Bowen testimony in opposition to increase transparency to superintendents’ agreements

The Maine Legislature’s Education Committee held a public hearing March 25 on legislation that provides that, among other provisions, if the commissioner of education allows a student transfer that was not approved by the superintendents,  the commissioner is required to provide a written description of the basis of the commissioner’s determination that the transfer is in the best interest of the student.

Education Commissioner Stephen Bowen delivered the following testimony opposing LD 791, An Act to Increase Transparency and Improve Equity in Appeals to Superintendents’ Agreements.

Testimony of Stephen Bowen, Commissioner of Education

Senator Millett, Representative MacDonald, and Members of the Joint Standing Committee on Education and Cultural Affairs:

My name is Stephen Bowen, I am the Commissioner of Education for the State of Maine, and I am here today representing the Department speaking in opposition to L.D. 791 An Act to Increase Transparency and Improve Equity in Appeals to Superintendent’ Agreements.

Title 20-A, Section 5205, sub-section 6, paragraph A, allows two superintendents to transfer a student from their home school administrative unit to another administrative unit if they find that the transfer is in the best interest of the student and if the parent agrees.  The best interest of the student is the only consideration in the law.  To assure that the best interests of the student are considered, the existing statute, in paragraph B, allows parents to appeal a transfer denial to the Commissioner of Education.

The bill before you seeks to do three things.

First, in the event the Commissioner seeks to overturn the denial of a transfer at the superintendent level, the Commissioner would be required under the proposed language to “provide a written description of the basis of the Commissioner’s determination that the transfer is in the best interest of the student.” On its face, this is not an unreasonable request, and is a change to the law that the Department could support, on the condition that the proposed language is further amended to require superintendents, in their letters of denial, to likewise describe, in writing, why the transfer being sought is NOT in the best interests of the student. It hardly seems fair that superintendents refusing a transfer request have no obligation to explain their reasoning to families seeking such transfers while the Commissioner is required, in turn, to explain his or her reasoning to the superintendents.

Second, the bill would allow superintendents to appeal the Commissioner’s determination in such cases to the State Board. The proposed language does not describe the grounds upon which such appeals to the Board can be made, but assuming that the intent of the law is to have the Commissioner’s “best interest” determination appealed to the state board, this may be yet another provision of the bill the Department can support. I, for one, am fully prepared to defend my determination of the student’s best interest for any of the cases that have come before me.

If, however, the intent of the language is instead to allow superintendents to defend their denials on the grounds of some type of extenuating circumstances—arguing to the state board that the transfer of a special education student is a financial burden to the districts and should thus be denied, for instance—there is no way the Department can support such a provision. Clear standards for these appeals, consistent with the “best interest” language of the existing law, must be in place to provide guidance to families, superintendents, the Commissioner and the Sstate Board. Absent those clear “best interest” standards, the Department cannot support this provision of the bill.

The Department would further request that if this provision of the bill is to be moved forward, the Committee further amend the bill to insert appropriate timelines, in order to ensure that the appeals process takes place in a timely fashion.  In many of the cases that have been appealed to me, parents are looking to transfer their children for reasons of social, physical and emotional health, and parents are often anxious to make such transfers happen quickly. Adding an appeal to the State Board to the existing transfer request process obviously extends the timeline of these transfer proceedings, and we would ask that some standards for responsiveness be put into the law to expedite the process for the sake of the families involved.

Third, the bill contains a provision requiring the state to reimburse the receiving school administrative unit’s “actual costs for implementing the transfer order”.  This provision of the bill is unclear in its intent. If the intent is for the state to cover the SAU’s costs for handling the administrative costs of the transfer process or paperwork, that is one thing. If the intent is for the state to cover the actual costs of educating the student once transferred, that is another.

If the intent is the former—that the state is to reimburse the administrative costs for these transfers—this would require the Department to develop some type of detailed expense report for districts to complete and would also require that the legislature identify a fund from which reimbursement payments to SAU’s can be made.  The Committee would also need to specify more clearly whether such transfer costs are only to be covered in the event that the Commissioner overturns a transfer denial, or whether all transfer costs for all transfers between SAU’s are to be covered by the state.

If the intent of the bill is the latter—that the state is to cover the actual educational costs of the transferred student—that raises a whole host of issues.

Under current law, when a student transfers from one SAU to another, that student is considered a resident of the SAU to which transferred. State allocation for that student does eventually follow that student to the new SAU, but this adjustment does lag behind the actual transfer of the student because of the nature of attendance reporting to the Department and so forth. One solution might be to have the state immediately make the subsidy adjustment upon implementation of the transfer, meaning that adjustments to monthly subsidy checks from the state —decreasing allocation for the sending district and increasing it to the receiving district—could happen within a few weeks of the actual transfer. Taking this approach could potentially mean SAU’s would see adjustments to subsidy checks every month, which would likely create uncertainly and confusion at the SAU level and would obviously mean more work at the state level to manage district attendance and funding allocations in real time.

Even with such a change, state subsidy would be the only source of funding that would move with the student to the new district. If the intent of the law is that the total cost of the transferred student is to be borne by the state, the committee will need to identify a fund from which such reimbursements can be made, and will need to make other changes to the proposed language for the sake of clarifying legislative intent.

  • Is it the Legislature’s intent that the only transfer students to be fully funded by the state would be those that result from a commissioner’s overturning of a superintendent’s denial? If so, what is to prevent superintendents from denying every transfer request, and thus securing 100 percent state funding for students transferred by virtue of an appeal to the commissioner? Why would any superintendent work with families to arrange a transfer—which is done today in the overwhelming majority of transfer cases—when a denial and appeal to the commissioner might result in 100 percent state funding for the transferred student?
  • There is also the issue of state allocation to both SAU’s under such a scenario. If a student is transferred though a commissioner’s actions, with the result that the state is now fully funding the transferred student, how is the Department to handle state allocation to the impacted SAU’s? Is the sending SAU to continue to receive state allocation for a student that it is no longer educating?  Is the receiving SAU to receive both 100% state funding for the transferred student and the state allocation for that student once that student is “counted” in the SAU’s attendance count for purposes of state subsidy? In short, how is the transferred student to be treated under the school funding law, and again, what impact will that have on the transfer decisions made at the SAU level? Isn’t it possible that SAU’s will make concerted efforts to recruit transfer students from other districts in order to gain 100 percent state funding for every one of them that transfers?
  • There is also the issue of the duration of state funding under this provision. Is it the intent of this legislation that a student transferred “pursuant to the commissioner’s order” be reimbursed by the state for the duration of the transfer, meaning for as long as the student remains transferred to the receiving SAU?  If a student transfers under such an arrangement in first grade, is it the intent of this legislation that the district to which the student transferred receive 100 percent state funding for the student for every subsequent year they remain transferred until the student graduates?
  • What if the family actually moves to the receiving district and become residents there? Does 100 percent state funding continue or not?
  • What if the family moves to another SAU but wishes for the student to remain in the receiving SAU?  Would another transfer request need to be made with the new SAU, and if it is approved and not appealed to the commissioner, does the 100 state funding remain in place or not?

In summary, there are elements of this bill that are worth further exploration, especially as it regards the transparency of the decision-making process at both the district and state level. Because there are so many unanswered questions at this point, however, the Department remains in opposition to LD 791 An Act to Increase Transparency and Improve Equity in Appeals to Superintendents’ Agreements.

I would be happy to answer any questions the Committee may have, and I will be available for work sessions on this bill.