Program Review and Investigations Committee



<MeetMDY1> September 14, 2006


The<MeetNo2> Program Review and Investigations Committee met on<Day> Thursday,<MeetMDY2> September 14, 2006, at<MeetTime> 10:00 AM, in<Room> Room 169 of the Capitol Annex. Representative Tommy Thompson, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Ernie Harris, Co-Chair; Representative Tommy Thompson, Co-Chair; Senators Charlie Borders, Brett Guthrie, Vernie McGaha, R. J. Palmer II, Joey Pendleton, Dan Seum, and Katie Stine; Representatives Adrian K. Arnold, Dwight D. Butler, Rick G Nelson, Ruth Ann Palumbo, and Arnold Simpson.


Guests:  Kyna Koch, Associate Commissioner, Office of District Support Services, Kentucky Department of Education; Dr. Robert Tarvin, Director, School Facilities Construction Commission; Sharon Fields, Kentucky Disabilities Coalition; Norb Ryan, Kentucky ADA Coordinator.


LRC Staff:  Greg Hager, Committee Staff Administrator; Kara Daniel; Rick Graycarek; Margaret Hurst; Van Knowles; Perry Papka; Rkia Rhib; Deepsi Sigdel; Cindy Upton; and Jennifer Beeler, Committee Assistant; Program Review and Investigations Committee.  Mike Clark, LRC Chief Economist.


Minutes of the August 10, 2006 meeting were approved, without objection, upon motion made by Rep. Arnold and seconded by Sen. Pendleton.


Greg Hager, Program Review Staff, presented the report Planning for School Facilities Can Be Improved To Better Serve the Needs of All Students.


Mr. Hager stated that this study, which was initiated by the committee in November 2005, covers facilities in general but focuses on accessibility to educational programs by the disabled and growth districts.  He said that since this report was mandated by the committee, the Office of Education Accountability (OEA) completed a study of school facilities.  He stated that language accompanying the 2006 budget bill required the Kentucky Department of Education (KDE), in partnership with the School Facilities Construction Commission (SFCC), to conduct a comprehensive evaluation of the current facilities planning process.  He stated that the topics to be covered by that evaluation include growth districts and compliance with the Americans with Disabilities Act (ADA).  He stated that the final report is due September 30, 2006. 


Mr. Hager explained that state funding comprises 56 percent of the statewide funding for school facilities, but the state/local shares vary by district. In reviewing funding sources, he said that Facilities Support Program of Kentucky is the largest local source and SFCC funding is the largest state source.  He stated that the recallable nickel, growth equalization, and urgent need funding, although they may be significant in particular districts, are not a large percentage of funding statewide.


He stated that the district planning process for facilities starts with the Master Educational Facility Plan (MEFP), which serves as a comprehensive view of the overall program needs of the district and needed facility improvements.  He said that the local Board of Education is supposed to perform an annual review of the MEFP.  He stated that the District Facility Plan lists the needed construction projects and prioritizes them into four categories (priority 1 is the highest priority).  He stated that the District Facility Plan is to be updated every four years, but a district can get a waiver from KDE to not update.


Mr. Hager stated that KDE, in part based on information gathered at the district level, categorizes school buildings from 1 (excellent) to 5 (poor).  He added that this categorization has been used by the General Assembly to identify districts with urgent facility needs.


He discussed two federal laws that require programs to be accessible to disabled employees and participants, and members of the public if program services include them.  He explained this means that schools should not only be accessible for students and staff, but parents, guardians, or anyone who might participate in school activities such as attending a school play.  He stated that classification as disabled does not mean that you have to be permanently disabled, schools have to be accessible to those with temporary disabilities as well. 


Mr. Hager stated that the Rehabilitation Act of 1973 applies to programs receiving federal funds, which includes all Kentucky school districts.  He said that the provisions for public schools are to provide education to each qualified person regardless of disability, to educate disabled students alongside students who are not disabled to the maximum extent appropriate, and to take steps each year to notify every qualified disabled person in the jurisdiction of the school’s duties under the law. 


He stated that the law distinguishes between existing and new facilities. For facilities that were in existence as of June 3, 1977, the mandate is that the program, when viewed in its entirety, be accessible.  In practice, this means that every building in existence did not necessarily have to be accessible, but the district had to provide accessibility to the programs in an inclusive way.  He stated that if structural changes were needed, there was to be a transition plan and any needed changes were to be completed by 1980.  He stated that new facilities or additions begun after June 1977 must be readily accessible to and usable by disabled persons. 


Mr. Hager stated that the Americans with Disabilities Act is much better known, so when people talk about disabilities compliance they say ADA compliance, but for schools that would also encompass compliance with the Rehabilitation Act.  He explained that ADA applies to all programs and businesses, and many of the provisions are similar to those of the Rehabilitation Act.

He stated that ADA also distinguishes between existing and new facilities.  Existing facilities as of January 1992 are to operate so that each service, program or activity is accessible when viewed in its entirety and there is a timetable for making structural changes.  He said that facilities begun after January 1992 are to be accessible.


Mr. Hager explained that for any new construction, compliance with the Uniform Federal Accessibility Standards or the ADA Accessibility Guidelines (ADAAG) meets the minimum accessibility requirements of both laws.  He stated, however, that conformance to these standards, which are based on adult dimensions, does not guarantee accessibility.


He stated that the ADAAG for Building Elements Designed for Children’s Use and ADAAG for Play Areas are not mandatory but both are consistent with requirements that facilities be accessible to disabled children.  Recommendation 2.1 is that KDE should require school facility designers to use these two sets of guidelines when constructing or renovating elementary school facilities, particularly those with preschool programs.


He stated that enforcement of ADA is similar to other civil rights laws, in that it is complaint driven.  At the national level the official complaint process is through the U.S. Department of Education.  The department tries to work with the school district to resolve the issue, but has the authority to cut off or reduce federal funds and refer the matter to the Department of Justice.  He stated that for existing facilities people can also bring their complaints to schools,  the Kentucky ADA Coordinator, and the Kentucky Protection and Advocacy Office.  Private legal action is also an option.  He stated that for new buildings or renovations the Kentucky Building Code incorporates ADAAG, and KDE reviews schools’ plans as part of the planning process.


Mr. Hager stated that other means of enforcement are used in other states.  For example, Kansas incorporates ADA into state law, which allows more cases to be brought in state court. Kansas allows specific state and local officials to seek civil penalties and request an injunction from a court requiring a facility to be in compliance with the law.  Recommendation 2.2 is that if it is the intent of the General Assembly to create other means of enforcement of disability laws, statutory authority could be granted to local or state officials to bring enforcement actions in local courts seeking injunctive relief and civil penalties.


Mr. Hager stated that there is no definitive data on compliance with accessibility laws in Kentucky.  He stated that based on the age of school buildings since their most recent construction or major renovation, at least 184 schools are unlikely to be accessible.  Recommendation 2.3 is that KDE should revise the evaluation form used to gather information about the condition of school buildings so that it includes more information about the accessibility of a building and is a more sensitive evaluative tool. Recommendation 2.4 is that KDE should amend its Master Educational Facility Plan Guidelines and School Facilities Planning Manual to require local planning committees to consider federal disability laws and the district’s responsibility to serve disabled students when developing the Master Educational Facility Plan and the District Facility Plan.


He stated that to levy the growth nickel, among other requirements, a district must have growth that exceeds 150 students and is at least 3 percent over a 5-year period.  He stated that staff looked at districts that would qualify as growth districts based on the 150 student/3 percent rule for the period 2000 to 2005.  He stated that this does not include all districts that have qualified as growth districts or imply that these districts levy the growth nickel. 


Mr. Hager stated that the report noted two basic approaches for addressing the needs of growth districts: distinguishing between types of districts and exploring alternatives to 5-year/3 percent/150 student definition.


He stated that some districts stand out when looking at growth over the 2000 to 2005 period.  Two districts had the largest increases when considering the combination of change in number of students and percentage change.  Boone County was up about 2,900 students in the 5-year period, which is about a 25 percent increase. Oldham County was up about 1,700 students, a 22 percent increase.  He said that Williamstown Independent is an example of a district that grew in percentage terms, 24 percent, but this was not a large increase in the number of students.  He stated that enrollment in Fayette County was up, but because it is a larger district, an increase of 1,000 students represented about 4 percent growth.  He said that Jefferson County had a relatively large increase in the number of students, but this represented a growth rate of less than 3 percent.


Mr. Hager stated that in the report three districts were analyzed to represent different patterns of growth over recent years.  Boone County represents districts that grew every year.  Madison County represents districts that may have had decreases in enrollment in some years, but there were increases most years.  Carter County represents districts with several years of decreases in enrollments, followed by years of growth.


Mr. Hager stated that the report discusses best practices for facilities in general by using a framework of seven recommended policies put together by the Building Educational Success Together collaborative (BEST).  He said staff chose the BEST policies as the framework because they were consistent with other practices and were well articulated.  He stated that staff integrated discussion of accessibility within each policy area and identified example states when feasible.


Mr. Hager stated that the first BEST recommended policy is that districts develop long-range –at least 10-year– educational facilities master plans, which would include goals, standards and guidelines; instructional programs and services; capacity and utilization; community analysis; facility inventory and assessment; historical and projected enrollment; analysis of and options for addressing facility needs and requirements; potential sources of funding; and discussion of how the public will be involved.  He stated that an ADA facility master plan can be incorporated.  Recommendation 3.1 is that KDE should require that each school district prepare a comprehensive, long-range educational facilities plan that is regularly updated.  The plan should encompass achieving and maintaining compliance with ADA and providing access to the disabled.  Each district’s long-range facilities plan should be coordinated with its capital improvement plan and should be approved by the department. 


He stated that Kentucky school districts’ Master Educational Facility Plans include some of the elements of the BEST long-range plan and the capital plan is to be coordinated with the master plan.  The recommendation is that the plans be comprehensive and regularly updated and that accessibility be specifically included in the planning.


Recommendation 3.2 is that KDE  should conduct a statewide inventory and an assessment of long-term educational facilities needs that are updated regularly.


He cited West Virginia as an example for long-range planning in general and New Jersey as an example for planning for access for the disabled.


Mr. Hager stated that there should be coordination of planning among local entities. Recommendation 3.1 would encompass coordination of planning of school facilities with other local planning.


He stated the third BEST policy recommendation is that there be a comprehensive maintenance plan, which includes staffing and responsibilities, services provided by district and contract staffs, an inventory of facilities and their condition, a schedule for preventive maintenance and potential replacement, a process for handling unscheduled maintenance, deferred maintenance, and relevant budget information.  He cited Arizona as a state with a comprehensive maintenance plan.


Recommendation 3.3 is that KDE should require each school district to prepare a comprehensive maintence plan.  The plan should encompass maintaining compliance with ADA and providing access to the disabled. 


He stated that the fourth policy recommendation is that there should be a capital improvement plan that identifies projects with funding and plan for implementation.  He stated that Kentucky districts do have capital improvement (District Facility Plans).


Recommendation 3.4 is that KDE should require each school district to prepare a capital improvement plan that uses information from its long-range educational facilities master plan and its comprehensive maintenance plan.


He stated that there should be attention in the planning process to sharing facilities.  This includes sharing school facilities in other districts, but also encompasses sharing facilities within the district with other public entities such as senior citizen centers, libraries, and parks.  He cited Washington as an example because there it is mandatory to consider use of suitable facilities in contiguous school districts.  Recommendation 3.5 is that KDE should encourage school districts to examine opportunities for sharing facilities with other districts and with other public entities within the district.


He stated that there should be an open public process for all major decisions related to school facilities, but there is no evidence that this is not occurring in Kentucky.


Mr. Hager stated that the final BEST policy recommendation is that there should be technical assistance from the state for local school districts.  He cited two states as examples: Connecticut, in general, and Illinois, specifically in terms of accessibility.  He stated that the evidence is that KDE does a good job overall in providing technical assistance to school districts but given all the changes that are likely to be occurring, technical assistance will be even more critical. Recommendation 3.6 is that KDE should provide sufficient technical assistance to school districts to ensure that all are in compliance with guidelines for facilities.


Recommendation 3.7 is that KDE should provide guidelines and technical assistance to local school districts to ensure compliance with safety and accessibility standards.  The recommendation includes the Compliance with the American’s with Disabilities Act guide as an example of a tool that could be used to assist school districts in complying with ADA and providing access to the disabled.


Sen. Seum asked in reference to Facilities Support Plan of Kentucky having 29 percent of the local funding if that consisted of property tax revenue.


Mr. Hager stated that it is an equivalent tax and the percentage is based on property taxes.


Sen. Seum asked if all property taxes for school facilities remain local.


Mr. Hager stated that they do.


Sen. Seum asked about the source of the SFCC’s funding.


Mr. Hager stated that the bonding authority for the SFCC is appropriated by the General Assembly and comes from the General Fund.


Sen. Seum asked for clarification that the growth nickel is to address the needs of a growth district, specifically whether the money raised stays in that district.


Mr. Hager stated that it did.


Sen. Stine noted the report should be clearer that while overall state funds comprise a larger share of total facility funding than does revenue from local sources,  the reverse would be true in many districts.  She said that it would be useful to see an analysis of how property assessment varies across the state because districts that do a better job of raising local revenue could get less state assistance than districts that raise less revenue by undervaluing property assessments. 


Sen. Stine stated that in regard to larger districts with increases in students that are large in terms of numbers but that represent a small percentage, this is still a large group of people who need services.  She indicated that there could be a problem with how growth is defined. 


Sen. Stine asked why, given that schools were to have plans in place to be accessible to the disabled by 1980, that not enough has been done so that all schools are in compliance with ADA.


Mr. Hager stated that KDE officials could better address the question, but he assumed it was a matter of prioritization of available funding.


Sen. Stine asked if there was a lack of standardization in the assessment process.


Mr. Hager stated that the report did not specifically address that, but districts have to prioritize not only facilities funding, but education funding in general.


Sen. Stine stated that this is an issue that has been ignored, but the bottom line is if the state is going to comply with the No Child Left Behind, then everyone needs to be able to get into the buildings.


Sen. Palmer asked if in Kansas, which was referenced as a state that used another means of enforcement to comply with state law, the system is still complaint driven.


Mr. Hager replied yes.


Sen. Palmer stated that you just move the place in which you file the complaint.


Ms. Daniel stated that this was correct but an addition in Kansas is who can bring the action.  Under ADA there is a disabled individual bringing the action.  Under Kansas law, officials are also designated to pursue legal action.


Sen. Palmer asked if there is any state that takes a proactive approach.


Ms. Hurst stated that Texas is an example of a state that is compliant with accessibility standards, and children’s dimensions are used for elementary schools and pre-schools.  New Jersey is also a good example.


Sen. Palmer stated that it was addressed in Recommendation 3.3, but there are inspectors that check to make sure ventilation plumbing are correct, but there is no proactive way to make sure that a school is accessible for handicapped students.


Ms. Hurst stated that Kentucky has not emphasized accessibility as part of inventory and needs assessment, but that this is likely to change.


Sen. Palmer asked if there is any knowledge of how many complaints have been filed against the 184 Category 4 and 5 schools.  He stated that there are potentially 184 schools that some students are unable to access.


Mr. Hager stated that no one seems to compile ADA-related complaints for Kentucky.


Sen. Palmer asked if the definition of a growth district takes into consideration the district’s facilities capacity. 


Mr. Hager stated that there are additional criteria for districts that meet the 150 student/3 percent rule, but the other criteria do not come into play until the growth in student population. One criterion is that there is supposed to be insufficient existing capacity.


In response to the report, Kyna Koch complimented staff for professional and objective work.  She said that the recommendations of the report are welcomed.  She stated that there is ongoing work in the area of facility evaluation; a task force has been working diligently.  She said the task force is made up of local district people, superintendents, finance officers, representatives of the SFCC, architects, fiscal agents.  She stated that the recommendations in the Program Review report are closely aligned with the recommendations coming from the task force.  She stated that this is just the beginning of the work because after the report is forwarded to the General Assembly, KDE will be coming through the state Board of Education and through the SFCC with a legislative agenda for 2007 to recommend statutory changes related to planning and funding.  She stated that administrative regulations will need to be changed, which will take some time.  She explained that the current task force has agreed to remain together and have regular monthly meetings.  She stated that the bottom line from the KDE is they agree with the recommendations in the Program Review report and most of the recommendations in the report are similar to those coming from the task force.


Rep. Thompson asked about the patterns of complaints KDE has received in any measurable period, in particular those from Category 4 and 5 schools.


Ms. Koch stated that the complaints would come from parents and KDE does not have a tracking measure, but is taking steps to fix that.  She stated that a school may not be accessible now, but may not have any children that need accessibility.  She said that is the dilemma that they are trying to prevent with school districts.  She said for existing facilities, not all districts have taken on the issue of ADA unless they have students that need accessibility.  She stated that it is a matter of resources.  She stated that as part of the planning process, districts have always had to categorize or prioritize the work that they want to do in the district.  She said specific categories for ADA and Life Safety will be added, so that statewide needs related specifically to these can be identified. 


Dr. Tarvin stated that has a different perspective on accessibility, being the parent of a handicapped child, and having been an administrator in a school.  He stated that all schools are hard pressed for resources.  He said in the 1990s, there were three bienniums in which the SFCC  had less than $50 million statewide for bonding authority, so local admistrators had to prioritize where the money should go.  He stated that one approach would be to restrict the district from putting money in a new building if it has not fixed ADA.  He added that this would bring a lot of resistance from many local administrators and school board officials if this requirement were put in place without a funding mechanism.  He said that local taxing authority similar to the process  for growth districts could be authorized.  He stated that there is a position that if this issue is emphasized by the state, then the state should provide funding.  He concluded by saying that overall Kentucky is doing well in terms of facilities.


Sen. McGaha asked whether, given that in the past two or three budgets there has been money set a side for new school buildings, there is nothing to worry about as far as ADA guidelines for new facilities.


Ms. Koch stated that all new facilities have to meet ADA guidelines.


Sen. McGaha stated that the main worry is Category 3, 4, and 5 schools.  He stated that renovating a school to be totally accessible is expensive.


Sen. Stine asked if SFCC was connected to the Finance and Administrative Cabinet.


Dr. Tarvin stated that was correct.  He stated that SFCC is a freestanding corporation governed by a nine member commission.  He stated that it is attached to the cabinet for administrative purposes. 


Sen. Borders stated that there should be local authority and capacity for building.  Given local differences, having one plan for the whole state is unrealistic.


Rep. Thompson asked how much money is available this biennium to address the Category 5 schools.


Dr. Tarvin stated that as a result of the budget bill, there is an Urgent Needs Advisory Committee.  He stated that committee’s job is to make recommendations to the SFCC  on how money should be allocated for this biennium.  He said that the committee has decided to use the results of the task force’s study as a way of creating guidelines for the SFCC to consider.  He stated that if the guidelines say that the bulk of the available money should be spent on the lower category schools, they would make a considerable impact. He said that the budget has $50 million of bonding potential and $5 million of cash that can be used in the next year of this biennium to deal with variety of issues, plus $100 million that is to be funded in the next biennium but is to be allocated this biennium.


Sen. Palmer asked if the report of the task force is due September. 30.


Dr. Tarvin replied that is correct.


Sen. Palmer stated that he looks forward to hearing that report.  He said that one of his frustrations is that the state gives local school districts autonomy to run their schools, but micromanages the way they fund it locally.


Sen. Stine stated that local decision making is good, but there needs to be local responsibility as well. If local entities are not living up to their responsibilities, then the state should be able to step in, in a partnership arrangement.


Ms. Fields stated that although a school may not have anyone with a disability, something can happen that there would need to be accessibility.  She said that all schools were to have been accessible since 1980.  She stated that some changes may be expensive, but something that the ADA required was a transition plan, and in that transition plan every school was to identify those barriers, and estimate the cost to make that school accessible and also have a target date that barriers were to be removed.  She stated that the emphasis placed on accessibility in the early 1990s has decreased so there is no longer sufficient emphasis or priority on making facilities and programs accessible. 


Ms. Fields stated that the Kentucky Disabilities Coalition has a contract with the state Board of Elections to survey every polling place in the state, many of which are in schools.  She stated that this is not an evaluation of the entire school, but just what needed to be done, if anything, to ensure accessibility for election day. She explained there are many schools that do not meet simple requirements such as accessible parking spaces.  She stated that many schools have accessible entrances but they are not the main entrance or the entrance typically used, and it may be through a door that is kept locked.  She said that in looking at accessibility and drawing up guidelines or checklists for schools, there should be input from those with disabilities.


Mr. Ryan stated that the Office of the ADA Coordinator is active in responding to complaints about accessibility of schools. He stated that typically they visit schools regarding complaints twice a month and each school is to write a transition report and make changes to make the school accessible.


Rep. Thompson stated that in members’ folders there are study proposals for two topics chosen for study in August: siting of electric transmission lines and trading of pollution emission credits.


Meeting adjourned at 11:55.