d) The Secretary shall maintain a register of all complaints that result in imposition of probation or a formal investigation, which shall be a public record and which shall include the general nature of the complaint and action taken by the Secretary.
(e) Formal Investigations
(1) The school shall receive notification of the complaint unless contraindicated by the particular facts.
(2) If the Secretary determines that a formal investigation is warranted, the Secretary shall appoint a review team of at least two persons including a member of the Council of Independent Schools. The team will conduct the investigation and will inform the Secretary and the school of the results. The process in SBE Rule 2223.8 shall then apply.
(3) Reports of drug or alcohol use shall be referred to the state's attorney for the county in which the school is located. Reports of child abuse or neglect shall be reported to the Department for Children and Families. Reports concerning the safety of facilities, water supply, electricity, plumbing or waste disposal systems shall be referred to the appropriate agency.
Section 2224 Reciprocity.
Approval may be granted without committee evaluation and the approval process in the case of any school accredited by a state or regional agency recognized by the State Board for accrediting purposes. In addition to the accrediting agencies listed in SBE Rule 7320, which the Board shall continue to recognize until July 1, 2024, the State Board recognizes the Association of Independent Schools in New England and the New England Association of Schools and Colleges. Any accreditation from a recognized accrediting agency that is valid for more than five years must be supplemented with an interim report from the accrediting agency which should be submitted to the Agency by the accrediting agency or the school during the last year of its five-year approval. This interim report must provide such information as is necessary to assure the State Board that the school is meeting the approval standards. If such proof of compliance with approval standards cannot be shown, then the school must undergo the approval process. A school accredited by a state or regional agency recognized by the State Board school shall notify the Agency within five days of a change to its accreditation.
Section 2225 Tuition from Public Funds.
2225.1 Tuition for Independent Schools in Vermont.
Tuition shall not be paid from public funds to any independent elementary or secondary school in Vermont unless the school satisfies the requirements in SBE Rule 2227 and Rule 2229. Notwithstanding this prohibition, tuition may be paid from public funds in cases where:
(a) There is an order from a court or from a due process hearing pursuant to SBE Rule 2365.1.6 requiring such payment, or
(b) The Secretary has approved an exception for a placement in an independent school pursuant to SBE Rule 2230.1.
2225.2 Tuition for Out of State Schools
Tuition to be paid to an independent school in another state shall be made in accordance with 16 V.S.A. § 828.
Section 2226 Application.
An application for initial approval or renewal of approval shall contain the following:
2226.1 The name and address of the school.
2226.2 A statement of the school's philosophy and purpose.
2226.3 A description of the school enrollment including a statement of how it is designed to serve children with disabilities.
2226.4 A description of the plan of organization for the school including its governance, faculty, and student body, and the names and addresses of the governing board.
2226.5 A description of the curriculum, methods of instruction, evaluation procedures and special services that the school has designed to achieve its educational objectives and to provide a minimum course of study as defined in 16 V.S.A. § 906.
2226.6 Demonstration that the school substantially complies with all statutory requirements for approved independent schools, with documentation of the following:
(1) A statement of nondiscrimination, posted on the school’s website and included in the school’s application materials, that is consistent with the Vermont Public Accommodations Act, Title 9 Vermont Statutes Annotated, Chapter 141 and the Vermont Fair Employment Practices Act, Title 21 Vermont Statutes Annotated, Chapter 495.
(2) An assurance, signed by the Head of School, that the school complies with the Vermont Public Accommodations Act in all aspects of the school’s admissions and operations.
(3) A description of physical facilities including plant, materials, and equipment and assurances that the facilities meet all applicable State and federal requirements.
2226.7 Evidence of compliance with local, State, and federal requirements pertaining to the health and safety of students.
2226.8 Statements regarding professional staff including:
2226.8.1 Professional Staff qualifications.
(1) A job description for each position or a statement describing training, experience, and degree(s) required for each position.
(2) A resume, vita, or description of appropriate qualifications for each current staff member.
(3) Current assignment of each professional staff member.
2226.8.2 Professional Staff Development.
(1) A general statement of the institution's expectations for professional growth of staff.
(2) A statement describing the school's inservice training and financial and other support given to staff for professional development.
(3) A description of professional development in the prior two years.
2226.8.3 Professional Environment.
(1) A list of staff and length of service.
(2) A description of staff meetings.
(3) A description of other staff duties that are not related to teaching or administration duties.
2226.9 Evidence of financial capacity, which may be shown by one of the following:
(1) An audit letter by a certified accounting firm from the present or prior year describing financial capacity;
(2) A notarized letter summarizing the financial status within the present or prior fiscal year signed by the board of directors or governing body;
(3) An audit from the present or prior fiscal year performed by a certified accounting firm; or
(4) A statement of financial capacity of a private, state, or regional agency recognized by the State Board for accrediting purposes concerning the school's financial capacity.
(b) 2226.10 The school calendar.
(c) 2226.11 Copies of publications for distribution to applicants for admission including the statement required by 16 V.S.A. § 166(b)(3).
Section 2227 Approval.
The Board shall approve an independent school that offers elementary or secondary education if it finds, after opportunity for hearing, that the school provides a minimum course of study pursuant to 16 V.S.A. § 906 and that it substantially complies with the Board’s rules for approved independent schools.
In order to be approved, an independent school that operates a boarding program, enrolls students as boarding students, or operates a residential treatment program shall be accredited by a state or regional agency recognized by the State Board for accrediting purposes or shall be licensed as a residential child care facility by the Department for Children and Families. This requirement does not apply to an independent school that enrolls only day students.
The Board shall make the following findings prior to approval:
2227.1 The description of the school in the approval application is accurate.
2227.2 The course of study offered is adequate to meet the educational purposes of the school and to provide a minimum course of study that is age and ability appropriate.
2227.3 The school has available support services necessary to meet the requirements of a minimum course of study and its educational purposes, including library services, administrative services, guidance and counseling services, and a system of records by which student progress may be assessed.
2227.4 The school has classroom, laboratory, library, and other facilities necessary to operate its program.
2227.5 The school employs professional staff who are qualified by training and experience in the areas in which they are assigned as measured by the following:
2227.5.1 For teachers, a minimum of a bachelor's degree in their field of instruction or substantially equivalent time in training and experience in their field of instruction.
2227.5.2 For all professional staff, relevant experience and/or training in other programs not related to teaching or administrative duties to which they are assigned.
2227.6 The school has an adequate program of continuing professional staff development as demonstrated in the application.
2227.7 The school employs a sufficient number of professional staff for the population served.
2227.8 The school substantially complies with all statutory requirements for approved independent schools and the Board’s rules for approved independent schools including nondiscrimination in admissions and operations and requirements relative to its facilities, fire drills, and the immunization of its students against disease.
2227.9 The school maintains a register of the daily attendance of each of its enrolled students.
2227.10 The school maintains an operating schedule that includes a total number of instructional hours each year that is not less than that required of a public school serving the same grades.
2227.11 The school has the financial capacity to carry out its stated objectives for the period of approval. For purposes of these rules, “financial capacity” means that anticipated revenue and funds on hand are sufficient to meet a school’s stated objectives.
2227.12 The school complies with the requirements of 16 V.S.A. §255 relating to criminal record checks and checks of the Child Protection Registry and the Vulnerable Adult Abuse, Neglect, and Exploitation Registry.
2227.13 For schools that receive public tuition, the school complies with requirements concerning nondiscriminatory school branding as dictated by the Secretary.
Section 2228 Length of Approval.
The State Board may grant initial approval for not more than two years, and renewal of approval for not more than five years.
Section 2229 Approval to Receive Public Tuition, Special Education Approval.
2229.1 Enrollment: Requirements for Approved Independent Schools, Students, and LEAs.
a) Each approved independent school shall maintain and follow a written enrollment policy which, at minimum, shall provide the following:
1) The student or the parent of a student seeking to attend the approved independent school shall voluntarily submit an application;
2) Any special considerations or requirements for a student’s acceptance for enrollment, none of which shall disadvantage a student based on the student’s membership in a protected class, the student’s actual or suspected disability, or the student’s socioeconomic status;
3) If the student satisfies the other special considerations or requirements of the school’s enrollment policy, the school shall accept the student as a candidate for admission;
4) Candidates for admission shall be accepted for enrollment in a non-discriminatory manner. No student shall be denied acceptance for enrollment if the reason for denial is that the student is disabled as defined in section 504 of the Rehabilitation Act of 1973 as amended or that the student is in need of special education services. No student shall be denied acceptance for enrollment on the basis of race, creed, color, national origin, marital status, sex, sexual orientation, or gender identity or any other classification protected by federal or state law.
b) Upon the student’s acceptance for enrollment, the student’s IEP team shall meet to determine how the student’s services shall be provided. The approved independent school and the LEA shall follow the procedures in 2229.4, after which the student shall be enrolled in the approved independent school or, upon the decision of the hearing officer in Rule 2229.4(f), below, the IEP team shall consider an alternative enrollment for the student.
c) When a publicly funded student seeks to attend an approved independent school after the start of the school year, the student shall be provisionally enrolled consistent with the procedures in Rule 2229.4, during which time the LEA of residence shall agree to pay tuition on the student’s behalf until the procedures in 2229.4 have been completed and the student is enrolled, or until the hearing officer issues a decision pursuant to subsection Rule 2229.4(f), below.
d) This Rule, 2229.1, shall not apply to a therapeutic independent school.
2229.2 Staffing.
An approved independent school is not required to demonstrate that it has the resources to serve every category of special education as defined under Board rules in order to be approved or retain its approval to receive public funding for general tuition. Therapeutic independent schools shall have the capacity to serve the needs of students they are designed to serve.
The Secretary shall establish minimum standards of services for students receiving special education services in independent schools in Vermont.
2229.3 Assurances.
The independent school shall demonstrate that it has the ability to serve all students with disabilities by:
(a) Demonstrating an understanding of special education requirements, including:
(1) Provision of a free and appropriate public education in accordance with federal and State law.
(2) Provision of education in the least restrictive environment in accordance with federal and State law.
(3) Characteristics and educational needs associated with any of the categories of disability or suspected disability under federal and State law.
(4) Procedural safeguards and parental rights, including discipline procedures, specified in federal and State law.
(b) Committing to implementing the IEP of an enrolled student with special education needs, providing the required services, and appropriately documenting the services and the student’s progress.
(c) Employing or contracting with staff who have the required licensure to provide special education services.
(d) Agreeing to communicate with the responsible LEA concerning:
(1) Development of, and any changes to, the IEP.
(2) Services provided under the IEP and recommendations for a change in the services provided.
(3) The student’s progress.
(4) Maintenance of the student’s enrollment in the independent school.
(5) Identification of students with suspected disabilities.
(e) Committing to participate in dispute resolution as provided under federal and State law.
2229.4 Procedure for Ensuring the Provision of Special Education Services to Publicly Funded Students in Approved Independent Schools.
(a) Upon the acceptance for enrollment of a student with an individualized education program in an approved independent school, the LEA of the student’s residence shall convene an IEP or 504 team meeting within 30 days. When practical, the meeting shall be held prior to the start of the academic year in which the student is enrolled. The Independent School shall designate personnel to participate in the IEP or 504 meeting. At the meeting, the team, which includes the parent, and the student where appropriate, shall determine how to ensure the provision of a free and appropriate public education in accordance with the student’s IEP.
(b) The LEA and the approved independent school together with the student’s IEP team shall work collaboratively to ensure the student’s services are provided in accordance with state and federal law.
(c) For placement purposes under the IDEA, the IEP team shall ensure the IEP process reflects the student’s choice of enrollment in the approved independent school, notwithstanding SBE Rule 2354.3(a)(2). In this context, “placement” refers not to the specific site of the educational placement, but to the provision of special education and related services.
(d) The student’s special education and related services shall be provided in the least restrictive environment.
(e) To ensure the provision of services in the student’s IEP, the approved independent school and the LEA may use any or all of the methods listed below to ensure the provision of those services, including:
1. The approved independent school recruiting and hiring special educator or other professional or paraprofessional staff;
2. The approved independent school contracting directly with service providers to provide the services at the independent school if the services are not otherwise available at the independent school.
3. The approved independent school contracting with the LEA to provide the services;
4. The LEA providing the services at a public school operated by the LEA or another public school.
(f) If there is a dispute between the LEA and the approved independent school over whether the student’s special education services can be provided in accordance with the student’s IEP at the Independent School or otherwise, the LEA shall initiate a hearing before an independent hearing officer, the costs of which shall be borne equally between the LEA and the Independent School, within 30 days of the impasse.
(g) If the hearing officer determines the approved independent school cannot meet the student’s special education needs, the LEA shall immediately convene an IEP meeting to consider alternatives.
1. The approved independent school shall not be subject to any disciplinary action or revocation of its approval by the Board under Rule 2223.8 due to its failure to enroll or continue to enroll the student.
(h) This Rule, 2229.4, shall not apply to a therapeutic independent school.
2229.5 Out-of-State Programs.
(a) Unless otherwise determined by the Board, in order for an out- of-state independent school to be approved to receive public funds for special education purposes by the Board, the school shall be approved by the host state for the purpose of providing special education and related services to children with disabilities within that state. Any limitation by the host state on an independent school's special education approval, such as by category of disability served, or other comparable standard, shall also apply to the school's special education approval in Vermont.
(b) Rates paid for tuition, room, and board for students receiving special education in out-of-state schools shall not exceed the allowable costs approved by the authorized body in the state where the school is located, except in exceptional circumstances approved by the Secretary.
2229.6 Approval Procedures to Receive Public Funds.
(a) Application for public funds approval shall be made at the time of application under Rule 2200. An independent school that has already obtained independent school approval from the Board may at any time submit an application for public tuition approval to the Secretary.
(b) Application for special education funding approval shall be submitted in writing to the Secretary in accordance with the format prescribed by the Secretary.
(c) The procedures for public tuition approval shall be the same as those for approval in accordance with SBE Rule 2223. To the extent possible, these procedures shall occur simultaneously.
2229.7 Notification.
After receiving approval for public tuition, an independent school shall notify the Secretary within a reasonable time of any significant changes to its special education program, professional staff, governance, financial capacity, or facilities. The Secretary may, upon such notification, gather additional information from the school, including by means of a site visit. As a result, the Secretary may return to the Board for a change in the school's approval for public tuition purposes. If the Secretary petitions the Board for a change to an independent school's approval for public tuition purposes, the Council of Independent Schools and the subject independent school shall be notified and have an opportunity to be heard by the Board. If the school disagrees with the proposed change to its approval for public tuition purposes, the Board shall hear the matter in accordance with the requirements of SBE Rule 1230, et seq.
2229.8 Minimum Level of Service.
Independent schools that are approved for public tuition purposes shall be deemed to offer a minimum standard of service to a child, as required by 16 V.S.A. § 2973, if those services are offered according to a written agreement with the sending responsible agency, as required by SBE Rule 2231.
Section 2230 Placement Prohibition.
No responsible agency, as defined by SBE Rule 2360.3, or LEA shall make a special education placement in an independent school that has not been approved to receive public tuition pursuant to the conditions in Rule 2229, unless the placement is pursuant to:
(a) Rule 2230.1;
(b) A court order; or
(c) A hearing officer’s order.
2230.1 Exceptional Circumstances - Approval Process.
Upon application by a responsible LEA, the Secretary may permit, in exceptional circumstances, a special education placement in an independent school that is approved pursuant to SBE Rule 2223, but that has not been approved to receive public tuition. In instances in which the Secretary grants such approval, tuition and associated otherwise allowable costs shall be reimbursable under subchapter 2 of Chapter 101 of Title 16 of the Vermont Statutes Annotated. Any person aggrieved by the Secretary’s decision may file an appeal with the State Board pursuant to 16 V.S.A. § 828.
(a) Exceptional circumstances exist when:
(1) After reasonable efforts, the LEA cannot locate an appropriate public or independent school approved for special education purposes pursuant to SBE Rule 2229 to serve children with the category of disability under which the child was determined to be eligible for special education; and
(2) The proposed placement is deemed appropriate by the child's IEP team.
(b) The Secretary may specify conditions under which the placement is to be carried out.
Section 2231 Written Agreements Required.
2231.1 Agreement as to Costs.
(a) In order to obtain approval to receive public tuition, an independent school shall assure the State Board that prior to enrolling a child with an IEP who is placed in the independent school as an appropriate placement and least restrictive environment by the student’s IEP team, the school will enter into a written agreement with the LEA committing to the requirements set forth in SBE Rule 2229.3 and ensuring that qualified school personnel will attend planning and all IEP meetings for the student. The agreement shall outline tuition, room, board, and other costs associated with the child's attendance. For children on an IEP who are placed by a state agency or a designated community mental health agency, or any other agency defined by the Secretary, in accordance with 16 V.S.A. § 2948, the agreement shall be with the Secretary. In the instance of an emergency placement, such provisions shall be agreed upon within 30 days of the child's enrollment.
(b) The Secretary shall consult with independent schools in Vermont and determine maximum rates for tuition, and room and board for residential placements. These rates shall be published each year by November 30. Any amount charged by an approved independent school for tuition shall not exceed the school’s actual or anticipated costs of providing special education services to the student and shall not exceed the maximum rates set by the Secretary, provided that the Secretary may permit charges in excess of the maximum rates if the Secretary deems it warranted.
(c) An approved independent school that enrolls a student with an IEP pursuant to Rule 2229.1 may bill the responsible LEA for the excess special education costs beyond those covered by general tuition. Reimbursement of the excess costs shall be based on the direct-cost rates approved by the Secretary for services actually provided to the student consistent with the Agency of Education Technical Manual for special education cost accounting.
(d) An approved independent school that enrolls a student under SBE Rule 2229.1 shall provide documentation to the Secretary in order to ensure that the amounts charged are reasonable in relation to special education services provided by the school.
2231.2 Agreement as to Non-Instructional Services.
In order to obtain approval to receive public tuition, an independent school shall assure the Board that within thirty days of enrolling a child with an IEP, the school will enter into a written agreement with the sending LEA or other responsible agency as to the division of responsibility for performance of non-instructional services, including compliance with special education procedural requirements. For children placed by a state agency or a designated community mental health agency, or another agency defined by the Secretary, this agreement shall be with the LEA that has educational planning responsibility for the child.
Section 2232 Rate Approval for Therapeutic Approved Independent Schools.
(a) The Secretary shall set, after consultation with independent schools, the maximum tuition rate to be paid by the Agency and supervisory unions or school districts to therapeutic independent schools. The rate for each therapeutic independent school shall be no more than the costs that are reasonably related to the level of services provided by the school.
(b) If a therapeutic independent school does not submit an application for rate approval by November 15, the most recent approved rate will be in effect for the following school year. The Secretary may review an approved rate at any time. An approved rate may be reviewed at any time on request of the school based on extraordinary circumstances. Therapeutic schools will supply information as requested by the Secretary.
(c) A therapeutic school’s most recently approved rate shall be adjusted annually by the Secretary according to the National Income and Product Accounts (NIPA) Implicit Price Deflator for State and Local Government Consumption Expenditures and Gross Investment as reported by the U.S. Department of Commerce, Bureau of Economic Analysis. The Secretary shall announce the inflation rate to allow for sufficient time for submission of an application for approval of a new rate under subsection (d) in the event the therapeutic school determines such an application is needed.[1] The annually-inflated rate shall become the most recently approved rate.
(d) A therapeutic school requesting a new rate shall submit an application for approval of a new rate to the Secretary by November 15 for tuition, related services, room, and board based upon the actual or anticipated costs that are reasonably related to providing educational services. Schools that also receive rates from the Agency of Human Services shall submit an application for approval of a new rate to the Secretary by May 1. Reported costs shall be only those that are net of other available restricted revenue sources. To demonstrate that the rate requested by the therapeutic school meets this standard, the therapeutic school shall submit to the Secretary the following:
(1) Costs for each of the following categories, reported at the general ledger account description level, submitted in accordance with the Generally Accepted Accounting Principles published by the Financial Accounting Standards Board:
(A) Salaries for all employees and full-time equivalents as applicable
(B) Program-related Contractual Services
(C) Operations-related Contractual Services
(D) General Operating
(E) Program
(F) Travel/Transportation
(G) Building – Direct
(H) Building – Allocated
(I) Admin I – Allocated
(J) Admin II – Allocated
(K) Fringe – Allocated
(2) The school’s proposed operational capacity, which shall be supported by a narrative that describes how the proposal reflects relevant circumstances including three-year historic enrollment, student acuity or changes in student acuity, availability of faculty and staff, physical space, anticipated demand for placements or change in anticipated demand for placements, and other considerations.
(e) A therapeutic school submitting an application for rate approval for the first time may submit the application at any time pursuant to this subsection.
(f) If the Secretary determines an application for new rate approval submitted under subsection (d) is incomplete, then the therapeutic school shall have 10 working days to complete the application following notice that its application is incomplete.
(g) The Secretary shall evaluate each element of the application for new rate approval submitted pursuant to subsection (d) and determine whether the school has demonstrated that the cost associated with each element is reasonably related to the level of services provided by the school. In determining whether a cost is reasonably related to the level of services, the Secretary will consider the following: direct-cost rates approved by the Secretary pursuant to 16 V.S.A. § 2973(b), costs approved for other therapeutic schools, regional differences in costs, demonstrated difficulty filling certified or licensed positions, tenure of faculty and staff, student acuity, educational model, students’ need for stability in educational placement, and other aspects of program and student need documented in the application.[2] Prior to conducting cost comparisons with applicant data, the Secretary shall:
(1) Establish standards for developing and applying a database of comparable information to be utilized in rate determinations, and publish the standards on the Agency’s website.
(2) Annually update the database of comparable information.
(3) Implement a procedure to document and retain the process and basis for each determination, including the comparable data applied.
(h) The Secretary shall determine the rate on a per-student basis by dividing the total costs determined in subsection (g) by the school’s approved operational capacity, which shall be determined by the Secretary from the information provided in subsection (d)(2).
(i) The Secretary shall notify a therapeutic school that has submitted an application for new rate approval pursuant to subsection (d) of the final rate approval by January 15.
(j) After the Secretary approves a rate for a therapeutic school, the school shall not exceed that rate until such time as a new tuition rate is approved by the Secretary. In the case of a service required by a student’s IEP that is not included within the school’s approved rate, the LEA shall decide whether to contract for the service with the therapeutic school. The LEA shall provide notice of its decision to the Secretary within 5 days.
(k) A therapeutic school that is not satisfied with the final rate may request reconsideration by the Secretary. Requests for reconsideration shall be made in writing to the Secretary within 30 days of the final rate approval. Upon receiving the Secretary’s answer regarding reconsideration, if the therapeutic school is not satisfied, it may file an appeal with the State Board in accordance with the requirements of SBE Rule 1230, et seq. Alternatively, a therapeutic school may appeal to the State Board pursuant to SBE Rule 1230, et seq. without first seeking reconsideration by the Secretary. The State Board's determination of the appeal shall be final.
2233 Standards and Regulations.
The State Board shall afford the opportunity for approved independent schools to participate in the development and revision of State standards that apply to independent schools.
Footnotes:
[1] The AOE will announce the inflation rate annually, beginning July 1, 2023. The inflator will be applied annually on November 15.
[2] The AOE expects to post its rate database on its web site in September. The rate report will be updated annually on June 30 (for Designated Agency rates) or November 15 (for other schools).
Rule 2200 INDEPENDENT SCHOOL PROGRAM APPROVAL
Pursuant to Act 173 of 2018, as amended, these rules take effect on July 1, 2023 except the following rules which take effect on adoption: Rule 2223 (Procedure), Rule 2224 (Reciprocity), Rule 2226 (Application) and Rule 2227 (Approval).
Section 2220 Statement of Purpose.
The purpose of independent school approval rules is to assure effective, available, and equitable educational opportunities for students enrolled in Vermont's independent schools in accordance with State and federal law and aligned with the purposes set forth in Act 173 of 2018.
Section 2221 Statutory Authority.
16 V.S.A. §§ 166, 2958(e), and 2973.
Section 2222 Definitions.
Agency: means the Vermont Agency of Education.
Approved Independent School: means an independent school that meets the requirements in Rule 2223.3 as well as the requirements in SBE Rule 2225 (tuition from public funds).
Approved Independent School Ineligible to Receive Public Funds: means an independent school that meets the requirements in SBE Rule 2226 (Application) and 2227 (Approval) but does not meet the requirements of rules concerning the delivery of special education services in SBE Rule 2229.
Board (or State Board or SBE): means the Vermont State Board of Education.
Individualized Education Program (IEP): means a written statement for a student with a disability that is developed, reviewed, and revised in accordance with SBE Rule 2363.
Therapeutic Approved Independent School (or Therapeutic Independent School or Therapeutic School): means an approved independent school that limits enrollment to students who are on an IEP or plan under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and who are enrolled pursuant to a written agreement between an LEA and the school. These schools are eligible to receive public tuition, which is inclusive of both general and special education services and is at a rate approved by the Agency of Education.
Local Education Agency (LEA): as that term is defined in 20 U.S.C. § 7801(26), means the supervisory union or supervisory district.
Recognized Independent School: means an independent school meeting the requirements in 16 V.S.A. § 166(c). A recognized independent school is not eligible to receive public tuition.
Secretary: means the Secretary of the Vermont Agency of Education.
Special Education Fees: means funds paid by a school district or supervisory union to an approved independent school for special education services beyond those covered by general education tuition, as defined in 16 V.S.A. § 2973(b)(2)(B).
Special Education Services: means specially designated instruction at no cost to the parent, to meet the unique needs of an eligible student with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions and in other settings; and instruction in physical education. Specially designed instruction means adapting, as appropriate to the needs of an eligible student, the content, methodology, or delivery of instruction to address the unique needs of the student that result from the student’s disability and to ensure access of the student to the general curriculum, so that the student can meet the educational standards within the State that apply to all children. This definition is intended to be consistent with the term “Special Education Services” as used in SBE Rule 2360.2.12.
Student: means a person age three through age twenty-one.
Student who requires additional support: means a student who meets the criteria defined in 16 V.S.A. § 2942(8).
Tuition: means funds paid by a school district to an approved independent school for general education in accordance with SBE Rule 2225.
Section 2223 Procedure.
Every person or entity desiring to operate an approved independent elementary or secondary school shall apply in writing to the Secretary. An application shall meet the requirements of SBE Rule 2226(Application).
Upon receipt of an application for initial approval or renewal of approval, the Secretary shall appoint a review committee of at least two persons.
2223.1 Visit.
The review committee shall visit the school. To the extent possible, the visit shall be coordinated by the Secretary with other agencies of state government that inspect such facilities.
2223.2 Report.
The committee shall write a report, including a written initial recommendation regarding approval to the Secretary. A copy of the recommendation shall be provided at the same time to the applicant. The applicant shall be given 30 days to respond before the Secretary makes a final recommendation regarding approval to the State Board. The report shall contain the findings of other agencies of state government that inspect such facilities.
2223.3 General Conditions for Approval.
Approval shall be recommended for an independent school offering elementary or secondary education that provides a minimum course of study pursuant to 16 V.S.A. § 906 and that substantially complies with all statutory requirements for approved independent schools and the Board’s rules for approved independent schools. Effective July 1, 2023, an independent school that intends to accept public tuition shall be recommended for approval only on the condition that the school meets the requirements of SBE Rule 2229. Effective July 1, 2023, a school meeting approval requirements in SBE Rules 2226 (Application) and 2227 (Approval) but not Rule 2229 (Approval to Receive Public Tuition, Special Education Approval) may be recommended for approval but may not receive public tuition.
2223.4 Review.
The Secretary shall designate a date for action by the Board. Officials of the school shall be notified of this date.
2223.5 Renewal.
Not less than six months prior to expiration of a School’s approval, the Secretary shall send an application packet and a letter notifying the school when the site visit will occur and that the completed application must be received from the school not later than 30 days prior to the scheduled site visit.
2223.6 Extension.
Approval of a school completing a timely application for further approval shall extend until the Board acts on further approval.
2223.7 Termination.
Approval of an independent school that fails to complete timely application for further approval shall terminate on the date specified in the most recent approval action.
2223.8 Revocation or Suspension of Approval.
Prior to recommending revocation or suspension of approval, the Secretary shall initiate a formal investigation pursuant to rule 2223.9 (Complaints; Investigations). Following the formal investigation, the Secretary shall share the findings with the Council of Independent Schools. The Council shall consider the findings from the investigation and the Secretary’s proposed resolution and issue a written opinion on the same. If, after receiving the Council's opinion, the Secretary determines that revocation or suspension of approval is warranted the Secretary shall notify the State Board of the recommendation and provide notice to the school. The State Board shall hold a hearing pursuant to 3 V.S.A. chapter 25 to consider the Secretary’s recommendation.
(a) After providing an opportunity for hearing, the Board may revoke, suspend, or impose conditions on the approval of an approved independent school for:
(1) Failure to demonstrate that the school has the resources required to meet its stated objectives;
(2) Failure to comply with statutory requirement or the Board’s rules for approved independent schools;
(3) Failure to report any of the financial events listed in (b) below; or
(4) Failure to make an annual enrollment report to the Secretary as required by 16 V.S.A. § 166(b)(4).
(b) An approved independent school shall report to the Secretary within five days after its knowledge of if any of the following events, unless the failure is de minimus
(1) The school’s failure to file its federal or State tax returns when due, taking into account permissible extensions of time;
(2) The school’s failure to meet its payroll obligations as they are due or pay federal or State payroll tax obligations when due;
(3) The school’s failure to maintain required retirement contributions;
(4) The school’s use of designated funds for nondesignated purposes;
(5) The school’s inability to fully comply with the financial terms of its secured installment debt obligations over a period of two consecutive months, including the school’s failure to make interest or principal payments as they are due or to maintain any required financial ratios;
(6) The withdrawal or conditioning of the school’s accreditation on financial grounds by a private, State or regional agency recognized by the Board for accrediting purposes; or
(7) The school’s insolvency as defined in 9 V.S.A. § 2286(a).
(c) If the State Board reasonably believes that an approved independent school lacks the financial capacity to meet its stated objectives during the period of its approved status, the Board shall so notify the school in writing and shall act in accordance with the procedure set forth in 16 V.S.A. § 166(b)(8)(B).
(d) If the State Board, after having provided the school a reasonable opportunity to respond to the Board’s notification, does not find that the school has satisfactorily responded or demonstrated its financial capacity, the Board may establish a review team that, with the consent of the school, includes a member of the Council of Independent Schools, to:
(1) Conduct a school visit to assess the school's financial capacity;
(2) Obtain from the school such financial documentation as the review team requires to perform its assessment; and
(3) Submit a report of its findings and recommendations to the State Board.
(e) If the State Board concludes that an approved independent school lacks financial capacity to meet its stated objectives during the period of its approved status, the State Board may take any action that is authorized by this section.
(f) In considering whether an independent school lacks financial capacity to meet its stated objectives during the period of its approved status and what actions the State Board should take if it makes this finding, the State Board may consult with, and draw on the analytical resources of, the Vermont Department of Financial Regulation.
(g) Information provided by an independent school under this section that is not already in the public domain is exempt from public inspection and copying under the Public Records Act and shall be kept confidential according to 16 V.S.A. § 166(b)(8).
2223.9 Complaints; Investigations.
(a) The Secretary shall conduct an initial investigation of reports or complaints related to the approval standards and laws that apply to approved independent schools. If, following an initial investigation, the Secretary finds a violation of approval standards or laws that apply to approved independent schools, the Secretary should first determine whether the matter can be resolved through informal means, such as by provision of regulatory guidance, and confirm that corrective action is taken by the school. If the Secretary determines that informal means are not appropriate to the violation or if the matter has not been resolved informally, the Secretary may place the approved independent school on probation.
(b) At any time, the Secretary may convene a review team to conduct a formal investigation without first attempting an informal resolution or imposing probation.
(c) An approved independent school may appeal the imposition of probation to the State Board by requesting a hearing as provided above.
(d) The Secretary shall maintain a register of all complaints that result in imposition of probation or a formal investigation, which shall be a public record and which shall include the general nature of the complaint and action taken by the Secretary.
(e) Formal Investigations
(1) The school shall receive notification of the complaint unless contraindicated by the particular facts.
(2) If the Secretary determines that a formal investigation is warranted, the Secretary shall appoint a review team of at least two persons including a member of the Council of Independent Schools. The team will conduct the investigation and will inform the Secretary and the school of the results. The process in SBE Rule 2223.8 shall then apply.
(3) Reports of drug or alcohol use shall be referred to the state's attorney for the county in which the school is located. Reports of child abuse or neglect shall be reported to the Department for Children and Families. Reports concerning the safety of facilities, water supply, electricity, plumbing or waste disposal systems shall be referred to the appropriate agency.
Section 2224 Reciprocity.
Approval may be granted without committee evaluation and the approval process in the case of any school accredited by a state or regional agency recognized by the State Board for accrediting purposes. In addition to the accrediting agencies listed in SBE Rule 7320, which the Board shall continue to recognize until July 1, 2024, the State Board recognizes the Association of Independent Schools in New England and the New England Association of Schools and Colleges. Any accreditation from a recognized accrediting agency that is valid for more than five years must be supplemented with an interim report from the accrediting agency which should be submitted to the Agency by the accrediting agency or the school during the last year of its five-year approval. This interim report must provide such information as is necessary to assure the State Board that the school is meeting the approval standards. If such proof of compliance with approval standards cannot be shown, then the school must undergo the approval process. A school accredited by a state or regional agency recognized by the State Board school shall notify the Agency within five days of a change to its accreditation.
Section 2225 Tuition from Public Funds.
2225.1 Tuition for Independent Schools in Vermont.
Tuition shall not be paid from public funds to any independent elementary or secondary school in Vermont unless the school satisfies the requirements in SBE Rule 2227 and Rule 2229. Notwithstanding this prohibition, tuition may be paid from public funds in cases where:
(a) There is an order from a court or from a due process hearing pursuant to SBE Rule 2365.1.6 requiring such payment, or
(b) The Secretary has approved an exception for a placement in an independent school pursuant to SBE Rule 2230.1.
2225.2 Tuition for Out of State Schools
Tuition to be paid to an independent school in another state shall be made in accordance with 16 V.S.A. § 828.
Section 2226 Application.
An application for initial approval or renewal of approval shall contain the following:
2226.1 The name and address of the school.
2226.2 A statement of the school's philosophy and purpose.
2226.3 A description of the school enrollment including a statement of how it is designed to serve children with disabilities.
2226.4 A description of the plan of organization for the school including its governance, faculty, and student body, and the names and addresses of the governing board.
2226.5 A description of the curriculum, methods of instruction, evaluation procedures and special services that the school has designed to achieve its educational objectives and to provide a minimum course of study as defined in 16 V.S.A. § 906.
2226.6 Demonstration that the school substantially complies with all statutory requirements for approved independent schools, with documentation of the following:
(1) A statement of nondiscrimination, posted on the school’s website and included in the school’s application materials, that is consistent with the Vermont Public Accommodations Act, Title 9 Vermont Statutes Annotated, Chapter 141 and the Vermont Fair Employment Practices Act, Title 21 Vermont Statutes Annotated, Chapter 495.
(2) An assurance, signed by the Head of School, that the school complies with the Vermont Public Accommodations Act in all aspects of the school’s admissions and operations.
(3) A description of physical facilities including plant, materials, and equipment and assurances that the facilities meet all applicable State and federal requirements.
2226.7 Evidence of compliance with local, State, and federal requirements pertaining to the health and safety of students.
2226.8 Statements regarding professional staff including:
2226.8.1 Professional Staff qualifications.
(1) A job description for each position or a statement describing training, experience, and degree(s) required for each position.
(2) A resume, vita, or description of appropriate qualifications for each current staff member.
(3) Current assignment of each professional staff member.
2226.8.2 Professional Staff Development.
(1) A general statement of the institution's expectations for professional growth of staff.
(2) A statement describing the school's inservice training and financial and other support given to staff for professional development.
(3) A description of professional development in the prior two years.
2226.8.3 Professional Environment.
(1) A list of staff and length of service.
(2) A description of staff meetings.
(3) A description of other staff duties that are not related to teaching or administration duties.
2226.9 Evidence of financial capacity, which may be shown by one of the following:
(1) An audit letter by a certified accounting firm from the present or prior year describing financial capacity;
(2) A notarized letter summarizing the financial status within the present or prior fiscal year signed by the board of directors or governing body;
(3) An audit from the present or prior fiscal year performed by a certified accounting firm; or
(4) A statement of financial capacity of a private, state, or regional agency recognized by the State Board for accrediting purposes concerning the school's financial capacity.
(b) 2226.10 The school calendar.
(c) 2226.11 Copies of publications for distribution to applicants for admission including the statement required by 16 V.S.A. § 166(b)(3).
Section 2227 Approval.
The Board shall approve an independent school that offers elementary or secondary education if it finds, after opportunity for hearing, that the school provides a minimum course of study pursuant to 16 V.S.A. § 906 and that it substantially complies with the Board’s rules for approved independent schools.
In order to be approved, an independent school that operates a boarding program, enrolls students as boarding students, or operates a residential treatment program shall be accredited by a state or regional agency recognized by the State Board for accrediting purposes or shall be licensed as a residential child care facility by the Department for Children and Families. This requirement does not apply to an independent school that enrolls only day students.
The Board shall make the following findings prior to approval:
2227.1 The description of the school in the approval application is accurate.
2227.2 The course of study offered is adequate to meet the educational purposes of the school and to provide a minimum course of study that is age and ability appropriate.
2227.3 The school has available support services necessary to meet the requirements of a minimum course of study and its educational purposes, including library services, administrative services, guidance and counseling services, and a system of records by which student progress may be assessed.
2227.4 The school has classroom, laboratory, library, and other facilities necessary to operate its program.
2227.5 The school employs professional staff who are qualified by training and experience in the areas in which they are assigned as measured by the following:
2227.5.1 For teachers, a minimum of a bachelor's degree in their field of instruction or substantially equivalent time in training and experience in their field of instruction.
2227.5.2 For all professional staff, relevant experience and/or training in other programs not related to teaching or administrative duties to which they are assigned.
2227.6 The school has an adequate program of continuing professional staff development as demonstrated in the application.
2227.7 The school employs a sufficient number of professional staff for the population served.
2227.8 The school substantially complies with all statutory requirements for approved independent schools and the Board’s rules for approved independent schools including nondiscrimination in admissions and operations and requirements relative to its facilities, fire drills, and the immunization of its students against disease.
2227.9 The school maintains a register of the daily attendance of each of its enrolled students.
2227.10 The school maintains an operating schedule that includes a total number of instructional hours each year that is not less than that required of a public school serving the same grades.
2227.11 The school has the financial capacity to carry out its stated objectives for the period of approval. For purposes of these rules, “financial capacity” means that anticipated revenue and funds on hand are sufficient to meet a school’s stated objectives.
2227.12 The school complies with the requirements of 16 V.S.A. §255 relating to criminal record checks and checks of the Child Protection Registry and the Vulnerable Adult Abuse, Neglect, and Exploitation Registry.
2227.13 For schools that receive public tuition, the school complies with requirements concerning nondiscriminatory school branding as dictated by the Secretary.
Section 2228 Length of Approval.
The State Board may grant initial approval for not more than two years, and renewal of approval for not more than five years.
Section 2229 Approval to Receive Public Tuition, Special Education Approval.
2229.1 Enrollment: Requirements for Approved Independent Schools, Students, and LEAs.
a) Each approved independent school shall maintain and follow a written enrollment policy which, at minimum, shall provide the following:
1) The student or the parent of a student seeking to attend the approved independent school shall voluntarily submit an application;
2) Any special considerations or requirements for a student’s acceptance for enrollment, none of which shall disadvantage a student based on the student’s membership in a protected class, the student’s actual or suspected disability, or the student’s socioeconomic status;
3) If the student satisfies the other special considerations or requirements of the school’s enrollment policy, the school shall accept the student as a candidate for admission;
4) Candidates for admission shall be accepted for enrollment in a non-discriminatory manner. No student shall be denied acceptance for enrollment if the reason for denial is that the student is disabled as defined in section 504 of the Rehabilitation Act of 1973 as amended or that the student is in need of special education services. No student shall be denied acceptance for enrollment on the basis of race, creed, color, national origin, marital status, sex, sexual orientation, or gender identity or any other classification protected by federal or state law.
b) Upon the student’s acceptance for enrollment, the student’s IEP team shall meet to determine how the student’s services shall be provided. The approved independent school and the LEA shall follow the procedures in 2229.4, after which the student shall be enrolled in the approved independent school or, upon the decision of the hearing officer in Rule 2229.4(f), below, the IEP team shall consider an alternative enrollment for the student.
c) When a publicly funded student seeks to attend an approved independent school after the start of the school year, the student shall be provisionally enrolled consistent with the procedures in Rule 2229.4, during which time the LEA of residence shall agree to pay tuition on the student’s behalf until the procedures in 2229.4 have been completed and the student is enrolled, or until the hearing officer issues a decision pursuant to subsection Rule 2229.4(f), below.
d) This Rule, 2229.1, shall not apply to a therapeutic independent school.
2229.2 Staffing.
An approved independent school is not required to demonstrate that it has the resources to serve every category of special education as defined under Board rules in order to be approved or retain its approval to receive public funding for general tuition. Therapeutic independent schools shall have the capacity to serve the needs of students they are designed to serve.
The Secretary shall establish minimum standards of services for students receiving special education services in independent schools in Vermont.
2229.3 Assurances.
The independent school shall demonstrate that it has the ability to serve all students with disabilities by:
(a) Demonstrating an understanding of special education requirements, including:
(1) Provision of a free and appropriate public education in accordance with federal and State law.
(2) Provision of education in the least restrictive environment in accordance with federal and State law.
(3) Characteristics and educational needs associated with any of the categories of disability or suspected disability under federal and State law.
(4) Procedural safeguards and parental rights, including discipline procedures, specified in federal and State law.
(b) Committing to implementing the IEP of an enrolled student with special education needs, providing the required services, and appropriately documenting the services and the student’s progress.
(c) Employing or contracting with staff who have the required licensure to provide special education services.
(d) Agreeing to communicate with the responsible LEA concerning:
(1) Development of, and any changes to, the IEP.
(2) Services provided under the IEP and recommendations for a change in the services provided.
(3) The student’s progress.
(4) Maintenance of the student’s enrollment in the independent school.
(5) Identification of students with suspected disabilities.
(e) Committing to participate in dispute resolution as provided under federal and State law.
2229.4 Procedure for Ensuring the Provision of Special Education Services to Publicly Funded Students in Approved Independent Schools.
(a) Upon the acceptance for enrollment of a student with an individualized education program in an approved independent school, the LEA of the student’s residence shall convene an IEP or 504 team meeting within 30 days. When practical, the meeting shall be held prior to the start of the academic year in which the student is enrolled. The Independent School shall designate personnel to participate in the IEP or 504 meeting. At the meeting, the team, which includes the parent, and the student where appropriate, shall determine how to ensure the provision of a free and appropriate public education in accordance with the student’s IEP.
(b) The LEA and the approved independent school together with the student’s IEP team shall work collaboratively to ensure the student’s services are provided in accordance with state and federal law.
(c) For placement purposes under the IDEA, the IEP team shall ensure the IEP process reflects the student’s choice of enrollment in the approved independent school, notwithstanding SBE Rule 2354.3(a)(2). In this context, “placement” refers not to the specific site of the educational placement, but to the provision of special education and related services.
(d) The student’s special education and related services shall be provided in the least restrictive environment.
(e) To ensure the provision of services in the student’s IEP, the approved independent school and the LEA may use any or all of the methods listed below to ensure the provision of those services, including:
1. The approved independent school recruiting and hiring special educator or other professional or paraprofessional staff;
2. The approved independent school contracting directly with service providers to provide the services at the independent school if the services are not otherwise available at the independent school.
3. The approved independent school contracting with the LEA to provide the services;
4. The LEA providing the services at a public school operated by the LEA or another public school.
(f) If there is a dispute between the LEA and the approved independent school over whether the student’s special education services can be provided in accordance with the student’s IEP at the Independent School or otherwise, the LEA shall initiate a hearing before an independent hearing officer, the costs of which shall be borne equally between the LEA and the Independent School, within 30 days of the impasse.
(g) If the hearing officer determines the approved independent school cannot meet the student’s special education needs, the LEA shall immediately convene an IEP meeting to consider alternatives.
1. The approved independent school shall not be subject to any disciplinary action or revocation of its approval by the Board under Rule 2223.8 due to its failure to enroll or continue to enroll the student.
(h) This Rule, 2229.4, shall not apply to a therapeutic independent school.
2229.5 Out-of-State Programs.
(a) Unless otherwise determined by the Board, in order for an out- of-state independent school to be approved to receive public funds for special education purposes by the Board, the school shall be approved by the host state for the purpose of providing special education and related services to children with disabilities within that state. Any limitation by the host state on an independent school's special education approval, such as by category of disability served, or other comparable standard, shall also apply to the school's special education approval in Vermont.
(b) Rates paid for tuition, room, and board for students receiving special education in out-of-state schools shall not exceed the allowable costs approved by the authorized body in the state where the school is located, except in exceptional circumstances approved by the Secretary.
2229.6 Approval Procedures to Receive Public Funds.
(a) Application for public funds approval shall be made at the time of application under Rule 2200. An independent school that has already obtained independent school approval from the Board may at any time submit an application for public tuition approval to the Secretary.
(b) Application for special education funding approval shall be submitted in writing to the Secretary in accordance with the format prescribed by the Secretary.
(c) The procedures for public tuition approval shall be the same as those for approval in accordance with SBE Rule 2223. To the extent possible, these procedures shall occur simultaneously.
2229.7 Notification.
After receiving approval for public tuition, an independent school shall notify the Secretary within a reasonable time of any significant changes to its special education program, professional staff, governance, financial capacity, or facilities. The Secretary may, upon such notification, gather additional information from the school, including by means of a site visit. As a result, the Secretary may return to the Board for a change in the school's approval for public tuition purposes. If the Secretary petitions the Board for a change to an independent school's approval for public tuition purposes, the Council of Independent Schools and the subject independent school shall be notified and have an opportunity to be heard by the Board. If the school disagrees with the proposed change to its approval for public tuition purposes, the Board shall hear the matter in accordance with the requirements of SBE Rule 1230, et seq.
2229.8 Minimum Level of Service.
Independent schools that are approved for public tuition purposes shall be deemed to offer a minimum standard of service to a child, as required by 16 V.S.A. § 2973, if those services are offered according to a written agreement with the sending responsible agency, as required by SBE Rule 2231.
Section 2230 Placement Prohibition.
No responsible agency, as defined by SBE Rule 2360.3, or LEA shall make a special education placement in an independent school that has not been approved to receive public tuition pursuant to the conditions in Rule 2229, unless the placement is pursuant to:
(a) Rule 2230.1;
(b) A court order; or
(c) A hearing officer’s order.
2230.1 Exceptional Circumstances - Approval Process.
Upon application by a responsible LEA, the Secretary may permit, in exceptional circumstances, a special education placement in an independent school that is approved pursuant to SBE Rule 2223, but that has not been approved to receive public tuition. In instances in which the Secretary grants such approval, tuition and associated otherwise allowable costs shall be reimbursable under subchapter 2 of Chapter 101 of Title 16 of the Vermont Statutes Annotated. Any person aggrieved by the Secretary’s decision may file an appeal with the State Board pursuant to 16 V.S.A. § 828.
(a) Exceptional circumstances exist when:
(1) After reasonable efforts, the LEA cannot locate an appropriate public or independent school approved for special education purposes pursuant to SBE Rule 2229 to serve children with the category of disability under which the child was determined to be eligible for special education; and
(2) The proposed placement is deemed appropriate by the child's IEP team.
(b) The Secretary may specify conditions under which the placement is to be carried out.
Section 2231 Written Agreements Required.
2231.1 Agreement as to Costs.
(a) In order to obtain approval to receive public tuition, an independent school shall assure the State Board that prior to enrolling a child with an IEP who is placed in the independent school as an appropriate placement and least restrictive environment by the student’s IEP team, the school will enter into a written agreement with the LEA committing to the requirements set forth in SBE Rule 2229.3 and ensuring that qualified school personnel will attend planning and all IEP meetings for the student. The agreement shall outline tuition, room, board, and other costs associated with the child's attendance. For children on an IEP who are placed by a state agency or a designated community mental health agency, or any other agency defined by the Secretary, in accordance with 16 V.S.A. § 2948, the agreement shall be with the Secretary. In the instance of an emergency placement, such provisions shall be agreed upon within 30 days of the child's enrollment.
(b) The Secretary shall consult with independent schools in Vermont and determine maximum rates for tuition, and room and board for residential placements. These rates shall be published each year by November 30. Any amount charged by an approved independent school for tuition shall not exceed the school’s actual or anticipated costs of providing special education services to the student and shall not exceed the maximum rates set by the Secretary, provided that the Secretary may permit charges in excess of the maximum rates if the Secretary deems it warranted.
(c) An approved independent school that enrolls a student with an IEP pursuant to Rule 2229.1 may bill the responsible LEA for the excess special education costs beyond those covered by general tuition. Reimbursement of the excess costs shall be based on the direct-cost rates approved by the Secretary for services actually provided to the student consistent with the Agency of Education Technical Manual for special education cost accounting.
(d) An approved independent school that enrolls a student under SBE Rule 2229.1 shall provide documentation to the Secretary in order to ensure that the amounts charged are reasonable in relation to special education services provided by the school.
2231.2 Agreement as to Non-Instructional Services.
In order to obtain approval to receive public tuition, an independent school shall assure the Board that within thirty days of enrolling a child with an IEP, the school will enter into a written agreement with the sending LEA or other responsible agency as to the division of responsibility for performance of non-instructional services, including compliance with special education procedural requirements. For children placed by a state agency or a designated community mental health agency, or another agency defined by the Secretary, this agreement shall be with the LEA that has educational planning responsibility for the child.
Section 2232 Rate Approval for Therapeutic Approved Independent Schools.
(a) The Secretary shall set, after consultation with independent schools, the maximum tuition rate to be paid by the Agency and supervisory unions or school districts to therapeutic independent schools. The rate for each therapeutic independent school shall be no more than the costs that are reasonably related to the level of services provided by the school.
(b) If a therapeutic independent school does not submit an application for rate approval by November 15, the most recent approved rate will be in effect for the following school year. The Secretary may review an approved rate at any time. An approved rate may be reviewed at any time on request of the school based on extraordinary circumstances. Therapeutic schools will supply information as requested by the Secretary.
(c) A therapeutic school’s most recently approved rate shall be adjusted annually by the Secretary according to the National Income and Product Accounts (NIPA) Implicit Price Deflator for State and Local Government Consumption Expenditures and Gross Investment as reported by the U.S. Department of Commerce, Bureau of Economic Analysis. The Secretary shall announce the inflation rate to allow for sufficient time for submission of an application for approval of a new rate under subsection (d) in the event the therapeutic school determines such an application is needed.[1] The annually-inflated rate shall become the most recently approved rate.
(d) A therapeutic school requesting a new rate shall submit an application for approval of a new rate to the Secretary by November 15 for tuition, related services, room, and board based upon the actual or anticipated costs that are reasonably related to providing educational services. Schools that also receive rates from the Agency of Human Services shall submit an application for approval of a new rate to the Secretary by May 1. Reported costs shall be only those that are net of other available restricted revenue sources. To demonstrate that the rate requested by the therapeutic school meets this standard, the therapeutic school shall submit to the Secretary the following:
(1) Costs for each of the following categories, reported at the general ledger account description level, submitted in accordance with the Generally Accepted Accounting Principles published by the Financial Accounting Standards Board:
(A) Salaries for all employees and full-time equivalents as applicable
(B) Program-related Contractual Services
(C) Operations-related Contractual Services
(D) General Operating
(E) Program
(F) Travel/Transportation
(G) Building – Direct
(H) Building – Allocated
(I) Admin I – Allocated
(J) Admin II – Allocated
(K) Fringe – Allocated
(2) The school’s proposed operational capacity, which shall be supported by a narrative that describes how the proposal reflects relevant circumstances including three-year historic enrollment, student acuity or changes in student acuity, availability of faculty and staff, physical space, anticipated demand for placements or change in anticipated demand for placements, and other considerations.
(e) A therapeutic school submitting an application for rate approval for the first time may submit the application at any time pursuant to this subsection.
(f) If the Secretary determines an application for new rate approval submitted under subsection (d) is incomplete, then the therapeutic school shall have 10 working days to complete the application following notice that its application is incomplete.
(g) The Secretary shall evaluate each element of the application for new rate approval submitted pursuant to subsection (d) and determine whether the school has demonstrated that the cost associated with each element is reasonably related to the level of services provided by the school. In determining whether a cost is reasonably related to the level of services, the Secretary will consider the following: direct-cost rates approved by the Secretary pursuant to 16 V.S.A. § 2973(b), costs approved for other therapeutic schools, regional differences in costs, demonstrated difficulty filling certified or licensed positions, tenure of faculty and staff, student acuity, educational model, students’ need for stability in educational placement, and other aspects of program and student need documented in the application.[2] Prior to conducting cost comparisons with applicant data, the Secretary shall:
(1) Establish standards for developing and applying a database of comparable information to be utilized in rate determinations, and publish the standards on the Agency’s website.
(2) Annually update the database of comparable information.
(3) Implement a procedure to document and retain the process and basis for each determination, including the comparable data applied.
(h) The Secretary shall determine the rate on a per-student basis by dividing the total costs determined in subsection (g) by the school’s approved operational capacity, which shall be determined by the Secretary from the information provided in subsection (d)(2).
(i) The Secretary shall notify a therapeutic school that has submitted an application for new rate approval pursuant to subsection (d) of the final rate approval by January 15.
(j) After the Secretary approves a rate for a therapeutic school, the school shall not exceed that rate until such time as a new tuition rate is approved by the Secretary. In the case of a service required by a student’s IEP that is not included within the school’s approved rate, the LEA shall decide whether to contract for the service with the therapeutic school. The LEA shall provide notice of its decision to the Secretary within 5 days.
(k) A therapeutic school that is not satisfied with the final rate may request reconsideration by the Secretary. Requests for reconsideration shall be made in writing to the Secretary within 30 days of the final rate approval. Upon receiving the Secretary’s answer regarding reconsideration, if the therapeutic school is not satisfied, it may file an appeal with the State Board in accordance with the requirements of SBE Rule 1230, et seq. Alternatively, a therapeutic school may appeal to the State Board pursuant to SBE Rule 1230, et seq. without first seeking reconsideration by the Secretary. The State Board's determination of the appeal shall be final.
2233 Standards and Regulations.
The State Board shall afford the opportunity for approved independent schools to participate in the development and revision of State standards that apply to independent schools.
Footnotes:
[1] The AOE will announce the inflation rate annually, beginning July 1, 2023. The inflator will be applied annually on November 15.
[2] The AOE expects to post its rate database on its web site in September. The rate report will be updated annually on June 30 (for Designated Agency rates) or November 15 (for other schools).